' AQEEL AHMED ABBASI, .1.---Through instant petition the petitioner has sought relief in the following terms:--
(A) Direct the respondents Nos.1 to 3 to place before the Hon'ble Court the record of all allotments made by the Government of Sindh in favour of the officers in DHA to examine whether such allotments have been made strictly in accordance with the criteria laid down in Notification No,CTC(S&GAD) 4(381)/95 dated 15-1-1996 of the S&GA Department for allotment of plots to the officers of Government of Sindh.
' Declare that the Chief Minister Sindh or any other Officer in the Government of Sindh has no power or authority to allot plots on the basis of personal choice or discretion but such allotment caw only be made to officers who fulfil the criteria laid down in Notification No, CTC(S&GAD)4(381)/95 dated 15-1-1996 of the S&GA Department through ballot; ' To cancel the allotment of all such plots that have been made by the Chief Minister Sindh or any other Officer in the Government of Sindh in Phase VII, DHA, Karachi by ignoring the criteria laid down in Notification No, CTC(S&GAD)4(381)/95 dated 15-1-1996 of the S&GA Department and/or by using personal discretion.
(D) To direct the respondents Nos.1 to 3 to allot one plot in DHA Phase VII, Karachi, from the remaining un-allotted plots in DHA Phase VII to the petitioner as he fulfils the required criteria;
(E) Any other and/or better relief which this Hon'ble Court may deem fit under the circumstances to grant.
2. Brief facts as stated in the- petition are that the petitioner is a senior civil servant being a Gazetted Officer in Grade 20 and presently posted as Secretary to Government of Sindh, Special Education Department, Karachi, with almost 33 years of service. He is due for retirement upon reaching age of superanhuation in December, 2009. He has claimed that he has no house of his own in Karachi and is residing in the accommodation provided by the Government of Sindh as per the status/rank of the petitioner.
3. It has been further stated that from time to time the Government of Sindh has been reiterating the policy to provide own residential plots to all its civil servants. In pursuance of such policy, the Government of Sindh in the year 1992 leased an area of 282 acres to Defence Housing Authority in Deh Dih and Drigh Road, Taluka Karachi East on 99 years' lease at the rate of Rs,20 per square yard, a provision was made in the relevant Notification of the Government of Sindh, Land Utilization Department, under which the Defence Housing Authority was/is obliged to accommodate officers of the Government of Sindh in Phase VII of DHA by allotment of plots to them. Accordingly, 50% of the developed plots were to be made available for allotment by the DHA to the government servants of the respondent No,1. The development charges were to be paid by the allottee/government officer concerned at the time of allotment to the DHA.
4. That the Government of Sindh/Respondent No,1 laid down an "Eligibility Criteria" tor its officers who would qualify for allotment of such plots in Phase. VII of the DHA vide Notification No,CTC (S&GAD)4(381)/95 dated 15-1-1996 of the S&GA Department. As per this notification officers of APUG, Ex-PCS and Provincial Secretarial Service of BS-17 and above having put in at least 15 years' qualifying service on 31-12-1995 and at present serving in Sindh and having domicile of Sindh Province and those who served Government of Sindh for at least 10 years in the past and having domicile of Sindh Province shall be entitled for allotment. Priority was to be given to those who are nearing retirement on superannuation.
5. That upon issuance of above notification/circular, the petitioner on 22-1-1996 applied for allotment of plot in the said Phase-VII of DHA Scheme where the land was earmarked for the officers of Government of Sindh, to the Secretary, General Administration after obtaining and filling- in the Application Form prescribed for this purpose. The application was received in the office of the respondent No, 1 on 28-1-1996.
6. That ballot was held by the DHA on 25th May 1996 and result intimated to the Secretary (General Administration) by Pakistan Defence Officers Housing Authority vide its letter dated 30th May 1996 enclosing ballot result for 387 Special Category plots.
7. That the petitioner was never informed about the fate of that application or inclusion of his name in the successful plot holders at all.
' However, the petitioner later discovered that his application was not considered and even the same was not included in the list sent to the DHA.
