Shazia Shamim Rizvi VS Ministry of Housing etc

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P. No.2019 of 2017 Mst. Shazia Shamim Rizvi Versus Ministry of Housing and Works and others

Date of Hearing: 17.08.2017 Petitioner by: M/s Ali Raza, Sardar M. Ishaq Khan, Sehr Asif, Advocates.

Respondents by: Syed Mujataba Haider Sherazi, Advocate for respondent No.3.

Raja Ahsan Mehmood Satti, learned Assistant Attorney-General.

Mr. Mumtaz Khan, Joint Estate Officer.

MIANGUL HASSAN AURANGZEB, J:- Through this judgment, I propose to decide civil revision petition No.277/2017 and writ petition No.2019/2017, as they entail common questions of law and fact.

2.Through civil revision petition No.277/2017, the petitioner, Mst. Shazia Shamim Rizvi, who is an Associate Professor at the Islamabad Model College for Girls, impugns the order dated 05.07.2017, passed by the Court of the learned Additional District Judge, Islamabad, whereby the petitioner’s revision petition against the order dated 22.04.2017, passed by the Court of the learned Civil Judge, Islamabad, was dismissed. Vide the said order dated 22.04.2017, the learned civil Court rejected the plaint in the petitioner’s suit for declaration, possession and permanent injunction by invoking the provisions of Order VII, Rule 11 of the Code of Civil Procedure, 1908 (“C.P.C.”). The petitioner in her civil suit had prayed for inter-alia a declaration to the effect that she is the lawful allottee of House No.28-B, Street No.27, Sector F-8/1, Islamabad (“the Suit Accommodation”).

3.Through writ petition No.2019/2017, the petitioner, Mst. Shazia Shamim Rizvi, impugns the policy framed by respondent No.1 (Ministry of Housing and Works) regarding the cancellation of allotments of government accommodation to

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Federal Government Servants made pursuant to Rule 29-A of the Accommodation Allocation Rules, 2002 (“A.A.R., 2002”).

4.In this judgment, the Ministry of Housing and Works shall be referred to as “respondent No.1”, the Estate Office shall be referred to as “respondent No.2”, and Ms. Zeba Chaudhary, the learned Additional District and Sessions Judge, Islamabad, shall be referred to as “respondent No.3”. Respondent No.3 is neither a party in the proceedings before the learned Courts below nor in C.R.No.277/2017.

5.Learned counsel for the petitioner submitted that the petitioner was a Federal Government Servant with an experience of 25 years; that she is currently residing in the Suit Accommodation, which was allotted to her vide allotment letter dated 11.12.2012; that since the earlier occupant of the Suit Accommodation was not vacating the same, the petitioner had instituted a civil suit against the occupant; that vide ad-interim order dated 25.07.2014, the learned civil Court had restrained the official respondents from cancelling the petitioner’s allotment letter dated 11.12.2012; that earlier the petitioner had instituted another civil suit against respondents No.1 and 2, because she had learnt that the said respondents were allotting the Suit Accommodation to some other person; that the said suit was disposed of vide order dated 13.03.2013 by recording the statement that the official respondents would not withdraw the petitioner’s allotment letter; that the official respondents had also undertaken that the allotment of the Suit Accommodation in the petitioner’s favour would not be withdrawn; that the petitioner had also filed a criminal complaint under the provisions of the Illegal Dispossession Act, 2005 for the dispossession of the illegal occupant of the Suit Accommodation; and that vide order dated 13.01.2015, the said complaint was dismissed by respondent No.3.

6.Learned counsel for the petitioner further submitted that after the allotment of the Suit Accommodation in the petitioner’s favour, it was allotted in March, 2015 to the then District and Sessions Judge, Islamabad; that the said allotment was made

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during the subsistence of an injunctive order passed by the learned civil Court; that thereafter, the Suit Accommodation was allotted to an Additional District and Sessions Judge, Islamabad; that after the petitioner had filed a complaint before the Honourable Chief Justice of Pakistan, the allotment of the Suit Accommodation in favour of the Additional District and Sessions Judge, Islamabad was withdrawn.

