IN THE IfONORABLE ISLAMABAD HIGH COURT ISLAMABAD … OF HIGH COURTS... · 2019-08-09 · rejected the plaint. under Order VII, Rule 11 C.P.C. It was inter alia held that' since the

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IN THE IfONORABLE ISLAMABAD HIGH COURT ISLAMABAD

CR. No.dlL2016 Abdullah Khursheed Kiani son of Khursheed Ahmed Kiani resident of o Flat No.58/9-B, Sector 0-9/2 Islamabad

... Petitioner

. / ~:J Versus \___/ II'\; , ..

. ( I') . 1. Federation of Pakistan through the Secretary, Ministry of Housing [;:<:r:l:n,)[ and Works, Islamabad.

Copy ~>:P;.';~i ~~~~1.:U0:1

i:;;;;;:;'2::.~:.:~;.:~,:~'2:l;rMinistry of Housing and Works through Joint Estate Officer, Estate Office, Islamabad.

113. Capital Development. Authority, through its Chairman, CDA,

Islamabad

4. Civil Judge West Islamabad.

. .. Respondents

Respectfully Sheweth:

1. That the father of the petitioner has served in the Ministry of

Overseas Pakistani Islamabad as Stenographer (BS-14) and retried

from service w.e.f. 16-04-2015.

2. That the petitioner's father was allotted quarter Flat No.58/9-B,

Sector G-9/2 Islamabad and was a legal allottee of the government accommodation hereinafter called the "suit quarter".

3. That present petitioner is serving as Steno Typist (BPS-14) in

Capital Development Authority CDA, Islamabad appointed vide

Office Order No.CDA-7(O IHRD-III/20 14/9, dated 17-11-2014.

JUDGMENT SHEET IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT C.R.No.214 of 2016

Abdullah Khursheed Kiani Versus

Federation of Pakistan, throuqh Secretary, Ministry of Housing and Works and others

Date of Hearing: Petitioner by: Respondents by: '

21.04.2017 Mr. Amjad Afsar Gakhar, Advocate, Mian Muhammad Faisallrfan, Advocate, for respondent No.3/CDA, Mr. Ahsan Mehmood Sathi, Deputy Attorney-General and Ms. Sitwat Jahangir, Assistant Attorney- General, - . Mr. Yaseen Khan, UDC Estate Office.

MIANGUL HASSAN AURANGZEB, J:- Through the instant civil revision petition, the petitioner, Abdullah Khursheed Kiani,

who is employed as a Steno-Typist (BPS-14) in the Capital

Development Authority ("C.D.A."), impugns the judqrnerit dated • ·.··1·'

28.04.2016, passed by the Court of the learned Additional

District Judge, Islamabad, whereby the petitioner's appeal

against the order and decree dated 09.04.2016, passed by the

Court of the learned Civil Judge, Islamabad, was dismissed.

Vide the said order and decree dated 09.04.2016, the learned

Civil Court rejected the plaint under Order VII, Rule 11 of the

Code of Civil Procedure, 1908 ("C.P .C.").

2. The record shows that on 26.03.2015, the petitioner

instituted a suit for declaration, permanent and mandatory

injunction against the Ministry of Housing & W?rks, the Joint

,,'~\00 'i.O be Tru.::, \~,~tate Officer, and the CDA, before the Court of the learned

.: .v / c'i0'il Judge, Islamabad. The petitioner's case was that Flat

~ .: ~'" -13 No.58/9.-B, Sector G-9/2, Islamabad, ("the suit accommodation")

) ': .' was allotted in the year 1981 to the petitioner's father, who had

;', ~':~~;~'~':.:<:" ': '<~er:yed in the Ministry of Overseas Pakistanis', and had retired ~~'.:~~n~~rl.'~.~:"~:":. : . I ". '.'~ " .

-,' ';';!!.'\:':;<.,:~;> '''''from service with effect from 16.04.2015. The petitioner was

c::

appointed as a Steno Typist (BPS-14) in the COA, vide office,

order dated 17.11.2014. The petitioner submitted an application

to COA on 10.12.2014 for the a!lotment of government

2 C.R.No.214 of 2016

y

accommodation. The petitioner seeks the benefit of the proviso

to Rule 15(2) of the Accommodation Allocation Rules, 2002 (lithe

AAR, 2002"). Vide letter dated 18.04.2016, the COA informed

the Estate Office that the suit accommodation had been allotted

to the petitioner, and that the COA would have no objection for

the placement of the said accommodation in the pool of COA.

