P L D 2007 Quetta 87 (PLP)

MUHAMMAD NADIR KHAN, J.

The facts relevant for disposal of this petition are that the petitioner during his posting as Sub-Registrar Hub was provided official accommodation. The petitioner was retired from service on 13-4-2002 and respondent No.2 Haji Shahbaz Khan was appointed as Sub-Registrar. The petitioner was issued notice dated 6-3-2003 to vacate the house but to no fruitful result, thereafter on 30-4-2003 respondent No.2. Haji Shahbaz Khan approached District and Sessions Judge, Hub by means of application for issuance of order for handing over possession of the house to him. The application was resisted by the petitioner who admitted allotment of the house to him and his retirement from service on 13-4-2003. According to the petitioner at the time of allotment of the house' it was in dilapidated condition and not fit for residence, the petitioner having no shelter managed to renovate the house from his own resources. According to the petitioner before his retirement he made application for allotment of the house to him. Petitioner claimed that the worthy Chief Minister of Balochistan as well as Tehsil Nazim Hub recommended his request for allotment of the house to him on ownership basis. According to the petitioner if he is dispossessed without providing him reasonable time his efforts for allotment of the house would be frustrated. The learned District Judge Lasbella at Hub vide order dated 23-7-2003 allowed the application with following observations:-‑ "Admittedly the house in question is Government residential accommodation meant for the residence of Sub-Registrar Hub. Allegedly the said house was occupied and locked by the respondent. The respondent does not dispute his possession but he states that he has spent money and brought the house fit for residence and now he has applied for the allotment of house in question. Perusal of record further shows that the respondent was noticed by District Nazim to hand over the vacant possession of house in question to the applicant but the same was not obeyed. The respondent was bound to hand over the vacant possession of the residence to the applicant in compliance of District Nazim's Notice. The D.C.O. and other Revenue Staff are not empowered under any law to recommend for the allotment of a Government residential accommodation to the Retired Officer/Officials. In these circumstances the application is allowed and the respondent is directed to handover the peaceful and vacant possession of house in question to the applicant within the seven days of this order, if the respondent fails to hand over the vacant possession, the applicant is at liberty to approach the Hub Police Station and the S.H.O. Police Station Hub is directed to take the peaceful and vacant possession of the house in question from the respondent and hand it over to the applicant. The application is accordingly allowed." Petitioner being aggrieved by the above order preferred the constitutional petition in hand and prayed as under:-‑ "It is accordingly, respectfully prayed that the order dated 23-7-2003 passed by the learned District and Sessions Judge, Hub may kindly be declared as illegal, void, in excess of authority and of no legal effect. That the petitioner cannot be dispossessed from the house in question except in due course of law and the ejectment of order is nullity. That pending disposal of petition, the operation of the impugned order be suspended. Any other order as may be deemed fit and proper in the circumstances of case may also be awarded." The petition was heard by the Division Bench but both the Hon'ble Judges have disagreed with regard to the fate of this petition as Hon'ble Mr. Justice Ahmed Khan Lashari allowed the petition with following observation:-‑ "There is a complete want of jurisdiction, thus; remedial writ in the form of prohibition is available. The learned District Judge, in the circumstances, had no jurisdiction to entertain such application and to pass any order to this extent, thus; for the reasons mentioned herein above, we allow this petition and declare the impugned order to be void, illegal and without jurisdiction. The parties are directed to bearing their own costs." Hon'ble Mr. Justice Mehta, Kailash Nath Kohli without going into the validity of the impugned order dismissed the petition with following observations which reads as under:-‑ "I am also of further view that proceedings for recovery of use and occupation charges of the government accommodation from the date of retirement may be initiated by the competent authority on the basis of the market value. It is observed that competent authority to follow .and implement the provisions of West Pakistan Government Lands and Buildings (Recovery of Possession) Ordinance, 1966 strictly in recovering the possession of the disputed premises. The petition is accordingly dismissed, with cost." On account of difference of opinion the matter has been heard by me as referee Judge. Mr. Hadi Shakeel Ahmed counsel for the petitioner reiterating the grounds of the petition supported the judgment of Hon'ble Mr. Justice Ahmed Khan Lashari on the other hand Mr. Amin-ud-Din Bazai Additional A.G. supported the impugned order and the judgment of Hon'ble Mr. Justice Mehta Kailash Nath Kohli. Having in view' he submissions made by the learned counsel for the parties and the material available on the record it is to observe that there, is no dispute between the parties about petitioner having been retired from Government service far back on 13-4-2002. Furthermore it is an admitted fact that the house in dispute is property of Government and petitioner after his retirement has no locus standi to retain the possession of the same. Mere submission of application for allotment of the house on ownership basis cannot create any right/title in favour of petitioner to retain possession of the house. In such view of the matter the petitioner cannot be said to be having any legal character to challenge the proceedings initiated against him for his dispossession from the house and any such action if within the four corners of law cannot be considered to be cause of grievance of petitioner so as to approach this Court invoking its constitutional jurisdiction. The documents available on the record reflect that the petitioner was issued notice to vacate the house but no further step was taken in said direction by the concerned department/authority whereupon the respondent No.2 approached the District and Sessions Judge Lasbella at Hub by means of application seeking dispossession of the petitioner. Admittedly the Illegal Dispossession Act, 2005 was not in field at the relevant time and the application does not indicate that under what law the respondent No.2 approached District and Sessions Judge Lasbella for dispossession of the petitioner whereas under the West Pakistan Government Lands and Buildings (Recovery of Possession) Ordinance,1966 no order from any Court is required for dispossession of an un-authorized occupant, hence the District and Sessions Judge had no jurisdiction to make any order on an application for dispossession of an illegal occupant, it was for the department to take action for dispossession of applicant, which they failed, this reflects the maladministration of the concerned authority. In such view of the matter there can be no other alternative but to declare the order dated 23-7-2003 passed by District and Sessions Judge Lasbella at Hub without jurisdiction, the same is accordingly set aside, however simultaneously it is observed that the competent authority is to take action for dispossession of the applicant as per provisions of West Pakistan Government Lands and Buildings (Recovery of Possession) Ordinance, 1966, further the amount due against the applicant on account of his illegal occupation after his retirement till his dispossession is also to be recovered. Petition, therefore, is partly accepted to the extent of setting aside of the order dated 23-7-2003 passed by District and Sessions Judge Lasbella at Hub; whereas the prayer of the petitioner restraining his dispossession is rejected. Petition accordingly stands disposed of with no order as to cost. H.B.T./15/Q Order accordingly. ***