Muhammad Babar Vs Commissioner Hazara Division

Judgment Sheet

IN THE PESHAWAR HIGH COURT, ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

Writ Petition No. 480-A/2025

JUDGMENT

Date of hearing.............10.09.2025...........................

Petitioner (Muhammad Babar) By Mr. Muhammad Arshad Khan Tanoli, Advocate.

Respondents (Commissioner Hazara Division, Abbottabad & others) By Sardar Basharat, Additional Advocate General.

AURANGZEB, J.- Through instant constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner seeks the following relief:- “It is, therefore, most humbly prayed that on acceptance of instant writ petition, impugned vacation of Govt: Accommodation notice dated 05/05/2025 may graciously be set-aside being contrary to Rule 18 (a)(b) of KP Residential Accommodation at Districts (procedure for allotment) Rules 2018. Anty other relief which this honourable court deem appropriate under circumstances of the case may also be granted to the petitioner.”

2.In essence, the grievance of the petitioner revolves around the notice dated 05.05.2025, issued by respondent No.3, whereby the petitioner has been directed to vacate the Government accommodation which had earlier been duly allotted to him. The petitioner has assailed the said notice on the ground that the same has been issued in violation of law and without affording him an opportunity of hearing, thereby infringing his valuable rights. It is in this backdrop that the

petitioner has approached this Court seeking redress against the impugned notice.

3.We have considered the submissions learned counsel for petitioner as well as learned Additional Advocate General and have gone through the record.

4.Before entering into the merits of the case, it is considered appropriate to reproduce Rules 18, 35, and 36 of the Khyber Pakhtunkhwa Residential Accommodation at Districts (Procedure for Allotment) Rules, 2018, for ready reference:-

“18. Retention in case of transfer.---(1) An allottee, who is transferred out of district in any department, organization, board, authority and Commission etc, or is posted within district to an ineligible department, organization, authority board and Commission etc, he may retain the residential accommodation on the following terms:

(a)one year on payment of normal rent; and

(b)subsequent one year on payment of market rent:

Provided that such retention shall only be allowed if the allottee did not avail residential accommodation in his new place of posting and family members of the allottee are also resides with him in such residential accommodation:

Provided further that no further extension shall be allowed beyond the permissible period mentioned above.

(2)An allottee, who is a domicile holder of the Province or Federally Administered Tribal Areas, as the case may be, and is transferred out of the Province, he shall be entitled to retain the allotted residential accommodation upon deduction of normal rent, till such time he is allotted residential accommodation in any other Province or maximum for a period of two years, whichever is earlier:

Provided that such retention shall be subject to the production of a certificate by the allottee that no official accommodation in such Province has been provided to him or his family members are residing in the residential accommodation retained at district.

(3)In case an allottee, being field officer, is posted on field assignments, within the Province, he shall be entitled to retain residential accommodation in the district, in addition to the designated accommodations at the station of posting, till such time he is posted in the field, subject to deduction of normal rent of the designated accommodation and market rate of the residential accommodation retained at the district. (4) An allottee, who is otherwise not an employee of Government, when posted against a post in a department, whose employees are ineligible for the pool accommodation of Estate Office, on deputation or transfer basis at the district or outside district, shall vacate the allotted residential accommodation in no later than one month upon transfer from Government:

35.Appellate authority and appeals.---(l) The public office holder or an allottee, as the case may be, aggrieved from the decision or orders of the Estate Officer or Deputy Commissioner, as the case may be, being competent authorities, under these rules, may file an appeal, in this regard, to the Deputy Commissioner or the Commissioner, as the case may be.

(2)An appeal, under sub-rule (1), shall be made within fifteen days, after the order of the competent authorities, as specified in sub-rule (1), which shall be reduced in writing and be accompanied the aggrieved order and a concise statement by a public office holder or allottee, as the case may be, to the extent of grounds to be agitated.

(3)The appellate authority, as specified in sub-rule (1), after receiving the appeal, shall decide such appeal within thirty days.

