PLJ 2008 SC 262
Present: Muhammad Nawaz Abbasi & Ch. Ejaz Yousaf, JJ.
Human Right Case No. 5818 of 2006, decided on 27.12.2007.
Constitution of Pakistan, 1973--
----Arts. 184 (3) & 199--Islamabad Land Disposal Regulation, 2005--Regl. 5--Suo Moto Notice--Directive of Prime Minister for allotment of residential plots--Determining the eligibility criteria for allocation of plots--Validity--Privileges--Fulfillment of eligibility criteria--Government is always empowered to grant appropriate privileges to its employees within the scope of law and its authority but nevertheless such power, Government is not under legal or Constitutional obligation to establish housing schemes and provide residential or commercial plots to its employees and it is not a Constitutional or legal right of any person in the service of Pakistan to claim such privilege in addiction to the terms and conditions of the service provided under the law--Court should not ordinarily interfere in the matters falling within exclusive domain of Govt. or nullity its legal and Constitutional authority--Held: Supreme Court in exercise of the powers under Art. 184(3) of the Constitution, may interfere in public interest litigation only in exceptional cases of public importance relating to enforcement of any legal right, the provision of Art. 199 of the Constitution can be invoked by an aggrieved person--Further held: Present case does not such fulfill the test for interference of Supreme Court or High Court in Constitutional jurisdiction--Proceedings in suo moto action are dropped.
[Pp. 268 & 269] A, B & G
Suo Moto Notice--
----Human Right case--Public functionaries--Discretionary power--Law without infringement of any legal right--Scope of--Directive of Prime Minister for allotment of residential plots to senior officer of Federal Government--Determining the eligibility criteria, directed capital development for allocation of residential plots--Maintainability--Discretionary power conferred on the Govt. should be exercised and subject to existence of the essential conditions required for exercise of such powers within scope of law--Held: Exercise of discretion in discharge of public duty in a manner which is considered beyond the scope of law or for extraneous consideration, is no doubt an abuse of discretionary power and exercise of such power in a manner which exceeds the bonds of authority may not be immuned from the scope of judicial review of superior Courts in their Constitutional jurisdiction but if the power is exercised in just and proper manner within the bonds of law without infringement--Held: Govt. in just and proper manner exercising its discretionary power, directed for allotment of residential plots to the category of its senior officers within the bonds of law. [P. 268] C, E & F
Words and Phrases--
----`Discretion' power or right conferred upon an authority by law and when applied public functionaries means to exercise power according to the judgment and conscious of such public authorities but discretion cannot be given a settled or established meaning which can be invariably applied in any situation rather the exercise of discretion is judged in each case on the basis of its own particular facts.
[P. 268] D
Raja Abdul Ghafoor, AOR on behalf of FGEHF & CDA.
Mr. Shahid Hameed, Director General, FGEHF.
Malik Zafar Abbas, Law Officer FGEHF.
Mr. Tariq Mehmood Khan, Director, CDA.
Mr. Iftikhar Anjum, SO (Lit-IV), Estt. Div.
Mr. Mumtaz Ahmed Sheikh, Member (Legal), Federal Board of Revenue.
Date of hearing: 27.12.2007.
