P L D 1962 Supreme Court 75 (PLP)

CORNELIUS, C. J.‑

This appeal by special leave is directed against the judgment and order of a Division Bench of the High Court of West Pakistan, Karachi Bench, issuing a writ of certiorari to quash an order made in respect of the occupancy by the respondent Syed Tahir Hussain of certain Government premises situated in Karachi, viz. No. 4/19/G in Central Jacob Lines, Karachi. The respondent is an Assistant in the Ministry of Commerce at Karachi, and it appears that the quarter was first allotted to him in the year 1952. The allotment was made by the Estate Office of the Central Government under the Karachi Allocation Rules, 1948 which were superseded by the Karachi Allocation Rules, 1952. In the latter Rules, as originally enacted, there was a provision in Rule 21 that the Central Government servant was obliged to notify to the Estate Officer whether he or his wife or one of his dependant children owned a house in Karachi or was building a house in Karachi. The Rule laid down that "ordinarily such an officer shall cease to be entitled to accommo dation from the Estate Office pool unless he offers the house to the pool" and it specified certain exceptions. It should be mentioned that the creation of a pool was necessitated by the consideration that accommodation for Central Government officials in Karachi was very short, and it was necessary to exercise a measure of control over all available accommodation so that it might be utilised to the best advantage of the Central Government servants. It is unnecessary to reproduce here anything more than the substance of the Karachi Allocation Rules, which do not appear to have been promulgated under any statute, although they may perhaps be referable to Fundamental Rule 45 which enables the Government to make rules laying down principles governing the allotment of Government‑owned buildings to Government officers for the purpose of residence. The Estate Officer was empowered by these Rules to allot a residence when it became available for allotment according to certain lists which were to be maintained by him in three separate categories, preference being given in a certain rotation to those officials whose names appeared at the head of each list. The Rules did not deal with the nature of the tenancy or occupation which the Estate Officer could confer, but merely gave him power to make allotments, and prescribe also certain conditions in which he could cancel those allotments. They provided that an allotment could not be transferred by the allottee and that the accommodation allotted could not be utilised for purposes of gain and could only be sub‑let with the prior consent of the Estate Officer for periods not exceeding eight months, the allottee remaining responsible for the rent and being bound not to charge his sub‑tenant any more than the rent he himself paid, and finally that the Govern ment would not recognise the sub‑tenancy and the sub‑tenant would vacate the accommodation as soon as his lessor's allot ment order should be cancelled. There were other restraints upon the allottee, and in Rule 19 there was a general provision that the allottee was presumed to have agreed to vacate the accommodation within 15 days whenever ordered by the Estate Officer "following either on cancellation under these rules or on an order of exchange." A further provision was made obliging the Central Government servant who was occupying such accom modation "otherwise than in accordance with a valid allocation order" to vacate within three days when ordered by the Estate Officer and with respect to these two provisions, the following further condition was laid down, viz.:‑ "No sanction of Government to a vacation order given without the offer of alternative accommodation will be necessary in such cases." In Rule 20 provision was made as regards the vacation of accommodation following upon the death, dismissal, discharge, removal, resignation, retirement or transfer of the allottee. This Rule made concessions to suit the convenience of the allottee by enabling occupation of the premises for a further period following the cancellation of the allotment, and here again it was expressly said that "no sanction of Government to the order to vacate without alternative accommodation will be necessary in such cases." The Rules do not indicate to what general provision these exceptions relate, but for the purposes of this judgment ft may be safely presumed that in every case not expressly provided for, an order by the Estate Officer for vacation of allotted premises without an offer of alternative accommodation was to require the sanction of the Government. This would be in harmony with the functions of the Estate Officer being of a providential, and not of a penal character. Where an officer was to be deprived of the benefit of a Government‑owned residence, this could only be done with the sanction of Government, except in certain cases, which were specified with care. These Rules contain nothing to indicate that the allottee is bound to retain the accommodation for any length of time, either related to his occupation of his post or to any other circumstance. From this the conclusion may reasonably be drawn that the