MUHAMMAD FAISAL KAMAL ALAM, J.----The petitioner has challenged the Cancellation of her Allotment by the Respondent No.1, vide Order dated 18.9.2013. Following relief has been sought:- "a. To declare the impugned allotment Order No.179-Admn. (ACG)/-2013/6047 dated 18.9.2013 as illegal, unlawful, void ab-initio and based upon discrimination. b. Interim orders are solicited thereby restraining the Respondents from dispossessing the petitioner on the basis of the impugned allotment order. c. Costs of the petition may be saddled upon the respondents."
2. Mr. Muhammad Yousif Leghari, Advocate, has argued that the Petitioner was duly allotted a government accommodation, that is, a Bungalow No.JGO-4, at D.C. Compound Hyderabad (subject house), vide Allotment Order dated 25.2.2008, which has been placed on record as Annexure 'A' of the petition. It is further contended that the Petitioner is an unmarried lady presently residing with her father (who is a retired Professor) in the said house. The Petitioner herself is an Assistant Professor at Government Girls Zubeda College, Hyderabad and is a Grade-18 Officer. It is further argued that the official Respondents and particularly Respondent No.1 has issued the impugned Cancellation Order dated 18.09.2013 in respect of the subject house, while allotting the same to one Muhammad Nasim, who has been posted as Assistant Commissioner for Hyderabad City and belongs to DMG group. The said subsequent allottee has been impleaded as Respondent No.3 herein. It is complaint of the Petitioner's side that she being a lady has been discriminated against, because otherwise a government accommodation to which she is entitled to, cannot be taken away in this manner as is done by the Respondent No.1, whereas, there are numerous other government houses and flats which are lying vacant and can be allotted to Respondent No.3.
3. The above stance of the Petitioner has been controverted by Mr. Allah Bachayo Soomro, learned Addl. A.G. He has referred to Parawise Comments filed by the Respondents and has laid much emphasis on the current Policy with regard to allotment of government accommodation at Hyderabad, viz. Policy for Allotment of Residential Accommodation at Hyderabad, issued by the Chief Secretary, Government of Sindh (the Policy). It is stated that as per paragraph-3 of this Policy, a government accommodation of the nature cannot be allotted to the employees of Education Department. Learned A.A.G. has also pointed out, while referring to the Parawise Comments of Respondents, that in the same vicinity another Bungalow No.7 was earlier allotted in favour of Petitioner's sister (Ms. Rozina Junejo), who is also a Lecturer in Government Girls Degree College, Hyderabad, and presently the latter is residing there. This argument has been advanced by the Respondents' side to refute the contention about discrimination, as alleged by the Petitioner.
4. In her affidavit-in-rejoinder, the Petitioner has specifically pointed out that more than eight [8] bungalows in the same D.C. Compound are occupied by different officials but none of them have been issued the cancellation notice, like it is done in the case of Petitioner. It has been further pointed out that Bungalow No.6 was allotted to Assistant Commissioner (Revenue) about few years back, but the said official is not even residing there and instead some strangers are occupying the same. Similarly, it is stated that Bungalow No.5 is occupied by District Zakat Committee, whereas, Bungalow No.2 is allotted to some Office Superintendent.
5. Arguments heard and record perused.
6. It is not disputed that Petitioner is presently in service and working in BPS-18. The Respondents in their parawise comments have also not questioned the fact that the Petitioner is paying the rentals of the subject house (government accommodation) regularly along with other utility bills. In the impugned cancellation order, no ground regarding default or any violation of the allotment terms and conditions has been stated, which can justify the cancellation of the subject house, earlier allotted in favour of the petitioner.
7. With regard to the main contention of the Respondents' side, that in terms of paragraph-3 of the above Policy, in future no residential accommodation will hereafter be allotted to, inter alia, Education Department, Lecturers and Doctors, the rebuttal of Petitioner's Counsel has substance; that the very language of paragraph-3 of the present Policy in force is to be interpreted prospectively and not retrospectively. Undisputedly, the present Policy has been issued vide correspondence dated 26.1.2011 by the Services, General Administration and Coordination Department, Government of Sindh, and the prohibitions mentioned therein, including what has been discussed in the afore-referred paragraph, is to be made applicable prospectively.
8. Very recently, the learned Division Bench of this Court at principal seat has handed down a common judgment in number of constitutional petitions, on the issue of government accommodation; Constitutional Petition No.D-2110 of 2009 (Muhammad Tarique Qasim v.
Federation of Pakistan and others) {Tariq Qasim case}, being the leading Petition. The present Allotment Policy has been discussed in the said judgment, in which different Constitutional Petitions were categorized according to the issues involved. The rule laid down in the referred the second category of is applicable to the facts of present petition in hand. The ejectment notice issued to a petitioner in one of the constitutional petitions (who was in service of Sindh Government), was set aside, inter alia, on the ground, that no proceeding under the RuIe(s) of the present Policy was undertaken by the competent authority. Reliance was placed on a reported decision of the Honourable Supreme Court pronounced in the case of Dr. Syed Ashraf Ali Shah and 02 others v.
