' SYEDA TAHIRA SAFDAR, J.--- The petitioner Muhammad Hassan Baloch, through instant petition questioned judgment dated 25th November, 2009 of Civil Judge-III, Quetta, whereby the suit filed by him was dismissed for want of cause of action and judgment dated 20th May, 2010 of Additional District Judge-I Quetta, who also arrived to the same findings. It was contended that the impugned judgments were made in total mis-exercise of the jurisdiction, therefore, not sustainable. Further the material available on record was either misread or misappreciated, and the decision was given in haphazard manner. Furthermore, the fact that despite existence of order whereby stay was granted in favour of the petitioner, the premises in question was allotted in favour of the respondent No,2 by respondent No,1, therefore, the entire proceeding of allotment was made in contravention of section 52 of the Transfer of Property Act, 1882, thus of no legal effect, but this fact was overlooked by the courts below. Furthermore respondent No,1 had no legal authority to allot the premises in question in favour of respondent No,2, but this legal proposition was also not considered by the courts below, which resulted in erroneous decision. It was further contended that the impugned judgments were made without affording any opportunity of hearing or leading of evidence by the parties, which was an illegality. Further, though the Labour and Manpower Department was bifurcated, but as he (petitioner) was an employee of the Department; and the premises in question. Was allotted in his favour prior to such bifurcation, therefore, his right cannot be adversely affected. It was prayed that the orders of the courts below be set aside, and the suit filed by him be decreed as prayed for.
2. The learned counsel for the petitioner while arguing his case was of the view that since 1st September, 1994 when allotment of premises in question was made in his favour, the petitioner remained in possession being the lawful allottee. Therefore, he (petitioner) cannot be treated as unauthorized occupant, nor can be dispossessed in way as adopted by the authorities. It was argument of the learned counsel that though presently the petitioner was working as Director Mines, but respondent No,2 also attached to Workers Welfare Board, a statutory body, under the control of Federal Government. Therefore, applying same principle allotment can also not be made in favour of respondent No,2, which was, of no legal effect. Furthermore, the assets of the Labour and Manpower Department might have been divided after bifurcation of the Department, but no order to the effect, as required, was made by the concerned Authorities, thereby committed an illegality, which cannot adversely affect his right. It was further his argument that without recording of evidence he cannot be non-suited. The learned counsel concluded that he (petitioner) is in possession of premises in question since 1994, with regular deduction of rent from his salary, therefore, a legal right accrued in his favour. Further, no order for cancellation of the allotment was ever served on him, which established that the allotment order in his favour still subsists.
3. The learned counsel for respondent No,2 in reply only contended that after bifurcation of the Department the petitioner was no more employee of the Labour and Manpower Department.
Therefore, he was not entitled to retain possession of the premises in question. The learned counsel contended that respondent No,2 attained the status of lawful allottee, therefore, became entitled to get possession of the premises in question. The learned Additional Advocate-General (A.A.-G.) representing respondent No,1 only contended that the premises in question being property of the Labour Department. Further as none of the parties i,e, the petitioner, and respondent No,2 belonged to Labour Department, therefore, have no right to retain possession of the premises in question.
4. The brief facts of the case, as appeared from the material on record, are that the petitioner being the plaintiff filed a suit for declaration of his title with contention that Bungalow No,A-3 Jinnah Town, Quetta, was allotted in his favour, and after bifurcation of the Department he remained in possession thereof, with regular payment of monthly rent. But he felt aggrieved of letter dated 25th August 2008, whereby a direction was given to the petitioner/plaintiff to hand over vacant possession of the premises in question. In the given circumstances the suit was filed with plea that he being Government Employee having no alternate accommodation, and being lawful allottee, therefore, entitled to retain the premises in question. The relief was prayed in terms:---
(a) Declaring that the plaintiff is legal and lawful allottee of the Bungalow A-3 located at Jinnah Town, Quetta, in which he is peacefully residing with his entire family.
(b) To declare the impugned notice dated 25-8-2008 vide letter No,G-1/38-DMT/QAJ/1022025, issued by the as null and void and without any legal justification and jurisdiction, and directing the defendant to withdraw the said notice.
(c) Restraining the defendant from transferring, allotting and alienating the bungalow/quarter in question to any other person.
(d) Permanently restraining the defendant from dispossessing the plaintiff from the bungalow in question or any other kind of interference in the peaceful possession of plaintiff in respect of bungalow in question.
(e) Any other relief, which may deem fit and proper in the circumstances of the case, may also be awarded."