8. That subsequently after clearance of some land from dispute/ litigation further land of about 40 acres was made available in DHA for the officers of Government of Sindh. The petitioner thereafter submitted his case to the Secretary (GA) for onward submission to process his case vide his letter dated 5-10-2005.
9. That while still no action was taken on petitioner's application the newspapers reported that 387 officers of Government of Sindh have been allotted plots in Defence Housing Authority against the quota reserved for the officers of Government of Sindh. However, petitioner's name was not included in the list of allotees.
10. That on 4-4-2006 the petitioner approached the Chief Minister through his application with the previous references regarding the allotment of plot in Phase-WI of DHA and also requested respondent No,1 vide application dated 3-4-2006 but to no avail.
11. Thereafter the petitioner continued to approach to the Chief Minister through written applications for redressal of his grievance, however, having received no favourable response, the petitioner has filed instant petition seeking the relief in terms of the prayer as mentioned hereinabove.
12. It is inter alia contended by the learned counsel for the petitioner that the petitioner who is serving in the Government Department for about 33 years, presently working in BPS-20, Secretary to Govt. Of Sindh, Special Education Department, his name was entitled to be included in the list of eligible contenders for allotment of plot in terms of Policy dated 15-1-1996. Per learned counsel, in terms of clause 2(b) of Policy dated 15-1-1996, the petitioner was qualified to be included in that category and was entitled to allotment of plot of land.
13. Learned counsel further submitted that petitioner was absorbed in Government of Sindh covering the period w.e.f, 16-1-1991 to 20-12-2009, therefore, in November 2008 when the list for further allotment of 60 plots was drawn the length of service of petitioner was over 18 years. Per learned counsel, the eligibility of incumbent was required to be seen at the time when the allotment was processed for the remaining 60 plots in the year 2008-2009 and not at the time of issuance of policy. It has been contended that in order to accommodate favourites the declared policy was changed by the respondents by floating a summary to Chief Minister without notifying new policy in the official Gazette, which is the requirement in terms of clause 19A of the Sindh General Clauses Act, 1956. Per learned counsel, the Chief Minister has no discretionary powers to reserve 5% quota for himself for allotment of plots at his discretion or to unilaterally raise the quota to 10% and then again to 15%. It is contended that the allotment of plots in violation of the policy under discretionary powers of the Chief Minister is illegal therefore, all such allotments may be cancelled, whereas the petitioner may be allotted a plot of land in terms of original policy.
14. Learned counsel while concluding his arguments contended that allotments of plots were not made in accordance with criteria laid down in Notification No,CTC(S&GAD)4(381)/95 dated 15-1- 1996, whereas the Chief Minister has allotted plots to several incumbents by exercising discretion which was not vested in him. It has been prayed that the petitioner may be allotted one plot in D.H.A, Phase-WI, whereas allotment of plots to the officers in violation of the criteria laid down in the notification referred to hereinabove may be cancelled. In support of his contention, learned counsel for the petitioner has placed reliance on the following judgments:--
(1) Moula Bux Khatian v. Chief Secretary, Government of Sindh 1996 PLC (C.S.) 312
(2) Government of Sindh v. Messrs Khan Ginners (Pvt.) Ltd., PLD 2011 SC 347
(3) Mst. Ummatullah v. Province of Sindh PLD 2010 Karachi 236
(4) Abdul Haq v. Province of Sindh PLD 2000 Karachi 224
(5) Messrs Abdullah and Co. v. Province of Sindh 1992 MLD 293
15. Conversely, learned counsel for the respondents have opposed the maintainability of the instant petition and filed their respective comments wherein the claim of the petitioner has been denied.