Muhammad Nawaz Abbasi, J.--This Human Right Case has arisen out of a Suo Moto Notice taken by this Court on a news item published in the "Pakistan Daily Times" dated 07.11.2006. The press clipping containing the directive of Prime Minister of Pakistan for allotment of residential plots in Sector D-12, CDA, Islamabad to the Federal Secretaries to Government of Pakistan and other senior Officers of the Federal Government, is read as under:--
"Prime Minister Shaukat Aziz has directed that plots be allocated to an additional 36 officers (grade-22), following his decision to allot 46 plots to federal secretaries, sources said on Monday. Establishment Division Secretary Tariq Ali Bukhari confirmed that he had received new orders from the Prime Minister Secretariat to submit the plot allotment summary to the PM for the remaining 36 Federal Government Officers. Earlier, Aziz had issued plot allotment directives for the grade 22 secretaries at the behest of the Secretaries Committee. Federal Minister for Housing and Construction Safawanullah also confirmed the new scheme. The Prime Minister has ordered that D-12 sector plots be allocated to every Federal Secretary (grade-22) who has held the position for the last 14 months. NWFP Chief Secretary Ijaz Qureshi had previously threatened to move a petition before the Court against the plan. Later, however, the chief secretaries of Punjab, Balochistan and Sindh as well as the Inspectors Generals of Police (IGP) for Sindh, NWFP and Punjab also demanded plot allotments. It has also been suggested, sources said, that Islamabad-based bureaucrats who have already been allotted plots under Government schemes, could be entitled to additional plot allotments. However, the final decision rests with the Prime Minister, while implementation of the scheme will fall within the purview of the Interior and Housing and Development Ministers. Bureaucrats expected to be awarded plots under the new directives are; seven grade 22 officers of the Minister of Foreign Affairs, including former high commissioner to India, Aziz Khan, current Ambassador to Russia Mustafa Kamal and Special Secretary Ministry of Foreign Affairs Sher Afgan; two officers of Audit and Accounts Group, including Chaudhry Ilyas, Director General Intellectual Property Rights Yasin Tahir; two officers posted to the World Bank, Sabtain Fazal and Sayed Shuja Haider, Water and Power Development Authority (WAPDA) Chairman Tariq Hameed, Federal Public Service Commission (FPSC) member Muhib Ullah; Pakistan Electronic Media Regulatory Authority (PEMRA) Chairman Iftikhar Rasheed; National Electric Power Regulatory Authority (NEPRA) Chairman Lt. Gen(r) Saeed; two members of the Planning Commission; Trading Corporation of Pakistan Chairman Asif Zaman Ansari; Small and Medium Entrepreneurs development Authority (SMEDA) Chairman Shahab Anwar Khawaja, Punjab Revenue Board senior member Safdar Javed; Punjab Planning and Development Chairman Salman Ghani; Election Commission of Pakistan Secretary Kanwar Muhammad Dilshad; Senate Secretary Raja Muhammad Amin; Chief Secretary Sindh Fazalur Rehman, Chief Secretary Punjab Salman Sadique; Chief Secretary NWFP Ijaz Ahmed Qureshi; Chief Secretary Balochistan KB Rindh; IGP Sindh Jehangir Mirza; IGP NWFP Rifat Pasha; and IGP Punjab Major (r) Ziaul Hassan."
2. The Capital Development Authority in compliance of the direction of this Court, supplied the following information:--
"As directed by Honourable Chief Justice Supreme Court of Pakistan, following are the submissions:--
(a) CDA has not been issued with any direction about allotment of plots to all Grade 22 Officers. There is no regular scheme for such allotments to Grade 22 Officer till the filing of these comments. However, on 27th June, 2006, the Establishment Division moved a summary for the Prime Minister regarding facilities for Federal Secretaries and other Civil Servants (copy attached). This summary included a package for consideration and approval of the Prime Minister. The Prime Minister Secretariat vide U.O.No. 81/OS/Estt/2006 dated 21.07.2006 intimated the Prime Minister's approval of the following package:--
(i) Special pay @ 20% of the basic.
(ii) Provision of one orderly on retirement/completion re-employment on contract.
(iii) Residential plot on payment (in addition to the plot being given on turn through FGEHF) when available.
(b) Based on this approval the Ministry of Interior formulated and eligibility criteria for allotment of the plots which was approved the Prime Minister (copy attached),
(c) The Ministry, of Interior vide U.O.No. 4/10/2006-CDA-II dated 28.7.2006 (copy attached) requested Capital Development Authority to make necessary arrangements for allotment of plots. 46 plots of 600 sq. yards each available in Sector D-12 were placed by the CDA at the disposal of the Federal Government Employees Housing Foundation (FGEHF) as per policy laid down by the Federal Government for further allotment to the eligible Federal Secretaries.
