Constitutional Petition No.D-1111 of 2000 filed by the petitioner Dr. Khursheed Bhutto and Constitutional Petition No.D-1120 of 2000 filed by the petitioner Mrs. Kauser Shaheen, based upon similar facts, raising common questions for adjudication, were dismissed by us by our short order dated 10-10-2000. Relevant facts of each petition and common reasons for these orders are as under.
2. In Constitutional Petition No.D-1111 of 2000 the petitioner stated that she is a doctor posted at P. I.
A. Hospital at Air Terminal No. 1, Karachi International Airport, Karachi, as employee of P.I.A.C. In the year 1996, she applied for a quarter to the respondent Civil Aviation Authority and was allotted residential Quarter No.DF-41, situated at Civil Aviation Authority Colony, Karachi International Airport, Karachi, w.e.f. 1st September, 1996 at the rate of Rs.1,950 per month which she had been paying regularly. The petitioner further stated that she is also paying regularly other charges of amenities and residing in the said quarter alongwith her family since September, 1996. On 28-6- 2000 respondent cancelled her allotment in respect of this quarter and directed her to vacate the same without any show---cause notice to her, which action is in violation of fundamental rights and human rights. The respondent also illegally disconnected the electricity of the quarter on 21-7- 2000 and threatened to dispossess the petitioner from the said quarter per force. The petitioner, therefore, prayed in her petition as under: "to declare and hold that the impugned order (Annexure C) issued by the respondent to be without any lawful authority and quash the same and further declare that the act of disconnection of electricity of the quarter/Flat under the occupation of petitioner is illegal and direct the respondent to restore the above amenities and so also direct the respondent not to dispossess the petitioner from quarter/Flat Bearing No.DF-41, situated at C.A.A. Colony Karachi International Airport without due course of law in absence of the order of competent Court of law."
3. The respondent Civil Aviation Authority in reply to the above averments submitted its continents wherein they challenged the maintainability of the petition on the grounds that the dispute between the parties pertains to the terms and conditions of the service of the petitioner, therefore, this Court has no jurisdiction to entertain this petition, the petition is barred under section 42 of the Specific Relief Act and sections 10 and 11 of the Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965. The respondent also submitted that the petitioner has not approached this Court with clean hands as she had requested for fifteen days time to vacate the quarter and on her assurance to vacate, such time was allowed to her. Referring to various letters issued to the petitioner, respondent denied the allegations levelled against them by the petitioner and prayed for dismissal of the petition. .
4. In C. P. No. D-1120 of 2000 the petitioner stated that she is wife of Abbas Khan Saledra who is an employee in Collectorate of Customs, under respondent No.2, and was posted at Karachi International Airport. Residential Quarter No.C-4 at Civil Aviation Authority Quarters, Karachi International Airport, Karachi, was allotted to her husband w.e.f. 25-7-1992 and since then she and her children are in occupation of this quarter. Though the allotment of quarter to the petitioner's husband was not temporary but respondent No.1 vide its order dated 25-7-2000 cancelled such allotment arbitrarily and threatened to dispossess the petitioner from the said quarter per force.
The petitioner termed such action of respondent No. l in violation of the principles of natural justice and prayed for the following relief:-- "to declare and hold that the impugned order (Annexure B) issued by the respondent No. 1 to be without any lawful authority and quash the same. "
5. In reply to the averments made in C.P. No.D-1120 of 2000 the respondent No.1 filed their comments wherein they took same legal objections as in other petition. In addition to that, they also disclosed the facts of institution of a civil suit by the husband of the petitioner before the Senior Civil Judge at Malir regarding the same dispute and its withdrawal or 31-7-2000 on the basis of application dated 28-7-2000 moved by petitioner's husband. The respondent No.1 also disputed the averments made in para. 4 of the petition wherein petitioner had stated that her husband had gone to Vehari. .
6. We have heard the arguments of Mr. Muhammad Aziz Khan Advocate for petitioner in C.P. No. D- 1111 of 2000 while none of the three counsel, M/s Muhammad Nehal Hashmi, Badar Muneer and Muhammad Raft engaged by the petitioner in C. P. No D-1120 of 2000, who had filed their vakalatnamas on behalf of petitioner separately, appeared to address the Court at the time of hearing of these petitions. The husband of the petitioner, who was present in Court at the time of hearing of this petition and the other connected petition, was directed to call counsel for the petitioner for making submissions in the matter. Initially he informed the Court that counsel was busy before another Bench. However, at the time of second call also, none of the counsel for petitioner in C.P. No.D-1120 of 2000 appeared before the Court. From the side of respondent in both the matters Mr. Muhammad Jamil, Advocate appeared for respondent Civil Aviation Authority while Syed Zaki Muhammad, D.A.G., also appeared on Court notice and they made their submissions.