7.Learned counsel for the petitioner further submitted that the person unlawfully occupying the said occupation vacated the same in June, 2015, after which the petitioner took over its possession; that thereafter, the petitioner’s civil suit continued against the official respondents, who were not issuing an occupation certificate in the petitioner’s favour; that the rent and other charges with respect to the Suit Accommodation were being paid by the petitioner; that the position taken by the respondents was that the allotment of the Suit Accommodation in the petitioner’s favour stood cancelled due to a policy letter dated 15.04.2013 regarding allotments made under Rule 29-A of the A.A.R., 2002; that on 17.05.2017, the official respondents tried to dispossess the petitioner on the ground that the Suit Accommodation had been allotted to respondent No.3; that on the next day, the petitioner learnt that her civil suit had been dismissed on 22.04.2017; that the petitioner preferred an appeal against the said order dated 22.04.2017 and was able to obtained injunctive relief; that vide order dated 05.07.2017, the petitioner’s appeal was dismissed by the learned appellate Court; and that the said order dated 05.07.2017, has been impugned by the petitioner in civil revision petition No.277/2017.

8.Learned counsel for the petitioner further submitted that respondent No.1’s policy dated 15.04.2013 is without lawful authority as the same has not been approved by the Federal Cabinet as mandated in the judgment of the Honourable Supreme Court reported as PLD 2016 (S.C.) 808; that the said policy is only with respect to allotments made under Rule 29-A of the A.A.R., 2002; that the said policy is not applicable to the petitioner since her allotment was made under Rule 12 of the

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A.A.R., 2002; that the allotment of the Suit Accommodation in the petitioner’s favour could not have been cancelled without affording the petitioner an opportunity of hearing; that the cancellation of the petitioner’s allotment is in stark contrast to the position taken by the official respondents in their written statement; that the allotment in the petitioner’s favour would not be cancelled; and that the petitioner is entitled to remain in the Suit Accommodation until her retirement in terms of Rule 15(6) of the A.A.R., 2002. Learned counsel for the petitioner prayed for the impugned orders passed by the learned Courts below, as well as the policy dated 15.04.2013, to be set-aside.

9.On the other hand, learned counsel for respondent No.3 raised preliminary objections to the maintainability of the writ petition. He submitted that when the petitioner filed writ petition No.2019/2017, she was pursuing other remedies; that when the said writ petition was filed, the petitioner’s appeal was pending before the learned appellate Court; that although there is a disclosure about the said appeal in the writ petition, there is no explanation as to why the writ petition had been filed while civil remedies were being pursued by the petitioner; that the policy challenged in the writ petition could also have been challenged by the petitioner before the learned civil Court; and that a writ petition can be filed only when there is no alternative remedy available to the petitioner.

10.Learned counsel for respondent No.3 further submitted that the petitioner was in illegal occupation of the Suit Accommodation in question; that the Suit Accommodation was allotted to the petitioner on “subject to vacation” basis; that the allotment in the petitioner’s favour stood cancelled before she took possession of the Suit Accommodation; that the allotment in the petitioner’s favour was cancelled on 15.04.2013 by a general order/circular; that the petitioner took possession of the Suit Accommodation in June, 2014; that the petitioner was not a lawful allottee when she took over possession of the Suit Accommodation; that the petitioner took over possession of the Suit Accommodation on her own without any indulgence of the

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official respondents as required by the rules; that the procedure for taking possession of government accommodation was flouted by the petitioner; and that the procedure for taking possession of government accommodation is set out in Rules 10 and 11 of the

A.A.R., 2002.

11.Learned counsel for respondent No.3 further submitted that all allotments of government accommodations made under Rule 29-A of the A.A.R., 2002, possession whereof had not been taken over by the allottees, were cancelled by respondents No.1 and 2 pursuant to the judgment of the Honourable Supreme Court of Pakistan; that the written statement filed by the Estate Office shows that the allotment of the Suit Accommodation was vague in the petitioner’s favour in relaxation of the rules and in compliance of the orders of the Minister of State for Housing; that the said written statement was filed before the judgment of the Honourable Supreme Court of Pakistan in Afsar Khan’s case; that since the allotment in the petitioner’s favour was made in relaxation of the rules, the same stood cancelled on the basis of the general order dated 15.04.2013 issued by respondent No.1; that even if there is to be a change in the accommodation, the applicant seeking the change has to find his/her place in the general waiting list maintained under Rule 6 of the A.A.R., 2002; that in the written statement filed on 24.09.2014, in the second civil suit instituted by the petitioner, it was pleaded that the allotment in the petitioner’s favour had been cancelled; that the petitioner is now estopped from challenging the said cancellation through a writ petition; and that the petitioner in her civil suit did not challenge the cancellation of her allotment. Learned counsel for respondent No.3 prayed for the petitioner’s civil revision petition as well as her writ petition to be dismissed.