5. The suit was contested by respondent No,1 being the defendant on legal and factual grounds.
There was a specific plea for rejection of the plaint being hit by provisions of Order-V1I, Rule 11, and Civil Procedure Code (C.P.C.). Respondent No,1 not only claimed the premises in question being its property, but asserted its authority for making order for its allotment. It was contended that as the petitioner was not an employee of the Labour Department, his (petitioner's) status was of an illegal occupant, therefore, not entitled to retain its possession. This fact further appeared that respondent No,2 Attaullah Jogezai was made party to the suit due to the fact that during pendency of the suit the premises in question was allotted in his (respondent No,2) favour. The mentioned respondent while raising everal legal objections on maintainability of the suit prayed for rejection of the plaint under Order VII, Rule 11, C.P.C., with a claim of his entitlement for obtaining possession being a lawful allottee.
6. The trial court framed issues, but an additional issue was framed on 1 th November 2009 to the effect:--- Whether suit of plaintiff is not maintainable in view of legal objection 'D' of amended written statement of defendant No,2?
7. After hearing the parties the trial court through judgment dated 25th November, 2009 arrived to the conclusion that:- "--- perusal of record reveals that admittedly after bifurcation, the plaintiff did not remain employee of Labour and Manpower Department, for the reason that plaintiff is admittedly Mines Welfare Commissioner, who has no more concern with the department of Labour and Manpower.
Plaintiff has no where pointed out in his suit that bungalow in question is the property of Mines and Mineral Development Department after bifurcation, which reveals that the bungalow in question after bifurcation remained properly of Labour and Manpower Department. In such circumstances it is observed that plaintiff after bifurcation has no right and entitlement to continue his possession upon the bungalow in question.
' In view of above mentioned discussion, it is observed that no cause of action has been accrued to plaintiff neither against defendant No,1, nor defendant No,2, therefore, this issue is resolved in affirmative. Subsequently, suit of plaintiff is hereby dismissed."
' Feeling aggrieved an appeal was preferred by the petitioner, which was disposed of by Additional District Judge- I, Quetta, through order dated 20th May, 2010, whereby the appellate court arrived to the same conclusion. Still feeling aggrieved instant petition was filed on the grounds as mentioned hereinabove.
8. As the matter in issue pertains to allotment of residential accommodation owned by Government Department, therefore, Civil Estate Officer, the concerned Authority, was directed to submit comments. In compliance thereof the reply was submitted with assertion that the premises in question was not at the pool of Civil Estate Office, S&GAD, rather it was the property of the Labour Department. Further, the competent Authority was described as Director Manpower Training, Samungli Road, Quetta. Therefore, being the concerned authority parawise comments were also filed by the Director Manpower Training whereby it was contended that on bifurcation of the Labour Welfare and Manpower Department, the Mines Labour Welfare Organization came into being in 2004, which was placed under the administrative control of the Mines and Minerals Department Government of Balochistan. Therefore, in view of the bifurcation, the petitioner no more remained employee of the Manpower Department. Therefore, the petitioner was an illegal occupant, and liable to be evicted. Further, respondent No,2 being a bona fide employee of the Manpower Department, therefore, the premises in question was lawfully allotted in his favour. Further, the judgments of the courts below were fully supported.
9.
9. During course of hearing of the main petition certain observations regarding bifurcation of the Department, and devolving of assets to the Departments were recorded. While direction was made for production of the relevant Rules governing allotment of residential accommodation by the concerned Departments. In compliance thereof reply was submitted by the Director Manpower Training, Balochistan with contention that both the petitioner and respondent No,2 were not employees of the Directorate of Manpower Training. As the petitioner belong to Mines Labour Welfare Department, which is part of the Mines and Mineral Department. While respondent No,2 is Secretary Workers Welfare Board, which is an autonomous body and being looked after by the Federal Government. It was further informed that no Rules for allotment of residential accommodation have been framed by the Department till date.
10. Certain facts appeared from the material on the record to the effect that the petitioner, and respondent No,2 both are in Government Service till date, while the premises in question i,e, bungalow No,A-3, Jinnah Town Quetta also Government owned residential accommodation. This was also an admitted feature of the case that the premises in question was allotted in favour of the petitioner through order dated 1st September 1994 by the concerned Authority, and since then he (petitioner) was in possession thereof. The fact of bifurcation of the Department through Notification dated 28th June 2002 also not denied by either of the parties.
11. In view of the stated facts the question arises that a Department had been bifurcated, what would be its effect on service of its employees, and what would be the fate of its assets and to whom it would devolve. As far as effect on service is concerned it is not matter in issue. Rather the fate of the assets and its devolution is to be considered. In instant case a notice for vacation of the premises was issued to the petitioner on 25th August 2008. While the allotment was made in favour of respondent No,2 on 17th July, 2009 of the same premises. But nothing had been placed on record, from which it can be ascertained that any decision was taken by the Authorities deciding fate of the assets owned by the Department. But apart from the fact, the question remains that what would be the effect of this bifurcation on an allotment order made in favour of the petitioner, prior to the bifurcation, which otherwise remained intact, as no order for cancellation of the allotment was made by the concerned Authorities. Neither there was any such assertion, nor was any order to the effect produced. The Notice dated 25th August, 2008, containing direction for vacation of the premises in question, no way amounts to an order for cancellation of allotment order. Therefore, in absence thereof the status of .The petitioner being a lawful allottee cannot be changed into an illegal occupant, in result of bifurcation of the Department. Rather, the concerned Authorities had to make some specific order, and to adopt some legal course for getting vacant possession of the premises in question.
