Anwaar Hussain, J. Through the present Civil Revision, the petitioner, who is a serving police official in the rank of Superintendent of Police, has assailed concurrent findings of the learned Courts below by virtue of which his suit for declaration as well as permanent and mandatory injunction was dismissed wherein prayer was made that the petitioner was lawfully allotted House bearing No.13-B/GOR-VI, Lahore ("the house"), vide order dated 25.06.2021 and the said allotment has been unlawfully withdrawn, vide order dated 01.11.2021 ("the impugned order"). Learned Trial Court dismissed the suit vide order dated 04.06.2022 and the said finding was upheld by the learned Appellate Court below vide judgment dated 21.06.2022.
2. Learned counsel for the petitioner submits that both the learned Courts below have erred in dismissing the suit of the petitioner for declaration, mandatory and permanent injunction and upholding the order of the Deputy Commissioner, Lahore ("respondent No.3") by invoking Section 56(d) of the Specific Relief Act, 1877 ("the Act, 1877") and holding that the petitioner has alternate remedy under the law to avail without appreciating that the allotment of the house made in favour of the petitioner was illegally withdrawn ignoring that the allotment of accommodation is governed by the provisions of Punjab Government Residences Allotment Policy, 2021 ("the Allotment Policy") and in terms of clauses 17 & 18 thereof, it is only the Additional Secretary (Welfare), Government of Punjab who has authority to pass such an order and then adopt the course of action envisaged in the Allotment Policy and none else.
3. Conversely, learned Law Officer submits that the house was given at the disposal of City District Government and hence, respondent No.3 is justified in passing the impugned order. Adds that the petitioner was not eligible under the Allotment Policy inasmuch as in terms of Para 3 thereof only those officials, inter alia, are eligible who are on the cadre of Service and General Administration Department ("S&GAD") and stationed in Lahore whereas the petitioner is governed by the provisions of Police Order, 2002 and he is neither on cadre of S& GAD nor stationed at Lahore, therefore, is not entitled to benefit of the Allotment Policy. Further contends that since the original allotment of the house was not in accordance with law, therefore, respondent No.3 has rightly withdrawn and initiated proceedings for eviction by issuing notice under the law and high-ups of the petitioner in police department have been also intimated about the illegal occupation of the Government residence by the petitioner.
4. In rebuttal, learned counsel for the petitioner has shown complete ignorance about initiation of eviction proceedings against the petitioner as well as intimation of the same to the high ups of the petitioner.
5. Arguments heard. Record perused.
6. The sole legal question involved in the present Civil Revision is to examine whether the petitioner, being a serving police official, is entitled to retain the house, more particularly, when he was not otherwise eligible to the allotment in terms of Para 3 of the Allotment Policy.
7. This Court agrees with the reasons put forth by the learned Courts below, inter alia, while relying on Section 56(d) of the Act, 1877 and dismissing the suit of the petitioner. However, this Court deems appropriate to further examine the case in the light of arguments advanced by learned counsel for the petitioner before this Court. It is admitted feature of the case that the Allotment Policy not only contemplates the eligibility requirements but also specifies classification of accommodations, entitlement of Government Servants to various categories of the accommodations, fixation of rent, eviction of unauthorized occupants as well as other ancillary purposes. Under the Allotment Policy, Government can place residences at the disposal of other institutions such as City District Government, by creating a Pool. Such Government residences, which form part of Pool of the City District Government, are to be dealt with by the City District Government at district level in terms of the Allotment Policy at District Level, 2002 ("District Level Policy"). Admittedly, the house was placed in the Pool of City District Government, Lahore. The house was initially allotted to the petitioner, vide order dated 25.06.2021, by the office of respondent No.3 by virtue of exercising power under the District Level Policy read with the Allotment Policy albeit in contravention of the eligibility criteria contemplated under the Allotment Policy as well as District Level Policy and hence, the authority of respondent No.3 could not be challenged now when the said allotment already stands withdrawn. In terms of Section 20 of the General Clauses Act, 1956, it is settled principle that an authority vested with the jurisdiction to pass an order can also rescind or recall the same, in accordance with law. Admittedly, the petitioner is not on the cadre strength of S&GAD and is being governed under the Police Order, 2002 and does not fulfill the eligibility criteria envisaged under the Allotment Policy. When confronted with the situation, learned counsel for the petitioner submits that even if the allotment was not in accordance with law, as an allottee, by virtue of Para 33.2 of the Allotment Policy, the petitioner is entitled to grace period of two years since allotment was made in favour of the petitioner on 25.06.2021 whereas the Allotment Policy was approved in March, 2022. For proper appreciation of this argument, Para 33.2 is reproduced below: "33.2 All existing allotments shall be deemed to have been made under this policy. In case any existing allotment is not in accordance with the provisions of this policy the case in question will be given a grace period of two years."