36.Second appellate authority.---(l) For the purpose of disposing of appeals, against the orders, passed by the appellate authority, there shall be a second appellate authority, which shall consist of-

(a)Minister for Law, Parliamentary Affairs and Human Rights, Khyber Pakhtunkhwa; Chairman

(c)a nominee of the Chief Minister, Khyber Pakhtunkhwa; Member

(d)a representative of Establishment and Administration Department; Member (e) a representative of Law, Parliamentary Affairs and Human Rights Department; Member

(f)Executive Engineer, Communication and Works Department in a district; Member (g) head of the office/department of the public office holder or allottee in the district; and Member

(h)Estate Officer of the district. Member- cum-Secretary

(2)An appeal, under sub-rule (1), shall be made within fifteen days, after the order of the appellate authorities, to the second appellate authority, which shall be reduced in writing and be accompanied the aggrieved order and a concise statement by a public office holder or allottee, as the case may be, to the extent of grounds to be agitated.

(3)The second appellate authority, after receiving the appeal, shall decide such appeal within thirty days.

(4)The second appellate authority shall meet in such manner and in such place, as the Chairman may deem fit by keeping in view the time limit, as specified in sub-rule (3) above. The decision of the second appellate authority shall be made on the basis of majority of its members.

(5)The decision of the second appellate authority shall be final and binding.”

5.Undoubtedly, under Rule 18 of the Khyber Pakhtunkhwa Residential Accommodation at Districts (Procedure for Allotment) Rules, 2018, an allottee, who is transferred out of the district, may, subject to fulfillment of certain conditions, retain the Government residential accommodation for a limited period. The scheme of the Rule

clearly provides that the allottee may retain such accommodation for one year on payment of normal rent and, thereafter, for an additional year on payment of market rent.

However, this right of retention is not absolute; it is hedged with two conditions of significant importance: firstly, that the allottee has not been provided or has not availed Government accommodation at his new place of posting; and secondly, that the family members of the allottee continue to reside with him in the accommodation so retained. These conditions are aimed at ensuring that Government residences, being a scarce public resource, are utilized only by those genuinely entitled and not kept locked or misused in violation of the Rules.

6.In the present case, the record reflects that inspection teams deputed by respondent No.3 repeatedly visited the residential premises allotted to the petitioner. On each such visit, the house was found locked and, upon inquiry from local residents, it transpired that neither the petitioner nor his family members were actually residing in the said house. This factual position prima facie demonstrates non-compliance with the mandatory conditions envisaged by Rule 18 of said Rules. Furthermore, it has been pointed out that respondent No.3, after such inspections, contacted the petitioner on several occasions and called upon him to clarify his position with regard to the occupation of the house.

Despite these opportunities, the petitioner failed to appear

before the authority or furnish any plausible explanation, which omission further weakens his claim.

7.In addition to the above, Rule 35 of the said Rules specifically provides a statutory mechanism of redress. It stipulates that a public office holder or an allottee, as the case may be, who feels aggrieved of any decision or order passed by the competent authority, whether the Estate Officer or the Deputy Commissioner, may file an appeal before the Deputy Commissioner or the Commissioner, depending upon the circumstances. Similarly, against the order of first appellate authority the allottee or the public office holder, as the case may be, may file second appeal under Rule 36 of the ibid Rules. The said provisions of law are reflective of the legislative intent that such matters should, in the first instance, be dealt with by the departmental appellate forums created under the Rules, rather than by invoking constitutional jurisdiction directly. The petitioner, therefore, had an adequate, efficacious, and alternate remedy available under the law but chose to bypass the same without offering any justification for not availing the statutory remedy. The august court in cast titled Special Secretary-II (Law and Order), Home and Tribal Affairs Department, Government of Khyber Pakhtunkhwa, Peshawar and others versus Fayyaz Dawar (2023 SCMR 1442) has held that:-

