2 0 1 0 M L D 1 4 7 7
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
TUFAIL MUHAMAMD ---Petitioner
Versus
JOINT ESTATE OFFICER ---Resp ondent
Civil Revision No. 275 of 2007, decided on 8th October, 2009.
Central Government Land and Buildings (Recovery of Possession) Ordinance (IV of 1965) ---
----Ss. 5, 6 & 9 ---Specific Relief Act (I of 1877), Ss. 42 & 54 ---Suit for declaration and
permanent injunction ---Eviction of unauthorized occupants of government property ---Suit
had been concurrently dismissed by the Trial Court and Appellate Court ---Main contention
of the plaintiff was that he was lawful allottee of the flat in question, rent of which was
regularly deducted from his salary; and that the defendant/Federal Government had no
concern with the flat as same was never surrendered in pool of the Federal Government ---
Defendant/ Joint Estate Officer who was trying to obtain possession of flat in question
under provisions of Central Government Land and Buildings (Recovery of Possession)
Ordinance, 1965 had alleged that no allotment order in respect of allotment of flat existed in
favour of the plaintiff and he being unauthorized occupant w as not entitled for allotment of
the same ---Plaintiff had failed to place any allotment order in his favour, while it was proved
that the flat in question had been placed in pool of Federal Government who was competent
authority ---Claim of the plaintiff in respect of allotment of flat in his name had been rejected
up to the Supreme Court in previous round of litigation which had shown mala fide on the
part of the plaintiff as he concealed said material fact from the courts ---Plaintiff had only
succeeded to get favourable orders and gained a lot of time to retain the flat in question with
the help of litigation, which was not only objectionable, rather unfortunate ---Due to such
conduct of the. plaintiff he deserved no leniency as he made abuse of process of l aw and
remained in possession of flat in question for more than ten years unauthorizedly ---Suit filed
by the plaintiff had rightly been dismissed concurrently by the courts below ---No illegality or
material irregularity had been pointed out by the plaintif f on basis of which concurrent
judgments of the courts below could be interfered with by the High Court ---Concerned
authorities must adopt the mode of recovery of possession of flat in question as provided in
S.6 of Central Government Land and Buildings (R ecovery of Possession) Ordinance, 1965 ---
Petition was dismissed.
Sheikh Ghulam Ahmed for Petitioner.
Muhammad Afzal Jami, D.A.G. for Respondent.
ORDER
MRS. SYEDA TAHIRA SAFDAR, J .---The petitioner has filed present petition seeking
revision o f order dated 10 -4-2007 made by Additional District Judge -II, Quetta and judgment
made on 29 -11-2006 by Senior Civil Judge -I, Quetta, whereby both the courts dismissed the
appeal and the suit filed by him. It is his contention that keeping in view of natur e of his
duties Flat No.5 -A/19 in Customs Colony, Airport Road, Quetta was allotted in his favour on
19-7-1997, while the rent of the same is regularly deducted from his salary. Further, despite
this fact that the respondent has no concern with allotment o f flat in question issued a notice
dated 28 -8-2003 to him with direction to vacate the flat within 24 hours, otherwise the same
will be got vacated through police force. On receiving of the same he filed a Civil Suit
bearing No.158 of 2003 in September, 20 03 praying thereby declaring the notice as illegal,
while the defendant/present respondent be restrained from initiating action against him in
respect of his eviction from flat in question and notice be also withdrawn. The suit was tried
and decided by the trial Court through judgment made on 29 -11-2006, whereby his suit was
dismissed.
Being aggrieved of the same he preferred appeal which was decided by Additional District
Judge -II, Quetta, through order made on 29 -11-2006, whereby he dismissed the appeal and
upheld the order of the trial Court.
Being aggrieved of the findings of both the courts the petitioner filed present petition praying
for setting aside of impugned orders thereby allowing his prayer made in main suit on
grounds that the impugned ord ers are contrary to law and facts. The trial Court failed to
appreciate the evidence and documents properly. The appellate Court also failed to take into
consideration the documents brought on record through representative of the Customs
Department. The co urts below failed to appreciate the facts that as per letters dated 16 -10-
2006 and 8 -11-2006 the matter of execution of sale -deed is still pending between the
Collector of Customs and Q.D.A, therefore, the question of handing over of the colony to
responde nt's pool does not arise, nor the colony ever remains in pool of respondent. Further,
the appellate Court wrongly concluded that he (petitioner) is not entitled for allotment of flat
in question. Despite admission of the Department about allotment of the h ouse/flat to him
wrong conclusion was drawn by both the courts.
