2012 P L C (C.S.) 1530
[Balochistan High Court]
Before Mrs. Syeda Tahira Safdar, J
MUHAMMAD HASSAN BALOCH
versus
DIRECTOR, MANPOWER TRAINING and another
Civil Revision No.366 of 2010, decided on 11th September, 2012.
Specific Relief Act (I of 1877) ---
----Ss. 42 & 54 ---Civil service ---Suit for declaration and permanent injunction --- Official
residence --- Entitlement -- Bifurcation of department ---Plaintiff was serving in Labour and
Manpower Department and was allotted official accommodation but after bifurcation of
department, authorities: cancelled the allotment ---Validity ---On bifurcation of department,
premises vested with one department and allottee belonged to the other one but such
bifurcation did not change status of a lawful allottee aut omatically ---Authorities had to adopt
legal course to get vacant possession of such premises without effecting right of either of the
parties, therefore, calling for evidence would not change the result ---Authorities were owners
and could not be restrained from getting vacant possession of residential accommodation or
making allotment of the same but in each case action taken or order made should be in
conformity with law ---High Court, in exercise of revisional jurisdiction, declared that during
subsistence of allotment, plaintiff was lawful allottee of premises in question, therefore,
could not be evicted except with due course of law---High Court further declared that letter
directing plaintiff to hand over vacant possession of premises and allotment order in favour of
defendant were of no legal effect and were set aside ---Revision was allowed accordingly.
H. Shakeel Ahmed for Petitioner.
Amanullah Tareen, Addl. A. -G. are! Wali Muhammad, Deputy
Director Manpower Training Department and Muhammad Qahir Shah for Respondent No.2.
Date of hearing: 18th July, 2012.
JUDGMENT
SYEDA TAHIRA SAFDAR, J. --- The petitioner Muhammad Hassan Baloch, through
instant petition questioned judgment dated 25th November, 2009 of Civil Judge -III, Quetta,
whereby the su it filed by him was dismissed for want of cause of action and judgment dated
20th May, 2010 of Additional District Judge -I Quetta, who also arrived to the same findings.
It was contended that the impugned judgments were made in total mis -exercise of the
jurisdiction, therefore, not sustainable. Further the material available on record was either
misread or misappreciated, and the decision was given in haphazard manner. Furthermore,
the fact that despite existence of order whereby stay was granted in favour of the petitioner,
the premises in question was allotted in favour of the respondent No.2 by respondent No.1,
therefore, the entire proceeding of allotment was made in contravention of section 52 of the
Transfer of Property Act, 1882, thus of no legal effe ct, but this fact was overlooked by the
courts below. Furthermore respondent No.1 had no legal authority to allot the premises in
question in favour of respondent No.2, but this legal proposition was also not considered by
the courts below, which resulted in erroneous decision. It was further contended that the
impugned judgments were made without affording any opportunity of hearing or leading of
evidence by the parties, which was an illegality. Further, though the Labour and Manpower.
Department was bifur cated, but as he (petitioner) was an employee of the Department; and
the premises in question was allotted in his favour prior to such bifurcation, therefore, his
right cannot be adversely affected. It was prayed that the orders of the courts below be set
aside, and the suit filed by him be decreed as prayed for.
2. The learned counsel for the petitioner while arguing his case was of the view that since 1st
September, 1994 when allotment of premises in question was made in his favour, the
petitioner remai ned in possession being the lawful allottee. Therefore, he (petitioner) cannot
be treated as unauthorized occupant, nor can be dispossessed in way as adopted by the
authorities. It was argument of the learned counsel that though presently the petitioner wa s
working as Director Mines, but respondent No.2 also attached to Workers Welfare Board, a
statutory body, under the control of Federal Government. Therefore, applying same principle
allotment can also not be made in favour of respondent No.2, which was, o f no legal effect.
Furthermore, the assets of the Labour and Manpower Department might have been divided
after bifurcation of the Department, but no order to the effect, as required, was made by the
concerned Authorities, thereby committed an illegality, w hich cannot adversely effect his
right. It was further his argument that without recording of evidence he cannot be non -suited.
