2020 PLP 1001 (SCMR)

GULZAR AHMED, J.

The respondent, who is working as a Bailiff in the High Court of Balochistan, Quetta was allotted Quarter No.534-A in the Railway Colony, Quetta. This allotment appears to have been made vide letter dated 16.07.2003 by the petitioner-Pakistan Railways. An agreement dated July, 2003 also seem to have been entered into in this regard. The agreement itself was for one year and was also terminable by Clause-9 at the option of either party to the agreement, on giving the other party one month's notice in writing and thereupon the agreement would cease and terminate. The petitioners served notice dated 13.08.2009 for vacation of the Quarter by the respondent. The respondent against the notice of vacation filed suit for declaration and permanent injunction in the Court of Civil Judge, Quetta. By the judgment and decree dated 31.12.2009, the suit filed by the respondent was decreed. The petitioners filed appeal, which was dismissed vide order dated 11.08.2010. The petitioners then filed revision petition before the High Court, which also came to be dismissed by the impugned order dated 24.04.2018.

2. Learned ASC for the petitioners has contended that the very agreement by which the quarter was allotted to the respondent was for one year and also that the said agreement was terminable on giving of notice by either of the parties. He contended that the petitioners did serve notice on the respondent, terminating the said agreement but the respondent instead of vacating the same, filed suit, which was decided against the petitioners up to the level of the High Court by the impugned order and thus all the three Courts below have fallen into error in deciding the case against the petitioners for that this very term of the agreement was not considered.

3. Learned AOR for the respondent, however, supported the impugned order of the High Court.

4. At the outset we have put a question to the counsel for the respondent that how was the respondent, being a Bailiff of the High Court of Balochistan, entitled for the allotment of a quarter meant for the employees of Pakistan Railways. The respondent's counsel was unable to give any answer to this question but the counsel for the petitioners referred to the document appearing at page-3 of C.M. No.2779/2019 to state that Railway Quarters can be allotted to outsiders. He also made reference to a note dated 20.06.2002, where it is mentioned that surplus Railway Quarters may be rented out to the outsiders for earning revenue. The document at page-3 of the said CM seems to be part of Pakistan Government Railways Code for the Engineering Department and Item No.1961 thereof provides as follows: - "1961. Railway quarters and other buildings not required for housing railway staff or other railway purposes may at the discretion of the General Manager be let, in consultation with the Financial Advisor, to outsiders, on the highest rent that can be secured. This power may, subject to such restrictions as the General Manager may impose, be delegated to officers not below the rank of Divisional Superintendents. The rule in this paragraph applies also to vacant land, temporary, structures and wagon bodies leased to outsiders." On reading of the above item, it appears that the Railways' quarters and other building, which are not required for housing of railway staff or other railway purposes may at the discretion of the General Manager be let, in consultation with the Financial Advisor, to outsiders, on the highest rent that can be secured. We have asked the respondent's counsel to show that there was approval of General Manager in consultation with the Financial Advisor for letting out the quarters to the respondent, there was no answer to this query. We have further asked him as to what is the manner by which the highest rent is secured, whether it is on advertisement for letting out. To this also the answer was in the negative and we failed to understand as to how the amount of highest rent can be determined unless the quarter is offered by publication for obtaining of highest rent. These two essential conditions for letting out the quarter in question apparently being not met in the instant case, there seem to be letting out of the said quarter to the respondent on mere asking. Such manner of allotment to the respondent was not in accordance with Code of the petitioners and thus was a nullity in the eye of law and the Courts below have altogether omitted to consider these very important aspects of the matter in deciding the case against the petitioners and in favour of the respondent, in that unless the requirement of the Code is met in toto the letting out of the quarter in question could not be held as legal and the respondent could not claim any right over it.

5. After hearing learned counsel for the parties and going through the record of the case, we converted this petition into appeal and allow the same and set aside the order(s)/judgment(s)/decree(s) of all the three Courts below. Above are the reasons of our short order of even date. MWA/D-2/SC Petition allowed.