Learned Advocate General Sindh did not controvert the contention of the learned counsel for the petitioner regarding eligibility criteria, however, it has been stated that the petitioner was absorbed as permanent employee of Government of Sindh in the year 2002 and as such he did not serve for 10 years in the Government of Sindh, hence did not qualify under the scheme. It has been further contended that the petitioner did not qualify in any of the criteria laid down for eligibility and entitlement of plot as per policy. The learned Advocate General Sindh has further submitted that in fact, the petitioner was employee of Sui Southern Gas Company Limited and was posted as Deputy Sectetary (Food) on deputation on 9-1-1991, thereafter petitioner relinquished the charge of Establishment Division in 1991. He was absorbed on 3-2-2006 in BPS-19 in Government of Sindh w.e.f, 5-8-1992. According to learned A.G, in view of hereinabove facts, the case of petitioner did not fall within the criteria as laid down for the allotment of plot to the employees of Government of Sindh, as to qualify under the scheme, an employee "who has served Government of Sindh for at least 10 years in the past i.e, w.e.f 31-12-1995" was qualified.
16. As regards objection relating to non-publication of the change in the policy, the learned A.G. Has submitted that this ground was not taken by the learned counsel in the petition and has been just raised at the time of hearing the final arguments. It is contended that if such objection would have been raised in the pleadings, proper response would have been submitted by the respondents. Per learned A.G., though this fact is disputed however, it is merely a matter of propriety and not the legal requirement. It has been further argued that in fact, there has been no change in the policy and plots have been allotted as per the Policy of 1996 through computer ballot. In support of his contention, the learned A.G. .Has placed reliance on the case of Saghir. Ahmed v. Province of Punjab PLD 2004 SC 261, Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs and others v. Aftab Ahmed Khan PLD 1992 SC 723, Government of Sindh through Chief Secretary and others v. Khalil Ahmed and others 1994 SCMR 782 and Federation of Pakistan and others v. Ch. Muhammad Aslam and others 1986 SCMR 916.
17. Learned Advocate General further argued that since, the petitioner was not eligible as per requirements of the policy of the Government of Sindh for allotment of plots to its employees, therefore, he is not entitled to claim any other relief as mentioned in the prayer, from this Court, whereas petitioner is not an aggrieved person who could invoke constitutional jurisdiction under Article 199. Per learned A.G., even principle of quo warranto is not applicable in the instant case because the petitioner has shown personal interest in the matter and has also claimed relief through present petition. In this regard, the learned A.G. Has placed reliance on the judgment reported as Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif PLD 2009 SC 644.
18. While concluding his arguments the learned A.G. Has submitted that the petitioner has no locus standi to file instant petition as he did not qualify under the scheme whereas the entire exercise has been undertaken as per Policy and plots have been allotted through computer ballot. Whereas, no discretionary powers have been exercised by the Chief Minister, as alleged by the learned counsel, for the petitioner. Learned A.G. Submitted that instant petition besides containing disputed facts, is otherwise devoid of any merits and the same is liable to be dismissed with cost.
19. We have heard both the learned counsel and perused the record. In order to resolve the controversy in hand it will be advantageous to reproduce the provisions of the policy, which reads as follows:-- " TOP PRIORITYNo.CTC(S&GAD)4(381)/95 GOVERNMENT OF SINDH SERVICES AND GENERAL ADMINISTRATION DEPARTMENT Karachi dated the 15th January 1996
(i) All Administrative Secretaries Government of Sindh (including Senior Member Board of Revenue Sindh)
(ii) All Heads of Attached Departments
(iii) All Divisional Commissioner in Sindh
(iv) All Officers in S&GAD.
' Subject: Application for allotment of residential/commercial plots in DHA VII Extension Karachi by Sindh Government Officers of APUG, EX-PCS and EX-PSS Groups in BS-17 and above having at least 15 years qualifying service on 31-12-1995.
' I am directed to refer to the subject noted above and to say that there is a proposal for allotment of residential/Commercial plots in DHA VII Extension, to Sindh Government Officers belonging to APUG, EX-PCS AND EX-PSS Groups in BS-17 and above, having at least 15 years qualifying service on 31-12-1995 and Domicile of Sindh on the following terms and conditions ' TERMS OF OFFER ' Residential/Commercial plots are offered in DHA on payment of the cost and development charges. The allottee by virtue of the sale and lease to be executed in his/her favour, shall become owner of the plot.