The learned counsel concluded that he (petitioner) is in possession of premises in question
since 1994, with regular deduction o f rent from his salary, therefore, a legal right accrued in
his favour. Further, no order for cancellation of the allotment was ever served on him, which
established that the allotment order in his favour still subsists.
3. The learned counsel for respon dent No.2 in reply only contended that after bifurcation of
the Department the petitioner was no more employee of the Labour and Manpower
Department. Therefore, he was not entitled to retain possession of the premises in question.
The learned counsel conte nded that respondent No.2 attained the status of lawful allottee,
therefore, became entitled to get possession of the premises in question. The learned
Additional Advocate -General (A.A. -G.) representing respondent No.1 only contended that
the premises in q uestion being property of the Labour Department. Further as none of the
parties i.e. the petitioner, and respondent No.2 belonged to Labour Department, therefore,
have no right to retain possession of the premises in question.
4. The brief facts of the c ase, as appeared from the material on record, are that the petitioner
being the plaintiff filed a suit for declaration of his title with contention that Bungalow No.A -
3 Jinnah Town, Quetta, was allotted in his favour, and after bifurcation of the Departmen t he
remained in possession thereof, with regular payment of monthly rent. But he felt aggrieved
of letter dated 25th August 2008, whereby a direction was given to the petitioner/plaintiff to
hand over vacant possession of the premises in question. In the given circumstances the suit
was filed with plea that he being Government Employee having no alternate accommodation,
and being lawful allottee, therefore, entitled , to retain the premises in question. The relief was
prayed in terms: ---
(a) Declaring tha t the plaintiff is legal and lawful allottee of the Bungalow A -3
located at Jinnah Town, Quetta, in which he is peacefully residing with his entire
family.
(b) To declare the impugned notice dated 25 -8-2008 vide letter No.G -1/38-
DMT/QAJ/1022025, issued b y the as null and void and without any legal justification
and jurisdiction, and directing the defendant to withdraw the said notice.
(c) Restraining the defendant from transferring, allotting and alienating the
bungalow/quarter in question to any other person.
(d) Permanently restraining the defendant from dispossessing the plaintiff from the
bungalow in question or any other kind of interference in the peaceful possession of
plaintiff in respect of bungalow in question.
(e) Any other relief, which m ay deem fit and proper in the circumstances of the case
may also be awarded."
5. The suit was contested by respondent No.1 being the defendant on legal, and factual
grounds. There was a specific plea for rejection of the plaint being hit by provisions of Order -
VII, Rule 11, Civil Procedure Code (C.P.C.). Respondent No.1 not only claimed the premises
in question being its property, but asserted its authority for making order for its allotment. It
was contended that as the petitioner was not an employee of the Labour Department, his
(petitioner's) status was of an illegal occupant, therefore, not entitled to retain its possession.
This fact further appeared that respondent No.2 Attaullah Jogezai was made party to the suit
due to the fact that during pendency of the suit the premises in question was allotted in his
(respondent No.2) favour. The mentioned respondent while raising several legal objections
on maintainability of the suit prayed for rejection of the plaint under Order VII, Rule 11,
C.P.C., with a c laim of his entitlement for obtaining possession being a lawful allottee.
6. The trial court framed issues, but an additional issue was framed on 1th November 2009 to
the effect: ---
Whether suit of plaintiff is not maintainable in view of legal objecti on 'D' of amended
written statement of defendant No.2?
7. After hearing the parties the trial court through judgment dated 25th November, 2009
arrived to the conclusion that: --
-- perusal of record reveals that admittedly after bifurcation, the plainti ff did not
remain employee of Labour and Manpower Department, for the reason that plaintiff is
admittedly Mines Welfare Commissioner, who has no more concern with the
department of Labour and Manpower. Plaintiff has no where pointed out in his suit
that bu ngalow in question is the property of Mines and Mineral Development
Department after bifurcation, which reveals that the bungalow in question after
bifurcation remained properly of Labour and Manpower Department. In such
circumstances it is observed that p laintiff after bifurcation has no right and entitlement
to continue his possession upon the bungalow in question.
In view of above mentioned discussion, it is observed that no cause of action has been
accrued to plaintiff neither against defendant No.1, nor defendant No.2, therefore, this
issue is resolved in affirmative. Subsequently, suit of plaintiff is hereby dismissed."