(d) On 2.11.2006, allotment of the plots to Federal Secretaries was made by the FGEHF on reserve rate of Rs. 4500/- per square yard to be paid by the allottees in six quarterly installments (total price Rs. 27 lacs). CDA provided the plots only whereas allotment was made by FGEHF.
(e) The plots in Sector D-12 are undeveloped and under Rule 5(2) of the Land Disposal Regulations, 2005 CDA can dispose of such plots for the residences of Government Employees. The relevant clause is reproduced:
"Notwithstanding anything contained in Clause (1), the Authority may reserve any land for the residences of Government Employees including employees of CDA, autonomous and semi autonomous bodies and for the Affectees of Islamabad"
(f) The allotment of plots were made by FGEHF and allotment letters were also issued by the Foundation and the price of these plots is required to be deposited by the allottees in CDA Accounts.
3. This Court having taken cognizance of the matter issued notice to the concerned authorities in the Federal Government and passed the following order on 24.10.2007:--
"The allottees of the plots have engaged Mr. Abdul Hafeez Pirzada, Sr. ASC who is out of country for medical treatment, therefore, a request has been made on his behalf for adjournment of the case.
Mr. Muhammad Akram Sheikh, learned Sr. ASC for intervener stated that it is necessary to issue notice to the Secretary Establishment to submit parawise comments particularly highlighting the policy alongwith the competence of the Authority who passed the same without formulating any law or scheme under the relevant provisions of Law. In this behalf he, particularly, referred Article 4 of the Constitution of the Islamic Republic of Pakistan and relied upon the judgment in the case of Jamat-I-Islami Pakistan through Syed Munawar Hussain Secretary General vs. Federation of Pakistan through Secy. Law and MQM thr. Deputy Convener, Senator Aftab Ahmed Sheikh vs. Federation of Pakistan thr. Secy. M/o Interior (PLD 2000 SC 111) and stated that it is a case of discrimination.
DG Housing and Foundation stated that he received orders of the Government of Pakistan, through Secretary Establishment for making allotment of plots. He is directed to file all those documents alongwith list of the officers of all the departments to whom plots were allotted.
Let the office, after receipt of the list, issue notices to all of them to show-cause under what authority the Government of Pakistan, through Secretary Establishment had directed to the DG Housing and Foundation for allotment of plots in their favour. DG Housing and Foundation is directed to conduct survey and if such like plots are purchased by an ordinary person from market then what would be its approximate price.
4. In pursuance of the approval of the Prime Minister of Pakistan of the proposal of allotment of residential plots to the senior Officers of the Federal Government in CDA, Islamabad, the Interior Ministry, Government of Pakistan after determining the eligibility criteria, directed Capital Development Authority (CDA) for allocation of residential plots of the size of 600 Sq. Yards each in Sector D-12, CDA for allotment to the eligible senior officers of the Federal Government through Federal Government Employees Housing Foundation (FGEHF). The CDA allocated certain plots in Sector D-12 (undeveloped) in exercise of the powers under Regulation No. 5 of Islamabad Land Disposal Regulation, 2005, which is read as under:--
"5. Residential Plots.--(1) All residential plots in developed Sectors shall be allotted through open auction. The residential plots in other Sectors shall be disposed of in the following manner:--
(i) Through open balloting at prevalent market price. 75%
(ii) Federal Government Servants including employees of Federal autonomous, Semi-autonomous bodies. 10%
(iii) Defence Services Personal including , Civilians paid out
of Defence Estimates. 5%
(iv) Deprived Group including widows, orphans,
destitute, handicapped persons and persons
needing compensation. 5%
(v) CDA Employees. 5%
5(2). Notwithstanding anything contained in clause (1) the Authority may reserve any land for the residences of Govt. employees including employees of CDA, autonomous and semi-autonomous bodies and for the Affectees of Islamabad.