7. Mr. Muhammad Aziz Khan, learned counsel for petitioner in his arguments contended that the petitioner is occupying Quarter No.DF-41 at Civil Aviation Authority Colony Karachi under a valid allotment order. She is paying the standard rent of this accommodation regularly and also paying the other charges of amenities. In such circumstances there was no justification for respondent to cancel her allotment and ask her to vacate the premises within a fortnight.
8. On the other hand Mr. Muhammad Jamli contended that the perusal of allotment order, dated 7th August, 1996 would show that it was specifically incorporated in the allotment order that it was on temporary basis and the petitioner will have to vacate such quarter as and when needed by the respondent. In such circumstances, after due opportunity to the petitioner vide letters dated 17-6- 2000 and 28-6-2000 action was taken against her as e the quarter in question is needed for the officers and employees of Civil Aviation Authority who are facing great difficulty due to non- availability of accommodation. Learned counsel also referred to sections 10 and 11 of the Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965 to justify the action of the respondent. Learned counsel lastly contended that there was no violation of any rights of the petitioner as the allotment of quarter in dispute to the petitioner did not confer any legal character or right in her favour.
9. Referring to the facts of the other petition viz. C.P. No.D-1120 of 2000, he contended that the petitioner has not approached this Court with clean hands. The allegations of violation of principles of natural justice are totally false and baseless as from time to time the petitioner was allowed opportunity to vacate the accommodation allotted to her husband but she failed to do so.
Referring to the letter, dated 28th July, 2000, filed by the petitioner alongwith her Miscellaneous Application No.3196 of 2000 learned counsel stated that after letter dated 29-6-2000 the petitioner was again asked to vacate the house but, she failed to do so. He also argued that initially the husband of the petitioner, who was the allottee of the disputed house, filed a suit for permanent injunction, being Suit No.89 of 2000, in the Court of Senior Civil Judge at Malir, Karachi. On his failure to get an injunction order issued from that Court, the petitioner, who is wife of said Abbas Khan Saledra, suppressing all these facts, filed the present petition before this Court on n 28-7-2000. In such circumstances, it is clear that the petitioner has not approached this Court with clean hands and, therefore, she is not entitled for any equitable relief in the matter. In this context learned counsel also invited the attention of this Court to an application under Order 23, C.P.C. Dated 28-7- 2000 moved by Abbas Khan Saledra before the Court of Senior Civil Judge at Malir to show that the allegations made in Paragraph 4 of the petition are belied from this document. In such circumstances; learned counsel also challenged the locus standi of the petitioner to file the present petition which according to him in such circumstances is an abuse of the process of law.
Lastly the learned counsel urged the same legal objections to the maintainability of this petition was urged in respect of other connected petition.
10 We have carefully considered the arguments and perused the material placed on record.
11. In the present petitions the whole claim of the petitioners in respect of disputed residential accommodations is based on its allotment by the respondent Civil Aviation Authority in favour of petitioner Dr. Khursheed Bhutto and husband of petitioners Mrs. Kauser Shaheen and they have not claimed any other right, title or interest therein. Perusal of letter of allotment issued to the petitioner Dr. Khursheed Bhutto reveals that there is a specific note at its bottom that allotment is purely on temporary basis and she will have to vacate as and when needed by the respondent Civil Aviation Authority. However, in the other letter of allotment issued to Mr. Abbas Khan Saledra no such note is available.
12. In the present petitions, the moot point for consideration before us is the status and legal character of an allottee vis-a-vis the status of the petitioners to occupy these residential accommodations. The legal position on such allotments and the status of the allottees has been considered by the Hon'ble Supreme Court of Pakistan in the case of Estate Officer Government of Pakistan v. Syed Tahir Hussain PLD 1962 SC 75. Relevant observations of the Court on this point are reproduced as under:-- "We express our agreement, and do so with respect; with the view that 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. We have noted already that the allottee himself was entitled to relinquish the premises allotted to him at any time, subject only to suffering a certain small penalty in case he caused inconvenience, to the Estate Officer by not notifying to him his intention to vacate within a reasonable time. Whether the case be one of tenancy-at-will or mere licence, there can be do question but that the Government had full authority to terminate the occupation of the premises by Syed Tahir Hussain, by means of a pre-emptory notice. Such a notice was in fact issued on the 20th February, 1958, and we repeat that it is a matter of regret that as a result of the proceedings which are now being terminated by means of this judgment the occupant has been enabled to continue to occupy the quarter, in seeming defiance of a strictly legal order of the Government, for a period of a nearly four years."
13. In the case of Imtiaz Hussain v. Government of Pakistan 1992 CLC 1122 the question of legal status of an allottee of Government property when came up for consideration before a learned Single Judge of this Court, same was answered in the following words:-- "An allottee of a building or land belonging to the Federal Government does not become its tenant.