12. As till present no Rules have been framed by the concerned Authorities for allotment of residential accommodations, therefore, the terms of allotment as inserted in the allotment order dated 1st September, 1994 would govern the matter. But the concerned Authorities failed to adopt the legal course. Rather due to some misconception on bifurcation of the Department, treated the petitioner as an illegal occupant thereby issued notice for vacation of the premises in question, which was neither legal, nor just. Until, and unless the initial allotment order, made in favour of the petitioner stand cancelled, no further steps could be taken for getting vacant possession, or re- allotment of the same in favour of any other Government servant. It was asked from the learned Additional Advocate-General, appearing on behalf of respondent No, 1/the concerned Authority, that in presence of a valid allotment order in favour of the petitioner since 1994, how he can be declared as unauthorized occupant due to act of bifurcation of the Department. But learned Additional Advocate-General was unable to reply. Until and unless the initial order is withdrawn by the competent Authority the possession in no way can be treated as unauthorized. The petitioner may not be employee of the Labour and Manpower Department, but he is still in government service, and initial allotment order dated 1st September, 1994 still exists in his favour. Therefore, in given state of facts the notice dated 25th August, 2008 was of no legal effect. Consequent thereof the subsequent allotment order made in favour of respondent No,2 was also of no legal effect. In addition thereto respondent No,1 in his second reply also denied entitlement of respondent No,2 for allotment, as not belonged to the Labour Department.
13. It is observed that the courts below while recording findings on additional issue though arrived to the conclusion that the suit was not maintainable being filed without any cause of action. But their findings were based on mere presumptions. Both the courts presumed that after bifurcation the premises in question devolved on the Labour Department, and there exists no right in favour of the plaintiff/petitioner. Further, without calling for evidence of the parties the appellate court concluded that no evidence was produced about payment of the rent. But the courts below failed to consider the legal effect of the bifurcation of the Department, and status, of the petitioner and the residential accommodation, and the orders made in same respect by the concerned Authorities. Thereby committed error, and made both the orders of the courts below of no legal effect.
14. In view of the discussion made hereinabove the mere fact of bifurcation of a Department in no way effect the orders made by the Authorities prior to the act, rather, they remain in field unless specially undone or substituted. Same is the case in matter in hand. The lawful allottee of a Government owned residence would not turned into illegal occupant due to some change taken at administrative side of the Department. Rather, a legal course had to be adopted to get vacant possession of the premises. But this was not done by the Authorities. Therefore, the steps taken thereafter were of no legal effect.
15. Though there is a request for remand of the case by the counsel for the petitioner, but it will not serve the purpose. As most of the facts are admitted in nature, and the only question which need determination was to the effect that whether after bifurcation of the Department a lawful allottee can be considered as illegal occupant, need no evidence. Rather in each case the reply will be in negative as discussed hereinabove. Further, the fact that on bifurcation of a Department the premises vests with one Department and the allottee belong to the other one, it will not change the status of a lawful allottee automatically. Rather the Authorities have to adopt a legal course to get vacant possession of such premises without effecting right of either of the parties. Therefore, in the circumstances, calling for the evidence will not change the result.
16. It is further observed that the reliefs claimed in prayer clauses C and D of the plaint are of no legal effect, and in no way can be granted. As the concerned Authorities, being owners cannot be restrained from getting vacant possession of a residential accommodation, or making allotment of the same. But in each case the action taken or order made be in conformity with law. But as far as remaining two reliefs containing in clauses A and B are concerned they can easily be granted in favour of the petitioner.
17. In view of above discussion the judgment dated 25th November, 2009 of Civil Judge-III, Quetta, and judgment dated 20th May, 2010 of Additional District Judge-I, Quetta, are hereby set aside. The suit is decreed in terms that during subsistence of the allotment order dated 1st September, 1994, the petitioner/plaintiff is lawful allottee of premises in question i,e, Bungalow No,A-3 Jinnah Town Quetta, therefore, cannot be evicted except with due course of law. Further, notice dated 25th August, 2008, and allotment order dated 17th June, 2009 are of no legal effect, therefore, set aside.
Decree Sheet is prepared.
' The petition stand disposes of in above terms, with no orders as to costs.