(Emphasis supplied)
The argument is misconceived inasmuch as the grace period is for such allotments which otherwise were legal before coming into force of the Allotment Policy in March 2022 and were in accordance with the provision of the earlier policy that was in vogue when the allotment order dated 25.06.2021 in favour of the petitioner was made. It does not mean that an allotment which was even illegal from the outset was covered under the purview of the benefit or concession envisaged under Para 33.2 reproduced hereinabove. More so, such an interpretation would negate and defeat the basic object of the Allotment Policy and amount to perpetuating an illegality or irregularity. By virtue of Para 34 of the Allotment Policy, the Allotment Policy, 1997 (amended up to 2018) ("the Policy, 1997") was revised and repealed. Under the Policy, 1997, the eligibility criteria envisaged was stipulated in terms of Para 7 thereof which reads as under: "7. Only the Govt. servants posted at the Principal Seat, Lahore High Court, Lahore, Punjab Civil Secretariat i.e. borne on the cadre strength of S&GAD and Provincial Assembly of Punjab, posted at Lahore, are eligible for allotment of Government owned accommodation......."
(Emphasis supplied)
Bare reading of the above reproduced Para of the Policy, 1997 reveals that eligibility criteria for the allotment of Government residence in vogue as on 25.06.2021, when the allotment in favour of the petitioner was made, clearly included only such Government Servants borne on the cadre strength of the S& GAD. Police officials are not covered under the Policy, 1997 as well. As a natural corollary, the allotment made in favour of the petitioner was not in consonance with the provisions of Policy, 1997 and hence, void ab-initio. It is trite law that when the basic order is without lawful authority then the superstructure shall have to fall on the ground automatically. Case titled "Executive District Officer (Education), Rawalpindi Vs. Muhammad Younas" (2007 SCMR 1835) is referred in this regard. Therefore, the petitioner has no enforceable right in his favour and claim on the basis of Para 33.2 is misconceived.
8. The matter can be examined from another angle. There is neither an obligation of the Government to provide residential accommodation to its employees nor a Government Servant has any vested legal right or claim to the allotment of the Government owned residences and allotment of the Government accommodation remains a discretion, which is guided and structured by way of the Allotment Policy at provincial level and the District Level Policy for accommodation falling in the Pool allocated at the disposal of the Deputy Commissioner. There is no entitlement to Government Accommodation save in accordance with these policies. Only the Government Servants working in the District notified by the Deputy Commissioner are eligible for allotment of the Government owned residence such as the house. The Policy, 1997, which the petitioner referred as Policy 2018 in this Civil Revision and on which the petitioner is himself relying, under Para 15 contemplates that the Government has no legal obligation to provide residential accommodation to any Government Servant and no Government Servant has any vested legal right or claim to the allotment of Government owned residential accommodation. The petitioner, not being on cadre strength of S& GAD, was neither entitled under the Allotment Policy nor under the Policy, 1997 let alone in terms of the District Level Policy and hence, has no right to the allotment from the outset. In the absence of any vested right to Government residence, the suit for declaration along with mandatory and permanent injunction instituted by the petitioner was, even otherwise, not maintainable. This is well evident from the language of Section 42 of the Act of 1877, which confers discretion upon a Court to grant declaration of status or right and said relief can be granted only when the plaintiff in a suit is able to establish his or her entitlement to any legal character or to any right in property. Case reported as "Rehmatullah Khan and others v.
