1983 PLP 1783 (CLC)

3. I have heard Mr. Moquim Ansari, counsel for the petitioner and the Advocate‑General on behalf of the respondents. The learned counsel for the petitioner has placed reliance on rule 15, sub‑clause (4) of the Resi dential Accommodation at Quetta Procedure for Allotment Rules, 1982 contained in the Notification No. CEO(S & GAD)1‑1/80, dated 24th June, 1982 which reads as follows :‑ "15. (i) ... ... ... ... ... ... ... ... ... ... (ii) ... ... ... ... ... ... ... ... ... ... (iii) ... ... ... ... ... ... ... ... ... .. (iv) Allotment of accommodation may be transferred to the father/ mother/real brother/real sister/real son or wife/husband of the allottee, if he/she is eligible for the same or for a higher type of accommodation at the time of the event or becomes eligible within 2 months of the event and beneficiary had been ordinarily residing with the allottee. In case he/she is entitled to a lower class accommodation, he/she shall be allotted the first available quarter in the class and tilt such time an alternative accommoda tion is made available, he/she may retain the accommodation in his/her occupation on payment of normal rent." Suffice is to say that this rule can under no principle of construction be given retrospective effect and is on the face of it not applicable in them present case. The learned Advocate‑General has drawn my attention to the fact that Bungalow No. 22 is of A type which can be allotted to an officer holding National Pay Grade‑19 or above and it was allotted to Malik Abdus Samad because he was an officer of that status. The petitioner being of Grade‑18 was not entitled to this bungalow. Mr. Moquim Ansari being faced with this situation made an attempt to justify the submission by stressing on the occupation of some officers who were allotted the pre mises after the retirement or demise of their fathers but that allotment in the present case cannot be claimed as of right nor a legal precedent. When no application for the allotment was even made by Dr. Munir Ahmad himself and the recommendation of the Section Officer, Health Department quoted above had lost its effect after 4th January, 1979 when Dr. Munir Ahmad was not posted at Quetta and had left Pakistan. This was so for an additional reasons that as would appear from this recommendation also that Dr. Munir Ahmad was not posted at Quetta even at that time when the recommendation was made. Now he is drawing his pay from Kalat, and is no more on the strength of the Quetta District. Apart from the fact that Government servant can claim any accommodation in a District where be is not posted. There is a letter dated 15th August, 1968 issued by the erstwhile Government of West Pakistan which reads as under :‑ "A Government servant proceeding on training duty abroad will be allowed to retain the official residence during the period of training/ duty subject to the maximum of two years provided he leaves his wife and children and pays the rent regularly." Dr. Munir Ahmad cannot claim any benefit under this letter also as he was never allotted this house or had ever paid any rent. The house was allotted to his father who was in its occupation; and it could not, therefore, be 'allotted to any else and before his retirement (Abdus Samad) he Dr. Munir Ahmad was posted outside Quetta and had even proceeded abroad. The relief claimed in the suit cannot be granted in the terms prayed for as the Government servant are always liable to be transferred any time to any other place and is entitled (if at all) to occupy the residence while he holds the office at the place of posting only and nowhere else. The Ordinance IX of 1966 West Pakistan Government Land and Buildings (Recovery of Possession) Ordinance, 1966 which provides for the speedy recovery of possession of Government Lands and Buildings from outgoing lessees and licensees and unauthorised occupant and for matters ancillary thereto in section 2(f) defines "unauthorised occupant" as per person who is in occupation of any land or building without the express permission or authority of the Government and a person induced into any land or building by .the lessee or licensee thereof and every member of the lessee's or licensee's family who remains in occupation of any land or building after the determination of the lease or licence in respect of the same. By section 10 of the said Ordinance the Civil Courts have been debarred from granting an injunction. The provision is reproduced below : ‑ "Section

10. Jurisdiction of Civil Courts barred.‑No civil Court shall pass an order in' any suit or proceeding granting a temporary or interim injunction restraining Government or any authority or officer authorised by it from taking possession of any land or building under this Ordinance." The main guiding principle being that the decision of the Government in the matter of determination of the disputes has been exclusively allowed to be examined by the Government or the Committee set u by the Government and the jurisdiction thus created is not one in respect of which the courts could be though to be invested with powers of any supervisory jurisdiction and the court should not involve itself into a field which is more appropriate for the committee set up under that law rather than a court. The occupation by a Government servant of Government premises, even if allotted, can be no more than a tenancy at will which may be termi nated by the Government at any time without any show‑cause notice whereas in this particular case the occupation of Dr. Munir Ahmad's family was only that of licensee. Whether the case be a case of one tenancy at will or mere licence, there can be no question but that the Government has ful authority to terminate the occupation of the premises. Estate Officer Government of Pakistan v. Syed Tahir Hussain (P L D 1962 S C 75) may be referred. This Court also in Civil Revision No. 38 of 1979. practically in similar circumstances has held that the occupation of a Government servant without the proper allotment was patently unauthorised and no injunction can be issued. In the circumstances of the case no injunction could be claimed. The reliance is also placed by the learned Advocate‑General on the case of Shahid Coal Agency v. Chairman, Pakistan Railways and others (P L D 1982 Quetta 134) wherein it has been observed :‑ "that the issuance of a temporary injunction is governed by the same principles as the grant of a permanent injunction at the trial of the case and that the unauthorised occupant is not entitled to the relief of injunction to perpetuate the till‑gotten gain. The grant of injunction is a matter within the discretion of the Court and I am of the considered view that it should not be issued in favour of tres passer. To grant an injunction in such a case would be tantamount to giving a right both present and future to trespasser which he could not legally claim." I emphasis with regret that the occupation has been prolonged in seemingly defiance of the legal order of the Government for a period of nearly five years. During the arguments the learned Advocate‑General has placed on record an undertaking given by Malik Abdus Samad father of Dr. Munir Ahmad which is in his own handwriting and is reproduced below :‑ "Estate Officer, Government of Baluchistan, Quetta. Kindly refer to my talk with you regarding vacation of Bungalow No. 21 Court Road. I have managed a 'house for the family of Dr. Munir Ahmad which would be available for occupation within a fortnight or so. On our shifting to the new premises, the above Bungalow would be vacated by 10th May, 1983. This is for your information. (Sd.) ABDUS SAMAD, Dated 3-5-1983 Father of Dr. Munir Ahmad." I, therefore, asked the learned counsel for the petitioner whether he still 'persists on the Revision Petition before this Court. This learned counsel had no answer to this but said that he would like if the order on merits is passed by this Court. By the answer of the learned counsel I am remind ed of a saying "More loyal to the king than the king himself". Though in of this undertaking the revision has become infructuous yet in order to settle the controversy I had to give reasons for the dismissal of the Revision Petition. As I found that the judgment of this Court if Civil Revision No. 38 of 1979 had been ignored though the learned Civil Judge was bound under the law to follow it. For the above reasons there is no substance in the petition which hereby dismissed with no order as to costs. On the conclusion of the arguments I had passed a short order dismissing the Revision Petition on 23rd July, 1983 and above are the reasons for that order. M. Z. M. Revision dismisses.