“It is a well-settled exposition of law that disputed questions of facts cannot be

entertained and adjudicated in the writ jurisdiction. The learned High Court in the impugned judgment itself observed that it cannot practically assess the amount of damage but, despite that, the petition was allowed in disregard of a crucial facet that in the constitutional jurisdiction, the High Court cannot go into miniature and diminutive details which could only be resolved by adducing evidence by the parties vice versa. The extraordinary jurisdiction under Article 199 of the Constitution is envisioned predominantly for affording an express remedy where the unlawfulness and impropriety of the action of an executive or other governmental authority could be substantiated without any convoluted inquiry. The expression "adequate remedy" signifies an effectual, accessible, advantageous and expeditious remedy. In the case in hand, the remedy of filing civil suit was an appropriate and alternate remedy as remedium juris which was more convenient, beneficial and effective. The object of proceedings under Article 199 of the Constitution is the enforcement of a right and not the establishment of a legal right and, therefore, the right of the incumbent concerned which he seeks to enforce must not only be clear and complete but simpliciter and there must be an actual infringement of the right. (Ref: Asadullah Mangi and others v. Pakistan International Airline Corporation (2005 SCMR 445). The High Court has no jurisdiction to resolve the disputed question of fact in constitutional jurisdiction. Ref: Col. Shah Sadiq v. Muhammad Ashiq and others (2006 SCMR 276). In the case of Fida Hussain and another v. Mst. Saiqa and others (2011 SCMR 1990), this Court keeping in mind the plethora of dictums laid down by the superior Courts recapped that the High Court cannot resolve the disputed question of facts in exercise of constitutional jurisdiction under Article 199 of the Constitution. Whereas in the case of Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others (2011 SCMR 1813), this Court intensely conversed the prerequisite and touchstone of jurisdiction conferred upon the High Courts under Article 199 of the

Constitution and held that the question of adequate or alternate remedy has been discussed time and again by this Court and it is well settled by now that the words "adequate remedy" connote an efficacious, convenient, beneficial, effective and speedy remedy. It should be equally inexpensive and expeditious. To effectively bar the jurisdiction of the High Court under this Article the remedy available under the law must be able to accomplish the same purpose which is sought to be achieved through a petition under Article 199. The other remedy in order to be adequate must be equally convenient, beneficial and effective and the relief afforded by the ordinary law must not be less efficacious, more expensive and cumbersome to achieve as compared to that provided under the Article. Ref: Gul Ahmed Textile Mills Ltd. v. Collector of Customs Appraisement (1990 MLD 126), Pak. Metal Industries v. Assistant Collector (1990 CLC 1022), Allah Wasaya v. Tehsildar/AC 1st Grade (1981 CLC 1202), Syed Riaz Hussain Zaidi v. Muhammad Iqbal (PLD 1981 Lah. 215) and Abdul Hafeez v. Chairman, Municipal Corporation (PLD 1967 Lah. 1251). It was further held that the superior Courts should not involve themselves into investigations of disputed question of fact which necessitate taking of evidence. This can more appropriately be done in the ordinary civil procedure for litigation, by a suit. This extraordinary jurisdiction is intended primarily, for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate enquiry into complicated or disputed facts. Controverted questions of fact, adjudication on which is possible only after obtaining all types of evidence in power and possession of parties can be determined only be courts having plenary jurisdiction in matter and on such ground constitutional petition was incompetent. (Ref: State Life Insurance Corporation of Pakistan v. Pakistan Tobacco Co. Ltd. PLD

1983 SC 280).”

8.In light of the foregoing discussion, it is manifest that the petitioner has failed to demonstrate compliance with the mandatory conditions envisaged under Rule 18 of the Khyber Pakhtunkhwa Residential Accommodation at Districts (Procedure for Allotment) Rules, 2018. Moreover, instead of availing the statutory remedies specifically provided under Rules 35 and 36 of the said Rules, the petitioner has directly invoked the constitutional jurisdiction of this Court. It is a well- settled principle of law that the extraordinary jurisdiction of this Court under Article 199 of the Constitution cannot ordinarily be exercised in cases where an adequate and efficacious alternate remedy is available to the aggrieved party. The object behind such principle is to ensure that statutory forums created under the law are not bypassed, and that the hierarchy of remedies is respected. Since the petitioner neither fulfilled the requisite preconditions under Rule 18 nor exhausted the statutory remedies available to him, the instant writ petition is not only devoid of merit but is also barred by the principle of alternate remedy. Accordingly, finding no illegality, infirmity, or violation of law in the impugned action, the writ petition stands dismissed.

Announced.

JUDGE

JUDGE

Aftab PS/* Hon’ble Mr. Justice Sadiq Ali Hon’ble Mr. Justice Aurangzeb