allottee was at liberty to vacate the allotted accom modation whenever he pleased, the only conditions being that prescribed in Rule 25, namely, that he should inform the Estate Officer in writing not later than the actual date of vacation, and should formally hand over the premises to the Public Works Department. This Rule further provided that if the allottee did not furnish such notice, lie shoal] be liable to pay rent for a further period of ten days following the date of vacation, or until the premises were re‑occupied whichever period be the shorter of the two. It will be convenient now to return to Rule 21 to which reference has already been made. This Rule was amended in 1953, and at the relevant time, it read as follows :‑ "A C. G. S. who builds or acquires a house in Karachi with Government loan or private funds, or his wife or one of Ms dependant children does so, shall notify the fact to the Estate Officer. Such an Officer shall not be entitled to accommodation from the Estate office pool and shall have to vacate the accommodation already allotted, if any, within 15 days of the completion or purchase of the house by him or his wife or dependant child. Where a house built with Government loan was surrendered to the Estate ace's pool prior to 16th December 1953, the accommodation already allotted shall be allowed to be retained by the C. G. S. and where a house built or acquired with private funds was let out on lease prior to 1st May 1953 the accommodation already allotted shall be allowed to be retained by the C. G. S. for the duration of the lease period which will not be extended and neither a new tenant inducted." (C. G. S.=Central Government Servant) The case has been dealt with as if it turned upon whether this Rule has been correctly applied by the Estate Officer. The relevant facts are that in 1957, the Estate Officer came to know that Syed Tahir Hussain and his suite had each got a plot of land in Karachi and that the wife had constructed a house on her plot. Under Rule 21 aforesaid, it was the duty of Syed Tahir Hussain to have notified this fact to the Estate Officer, and it seems clear enough that he had failed in this duty. The Estate Officer wrote to him to supply the necessary information regard ing his wife's house, and failing to get a reply, served a notice upon Syed Tahir Hussain on the 20th March 1957 asking him to vacate his quarter within 15 days. It seems that in the meantime Syed Tahir Hussain had sent a letter dated the 14th March 1957, to the Estate Officer giving him very meagre information in reply to his enquiry, viz. the particulars of the plot in his own name, and the statement that he i3ad not yet started construction on it, and as to his wife's plot expressing inability "in the matter as she is not on good terms with me". Following the notice of the 20th March 1957, he had an interview with the Estate Officer and latter submitted an affidavit stating that his own plot in Nazimabad had not yet been built upon, that the other plot in the P. E. C. H. Society mentioned by tare Estate Officer belonged to his wife with whom his relations were "vary strained for a long time" and that sirs: was living :pith her own relations arid ha no connection with him, and furnishing certificates from two persons also Government officials, testifying from personal knowledge that relations between him and his wife were strained and they were practically separated. In consequence of this, the Estate Officer agreed to withdraw the notice provided Syed Tahir Hussain undertook in writing to inform the Estate Officer "if his wife comes back to him" and on the 24th April 1957, Syed Tahir Hussain did furnish such an undertaking. It appears that a little later, the suspicions of the Estate Officer were again aroused, and he called upon Syed Tahir Hussain to furnish further information regarding the source of the money expended on the building of the wife's house, and "have the husband and wife been separated, or they still live together P' (sil‑) To this, Syed Tahir Hussain returned the reply that he did not know from where his wife had got the money, and that she had not been living with him for a long time, so much so that she had recently issued two legal notices to him, which he could produce. The letter from the Estate Officer clearly indicated that the information sought from Syed Tahir Hussain vas required "for onward transmission to the Ministry of Works". As a result the decision by the Government was that Syed Tahir Hussain should be treated as an unauthorised occupant of the quarter, and on the 20th February 1958, the following order was issued by the Estate Officer:‑-- "Reference Ministry of Works No. 13352/57, Estate, dated 22‑1‑Sts. As decided by the Ministry of Works, Mr. S. Tahir Hussain Rizvi, unauthorised occupant of Qr. No. 4/19‑G, Central Jacob Lines is hereby directed to vacate the quarter within 3 days, failing which this office will be constrained to take the unpleasant action of getting the quarter vacated by force, if necessary." Syed Tahir Hussain thereupon instituted a petition in the High Court for a writ to quash the notice of ejectment and to restrain the Estate Other from possibly ejecting him. Evidence in the case was received