Feeling aggrieved an appeal was preferred by the petitioner, which was disposed of by
Additional ' District Judge - I, Quetta, thro ugh order dated 20th May, 2010, whereby the
appellate court arrived to the same conclusion. Still feeling aggrieved instant petition was
filed on the grounds as mentioned hereinabove.
8. As the matter in issue pertains to allotment of residential accommo dation owned by
Government Department, therefore, Civil Estate Officer, the concerned Authority, was
directed to submit comments. In compliance thereof the reply was submitted with assertion
that the premises in question was not at the pool of Civil Estate Office, S&GAD, rather it was
the property of the Labour Department. Further, the competent Authority was described as
Director Manpower Training, Samungli Road, Quetta. Therefore, being the concerned
authority para wise comments were also filed by the Dir ector Manpower Training whereby it
was contended that on bifurcation of the Labour Welfare and Manpower Department, the
Mines Labour Welfare Organization came into being in 2004, which was placed under the
administrative control of the Mines and Minerals D epartment Government of Balochistan.
Therefore, in view of the bifurcation, the petitioner no more remained employee of the
Manpower Department. Therefore, the petitioner was an illegal occupant, and liable to be
evicted. Further, respondent No.2 being a b ona fide employee of the Manpower Department,
therefore, the premises in question was lawfully allotted in his favour. Further, the judgments
of the courts below were fully supported.
9. During course of hearing of the main petition certain observations regarding bifurcation of
the Department, and devolving of assets to the Departments were recorded. While direction
was made for production of the relevant Rules governing allotment of residential
accommodation by the concerned Departments. In compliance th ereof reply was submitted
by the Director Manpower Training, Balochistan with contention that both the petitioner, and
respondent No.2 were not employees of the Directorate of Manpower Training. As the
petitioner belong to Mines Labour Welfare Department, which is part of the Mines and
Mineral Department. While respondent No.2 is Secretary Workers Welfare Board, which is
an autonomous body, and being looked after by the Federal Government. It was further
informed that no Rules for allotment of residential a ccommodation have been framed by the
Department till date.
10. Certain facts appeared from the material on the record to the effect that the petitioner, and
respondent No.2 both are in Government Service till date, while the premises in question i.e.
bungalow No.A -3, Jinnah Town Quetta also Government owned residential accommodation.
This was also an admitted feature of the case that the premises in question was allotted in
favour of the petitioner through order dated 1st September 1994 by the concerned A uthority,
and since then he (petitioner) was in possession thereof. The fact of bifurcation of the
Department through Notification dated 28th June 2002 also not denied by either of the
parties.
11. In view of the stated facts the question arises that a D epartment had been bifurcated, what
would be its effect on service of its employees, and what would be the fate of its assets and to
whom it would devolve. As far as effect on service is concerned it is not matter in issue.
Rather the fate of the assets an d its devolution is to be considered. In instant case a notice for
vacation of the premises was issued to the petitioner on 25th August 2008. While the
allotment was made in favour of respondent No.2 on 17th July, 2009 of the same premises.
But nothing had been placed on record, from which it can be ascertained that any decision
was taken by the Authorities deciding fate of the assets owned by the Department. But apart
from the fact, the question remains that what would be the effect of this bifurcation on an
allotment order made in favour of the petitioner, prior to the bifurcation, which otherwise
remained intact, as no order for cancellation of the allotment was made by the concerned
Authorities. Neither there was any such assertion, nor any order to the effect was produced.
The Notice dated 25th August, 2008, containing direction for vacation of the premises in
question, no way amounts to an order for cancellation of allotment order. Therefore, in
absence thereof the status of the petitioner being a lawfu l allottee can not be changed into an
illegal occupant, in result of bifurcation of the Department. Rather, the concerned Authorities
had to make some specific order, and to adopt some legal course for getting vacant
possession of the premises in question.