The counsel for the parties are heard at length, while the record is perused. The written
arguments filed by the petitioner on 18 -9-2009 are also considered. The main contention of
the petit ioner is to the effect that he is lawful allottee of flat in question as such the rent is
regularly deducted from his salary, further the respondent has no concern with the property in
question, as the same is never surrendered on his pool. The learned cou nsel for the petitioner
mostly relied on letter dated 22 -1-2002 along with detail of Custom Colony and letter dated
11-3-2008. He also questioned the authority of the respondent as having no concern with
property in dispute. On the other hand the learned c ounsel for the respondent raised objection
on maintainability, as it is hit by Res judicata, as the petitioner is raising the same issues as
raised in first round of litigation. According to him there is no allotment order in favour of the
petitioner, who otherwise is not entitled for allotment of the same.
The perusal of record reveals that the petitioner filed a Civil Suit bearing No.158 of 2003
seeking declaration and permanent injunction against the respondent, to the effect that notice
issued on 28 -8-2003 for handing over vacant possession of flat in question is illegal, while
the defendant/respondent be restrained from initiating action against him for taking vacant
possession of premises in question thereby directing him to withdraw the notice. The
petitioner challenged the authority of the respondent as the property in question does not exist
on pool of Estate Office. The respondent/defendant in written statement denied the
contention of the petitioner/plaintiff, while asserted that as the plaintiff / present petitioner
is employee of Federal Government, therefore, the Estate Office is the authorized
department for allotment of accommodation. Further, the petitioner got the possession
illegally. The suit was tried and decided by the trial Court throug h order made on 29 -11-
2006, whereby dismissed the suit with findings that the petitioner/ plaintiff has failed to
place any allotment order in his favour, while it is proved that the flat in question has
been placed in pool of defendant/respondent, who is competent Authority to allot the
accommodation under the rules, thus the notice in question is legal. Being aggrieved of
the same the petitioner preferred Appeal bearing No.70 of 2006, which was heard by
Additional District Judge -II, Quetta, while decided through judgment made on 10 -4-2007,
whereby the learned Judge dismissed the appeal at costs of Rs. 5000, while upheld the
judgment of trial Court. Hence present revision petition whereby the petitioner seeks
setting aside of both the judgments while allowi ng his prayer made in main suit.
The petitioner claims himself to be lawful allottee of premises in question i.e. Flat No.5 -
A/19 situated at Customs Colony, Airport Road, Quetta, since July, 1997, while rent is
also deducted from his salary. The responde nt on the other hand though denied the
allotment in his favour, but admitted deduction of rent from his salary. Though during
course of arguments reference is made to the previous round of litigation between the
parties, but the bare perusal reveals that t he present revision petition as well as the plaint
in main suit is silent to this effect. Rather the perusal of record reveals that on 24 -11-2008
the petitioner was directed to file certified copy of judgment made in Civil Suit No.77 of
1999. In compliance of the same the petitioner filed judgment made on 13 -3-2000 by the
trial Court i.e. Senior Civil Judge -II, Quetta, who dismissed the suit. While order of the
learned Additional District Judge -II, Quetta made on 30.6.2001, whereby the appeal was
dismissed upholding order of the trial Court, whereafter, the petitioner (Tufail
Muhammad) approached this Court by filing Revision Petition bearing No.304 of 2001,
which was also dismissed in limine through order made on 29 -10-2001. The perusal of
these judgments r eveal that the previous suit was filed by the present petitioner namely
Tufail Muhammad in respect of premises in question i.e. Flat No.5 -A/19 Customs
Colony, Quetta, when a notice for vacation of the same was issued to him by Assistant
Estate Officer. In said case the plaintiff/present petitioner though claimed himself allottee
of premises in question, but on completion of trial the learned trial court comes to the
conclusion that the disputed house was never allotted to the plaintiff and he is residing in
the same without permission of defendant No.1, thus he is not entitled to the relief as
claimed for. These findings are upheld up to the level of this Court. Being aggrieved of
the situation the petitioner also approached the Honorable Supreme Court, who through
order made on 21 -2-2002 dismissed the petition being barred by time, while leave to
appeal was declined. It is further apparent from record that after said order the concerned
department again issued notice dated 28 -8-2003 for handing over vacant p ossession of
flat in question to the petitioner, who again approached the courts, while without
disclosing the fact and fate of previous litigation, obtained favourable orders, but at last
his suit and appeal are rejected, which are presently impugned befo re this court. This
shows mala fide on part of the petitioner, as he concealed material facts from the Courts,
he not only succeeded to get favourable orders, rather he succeeded/gained a lot of time
to retain the premises in question with the help of the courts, which is not only
objectionable, rather unfortunate.
