1996 PLP 123 (MLD)

Date of hearing: 5th July, 1995. The petitioner Rana Muhammad Sohail through this Petition No.4150 of 1995 seeks direction to respondent No.l to allot Quarter NoA‑38 Wahdat Colony, Lahore, to him instead of respondent No.4. Another Writ Petition No.7152/95 has been filed by the respondent No.5 Mst. Neelofar Sohail seeking direction that the order dated 4‑4‑1995 passed by respondents Nos.l and 2 be declared as illegal, void and without lawful authority and the allotment of Quarter NoA‑38, Wahdat Colony, Lahore be restored to her; hence these two writ petitions on the same subject‑matter will be disposed of by this joint order.

2. Briefly the facts of the case are that the petitioner Mst. Neelofar Sohail was allotted Quarter NoA‑38, Wahdat Colony, Lahore in June, 1981, who is Assistant Professor in B.P.S. No.20 and is serving presently at Lahore College for Women, Lahore The said Quarter was allotted to her when she was posted as Lecturer in Urdu in the college. The petitioner Mst. Neelofar Sohail presently is paying rent approximately at Rso3,000 per mensem which is deducted from her salary and no arrears are out standing against her in regard to the said Quarter.

3. The allotment of said Quarter in the name of petitioner was cancelled vide order dated 4‑4‑1995 and was allotted to respondent No.3 Muhammad Ashraf Wattoo, a. functionary to the Chief Minister's Secretariat. The petitioner moved an application to the respondent No.l on 4‑4‑1995 explaining therein that the petitioner was residing in the said Quarter for the last fifteen years alongwith her two daughters and that she has been living separately in the said Quarter due to strained relations with her husband; in response to which the petitioner received letter dated 12‑4‑1995 from the respondent No.2 wherein it was alleged that the petitioner had constructed her own house and had shifted there; hence in accordance with Government Policy; the petitioner was not entitled to retain the Government accommodation; she also appeared before the Deputy Secretary Walfare, S and GAD on 13‑4‑1995 for personal hearing; hence filed the petition.

4. The petitioner Rana Muhammad Sohail, who has filed Writ Petition No.4150 of 1995 is Judgment Writer/Personal Assistant in BPS‑15; is presently residing in Government Quarter No.FN‑74, Wahdat Colony, Lahore; applied on 1‑12‑1994 for allotment of better Quarter as per his entitlement and pointing out that Quarter NoA‑38 aforementioned be allotted to him claiming under the First Informer Policy as the allottee of said Quarter Mst. Neelofar Sohail allegedly had shifted to the residence of her husband. On his application dated 1‑12‑1994, the Estate Officer made an enquiry; Mst. Neelofar allegedly was issued three notices by the Estate Officer for personal hearing dated 15‑1‑1995, 25‑1‑1995 and 6‑2‑1995 but she did not turn up.

5. Meanwhile the Estate Officer also received applications for allotment of the said Quarter from Ghulam Farid, Stenographer of Anti‑Corruption Department and Mohammad Yousaf serving in Chief Minister's Secretariat on 4‑1‑1995 and 25‑1‑1995 respectively. The matter was put up before respondent No.l who instead of allotting the Quarter to the ' applicants; vide his order dated 3‑4‑1995 allotted the said Quarter to Muhammad Ashraf Wattoo respondent No.4, hence he also filed the writ petition claiming to be entitled to allotment of Quarter being First Informer.

6. The learned counsel for the respondents Nos. 1 and 2 raised the preliminary objection that the petitioners have got no right to file the petitions before the Court as no Government employee can ask for allotment of residential accommodation as a matter of right and the High Court cannot itself make any executive order as its functions is being confined to issue direction on matters of law is devoid of merits.

