2022 S C M R 2073 https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=202...

2022 S C M R 2073
[Supreme Court of Pakistan]
Present: Amin-ud-Din Khan and Jamal Khan Mandokhail, JJ
GOVERNMENT OF PAKISTAN MINISTRY OF HOUSING AND WORKS
through Joint Estate Officer, Federal Government Colony Hassan Ghari,
Peshawar---Petitioner
Versus
Malik SAFEER AHMED---Respondent
Civil Petition No. 361-P of 2018, decided on 18th August, 2022.
(a) Civil service---
----Allotment of official accommodation/residence--- Terms and conditions of
service---Matter of allotment or cancellation of an official residence is connected with
the terms and conditions of the service of the persons in the service of Pakistan, in
public service and other officials of the concerned government, autonomous, semi-
autonomous bodies, authorities, corporations etc.
(b) Constitution of Pakistan---
----Art. 199--- Allotment of official accommodation/residence, issue of---
Constitutional jurisdiction of the High Court---Scope---Any order made or
proceedings taken in respect of an official accommodation, pursuant to the applicable
rules, regulations, policies, instructions, directions etc., shall not be called in question
before any court, except the forums provided therein---However, if such forum is not
provided, a High Court may, if it is satisfied, exercise its power, as provided by
Article 199 of the Constitution.
(c) Accommodation Allocation Rules, 2002---
----R. 29---Civil Servants Act (LXXI of 1973), Ss. 23B & 25(1)---Allotment of
official accommodation/residence---Allotment cancelled by the Estate Officer---Civil
suit filed by employee against order of Estate Officer---Maintainability---In the
present case, the respondent was an official of the Federal Government, to whom the
official accommodation was allotted and was subsequently cancelled through an order
made by an officer authorized by the Accommodation Allocation Rules, 2002 ('the
Rules 2002')---Under Section 23B of the Civil Servants Act, 1973 ('Act of 1973'), no
order made or proceedings taken under the Rules could be called in question in any
court and no injunction shall be granted by any court in respect of any decision made,
or proceedings taken in pursuance of any power conferred by, or under the rules made
thereunder---Since the order of cancellation was made by an authority, exercising
power under the Rules 2002 framed under the Act of 1973, therefore, it could have
been called in question in the forum, provided by the Rules 2002---Respondent,
feeling aggrieved from the order of cancellation of allotment of his official
accommodation, made by an authorized officer in pursuance of the power conferred
upon him by the Rules 2002, instead of availing the remedy provided by the Rules
2002, approached the civil court which had no jurisdiction in the matter---Petition for

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leave to appeal was converted into appeal and allowed, impugned judgment passed by
the High Court and the judgments and decrees of the Courts below were set aside with
the direction that the Trial Court, having no jurisdiction in the matter, should return
the plaint along with annexures to the respondent.
Amir Javed, Additional A.G.P. for Petitioner.
Abdul Munim, Advocate Supreme Court for Respondent.
Date of hearing: 18th August, 2022.
JUDGMENT
JAMAL KHAN MANDOKHAIL, J.---The respondent was serving in the Income
Tax Department, Government of Pakistan and was posted at Peshawar. He was allotted
an official residence in the Federal Government Employees Housing Colony, Hassan
Garhi, Peshawar. Upon his transfer from Peshawar, the Estate Officer cancelled the
allotment vide notice/letter dated 10th of August 2011, and directed the respondent to
vacate the official residence (the residence). Being aggrieved, the respondent filed a
civil suit in the Court of Senior Civil Judge, Peshawar, which was decreed in his
favour. The petitioner filed an appeal and a civil revision, both of which were
dismissed by the Appellate Court and the High Court respectively, hence, this petition
for leave to appeal.
The learned Additional Attorney General of Pakistan (AAG) stated that on the
recommendation of the Federal Government, the President of Pakistan in exercise of
the powers conferred by subsection (1) of section 25 of the Civil Servants Act, 1973
(LXXI of 1973) (the Act of 1973) made the Accommodation Allocation Rules, 2002
(the Rules 2002), wherein a remedy has been provided to an aggrieved person. He
stated that the order of cancellation was passed by the competent authority by
exercising power under the Rules 2002, therefore, the Senior Civil Judge has wrongly
assumed the jurisdiction. On merits, the learned AAG contended that the respondent
after his transfer from Peshawar, was not entitled to retain the residence, but the courts
below did not consider this aspect of the case as well and have permitted him to retain
the same, without taking into account Rule 15 of the Rules 2002.
3. The learned counsel for the respondent opposed the contention on legal as well
as on factual grounds. He stated that no question of law of public importance has been
raised through the instant petition against the concurrent findings of fact of three
courts below, therefore, the same is liable to be dismissed.
4. Arguments heard and have perused the record. It is a fact that as a policy, the
Governments (Federal and Provincial), within their available resources, provide basic
necessities of life, including housing to the persons in service of Pakistan.
Consequently, the Federal and Provincial Governments, autonomous, semi-
autonomous bodies, authorities, corporations etc., respectively, own their own official
residences in limited number, for allotment of the same to their officials and
employees, subject to availability of the accommodation. The allotment to official(s)
is made in accordance with his/their respective applicable rules, regulations, policies,
instructions or directions issued in this behalf from time to time by the authorities
concerned, determining the mechanism, eligibility criteria, terms and conditions, and