12. As till present no Rules have been framed by the concerned Authorities for allotment of
residential accommodations, therefore, the terms of allotment as inserted in the allotment
order dated 1st September, 1994 would govern the matter. But the conce rned Authorities
failed to adopt the legal course. Rather due to some misconception on bifurcation of the
Department, treated the petitioner as an illegal occupant thereby issued notice for vacation of
the premises in question, which was neither legal, nor just. Until, and unless the initial
allotment order, made in favour of the petitioner stand cancelled, no further steps could be
taken for getting vacant possession, or re -allotment of the same in favour of any other
Government servant. It was asked from the learned Additional Advocate -General, appearing
on behalf of respondent No.1/the concerned Authority, that in presence of a valid allotment
order in favour of the petitioner since 1994, how he can be declared as unauthorized occupant
due to act of bifur cation of the Department. But learned Additional Advocate -General was
unable to reply. Until and unless the initial order is withdrawn by the competent Authority the
possession in no way can be treated as unauthorized. The petitioner may not be employee of
the Labour and Manpower Department, but he is still in government service, and initial
allotment order dated 1st September, 1994 still exists in his favour. Therefore, in given state
of facts the notice dated 25th August, 2008 was of no legal effect. Cons equent thereof the
subsequent allotment order made in favour of respondent No.2 was also of no legal effect. In
addition thereto respondent No.1 in his second reply also denied entitlement of respondent
No.2 for allotment, as not belonged to the Labour Dep artment.
13. It is observed that the courts below while recording findings on additional issue though
arrived to the conclusion that the suit was not maintainable being filed without any cause of
action. But their findings were based on mere presumptions . Both the courts presumed that
after bifurcation the premises in question devolved on the Labour Department, and there
exists no right in favour of the plaintiff/petitioner. Further, without calling for evidence of the
parties the appellate court conclude d that no evidence was produced about payment of the
rent. But the courts below failed to consider the legal effect of the bifurcation of the
Department, and status of the petitioner and the residential accommodation, and the orders
made in same respect by the concerned Authorities. Thereby committed error, and made both
the orders of the courts below of no legal effect.
14. In view of the discussion made hereinabove the mere fact of bifurcation of a Department
in no way effect the orders made by the Auth orities prior to the act, rather, they remain in
field unless specially undone or substituted. Same is the case in matter in hand. The lawful
allottee of a Government owned residence would not turned into illegal occupant due to some
change taken at admini strative side of the Department. Rather, a legal course had to be
adopted to get vacant possession of the premises. But this was not done by the Authorities
therefore, the steps taken thereafter were of no legal effect.
15. Though there is a request for remand of the case by the counsel for the petitioner, but it
will not serve the purpose. As most of the facts are admitted in nature, and the only question
which need determination was to the effect that whether after bifurcation of the Department a
lawful allottee can be considered as illegal occupant, need no evidence. Rather in each case
the reply will be in negative .as discussed hereinabove. Further the fact that on bifurcation of
a Department the premises vests with one Department, and 'the allottee b elong to the other
one, it will not change the status of a lawful allottee automatically. Rather the Authorities
have to adopt a legal course to get vacant possession of such premises without effecting right
of either of the parties. Therefore, in the circ umstances, calling for the evidence will not
change the result.
16. It is further observed that the reliefs claimed in prayer clauses C and D of the plaint are of
no legal effect, and in no way can be granted. As the concerned Authorities, being owners,
cannot be restrained from getting vacant possession of a residential accommodation, or
making allotment of the same. But in each case the action taken or order made be in
conformity with law. But as far as remaining two reliefs containing in clauses A and B are
concerned they can easily be granted in favour of the petitioner.
17. In view of above discussion the judgment dated 25th November, 2009 of Civil Judge -III,
Quetta, and judgment dated 20th May, 2010 of Additional District Judge -I, Quetta, are
hereb y set aside. The suit is decreed in terms that during subsistence of the allotment order
dated 1st September, 1994, the petitioner/plaintiff is lawful allottee of premises in question
i.e. Bungalow No.A -3 Jinnah Town Quetta, therefore, cannot be evicted ex cept with due
course of law. Further, notice dated 25th August, 2008, and allotment order dated 17th June,
2009 are of no legal effect, therefore, set aside. Decree Sheet be prepared.
The petition stand dispose of in above terms, with no orders as to cos ts.
MH/93/Q Order accordingly.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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