' CRITERIA FOR ELIGIBILITY
(2) The' following categories of employees fulfiling the conditions laid down hereunder shall only be eligible:--
(a) Officers of APUG, EX-PCS and Sindh Secretariat Group of BPS-17 and above having put in at least 15 years qualifying service on 31-12-1995 and at present serving in Sindh and having Domicile of Sindh Province.
(b) The Employees as specified at (a) above shall also include those who served Government of Sindh for at least 10 years in the past, and having Domicile of Sindh Province.
(c) Preference shall be given to those who are nearing retirement on supernnuation.
(d) Such Employees who were ever allotted a residential/commercial plot in Pakistan either in their names or in the name of their dependent family members by Federal/Sindh Government shall not be eligible to apply in this scheme.
(e) Such Employees who own a house or flat in their names or in the name of their dependent family members are also not eligible to apply in this scheme.
(f) In case number of eligible employees exceeds more than the number of plots, the allotment shall be made by holding a ballot. Those who fulfil the conditions may obtain application form and other documents from Secretary (GA) Government of Sindh, S&GAD by 23rd of January 1996 for consideration. Sd- (HAIDER ALI KHOKHAR)
SECTION OFFICER (CTC)"
20. From perusal of the terms of policy and para-wise comments submitted by the respondents, particularly in para 7, it is noted that application of the petitioner for allotment of plot in D.H.A was rejected and his name was not sent to D.H.A. a/uthorities for balloting on the ground that at the time of allotment of plots in DHA i.e,1996, he was working in Government of Sindh on deputation basis, being an employee of Sui Southern Gas Company Limited, vide Federal Government's Order dated 9-1-1991, hence did not meet the minimum eligibility criteria as laid down in the Policy of 1996. From pleadings, it is further noted that the petitioner, who was an employee of Sui Southern Gas Company Limited was posted as Deputy Secretary (Food) on 9-1-1991 on deputation, whereafter he was absorbed in BPS-19 in Government of Sindh vide Notification No, SOI(SGA & CD)3/03/91 dated 3-2-2006, w.e.f, 5-8-1992, therefore, the petitioner did not meet the minimum criteria i.e, who has served Government of Sindh for at least 10 years in the past as on 13-12-1995.
Copy of Notification has been attached along with comments filed by respondents. As per record it appears that pursuant to notification dated 15-1-1996 the ballot was held by DHA on 25th May 1996 and result was intimated to the Secretary (General Administration) by Pakistan Defence Officers Housing Authority vide its ejectment orders did not commit any jurisdictional error as such, the findings do not call for any interference by this court. For the foregoing reasons, this petition having no merit is dismissed letter dated 30th May 1996 whereby result for 387 (143 residential and 244 commercial plots) was annexed, whereas application of the petitioner was not sent to DHA authorities for balloting for the reason as noted above. For remaining 60 plots the ballot was held on 27-4-2009 by D.H.A and the result was communicated to the Secretary to Government of Sindh vide letter dated 28-4-2009 along with list of allottees.
21. It is pertinent to note that the petitioner has not been able to show as to under which clause of the policy issued by the Government of Sindh vide letter dated 15th January, 1996 for allotment of plots, the petitioner qualified and met the criteria for eligibility. Similarly, it has not been stated in the petition as to how the allotment of plots to various employees of Government of Sindh through ballot was violative of the terms and conditions of the scheme. Generalised and vague allegations have been made in the petition, whereas even the names of such employees have not been given, who according to petitioner, were allotted plot of lands on the basis of Chief Minister's quota.
22. From perusal of the record and the comments filed by the respondents, it is further noted that the summary of the proposal regarding fixation of Chief Minister's quota for the allotment of plots moved by the competent authority whereby the criteria was also laid down for the eligibility whereas the discretionary quota was meant for the employees of the Government of Sindh who were never allotted any plot of land and only in the case of hardship. However, it is further noted that remaining 60 plots, including the plots which were meant to be allotted at the discretion of the Chief Minister, have been allotted through computer ballot held on 28-4-2009. The petitioner, however, has not been able to show any discrimination or exercise of the power, which was not vested in the Chief Minister. No material has been placed on record to establish that plots have been allotted in violation of the policy or any statutory right of the petitioner has been infringed.