His status is only that of licensee. Under section 5 of the said Ordinance, the Federal Government by order in writing may direct an authorised occupant to vacate the land within the period specified in the said order."
14. In another case of Dr. Munir Ahmad, M.B.B.S. Medical Officer v. Chairman House Allotment Committee, Government of Baluchistan, Quetta and another 1983 CLC 1783 similar issue when examined was answered by the learned Single Judge of Baluchistan High Court as under:-- "The main guiding principle being that the decision of the Government in the matter of determination of the disputes, has been exclusively allowed to be examined by the Government or the Committee set up by the Government and the jurisdiction thus, created is not one in respect of which the Courts could be thought to be invested with powers of any supervisory jurisdiction and the Court should not involve itself into a field which is more appropriate for the Committee set up under that law rather than a Court.
The occupation by a Government Servant of Government premises, even if allotted, can be no more than a tenancy at will which may be terminated by the Government at any time without any show-cause notice. "
15. In a more recent case of Director-General, Pakistan Coast Guards Karachi v. Mst. Zarina Jamshed 1998 M LD 1879 a Division Bench of this Court examining the question of rejection of plaint with reference to the status of an allottee and her legal character with reference to section 42 of the Specific Relief Act and sections 10 and 11 of the Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965, while rejecting the plaint followed the view as taken in the case of Estate Officer, Government of Pakistan (supra).
16. The learned counsel for the petitioner Dr. Khursheed Bhutto was unable to show anything from the record to avoid the applicability of the legal principle, discussed in the above cases to the present petitions.
17. Reverting to the facts of the two petitions, it will be seen that the petitioners being mere allottees of a Government accommodation cannot claim any vested right in their favour. The respondent while taking action against the petitioners had already issued a notice giving them reasonable time to vacate the premises. In their reply the respondent Civil Aviation Authority has stated that such action was taken due to shortage of accommodation for their officials and policy of HQ C.A.A.
In the absence of anything to the contrary no exception could be taken to such claim of the respondent Civil Aviation Authority.
18. Coming to the grievance of the petitioners that before cancellation of their allotments, no show- cause notice was served on them and thus principles of natural justice were violated. It may be observed that the petitioners have no statutory right of hearing before cancellation of their allotments and, therefore, the right of show-cause notice before cancellation claimed by them is not an absolute right. In the case of Miss Rukhsana Soomro and others v. Board of Intermediate and Secondary Education, Larkana, Sindh and others 2000 M LD 145 a Division Bench of this Court of which one of us (Anwar Zaheer Jamali, J.) was a member after referring several judgments of Indian Supreme Court on the rule of audi alteram partem and right of hearing on the principles of natural justice observed as under:-- "We are also in agreement with the arguments of the learned counsel for the respondents Nos. l to 3 that right of hearing, when claimed on the principle of natural justice, is not an absolute right, but it' will be the facts and circumstances of each case which will enable a Court to draw a proper conclusion in this regard."
"From the perusal of the above case-law it is evident that there is a clear distinction between the two situations, one where the right of such hearing a statutory and the other where such right is claimed on the principles of natural justice. In the former case such right is almost absolute, while in the later case it is not so and exclusion of such right could be express, or implied."
19. In the present petitions, letters of cancellation of allotment were issued to the allottees in the month of June, 2000 whereby time was allowed to the allottees to vacate the residential accommodation in their possession. Thereafter, at least till the dismissal of these petitions vide short order passed on 10-10-2000 they remained in possession. During- the intervening period not only the petitioners got sufficient time to urge their view-point before the respondent but they also did so before this Court. In such circumstances the plea of non-issuance of any show-cause notice is not tenable.
20. Besides, with reference to the petition of Mrs. Kauser Shaheen, we also find substance in the arguments of Mr. Jameel that she had not approached this Court with clean hands. Perusal of case record reveals that to justify filing of this petition by herself, the petitioner in para. 4 of the petition, stated about the non-availability of her husband at Karachi which assertion is belied from the copy of compromise application filed by her husband Abbas Khan before the Court of Senior Civil Judge at Malir in Suit No. 89 of 2000 showing his presence at Karachi on 28-7-2000 i.e. The date when she filed the present petition. She in her petition also suppressed the fact of filing of Suit No. 80 of 2000 by her husband in respect of same dispute before the Court of Senior Civil Judge at Malir which was pending there at the time of institution of this petition. For these reasons also the petitioner Mrs. Kauser Shaheen lost her right to claim any equitable relief from- this Court in exercise of its Jurisdiction under Article 199 of the Constitution of the Islamic Republic of 1973.
21. For the reasons given above these petitions were found without substance and were dismissed in limine.
H.B.T./K-28/K