12.The learned Assistant Attorney-General assisted by the Joint Estate Officer adopted the arguments advanced by the learned counsel for respondent No.3.

13.I have heard the contentions of the learned counsel for the contesting parties, and have perused the record with their able assistance.

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14.The petitioner is an Associate Professor (BS-20), presently serving at the Islamabad Model College for Girls, F-6/2, Islamabad. Being a Federal Government Servant, she was allotted Flat No.4 (Cat-III), Block No.149, Street No.133, G-11/4, Islamabad, vide allotment letter dated 01.04.2005. Apparently, the petitioner had applied for a change in her government accommodation. Vide allotment letter dated 11.12.2012, the petitioner was allotted the Suit Accommodation. As per the said allotment letter, the change in the petitioner’s government accommodation was made in pursuance of the order dated 16.11.2012 passed by the Minister of State for Housing and Works under Rule 12 of A.A.R., 2002. This rule is reproduced herein below:- “Changes of accommodation. – Change from one accommodation to the other or exchange of accommodation between two allottees for same category of accommodation may be permitted by the Ministry of Housing and Works subject to production of a certificate from their employers to the effect that they are not expected to be retired or transferred during the next one year and other required documents as prescribed by Ministry of Housing and Works from time to time.”

15.On 12.12.2012 (i.e. a day after the issuance of allotment letter dated 11.12.2012), the petitioner filed a suit for declaration, permanent and mandatory injunction before the Court of the learned Civil Judge, Islamabad against respondents No.1 and 2. As per the learned counsel for the petitioner, this suit was filed because the petitioner was apprehending that the allotment letter dated 11.12.2012 would be withdrawn or the Suit Accommodation would be allotted to someone else. Vide ad- interim order dated 12.12.2012, the learned civil Court restrained the said respondents from cancelling or withdrawing the said allotment letter without due process of law. The position taken by respondents No.1 and 2 in their written statement was that the Suit Accommodation had been allotted to the petitioner in relaxation of the rules. Furthermore, it was pleaded that the said respondents had no intention to withdraw the said allotment letter unless there was a change in the government policy. Vide order dated 13.03.2013, the learned civil Court disposed of the

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said suit in terms of the position taken by the said respondents in their written statement. In the said order dated 13.03.2013, it was observed that the said respondents shall abide by their undertaking.

16.The petitioner was not able to gain possession of the Suit Accommodation since it was being occupied by the previous allottee (namely Khalid Waheed Khan), who had retired from government service, and his grace period was to expire on 02.08.2014. On 25.07.2014, the petitioner instituted another suit for declaration, possession, permanent and mandatory injunction, praying for Khalid Waheed Khan’s eviction from the Suit Accommodation. The petitioner had also prayed for a declaration to the effect that she was the lawful allottee of the Suit Accommodation, and for an injunction restraining respondents No.1 and 2 from cancelling the petitioner’s allotment letter or from allotting the Suit Accommodation to someone else. Vide ad-interim order dated 25.07.2017, the learned civil Court restrained respondents No.1 and 2 from cancelling the allotment letter issued in the petitioner’s favour. The position taken by respondents No.1 and 2 in their written statement that her allotment had been cancelled, vide letter No.F.2(1)/86-Policy, dated 15.04.2013 issued on the directions of the Honourable Supreme Court. Furthermore, it was pleaded that the Suit Accommodation had been allotted to the petitioner in relaxation of the rules under 29-A of A.A.R., 2002, and that after the cancellation of the allotment letter, the petitioner was not entitled to get possession of the Suit Accommodation.

17.The Suit Accommodation appears to be very popular with some judges of the subordinate judiciary. Vide allotment letter dated 24.02.2015, the Suit Accommodation was allotted to Malik Nazir Ahmad, the then District and Sessions Judge, Islamabad. After the said allotment letter was cancelled, the Suit Accommodation was allotted on 08.06.2015 to Raja Muhammad Asif, Additional District and Sessions Judge, Islamabad. The petitioner filed a complaint before the Honourable Chief Justice of Pakistan regarding the allotment of the Suit Accommodation in

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favour of a Judge of the subordinate judiciary of Islamabad. Vide letter dated 15.12.2015, the office of the Member, Inspection Team, Islamabad High Court, informed the petitioner that Raja Asif Mehmood, Additional District and Sessions Judge, Islamabad, had already applied for a change in his official accommodation as the Suit Accommodation was under litigation and was below his entitlement.