Province of Sindh and others 2009 SCMR 249. It would be advantageous to reproduce the relevant paragraphs of the cited judgment of the learned Division Bench herein under:- "46.. We have duly considered the pleas raised before us in the second category of the petitions and have observed that even if the position taken by the learned A.A.G. is to be accepted then pursuant to Rule 7 of the Policy, it is Secretary, Services General Administration and Coordination Department, who would be required to issue c determination upon whether the Petitioners were in lawful occupation of the government premises or otherwise, Admittedly, the same has not been done. It is also within our contemplation that no such findings could be rendered by the concerned Secretary or any other person for that matter without following due process of law which in the present circumstances would at least entail issuance of notice and providing the Petitioners an opportunity to be heard in such regard. It is an admitted fact that these primary precepts of the law have not been followed and the ejectment of the Petitioners has been sought by the Provincial Government in pursuance of a Cabinet decision or the orders of the honourable Supreme Court of Pakistan without determining whether the said Petitioners fall within the category of unauthorized occupants or otherwise.
47. The honourable Supreme Court has dealt with similar issues in the case of Dr. Syed Ashraf Ali Shah and 2 others v. Province of Sindh and others reported as 2009 SCMR 249 and illumined as follows:
8. The argument advanced by learned Additional Advocate-General that by a change of allotment policy, the Petitioners became unauthorized occupants or the allotment in their favour became liable to cancellation hardly merits any serious consideration. It is too well- settled that any executive dispensation or change of policy could never have retrospective effect or impair vested rights. Indeed, the Government may be well within its rights to change its allotment policy. Nevertheless, such change could only apply to allotments made after its enforcement. It would never affect the rights of the old allottees which could only be taken away through legislative dispensation given retrospective effect.
8-A. We are surprised, however, the learned Judges of the High Court construed clause (vi) of the allotment order to presume that the allotment in favour of the Petitioners could be cancelled at whim. It is well-settled that no public power could be exercised arbitrarily at the whims of those bestowed with it. In our opinion a careful reading of the allotment order clearly demonstrates that the allotment was liable to be cancelled only upon the failure of the Petitioner to abide by the conditions set out in clauses (iii) and (vii) i.e. non-payment of rent or utility charges within the stipulated time or sub-letting. Similarly, the use of the word "provisionally" could only be relatable to clause (2) i.e. in the event of the allottee's failure to occupy the house within four days of the allotment could certainly not mean that the Petitioner could be arbitrarily ejected after decades of occupation. Indeed, it is nobody's case that the Petitioner did not qualify for allotment at the time the orders in their favour were made or ever violated any terms of the orders.
9. The assumption that allotment of Government accommodation was merely a matter of license revocable at any time is equally unsustainable. In this context it needs to be seen that when the right of exclusive possession of immovable property was conferred upon the Petitioners in terms of the allotment order, it is extremely doubtful if the order could be described as a license simplicitor under section 52 of the Easements Act, 1882 in terms of the well-known pronouncement of this Court in Abdullah Bhai and others v. Ahmad Din reported in PLD 1964 SC 106: Even otherwise, a Government, unlike, a private party, even in matters of contract, must act reasonably and fairly and the concept of unfettered arbitrary discretion does not exist in public law. In any event, certain rights had been created in favour of the Petitioners through allotment orders issued by the Government and it is well-settled that such rights, even if in the nature of privileges, cannot be taken away by the subsequent executive action or change in policy. They could only be impaired through legislative dispensation expressly given retrospective operation as held by this Court, inter alia, in the cases of (i) Collector of Central Excise and Land Customs and 3 others v. Azizuddin Industries Ltd. Chittagong PLD 1970 SC 439 and (ii) Al-Samrez Enterprise v. Federation of Pakistan 1986 SCMR 1917. It is regrettable that the learned Judges of the High Court overlooked some elementary principles of public law.
10. We are equally surprised at the manner in which some earlier precedents of the same Court and an order passed by this Court were considered by their Lordships. In the precedent cited admittedly the accommodation allotted to the allottees was beyond their entitlement and yet their Lordships had taken the view that if such allotments were made through relaxation of rules of policy or if the policy had not been consistently followed, the allottees could still not be disturbed. Indeed, in the instant petitions, the cases of the Petitioners were on a far better footing as it was nobody's case that the Petitioner did not qualify for allotment when the allotment orders were passed. Nevertheless, despite citing precedents, their Lordships clearly ignored them in the process of reaching their conclusion. Even if their Lordships were minded to take a different view, the least they could have done to request the Honourable Chief Justice to constitute a larger Bench. It needs to be emphasized that a Division Bench of the High Court does not have the liberty of taking a view different from an earlier Bench and must act in accordance with the principles laid down in the case Multiline Associates (supra). At the same time, we may add that when the case of an allotment made in 2005 in favour of Ms. Naheed Rana was brought to the attention of the Court, there was no justification to accept the plea of "oversight". Ex facie there was not the case of a simple omission to take notice but the passing of a specific allotment order through a conscious application of mind.
