This matter came up earlier in High Court in Writ Petition No. 5995/80 which was disposed of by the order of my learned brother Muhammad Afzal Lone, J., on 26-7-1980. A review application was made by the petitioner, but the application was dismissed as withdrawn.
2. The petitioner is a Central Government servant and was allotted House No. 571, Shadman in November, 1976. That house was subsequently dehired and the petitioner was given alternate accommodation at 33-A Urdu Nagar. That house was not vacant and the petitioner reported back to the Estate Officer who allotted House No. 15-E to the petitioner in the Central Government Employees' Colony near the Wahdat Colony, Lahore. The petitioner objected to this house as it was below his entitlement. The Estate Officer then asked the petitioner to look for a house on his own which could be allotted to him. The petitioner proposed House No. 155, Shadman and offered to make up the deficiency of his entitlement if this house was above his entitlement. Somehow this house could not be allotted to the petitioner. In the meantime the allotment of House No. 571 was cancelled from the name of the petitioner without providing any alternate accommodation. The petitioner challenged that order in Writ Petition No. 5995/80. During the proceedings of that petition House No. 300-II/A, Allama Iqbal Town which is now in dispute was allotted to the petitioner on 23- 6-1980. It appears that the petitioner was not inclined to shift to this house but the writ petition was disposed of on 26-7-1980 with a direction to the petitioner to shift to House No. 300-II/A by 31-8- 1980 failing which the petitioner would be liable to be ejected from House No. 571, Shadman.
According to the petitioner he shifted to the present house on 1-9-1980. The Assistant Estate Officer; however, questions the correctness of this position on the ground that on his visit to the house he found the house unoccupied, thereby justifying the cancellation of allotment of this house on 23-11- 1980.
3. House No. 300-II/A, Allama Iqbal Town, had its own history, which is relevant for the purposes of the present petition. It has been observed above that the petitioner was directed on 26-7-1980 to shift to the house in Allama Iqbal Town before 31-8-1980, but on 28-7-1980 an order was passed by the Ministry of Works dehiring this house. This is within two days of the direction of the High Court on 26-7-1980. On 10-8-1980 the order of dehiring was withdrawn as is evident from proceedings of the review application in Writ Petition No. 5995/80. Three months after that on 11-11-80, this house was again desired by the orders of the Ministry of Works with the direction that the allottee should be provided with alternate accommodation. The Assistant Estate Officer, however, acting on his own passed the order of cancellation of allotment on 23-I1-1980 without providing any alternate accommodation to the petitioner. This order was passed while the condition imposed by the Ministry of Works regarding alternate accommodation was still in force. Subsequently, however, the condition of providing alternate accommodation was withdrawn by the Ministry of Works on 13-12- 1980 on the request of the Assistant Estate Officer. The present writ petition had already been filed on 3-12-1980. It is pertinent to notice that Mr. Zia Mahmud Mirza, the learned Standing Counsel for the Government of Pakistan was present in Court on 3-12-1980 and the case was adjourned to 17- 12-1980.
4. The learned counsel for the petitioner has argued that the order of cancellation of allotment is in violation of the Pakistan Allocation Rules, 1971 and is, therefore, without lawful authority. He has also argued that the cancellation of the allotment is mala fide and, therefore, be set aside. The learned counsel for the respondents has, however, argued that the petitioner has been very choosy about the allotments and did not care to shift to the house allotted to him. It is stated that the petitioner had no intention io shift from House No. 571, Shadman and had been relying on one excuse or the other to hold on his possession of House No. 571, Shadman. It is contended that the order of the Assistant Estate Officer of cancelling the allotment was, therefore, justified.