18.Coming back to the suit for declaration etc. instituted by the petitioner, during the pendency of the said suit, the petitioner, in July 2015 took over possession of the Suit Accommodation on the basis of what she calls an “advice” of the officers of respondent No.2 (Estate Office). Respondent No.2 is said to have issued a vacation certificate with respect to the petitioner’s previous official accommodation, but had not issued an occupation certificate with respect to the Suit Accommodation.

19.The learned civil Court, vide order and decree dated 22.04.2017, rejected the plaint under Order VII, Rule 11 C.P.C. The learned civil Court held that since allotment letter dated 11.12.2012 had been issued to the petitioner in relaxation of the rules, and since the petitioner had not taken over possession of the Suit Accommodation by 15.04.2013, the said allotment in the petitioner’s favour had stood cancelled. The learned civil Court also spurned the petitioner’s contention that since her turn for allotment in the general waiting list had matured, she was entitled to retain possession of the Suit Accommodation. The petitioner preferred an appeal against the said order and decree before the Court of the learned Additional District Judge, Islamabad. Vide judgment and decree dated 05.07.2017, the petitioner’s appeal was also dismissed. The said concurrent orders of the learned Courts below have been impugned by the petitioner in civil revision petition No.277/2017.

20.Vide allotment letter dated 16.05.2017, the Suit Accommodation was allotted to respondent No.3, who also happens to be an Additional District and Sessions Judge, Islamabad. This allotment was made under Rule 4(3) of A.A.R.,

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2002, and in exchange of the government accommodation (i.e. House No.4-C, APO, Street No.31, F-8/1, Islamabad), which had earlier been allotted to respondent No.3, vide allotment letter dated 01.11.2016. Both theses allotment letters (i.e. dated 01.11.2016 and 16.05.2017) were issued to respondent No.3 in pursuance of the order of the Ministry of Housing and Works. Prior to the issuance of allotment letter dated 01.11.2016, respondent No.3 had been allotted House No.3-A, APO, Street No.62, F-8/1, Islamabad.

21.It may be mentioned that prior to the filing of the said civil revision petition, the petitioner, on 27.05.2017 filed writ petition No.2019/2017 challenging the policy of the Ministry of Housing and Works regarding allotments of government accommodation made in relaxation of the rules. Vide order dated 29.05.2017 passed by this Court in the said writ petition, status quo was directed to be maintained.

22.The position taken by respondents No.1 and 2 in their written comments to writ petition No.2019/2017 is that the petitioner status in the suit accommodation is that of a trespasser, and that she had taken possession of the Suit Accommodation unlawfully. Furthermore, it was pleaded that the allotment of the Suit Accommodation in the petitioner’s favour was in violation of Rule 12 of A.A.R., 2002, and that a change of an accommodation in a higher category falls under Rule 29-A of A.A.R., 2002. As an example, the said respondents quoted the case of a change in the allotment of government accommodation to Mr. Muhammad Yasin Saleemi which was said to have been allotted under Rule 29-A of A.A.R., 2002.

23.The Hon'ble Supreme Court of Pakistan in the case of Muhammad Afsar Vs. Malik Muhammad Farooq (2012 SCMR 274), has given the following directions to the Ministry of Housing and Works, and the Estate Office as regards allotments made under Rule 29-A of the AAR, 2002:- "i. that in future all the allotments will be made strictly on merits on the basis of General Waiting List; and ii. Relaxation of rules under Rule 29-A of the Accommodation Allocation Rules, 2002, will not be often exercised, except

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in the cases of hardship and that too by recording justifiable reasons for the same, after hearing the likely affected employees in the General Waiting List."

24.After the said judgment of the Honourable Supreme Court, the Estate Office, Islamabad, carried out a physical inspection of the government owned residential accommodation in Islamabad. As a matter of policy, it was decided inter-alia that where possession of government accommodation have not been taken over by the allottees to whom allotments have been made under Rule 29-A of A.A.R., 2002, such allotments should be treated as cancelled so as to ensure that allotments are made on merit and on the basis of the general waiting list as ordered by the Honourable Supreme Court.

25.Rule 29-A of the AAR, 2002, is reproduced herein below:- "29-A. Relaxation of Rules.-- The Federal Government may relax any rule governing allotment of accommodation to eligible FGS in public interest for deserving and hardship cases and on compassionate grounds for reasons to be recorded in writing for such relaxation."