11. For the foregoing reasons finding the impugned judgment to be entirely unsustainable, we decided to convert these petitions into appeals and allowed the same. Accordingly, the impugned notices of respondent No.1 are set aside and it is ordered that the Petitioners would be liable to vacate the premises only upon transfer from Karachi, retirement from Government service or cancellation of the allotment in accordance with the terms thereof"
(Underline added for emphasis)
48. In an order passed by the honourable Supreme Court declining leave to appeal, upon matters similar to those before us in the second category of petitions, in CPLAs Nos.395-K of 1999 (Government of Sindh v. Aftab Hussain Shah Jillani) and 418-K of 1999 (Government of Sindh v. Naweed Ahmad Awan and another) it was maintained as follows: "5. We have heard the learned Additional A.G. and minutely perused the material available on record with his assistance. No doubt, as per policy, the flats in question were to be allotted to the Deputy Secretaries, but, in our view, the said policy was never strictly followed and the flats of same categories were also allotted to the Government Officers of BPS-17. The flats in question were allotted to the respondent by the then competent authorities keeping in view their seniority on the merit list, and when the competent authorities exercised their discretion in favour of the respondents nobody raised any objection for sufficient time.
6. For the foregoing reasons, in our considered view there is no illegality or irregularity or misconstruction of law in the impugned orders, which are based on the principles laid down by this Court. Moreover, no question of public importance, as envisaged under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, is involved in these matters.
7. Consequently, the impugned orders of the learned High Court are maintained, the instant petitions are dismissed and leave to appeal is declined."
49. A Division Bench of this Court was seized of a similar matter, in C.P. D-491 of 1999, and the said petition was decided vide Order dated 26.06.2000, wherein it was held as follows: "7. Admittedly, the Petitioner was accommodated by allotting the aforementioned flat in relaxation of the rules of policy, which remained in vogue at the time of allotment so made by competent authority in his favour and it was so done ostensibly looking to the requirements of the Petitioners and without any objection being raised at that time. The discretion so exercised in favour of the Petitioner was cannot be said to be arbitrary and capricious. The Petitioner is residing in the said flat along with his family members and he cannot be asked to vacate the said flat without first providing him an alternate and suitable accommodation. Accordingly, we hold that the Petitioner is entitled to retain the said flat."
50. The learned A.A.G. has admitted that the Petitioners in the second category remain in service, posted at Karachi and their status is at no variance to that which it was when the respective properties were allotted thereto. The first set of ejectment notices cited a Cabinet decision as the basis for the same but the same applied to unauthorized retention of Government accommodation. The Petitioners, to whom the said type of notice was served, are admittedly residing in the accommodation pursuant to valid allotment orders, which have not been rescinded till date. It is also apparent that no competent authority has initiated or conducted any proceedings to determine the occupation of the said Petitioners as unauthorized."
9. The above referred decision was assailed before the Hon'ble Supreme Court, but, without any success and the Hon'ble Apex Court while refusing the leave to appeal, has dismissed the Civil Petition No.893-K of 2018 and Civil Petition No. 947-K of 2018.
10. The Respondents have not pointed out any breach of terms and conditions of allotment said to have been committed by the Petitioner and particularly that the subject house was ever misused by the Petitioner. The fact that other Government accommodations are either lying vacant or retained un-authorizedly, has also not been controverted as such. In Dr. Syed Ashraf's case (supra) the Apex Court has further held, that the allotment of government residence (accommodation) of the nature is not a license, which is revocable at any time. It means that the subject house allotted in favour of the present Petitioner cannot be cancelled at the whim of some official or the present Respondent No.1, except, through due process of law.
11. It is an established principle of the Administrative Law that Government officials have to discharge their functions, exercise the authority and discretion in a fair, just and reasonable manner, so also enjoined by section 24-A of the General Clauses Act, 1897. The impugned Cancellation Order has not been issued in exercise of the above principles anti it has singled out the Petitioner, thus, the Petitioner has been discriminated against. More so, it is quite obvious that the impugned order was issued in haste and without resorting to due process of law and hence the impugned cancellation order is to be set at naught.
12. The upshot of the above is that the impugned cancellation order in respect of subject house is set-aside being illegal and discriminatory in nature. However, as directed in the above cited Division Bench decision {Tariq Qasim case}, the Respondents and particularly Secretary, Services, General Administration and Coordination Department, Government of Sindh, will carry out the exercise in terms of the Rules of the current Policy.
Petition stands disposed of in the above terms. Parties to bear their costs.