7. True, in. the case of its writ jurisdiction the High Court never substitute itself or assume the responsibility of the executive for the simple reason that it does not have the requisite information, experience and training' to discharge the executive functions but where an administrative or executive officer acts under a law, the High Court will control the action by an appropriate order only if he goes out of law i.e. exercises a jurisdiction not vested in him by law as observed in case The Tariq Transport Company, Lahore v. The Sargodha‑Bhera Bus Service, Sargodha etc. (PLD 1958 SC (Pak.) 437). The power of High Court under Constitution to make a declaratory judgment is discretionary; it is well‑settled principle of law that discretion should be exercised with due care and caution and judiciously, with regard to all the circumstances of the case as to apply for a writ is a right as it was observed by their Lordships in case Karamat Hussain and others v. Muhammad Zaman and others (PLD 1987 SC 139) wherein it was observed that "writ jurisdiction conferred upon the High Court by the Constitution is discretionary but the right to apply for a writ i5 certainly not a privilege. On the contrary, it is one of the most valuable right that can be conferred upon a citizen"; hence the petitions filed by the petitioners are maintainable as a matter of right.

8. Admittedly Mst. Neelofar Sohail the petitioner is an allottee of the said Quarter since 21‑6‑1981 and is in possession for the last fifteen years and is serving as Assistant Professor of Urdu, Lahore College for Women, Lahore. The contention of the petitioner in Writ Petition No. 4150 of 1995 that the allottee (Mst. Neelofar Sohail) as per allegation in his application dated 1‑12‑1994 has shifted to her own residence has not been substantiated that she has her own house in the vicinity of Lahore; seems to be a concocted story as the petitioner alleged in his application: ‑‑‑ "That occupant of Quarter NoA‑38, Wahdat Colony has shifted to her own residence and only her servants are residing in the said Quarter‑‑‑" while the Sub‑Engineer who conducted the inquiry; as per summary for Chief Minister dated 30‑3‑1995 it is stated that:‑‑‑ "The Sub‑Engineer who reported that the house was being found locked and the allottee has shifted to her own house at Faisal Town, Lahore."

9. The contention of respondents Nos.l and 2 that thrice notices were issued by the Estate Officer to Mst. Neelofar Sohail for personal hearing on her residence address but she did not appear; the manner in which notices were repeatedly issued on 11‑1‑1995; 22‑1‑1995 and 31‑1‑1995 also makes the inquiry doubtful as the learned counsel for the respondents Nos.l and 2 could not satisfy the reasons for not effecting service upon her place of service through the Principal of College or adopting substitute method of service; hence violated the principle of audi altram partem which is not only applicable to the judicial proceedings but is also applicable to the executive order and one cannot be condemned unheard.

10. Admittedly, Mst. Neelofar moved an application for personal hearing before the respondent No.1 on 4‑4‑1995; the day the impugned cancellation order was issued the petitioner was not given proper hearing even on that date and the said Quarter was allotted to respondent No.3 who in fact manoeuvred to get the house of the petitioner cancelled being helpless lady and got it allotted in his name. The whole procedure adopted to cancel the allotment in the name of Mst. Neelofar Sohail and allotment to respondent No.3 even ignoring the claim of petitioner Rana Sohail on the basis of First Informer Policy is a mala fide act on the part of respondents Nos.1 and

2. It was observed in case Mr. Muhammad Jamil Asghar v. The Improvement Trust Rawalpindi PLD 1965 SC 698 as under: ‑‑‑ "However, with respect to mala fides, the jurisdiction of the Civil Court can never be taken away for a mala fide act is in its very nature an illegal and void act and the Civil Court can always pronounce an act to be mala fide and therefore void".

11. The outcome of the above discussion is that, indeed, the order passed by respondent No.l is of administrative nature and claim of allotment by a Government servant is not a statutory right as no Government employee can ask for allotment of residential accommodation as a matter of right; but once the allotment has been made in favour of Mst. Neelofar Sohail and she is in occupation of the said Quarter; the cancellation order in the above circumstances and spanner without proper service on her is not only erroneous but is without jurisdiction. Resultantly, Writ Petition No.7152 of 1995 filed by Mst. Neelofar Sohail is accepted and the order dated 4‑4‑1995 passed by the respondents Nosa and 2 being devoid of merits is set aside and Writ Petition No.4150/95 is devoid of merits and is hereby dismissed. The parties are left to bear their own costs. AA./M‑2558/L Petition dismissed