The Estate Officer was also informed that upon the retirement

of the petitioner, the suit accommodation would be returned to

the pool of the Estate Office.

3. Fearing eviction from the suit accommodation, the

petitioner on 26.03.2016, filed a suit for declaration, permanent

and mandatory injunction. Along with the said suit, the

petitioner filed an application for interim relief. Vide ad-interim

order dated 26.03.2016, the respondents were r-estrained from

dispossessing the petitioner from the suit accommodation. Vide

., order and decree dated 09.04.2016, the learned Civil Court

rejected the plaint. under Order VII, Rule 11 C.P.C. It was inter­ alia held that' since the suit accommodation had not been

placed in the pool of COA, the petitioner was not entitled for the

allotment of the suit accommodation, which was in the pool of

the Estate Office. Furthermore, it was held that the petitioner,

who was an employee of the COA, could not claim benefit under

the proviso to Rule 15(2) of the AAR, 2002.

4. Against the said order dated 09.04~2016, the petitioner

preferred an appeal, which was dismissed by the learned

Appellate Court, vide its judgment dated 28.04.2016. The \ to \Je Truo c.

,~APP'eliate Court concurred with the Vi~WS of the learned Civil

. ), p'l/ Jdourt, and held that the petitioner beinq an employee of the / J- COA was not entitled for the allotment of the suit

r- •..

CO~YJ l~.. accommodation, which was in the pool of the Estate Office. '. , ....

. •.... ·y .. i7.·~·:·· .:'. ':;~';~."~~·'·':\::':·::':,~>·,Bef6re the learned Appellate Court, respondent No.2 placed on

'.s \.;:.\1: '\.~~~~:y.:,~:;I.:. •

record letter dated 26.04.2016, according to which, the Estate

Office regretted the request of COA to place the suit

accommodation in the pool of COA. The said concurrent

judgments/orders of the learned Courts below have been

impugned by the petitioner in the instant civil revision petition.

3 C.R.No.214 of 2016

• r

5. Learned counsel for the petitioner made submissions in

reiteration of the petitioner's pleadings in his suit as well as the

instant petition. He further submitted that although the

petitioner is an employee of the COA, he is entitled to be

extended the benefit under the proviso to Rule 1'5(2) of the AAR,

2002; that the petitioner's father, who had retired from

government service on 16.04.2015 had been duly allotted the

suit accommodation; that the petitioner had been residing with

his father, and that the COA had already issued a no objection

certricate for the suit accommodation to be placed in the pool

of the COA; "that whenever, an accommodation of the same

category is available, it shall be given by the COA to the Estate

Office in exchange for the suit accommodation; that until such

an exchange takes place, the petitioner is entitled to remain in

occupation of the suit accommodation. . . __

-, 6. Learned counsel further submitted that the Estate Office

had placed House No.682-F, G-6/4, Islamabad, in COA's pool for allotment to a 'person ill the employment of the CDA, subject to an assurance of the placement of a house of the same category

in the pool of the Estate Office; and that the petitioner seeks

similar relief to be extended to him, in view of Article 25 of the

Constitution. Learned counsel for the petitioner prayed for the

concurrent judgments of the learned Courts below to be set

aside.

\ \0 \)8 Tn.:e7c.~r' On the other hand, learned Assistant Attorney-Generai, .: .~.\ eO .... /J~:.

\/~'... defended the concurrent orders passed by the learned Courts

. ,1\ -) ~Iow. She further submitted that the Estate Office has no . . 1 ( / >~ intention of exchanging the suit accommodation with any other

f; .. :. .' ., ' .. :.'.-.,:.;.'.. .1'

"u .. \l~~:~~,r:::.<:~·;~~.'-*·¢.c.ommodation in the pool of. CDA; that the petitioner's :.. (. .. r'pe-~'_:: ,.:, ... ". .. ( .. :t .. ! \ Q<\". "~'\'~'l~\;:;,;,(,\,;:~;';;:occupation of the suit accommodation is without lawful

authority; that the petitioner has remained in occupation of the

. suit accommodation on the basis of interim orders passed by

the learned Courts below as well as this Court; that the COA has

its own pool of accommodation for its employees; that the COA

also maintains a general waiting' list for allotment of

accommodation on the basis of seniority. Learned Assistant

1 ,r

4 C.R.No.214 of 2016

Attorney-General prayed for the instant petition to be

dismissed.

8. I have heard the contentions of the learned counsel for the

petitioner as' well as the learned Assistant Attorney-General,

and have perused the record with their able assistance.

