2011 PLP (C (PLC(CS))

MUHAMMAD ANWAR KHAN KASI, J.

The petitioner being an employee of Federal Government was allotted a government accommodation as category "E" House No.7/1-E Street No.10, Sector G-7/2 through allotment letter No.771-E, St.10,G-7/2/EIV/EO dated 4-11-2009, where the respondent No.3 had been residing as an allottee, who retired from service w.e.f. 27-2-2010.

2. It is stated that the respondent No.3 had been serving as Sub-Inspector in Intelligence Bureau, Government of Pakistan, Islamabad and after her retirement, she was given a grace period of six months to retain the house, which expired on 27-8-2010. The petitioner, therefore, approached the authorities for the possession of the house but came to know that the respondent No.3 has been allowed the retention of said house for a period of one year w.e.f. 2-8-2010 to 26-8-2011 vide letter No.7/1-E, St.10, 6-7/2-El, dated 10-6-2010.

3. The petitioner initially had also filed a suit for declaration and permanent injunction with the prayer that the allotment of the said quarter may not be withdrawn/cancelled by the government.

4. The said suit was withdrawn on the undertaking by the government department that the allotment in his favour will not be withdrawn except in change of Government Policy/Rules.

5. The counsel for the petitioner submitted that under rule 29-A of the Accommodation Allocation Rules, 2002 the government can relax the rule for the allotment of accommodation to eligible Federal Government Employees in the public interest for deserving and hardship cases only and the reasons are to be recorded, while in the present case, there is no mention about the eligibility to retain the house after the grace period of six months retention period. It is also stated that extension for retention can be given once only for six months, while in the present case, the said rule has been violated. He relied upon the case of Mahmood Ali Qureshi v. Government Punjab and 3 others reported in 1997 PLC (C.S.) 52 of the honourable Lahore High Court, wherein it was held that discretion has to be regulated, keeping in view the principles of equity, fair play, justice and extension beyond the prescribed period for no justified reasons is without any lawful authority. He also cited the case of Naimat Ullah Khan v. Federation of Pakistan and 2 others of this court passed in Writ Petition No.206 of 2008, wherein the same view was expressed.

6. The respondents Nos. 1 to 3 contested the petition by submitting separate parawise comments, wherein the maintainability of the writ petition was challenged and it was stated that the government has the authority to allow retention beyond admissible period under Rule 29-A of Accommodation Allocation Rules, 2002. It was further argued that after availing of civil remedy, the writ petition cannot be filed on the same subject matter.

7. Heard and record perused.

8. There is no dispute about the allotment of said house in favour of the petitioner. Again there is no dispute about the retention of house for a grace period of six months under Rule 29-A of Accommodation Allocation Rules 2002. However, the Government can extend the retention once only for six months after the grace period of six months. The respondent No.3 retired on 27-2-2010 and was allowed the retention of house till 27-8-2010. Thereafter she could have been given an t extension in extraordinary' circumstances as a hardship case on compassionate grounds for six months that is till 27-2-2011 and that too after recording reasons in writing.

9. In the present case, the order dated 10-6-2010 does not specify any reasons for allowing the retention of the said house till 26-8-2011, therefore, at the most the respondent No.3 can retain the home for six months only i.e. up to 26-2-2011. The courts cannot bless whimsical and arbitrary exercise of discretion by the government, because if such discretion are repeatedly exercised, the common people would be at the cruel mercy of the authorities and there would be a general unrest rather chaos in the society.

10. It has been held time and again that discretionary powers can be exercised by the competent authority but with due care and within four corners of the relevant rules and laws. In no case fundamental rights can be violated on the basis of discretionary powers. The rules no doubt can be relaxed by the Government, but not in an arbitrary manner- which cause inconvenience to the people who enjoy the protection of law...It is also clear that the procedures are to be followed strictly in accordance with law and the gross irregularities always subject to correction by the courts under Article 199 of the Constitution, because in any case the courts are the guardians for the protection of the rights of the common man and under obligation to provide justice and equity to the aggrieved persons. If such illegalities are ignored on the basis of technicalities and relaxation or discretion the purpose of Article 199 would be frustrated. The prevailing situation in this case is not very properly governed by section 29-A of Accommodation Allocation Rules, 2002 and without recording the reasons for extension the order dated 10-6-2010 has been passed without any lawful authority and is set aside. The competent authorities are under obligation to maintain the spirit of law, while exercising the discretion, so that the people may not lose confidence in the system. The petitioner, as lawful allottee of the said house is entitled to get the possession of the house immediately.

11. In view of the above, the petition is allowed with no order as to costs. H.B.T./19/Isl. Petition allowed.