in the form of affidavits, and finally after hearing arguments, the High Court issued an order setting aside the Estate Officer's order. The learned Judges described the Karachi Allocation Rules as "statutory rules", but with all respect it seems to us that the assumption is a difficult one to make. The Rules themselves do' not refer to any statute under which they are made. We have already said that it is possible that these Rules may have been made with reference to Fundamental Rule 45, which is itself a~ statutory rule, but it does not follow that rules made under al statutory rule are also statutory rules. It is in our opinion far more reasonable to regard these Rules as having been made for the better direction of the affairs of the Estate Office in Karachi, and to ensure that Government accommodation was distributed equitably and to the best advantage. We consider upon a general appreciation of the content and purpose of the Karachi Allocation Rules that they may best be described as "internal regulations for the guidance" of the Estate Office. The words quoted above are taken from the judgment of the Judicial Committee in the case, Corporation of Calcutta v. Province of Bengal (LR711A31) where their Lordships of the Privy Council observed as follows:‑ "The exact regulations which deal with the terms on which houses occupied by Government officials are provided are not easy to ascertain." We shall have occasion to refer to this decision in greater detail almost immediately, but here we refer to it for the purpose of indicating that similar Rules relating to provision of Government residences for officers made by the Government of undivided Bengal were treated by the Privy Council as regulations of at internal or subsidiary kind, in other words, as mere rules of 6 convenience for the better working of the particular department. No claim of a vested right can arise out of such rules. Basing upon the presumption that the rules were of statutory nature, the learned Judges referred to Rule 21 and came to the conclusion that it had no operation to a case where, because of relations between the spouses being strained, the husband, being the Government servant was unable to live in the house built by the wife. Stating that the Estate Officer's view was that the petitioner was "bound to vacate his present house", because his wife had built a house in Karachi and that this view was founded "on a wrong interpretation of a statutory rule", the learned Judges set aside the order of the 20th February 1958, acting in certiorari. As stated already, the Estate Officer was given special leave to appeal against this order. It seems to us erroneous to think that the decision of the case turns upon whether the respondent and his wife are separated, or upon any question of fact concerning their relations inter se. What is at stake is the actual occupation of premises belonging to Government, by a Government official and the plain fact appears that this Government official has remained in occupation of this house for the past four years against the clear direction of the Government that he was an unauthorised occupant and should vacate the premises. It is important that we should stress that the order requiring him to vacate the premises is not an order made by the Estate Officer. Since no alternative accommodation was being provided, the case was one requiring the sanction of the Government, and the order issued to Syed Tahir Hussain made it perfectly clear that it was the Ministry of Works, i e., the Government of Pakistan operating through the Ministry of Works, which bad made the direction for his vacation. In the light of this fact, the limitations upon the powers of the Estate Officer as expressed In the Karachi Allocation Rules appear to us to lose all significance. This is clearly a case of the Government of Pakistan as the owner of the premises in question directing that the occupant, a Government servant, to whom the premises had been allotted, should be ejected there from. The true aspect of the matter to be considered in law appears to us to be whether the Government is empowered to make such an order, and whether any restraints are applicable to the exercise of this power. It Is here that the understanding of the case is assisted by reference to the judgment of the Privy Council in the Bengal case cited above. The point there was whether a Government building occupied as his official residence by the Commissioner of Presidency Division in Calcutta could be said to be "ordinarily let" for the purpose of assessment of consolidated rate under the Calcutta Municipal Act, 1923. No such question arises here, but upon the argument addressed, It became necessary for their Lordships of the Judicial Committee to examine into the nature of the occupation by the Commissioner of the house In question. Certain of the conditions of this occupation are closely parallel to those applicable under the Karachi Allocation Rules. Thus, the officer was obliged to pay rent in relation to his monthly emoluments, and inter alia, he could sub‑let with permission remaining personally responsible for the rent, and being obliged not to charge his sub‑tenant any more than this sum by way of rent. The