9. The facts leading to the filing of the instant civil revision

petition have been set out in sufficient detail in paragraphs 2 to

4 above, and need not be recapitulated.

10. It is an admitted position that the petitioner's father who

was a federal government servant retired from service with

effect from '16.04.2015. The suit accommodation had been

allotted to the petitioner's father with whom the petitioner has

been residing. The petitioner was appointed on 17.11.2014 as a

Steno-Typist in the COA. The petitioner is presently in

occupation of the suit accommodation.

11. It is also an admitted position that the suit accommodation

is not in the pool of the COA, but in the pool of the Estate Office.

On 18.04.201'6, the Administration Directorate of the CDA

informed the Estate Office that the COA would have no

objection if the suit accommodation is placed in the CDA's pool

for allotment to the petitioner on family transfer basis. The

position taken by the Estate Office before the learned Appellate

Court was that the said request of the Administration

~ TfUwr:~ctorate of the COA had been regretted. The Assistant

-' Attorney-General submitted that the Estate Office has no ) {1; /1J J 'J . ii(,tention of exchanging the suit accommodation with the COA . ._,

c'·:' ,,' 1.2. This Court, in a similar case (i.e. judgment dated ", .~.: ;:.:~

Copyc.,.-- .... ' .. £"'.I\iiO'iL':;~\\ ::"'~:;; :07.03.2017, passed in C.R.No.310/2016 titled "Muhammad #',~: I~ o"~ ;~~~~~;: :;'~i ;~~: ':::: I £" •• :' ".,

.~ _, I,,;:'><"'-"_' Hussain Vs. Estate Office and others") has held as follows:-

"

"16. The contention of the learned counsel for the petitioner thet the C.D.A. had issued a no objection certificate of the suit accommodation to be placed in the pool of the C.D.A. so that the same could be allotted to the petitioner, has not impressed me. Rule 4(1) of the AAR, 2002, inter-alia, provides that the Estate Office shall not place its accommodation at the pool of any other department except the Ministry of Foreign Affairs and 151. Now, the vital question that needs to be answered is whether the petitioner can continue to remain in occupation of the suit accommodation in the hope that someday the Estate Office will exchange the suit accommodation with an

I .~

5 C.R.No.214 of 2016

accommodation that may be made available by the GOA. / would say, No. The petitioner cannot be extended the benefits of the proviso to Rule 15(2) of the AAR, 2002, for the simple reason that the suit accommodation has at no material stage, been placed in the pool of the GDA. The petitioner being an employee of the CDA is not entitled to government accommodation from the pool of the Estate Office. The petitioner cannot deprive the persons, who have been waiting for years in the General Waiting List maintained by the Estate Office under Rule 6 of the, AAR, 2002. The petitioner is at liberty to apply to the CDA for the allotment of accommodation from its own pool. The argument of the learned counsel for the petitioner that regardless of Rule 4(1) of the AAR, 2002, in the recent. past, employees of the CDA had been allotted government accommodation from the pool of the Estate Office by placing such accommodation in pool of the CDA, suffice it to say that such an allotment in derogation of Rule 4(1) of the AAR, 2002, would not have any legal foundetion. Even otherwise, two wrongs do not make a right. The language of Rule 4(1) is couched in negative terms, and the placement of the Estate Office's accommodation on the pool of any other department (other than the Ministry of Foreign Affairs and lSI), is not permissible by law i.e. AAR, 2002."

13. As regards the' contention of the learned counsel for the

petitioner' that the Estate Office has in the past placed

government quarters in the pool of the COA, without taking any

government quarter in exchange from the COA, suffice it to say

that two wrongs do not make a right. Such an exchange would

be in clear derogation of Rule 4 of the AAR, 2002, and,

therefore, would not give the petitioner any right to be 'extended

• 1-,0> 'rrthe same benefit. " c\\o we; '.110 C"

:J~~' '··;jjn view. of the above, I do. not find any jurisdictional

.' 11 ' i' Infirmity in the concurrent orders, passed by the learned Courts

.... ,~elow. Resultantly, this petition is dismissed with no order as to I::

COpy::.: c6s1s .:' ~':~i:~~~;I~;~~~;~;~:',;,;;.;':,~ -; ,; . ,.- ,

\ '---------_ _---'

(MIANGUL HASSAN AURANGZEB) JUDGE

ANNOUNCED IN AN OPEN COURT ON, 'Z,l{ \ Q ~ 12017

(JUDGE) Qamar Khan*