Presently the petitioner relied mostly on letter dated 1 -3-2008 along with a list containing
details of residents in houses in Customs Colony, further on a certificate issued in his
favour by A ssistant Collector bearing date 11 -3-2008, which is also issued on basis of
letter dated 1 -3-2008. In addition he fully stressed on fact that the sale -deed in respect of
said colony between the Customs Department and Q.D.A has been effected in year, 2008.
He also produced copy of said sale -deed executed on 25 -6-2008, on the basis of it he
challenged the authority of respondent. It may be so this fact does not give any help to the
petitioner as he has to establish his entitlement irrespective of the same. As far as said
letter and certificate are concerned, in absence of any valid allotment order in favour of
petitioner issued by the concerned Authority, does not serve the purpose, as from bare
perusal it is apparent that both the said letters and certificate are issued without consulting
the relevant record. The officers who prepared the same must remain careful while
preparing or issuing any sort of certificate in favour of any person, so that wrong
statements may not be issued, which otherwise effect the ri ght or authority of the
Department. The main question on which his case is based, is that whether the premises
in question was ever allotted in favour of the petitioner by the competent Authority.
During course of arguments this question was specifically p ut to the learned counsel for
the petitioner, who completely failed to give any specific reply in same respect. This issue
is specifically decided in first round of litigation on basis of evidence produced by the
parties and also admissions made by the pre sent petitioner. While presently the
subordinate Courts. again fully discussed this issue and on basis of material placed on
record decided the same and thereby held that as no legal allotment order issued in favour
of the petitioner, therefore, he is not entitled to hold the possession of premises in
question. No such illegality or material irregularity in the same is pointed out by the
petitioner on basis of which judgments of subordinate courts can be interfered and
thereby reversed.
In addition to the same it is to be noted that the concerned Authority is trying to obtain
possession of premises in question under provisions of Central Government Land and
Buildings (Recovery of possession) Ordinance, 1965. At present they have only issued
notice to the p etitioner on 28 -8-2003 under section 9 of Ordinance -IV of 1965, further
proceedings are not made on it. Section 5 of the Ordinance -IV of 1965 provides
procedure for eviction of unauthorized occupants, which speaks as under: -
"Eviction of unauthorized occ upant .--(1) If the Central Government is satisfied
after making such enquiry as it thinks fit that a person is an unauthorized occupant
of any land or building, it may, after giving such person an opportunity of being
heard, by order in writing, direct suc h person to vacate the land or building within
the period specified in the order.
(2) If any person refuses or fails to vacate any land or building as directed by an
order under subsection (1), any officer authorized in this behalf by the Central
Governm ent may, notwithstanding anything contained in any other law for the
time being in force, enter upon such land or building and recover possession of the
same by evicting such person and may also demolish and remove the structures, if
any, erected or built by that person."
Thus in view of the same the proceedings are to be held against the petitioner under this
section, as it has already been held by the courts that no valid or legal allotment order
exits in favour of the petitioner, thus he being the unau thorized occupant has to evict from
remises in question. Notice as required has already been given to him, while his
contention is heard by the concerned Authorities during all these years, which is more
then sufficient. Due to his conduct he deserve no le niency, he made abuse of process of
law and remain in possession of flat in question for more than ten years. The concerned
Authorities must adopt the mode of recovery of possession as provided in section 6 of the
Ordinance IV of 1965.
There is no merits in the petition, which is hereby dismissed with costs. The impugned
judgments of trial Court and appellate Court are hereby upheld.
H.B.T./42/Q Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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