Government of Pakistan through Secretary Petroleum and Natural Resources Division, Islamabad and others" (2003 SCMR 50) is referred in this regard.
9. Even if, for the sake of argument, it is assumed that the allotment made in favour of the petitioner was valid, it is imperative to note that in the allotment order dated 25.06.2021, there is no time period specified for occupation of the house by the petitioner and hence, he has no vested right to retain possession thereof for an indefinite period of time. The petitioner at the most was an occupant at will and liable to vacate the house as and when asked by the competent authority.
Prima-facie, the petitioner is unable to demonstrate any vested right to justify his claim for occupation/allotment of official accommodation, which is meant for the Government Servants borne on the cadre of the S&GAD or the City District Government. While dealing with the status of allotment of Government residence to a Government Servant, the Hon'ble Supreme Court of Pakistan while discussing various decisions of the Privy Council, in case titled "Estate Officer, Government of Pakistan v. Syed Tahir Hussain" (PLD 1962 Supreme Court 75) held as under: "We express our agreement, and do so with respect, with the view that at the best, occupation by a Government Servant of Government-owned premises allotted to him, i.e., ear-marked for his occupation, can be no more than a tenancy-at-will, which may be terminated by the State at any time without cause shown..."
In the above referred case, despite the fact that the allotment was valid, the Hon'ble Apex Court held it to be terminable at will of the Government whereas in the instant case, the petitioner was not entitled to the allotment of the house, which fell in the Pool earmarked for Government Servants working at District Level. Therefore, respondent No.3 is justified in passing the impugned order.
10. The most interesting aspect of the case is the fact that after losing the case before the learned Trial Court as well as the Appellate Court below, the petitioner challenged the impugned order, by filing petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 bearing W.P No. 40253/2022 with, inter alia, the following averments: "7. That petitioner availed wrong remedy against the impugned order dated 01.11.2021 and filed a civil suit before learned Civil Judge, Lahore but the same was dismissed on the ground of maintainability vide order dated 04.06.2022....
8. That petitioner preferred an appeal against the order dated 04.06.2022 before learned District Judge, Lahore, which was entrusted to the learned Additional District Judge, Lahore who also dismissed the same vide judgment dated 21.06.2021 in view of Section 56(d) of Specific Relief Act, 1877 which provides that no injunction can be granted to interfere with the public duties of any department. ..."
(Emphasis supplied)
The abovementioned stance of the petitioner in W.P No. 40253/2022 indicates that the petitioner was well aware of the fact that jurisdiction of the Civil Courts was barred and his suit against the impugned order was not maintainable. Interestingly, said constitutional petition was disposed of being not pressed in the following manner: "Learned Counsel for the petitioner, in order to challenge the orders passed by the learned Trial Court and learned Appellate Court before the appropriate fourm, does not press this petition. This writ petition is disposed of being not pressed"
(Emphasis supplied)
No doubt, the appropriate forum to challenge the findings of the learned Courts below was by way of filing Civil Revision before this Court under Section 115 of CPC, however, there is nothing in the present Civil Revision explaining as to why the petitioner has not requested this Court for conversion of his constitutional petition into the Civil Revision since it is well settled that constitutional petition can be converted into a revision or vice versa if it does not prejudice the right of any party and advances cause of justice instead of frustrating the same. The case law titled "Pir Muhammad and 4 others v. 1st Senior Civil Judge, Karachi and 5 others" (1991 CLC NOTE 101 Karachi) is referred in this regard. There is also no explanation as to how the petitioner after disposal of the writ petition referred above reached the conclusion that he exercised the right remedy by instituting the suit. In this manner, the petitioner is approbating and reprobating qua his grievance and consequential remedy. Moreover, the suit was instituted against respondent No.3 only and after dismissal of the suit appeal was also preferred against the said respondent, however, the present Civil Revision has been filed against three other respondents without seeking any appropriate amendment in accordance with applicable provisions of CPC, which fact alone renders the present Civil Revision not maintainable. The entire efforts on part of the petitioner indicate the propensity on his part to prolong the unauthorized occupation of the house.
11. In light of what has been discussed above, this Civil Revision has no merit, which is accordingly dismissed.