Similarly, as regards objection about non-publication of revised policy, in view of disputed facts and specific denial by the respondent regarding allotment of plots to favourites, in violation of policy, we are not inclined in these proceedings to make any observations regarding validity or otherwise of the 5% or 10% quota fixed for the Chief Minister, more particularly when the plots prima facie, have been allotted through computer ballot. Since the petitioner could not establish his entitlement nor could point out any violation of law, rules and regulations, therefore, we are not persuaded to grant any relief to the petitioner under the facts and circumstances of this case.
Moreover, facts as stated in the petition have been disputed by the respondents, which controversy cannot be resolved by this Court in its constitutional jurisdiction. The case-law relied upon by the learned counsel for the petitioner in this regard is of no assistance to the petitioner under the facts and circumstances of this case.
23. While invoking extraordinary constitutional jurisdiction of this Court, the petitioner has to establish firstly that he is an aggrieved party as defined in clause (1)(a) of Article 199, secondly that relief sought by him is one which he is legally entitled to seek under any provisions of law, rules or regulations and thirdly for seeking relief prayed by him, no other forum or remedy is available to him. The relief sought under Article 199 of Constitution depends on existence of a fundamental or legal right of a person or a party and the infringement of such right. Such right may be a statutory right or a right recognized by law.
24. From perusal of the pleadings and prayer clause of the instant petition, it appears that the petitioner has not sought any declaration regarding his entitlement of allotment of a plot in terms of notification dated 15-1-1996 nor has been able to show as to what statutory or legal right has been infringed by the respondents. It further appears that during the pendency of instant petition the remaining 60 plots have been allotted to the employees of Sindh Government pursuant to policy dated 15-1-1996 as amended vide notification dated 3rd February, 2006 through ballot wherein some quota for Chief Minister was also fixed. However, during pendency of this petition the respondents have allotted plots to provincial government employees through computer ballot as declared under the original policy.
25. Under the circumstances, we are not persuaded to agree with the contention of the learned counsel for the petitioner whereby entitlement for a plot of land has been sought by the petitioner on one hand, whereas the entire process of allotment of plots to all the allottees, allegedly undertaken by ignoring the criteria as laid down in the policy, has been disputed on the other. We are of the view that petitioner has not been able to make out a case to seek discretionary relief from this Court in extraordinary constitutional jurisdiction.
26. In the case of Dr. R.A. Siyal v. Federation of Pakistan through the Secretary Establishment and others 2011 SCMR 1194, Full Bench of the Hon'ble Supreme Court while examining the eligibility of, an employee for allotment under the Federal Government Employees Housing Scheme held as under:-- "The above notification is very clear and specific to determine the status of the petitioner, which states that his promotion to BPS-20 is w.e.f, 20-11-2003 i.e, until such date he was in BPS-19, as such was neither entitled nor eligible to apply for the plot in Category-I. (10) No factual or legal flaw has been pointed out by the learned counsel for the petitioner in the judgment under review. Even otherwise, all the arguments have been adequately addressed to in the judgment under review For the foregoing, reasons, we find no force in this petition; the same is dismissed accordingly."
27. From perusal of the prayer clause in the instant case, it appears that the petitioner has disputed the allotments of plots on various grounds challenging the eligibility of the allottees, however, none of them has been impleaded as party. Moreover, none else has come forward either to dispute allotment of plots to the employees pursuant to written policy or to raise allegations about excess or abuse of powers by the respondents. It has further transpired that the plots were allotted to the incumbents through computer ballot as per the policy, whereas the petitioner has not been able to show as to whom the plots were allotted on the basis of Chief Minister's quota as alleged in the petition.
28. In view of hereinabove facts, we are of the view that the petition is devoid of any merits which contains disputed facts, whereas the petitioner could not prima facie establish his entitlement to avail the benefit of such policy. Accordingly, instant petition is hereby dismissed along with listed application however, with no order as to costs.