Government would not recognise the sub‑tenancy which would terminate as soon as the officer relinquished the appointment of Commissioner. The judgment proceeds to examine the question (not arising in the present case) whether the occupation was as a tenant or as a servant, and the conclusion was reached that the occupation was as a tenant. It then proceeds to consider whether the occupation was incidental to the contract of service, and answers the question in the negative. Their Lordships then went on to observe as follows :‑ "Certain limitations on the Commissioner's rights (if he have any) must be conceded, namely : (i) Even if In the particular case there were a contract the servant would still be subject to summary dismissal at the pleasure of the Crown. [De Dohse v. Reg. (1886) 66 L J (Q. B.) 422 (H. L.).] (ff) The Commissioner might be transferred at any time to another post, and is entitled (if at all) to occupy the residence only whilst he holds the office. (iii) The Crown could at any moment terminate his occupation of the house even though he remained in his post of Commissioner. In these circumstances, were it not for the considerations herein after mentioned, it would have to be determined whether he had any estate In the house or whether he was a mere licensee in occupation as a servant of the Government. If he had any right it could be no more than a tenancy‑at‑will, since the Crown could terminate his occupation at any time and the tenancy (if any) must be implied since no express contract exists." (The italicised is ours) They went on to examine certain further considerations inclining in favour of the view that there was in fact a tenancy at‑will, but eventually declined to determine the question whether It was not a mere license to occupy as a servant of the Government. For the purposes of the case before them their Lordships came to the conclusion that the building was "ordinarily let". We express our agreement, and do so with respect, with the view that at the best, occupation by a Government servant of Government‑owned premises allotted to him, i.e., ear‑marked for his occupation, can be no more than a tenancy‑at‑will, which may be terminated by the State at any time without cause shown. We have noted already that the allottee himself was entitled to relinquish the premises allotted to him at any time, subject only to suffering a certain small penalty in case he caused inconvenience to the Estate Officer by not notifying to him his Intention to vacate within a reasonable time. Whether the case be one of tenancy‑at will or mere license, there can be no question but that the Government had full, authority to terminate the occupation of the premises by Syed Tahir Hussain, by means of a peremptory notice.; Such a notice was in fact issued on the 20th February 1958, and we repeat that it is a matter of regret that as a result of the proceedings which are now being terminated by means of this judgment the occupant has been enabled to continue to occupy the quarter, in seeming defiance of a strictly legal order of the Government, for a period of a nearly four years. In this view of the matter, the question whether the expression "wife" in Rule 21 of the Karachi Allocation Rules necessarily means a non‑separated wife, is, in our opinion, of little consequence. The impression we gain from a perusal of the documents upon the record, which are somewhat scanty, is that the Estate Officer had formed the impression that Syed Tahir Hussain was evading application of the Rule, and gaining pecuniary advantage by non‑disclosure of facts within his knowledge. The affidavits show that the house built by his wife is let on rent, and Syed Tahir Hussain himself states that she lives with her own relations, while he continues to enjoy the advantage of living in a Government quarter at a favourable rental, viz., a small percentage of the salary he draws. Added to this is the circumstance that he failed to notify the Estate Officer regarding the construction of the house by his wife, and this information had to be extracted from him by notice. Therefore, we are unable to see that the action of the Estate Officer in the case was either lacking in bona fides, or involved any violation of the Rules by which he himself was bound. But as we have pointed out above this was a case in which the allotment was being cancelled without provision for alternative accommodation, and since it did not fall within one of the express exceptions contained in the Rules, it required the sanction of the Government. It is quite clear that that sanction was obtained and therefore, both from the point of view of the Government's rights as landlord in respect of the premises, against a person whose occupation was at the best that of a pure tenant‑at‑will, as well as from considerations arising out of the terms of the Karachi Allocation Rules, it must be held that Syed Tahir Hussain's rights to continue in occupation ended three days after the date of the final notice served on him, namely, the 20th February 1958. For these reasons we allow this appeal and direct that the writ issued be withdrawn. As there has been no appearance for the respondent, we make no order as to costs. A.H. Appeal allowed.