5. I can see that the petitioner has been choosy about the houses that were offered to him as alternate accommodation after House No. 571, Shadman was dehired, but, on the other hand, the respondents. Have not been entirely fair to him. Pakistan Allocation Rules, 1971, are not statutory rules. They are only meant to regulate a fair distribution of Government accommodation which is much shorter in supply than the demand. Since the Pakistan Allocation Rules, 1971, do not have the force of law they cannot be pressed into service by the petitioner, who is only a licensee, yet the functionaries of the State cannot absolve themselves of their responsibility of being fair and just in passing orders which may entirely be administrative in nature. ,4 Needless to say that the High Court is competent to have a judicial review of the administrative actions of the Government
6. House No. 571 Shadman was debited and the dehiring itself is not in question. The allotment of the petitioner was cancelled for 571, Shadman without providing him with an alternate accommodation which was questioned in the High Court. The matter was, however, resolved in the High Court when the High Court gave a direction to the petitioner to shift to House No. 300-II/A, Allama Iqbal Town within a given time. It is from this stage on that the developments that took place will be relevant for the determination of matters in issue in the present writ petition. The petitioner was directed on 26-7-1980 to shift to the new house in a month's time but within two days of that an order was passed by the Federal Government dehiring this house. It was only when the petitioner moved a review petition that the Government decided to withdraw the order of dehiring the house. The uncertainty, however, continued which is evident from the fact that the house was again debited on I1-11-1980. The Government had been quite fair at this stage because they gave a direction that the petitioner may be provided with alternate accommodation. In disregard of this direction the Assistant Estate Officer decided to act on his own and ordered cancellation of allotment of this house on the ground that the petitioner had not occupied the house at all. For this purpose reliance was placed on rule 14 of the Pakistan Allocation Rules, 1971.
Rule 14 is to the effect that allotment of a house is not transferable and that if the allottee or his family do not ordinarily reside in the accommodation allotted and allow somebody else to live in that accommodation without the permission of the Estate Officer, the allotment should be liable to cancellation.There was no allegation in the present case that the petitioner had permitted somebody else to reside in that house and thereby had been guilty of transferring the allotment. All that the petitioner presumably did, if the Assistant Estate Officer is to be believed, is that the petitioner did not utilize the accommodation. Under these circumstances the provisions of rule 14 could not be pressed into service as the petitioner had not been guilty of transferring the allotment.
These circumstances however are important inorder to show whether the respondents had been entirely fair to the petitioner.-- The Assistant Estate Officer has been a little too active at this stage because while the Government in their letter dated I1-11-1980 ordered the dehiring of the house on the condition that alternate accommodation should be given to the petitioner, the Assistant Estate Officer took it upon himself to go beyond that order and unlawfully pressing it into service a rule which was not available decided to cancel the allotment on his own without providing an alternate accommodation. The Assistant Estate Officer, subsequently, sought protection from the Central Government and had the condition of alternate accommodation withdrawn, but this was obviously meant to subvert the proceedings in the High Court -which had in the meantime been initiated on 3-12-1980. It may be observed that the Government decided to withdraw the condition of alternate accommodation only on 13-12-1980.
7. Considering the facts as have been narrated above, the impression that the respondents have not been entirely fair to the petitioner cannot be successfully dispelled. The petitioner was asked to move out of House No. 571, Shadman for no fault of his. The house given to him in Allama Iqbal Town was itself not clearly available as proceedings were pending for dehiring of this house when it was allotted to him. The Assistant Estate Officer denies all knowledge of the proceedings of dehiring on 26-7-1980 when the High Court gave a direction, but there can be no doubt that the respondent No. 1, viz., the Government of Pakistan was obviously aware of the matter being processed on that date as it cannot be believed that the order of dehiring of 28-7-1980 was passed in a single day. The uncertainty regarding this house was further complicated by the final dehiring of the house on 1I-11-1980. The petitioner, therefore, could not be expected to move to a house the future of which was so uncertain. The possibility that such a house was deliberately given to him cannot be excluded.
8. In view of the above considerations, the order of cancellation of allotment passed by the Assistant Estate Officer on 23-11-1980 is set aside and is declared to be without legal effect. House No. 300-II/A, Allam Iqbal Town has in the meantime been debited and the dehiring is not in question, therefore, no direction is given with regard to dehiring of this house. The petitioner will, however, have to be given an alternate accommodation. The Assistant Estate Officer is directed to provide the petitioner with an alternate accommodation within two weeks. The Assistant Estate Officer has stated that an accomodation suiting the entitlement of the petitioner is not readily available. In view of this position any accommodation which is available which may approximate to the status of the petitioner not necessarily being equal to his entitlement may be given to the petitioner. The petitioner has stated that such an accommodation will be acceptable to him. I, however, want to make it clear that if such an accommodation is not accepted Oy the petitioner, the present petition will be liable to be dismissed on that ground alone. It is also clarified that the act of accepting a house below his entitlement will not prevent the petitioner from claiming a house equal to his entitlement, if and when such a house is available. With these observations the writ petition is disposed of. The parties are left to bear their own costs.