5. The FGEHF, on completion of the formalities, allotted the plots in question as per policy of the Federal Government against the price fixed by the CDA payable in six quarterly installments.
6. Mr. Zafar Iqbal, Law Officer of FGEHF alongwith Mr. Shahid Hameed, Director General, FGEHF has submitted that Federal Government Employees Housing Foundation is a registered Body which was established under the directive of Prime Minister of Pakistan in the Ministry of Housing and Works Government of Pakistan, with the aim and object of development of housing schemes in CDA Area, Islamabad, for the benefit of different categories of employees of Federal Government He further stated that Housing Foundation in pursuance of the direction of Federal Government, allotted the plots in question to the category of the employees mentioned therein on the basis of eligibility criteria on payment of price fixed by the CDA.
7. Mr. Tariq Mehmood Khan, Director (Estt) CDA, submitted that newspaper clipping on the basis of which suo moto action was taken, was misleading and that plots in question were allocated for allotment by the FGEHF against the CDA price in strict compliance of the direction of the Federal Government and neither any loss was caused to the public exchequer nor any legal right of any person was infringed.
8. The Government is always empowered to grant reasonably appropriate privileges to its employees within the scope of law and its authority but nevertheless such power, Government is not under legal or constitutional obligation to establish housing schemes and provide residential or commercial plots to its employees and similarly it is not a constitutional or legal right of any person in the service of Pakistan to claim such a privilege in addition to the terms and conditions of his service provided under the law. This is however, prerogative of the Government to grant certain privileges to a particular category of its employees on the basis of reasonable classification and law is that the Courts should not ordinarily interfere in the matters falling within the exclusive domain of Government or nullify its legal and Constitutional authority. The Courts may not undo the action taken by the Government in its discretion unless there is infringement of a legal right rather the Courts in the light of aim and object of the action, should broadly regard the authority confided in the Government. This is however, well settled principle of law that discretionary power conferred on the Government should be exercised reasonably and subject to the existence of the essential conditions required for exercise of such powers within the scope of law.
9. The `discretion' means a power or a right conferred upon an authority by law and when applied to the public functionaries means to exercise power according to the judgment and conscious of such public authorities but the discretion cannot be given a settled or established meaning which can be invariably applied in any situation rather the exercise of discretion is judged in each case on the basis of its own particular facts. The exercise of discretion in discharge of public duty in a manner which is considered beyond the scope of law or for extraneous consideration, is no doubt an abuse of discretionary power and exercise of this power in a manner which exceeds the bonds of authority may not be immuned from the scope of judicial review of the superior Courts in their Constitutional jurisdiction but if the. power is exercised in just and proper manner within the bonds of law without infringement of any legal right, the same may not be questionable.
10. In the present case, in consequence to the approval of Prime Minister, CDA on the directive of the Federal Government placed a specified number of residential plots in Sector D-12 at the disposal of FGEHF for allotment to the category of senior officers of the Federal Government on payment of price fixed by the CDA subject to the fulfillment of eligibility criteria and we find that the Government in just and proper manner exercising its discretionary power, directed for allotment of residential plots to the category of its senior officers within the bonds of law. The grant of the above privileges by the Government to its employees was not illegal or beyond the authority of the Government, therefore, in absence of very strong and sound reasons or infringement of a legal right, the interference of the Courts in the matter, may not be legal. This Court in exercise of the powers under Article 184(3) of the Constitution, may interfere in public interest litigation only in exceptional cases of public importance relating to the enforcement of fundamental rights enshrined in Part-II of Chapter-I of the Constitution and similarly, in case of enforcement of any legal right, the provision of Article 199 of the Constitution can be invoked by an aggrieved person. The present case does not as such fulfill the test for interference of this Court or the High Court in the Constitutional jurisdiction.
11. In the light of foregoing reasons, further proceedings in suo moto action are dropped.
(R.A.) S.M.A. dropped.
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