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defines the authority to allot and cancel the allotment of an official accommodation.
They also provide a remedy to an aggrieved person for redressal of his/her grievance,
if an order for allotment or cancellation is made by an officer in respect of an official
accommodation, in violation of the applicable terms and conditions. Upon allotment
of an official accommodation to an official, his/her monthly house rent allowance,
being paid to him/her along with monthly salary is discontinued and is adjusted
towards the rent of the said accommodation. As such, the matter of allotment or
cancellation of an official residence is connected with the terms and conditions of the
service of the persons in the service of Pakistan, in public service and other officials
of the concerned government, autonomous, semi-autonomous bodies, authorities,
corporations etc.
5. Any order of allotment or cancellation thereof, in respect of an official
accommodation is to be made by an authorized officer in accordance with the terms
and conditions of their respective applicable rules, regulations, policies, instructions,
directions etc., subject to the availability of the official accommodation. If any person
is aggrieved from any order made or proceedings taken by an authorized officer in
respect of an official accommodation, can avail the remedies, provided by the relevant
applicable rules, regulations, policies, instructions, directions etc., for redressal of
his/her grievance. Since, no serious question of facts normally involves in the matter
of allotment or cancellation of an official accommodation, therefore, the said forums,
having all the powers to consider the vires of any order made or proceedings taken by
an officer, could rectify the error and resolve the disputes on the basis of the available
material, in accordance with the applicable rules, regulations, policies, instructions,
directions etc. One of the purposes of establishing a separate forum is to proceed with
the matters pertaining to the official accommodation summarily, and to resolve the
issue in a shortest possible time, in order to avoid the procrastinated litigation. Under
such circumstances, any order made or proceedings taken in respect of an official
accommodation, pursuant to the applicable rules, regulations, policies, instructions,
directions etc., shall not be called in question before any court, except the forums
provided therein. However, if such forum is not provided, a High Court may, if it is
satisfied, exercise its power, as provided by Article 199 of the Constitution of the
Islamic Republic of Pakistan, 1973.
6. In the case in hand, the respondent is an official of the Federal Government, to
whom the official accommodation was allotted and was subsequently cancelled
through an order made by an officer authorized by the Rules 2002. Under Section 23B
of the Act of 1973, no order made or proceedings taken under the Rules could be
called in question in any court and no injunction shall be granted by any court in
respect of any decision made, or proceedings taken in pursuance of any power
conferred by, or under the rules made thereunder. Since the order of cancellation was
made by an authority, exercising power under the Rules 2002 framed under the Act of
1973, therefore, it could have been called in question in the forum, provided by the
Rules 2002. The respondent, feeling aggrieved from the order of cancellation of
allotment of his official accommodation, made by an authorized officer in pursuance
of the power conferred upon him by the Rules 2002, instead of availing the remedy
provided by the Rules 2002, approached the civil court which had no jurisdiction in
the matter. Under such circumstances, the judgment and decree passed by the trial

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court were void. The appellate court as well as the High Court have failed to consider
this legal aspect of the case and have come to a wrong conclusion by maintaining the
judgment and decree of the trial court, hence, committed an illegality.
Thus, in view of the above, this petition is converted into appeal and is allowed.
The impugned judgment passed by the High Court and the judgments and decrees of
the Courts below are set aside. The Trial Court, having no jurisdiction in the matter,
should return the plaint along with annexures to the respondent.
Copies of the judgment be transmitted to the Registrars of the respective High
Courts, to the petitioner and the Chief Secretaries of the Provinces.
MWA/G-17/SC Appeal allowed.

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