26.I have gone through the allotment letter dated 11.12.2012. The said allotment letter had not been issued under Rule 29-A of A.A.R., 2002. In the said allotment letter, it has explicitly been mentioned that the same has been issued under Rule 12 of A.A.R., 2002. There is also no mention of the said allotment letter having been issued in relaxation of the rules. Under Rule 12 of A.A.R., 2002, a change from one accommodation to another can be permitted by the Ministry of Housing and Works. The case at hand is not one of “exchange of accommodation between two allottees” but of a “change from one accommodation to the other”. Since the allotment letter dated 11.12.2012 shows that the same was issued after the permissions/orders of the Ministry of Housing and Works, the condition for a “change from one accommodation to the other”, envisaged by Rule 12 of A.A.R., 2002, prima-facie appears to have been satisfied. Under respondent No.2’s policy letter dated 15.04.2013, allotments made under Rule 29-A of A.A.R., 2002, in cases where possession has not been taken over by the allottees, have been cancelled. Allotments made in pursuance of Rule 12 of A.A.R.,

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2002, have not been cancelled. The stance taken by the respondents that even though the allotment letter dated 11.12.2012 was issued to the petitioner under Rule 12 of A.A.R., 2002, but the same was in fact under Rule 29-A of A.A.R., 2002, is a matter that needs to be resolved by the Court of plenary jurisdiction after recording of evidence. The matter pertaining to the allotment of the Suit Accommodation to the petitioner was the subject matter of the civil suit instituted by the petitioner. Developments that took place with respect to the Suit Accommodation during the pendency of the suit or the appeal would be hit by the principle of lis pendens. Therefore, I am of the view that the learned trial Court could not have rejected the plaint in the petitioner’s suit by forming a view that she did not have a cause of action due to her allotment having been cancelled by respondent No.2’s letter dated 15.04.2013. As mentioned above, only allotments made in relaxation of rules under Rule 29-A of A.A.R., 2002 were cancelled, and not the once made under Rule 12 of A.A.R., 2002. The learned Courts below did not appreciate that a specific order regarding the cancellation of the allotment letter dated 11.12.2012 had not been issued by respondents No.1 and 2 at any material stage. The learned Assistant-Attorney General did not dispute that ever since the petitioner took over possession of the Suit Accommodation, she had not been paying rent for the same. These are all matters which the learned civil Court must determine after a trial. It is an admitted position that the defendants in the suit has not filed an application for the rejection of the plaint. Although, the civil Court has the jurisdiction to reject the plaint suo moto, but the strength or weakness of a plaintiff’s case cannot be examined at the stage of the rejection of the plaint.

27.This Court, vide judgment dated 24.01.2016, passed in civil revision No.366/2016 titled “Mahmood Aslam Butt Vs. Federation of Pakistan” has upheld the order of rejection of a plaint in a suit filed by a Federal Government Servant to whom allotment of the government accommodation was made in relaxation of the rules

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under Rule 29-A of A.A.R., 2002, and who had not taken over possession of the allotted accommodation. The case at hand is clearly distinguishable as allotment of the Suit Accommodation was made to the petitioner under Rule 12 of A.A.R., 2002, and she is in possession of the said accommodation.

28.In view of the above, I find the concurrent orders passed by the learned Courts below to be based on non-exercise of jurisdiction. Consequently, civil revision petition No.277/2017 is allowed, the order dated 22.04.2017, passed by the learned civil Court and the order dated 05.07.2017, passed by the learned appellate Court are set-aside, the matter is remanded to the learned civil Court which shall decide the case after framing of issues and recording of evidence. Respondent No.3 shall be at liberty to apply for impleadment as a party to the said suit. Since the suit has been pending since 2014, it is expected that the same shall be decided expeditiously and preferably within a period of two months. The contesting parties shall not seek adjournments. The learned trial Court shall decide the suit uninfluenced by the observations contained herein.

29.As regards the challenge thrown by the petitioner to the policy dated 15.04.2013, it is my view that this was quite unnecessary since the allotment in the petitioner’s favour is clearly stated to have been made under Rule 12 of A.A.R., 2002, and not under Rule 29-A of A.A.R., 2002. Be that as it may, since the said policy was formulated in pursuance of the judgment of the Honourable Supreme Court in the case of Afsar Vs. Malik Muhammad Farooq (supra), I do not find any legal flaw in the said policy. Therefore, writ petition No.2019/2017 is dismissed. There shall be no order as to costs.

(MIANGUL HASSAN AURANGZEB)

JUDGE

ANNOUNCED IN AN OPEN COURT ON ____________/2017

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