Fariduddin Versus CDA

PLJ 2013 Islamabad 112

Present: Shaukat Aziz Siddiqui, J.

FARID-UD-DIN--Petitioner

versus

CAPITAL DEVELOPMENT AUTHORITY, ISLAMABAD, etc.--Respondents

W.P. No. 561 of 2013, decided on 18.2.2013.

Constitution of Pakistan, 1973--

----Art. 199--Capital Development Authority Ordinance, S. 49--Islamabad Land Disposal Regulations 2005--Regul. 4 & 5--Constitutional petition--Eligibility for allotment of plot on deputation basis--Claim on basis of anomaly be treated as an employee of CDA as had remained on deputation in CDA for over a period of one year--Question of--Whether deputationist would be equated with regular employee of CDA--Fundamental rights--Validity--Authority might rent, exchange or otherwise dispose of any land vested in it--Unbridled power conferred on authority was regulated through Regulations of 2005--Petitioners had merely served CDA on deputation for few years and they might avail right of allotment of any plot under 10% quota reserved for federal govt. servants and they had no right to claim their entitlement on anomaly that they being deputationist be considered as employee of CDA--Whereby deputationists for same time had been considered to be having equal statutes of regular employees CDA is a door of corruption as a number of Govt. officers will find it lacrative to service on deputation in CDA for allotment of residential plots as employes of CDA instead of waiting in long queue of Govt. Officers and it seemed to be an effort of Govt. employees to obtain residential plots in an irregular and illegal manner and they were not only discourage the regular employees of CDA but gains illegal and unconstitutional advantage over other colleagues who did not find any opportunity to obtain deputation in CDA--Petitioners being govt. employees might apply for residential plot on regular quota as provided for govt. employees, they were not entitled to take shortcut which was not backed by Constitution--Petition were dismissed.            [Pp. 115 & 116] A, B, C & D

Mr. Sher Afzal Khan, Advocate for Petitioner.

Date of hearing: 18.2.2013.

Order

Through this single order Writ Petition No. 607 & 561 of 2013 are being disposed of together involving common question of law and facts.

Petitioners invoked the constitutional jurisdiction of this Court by way of filing instant petitions with the following prayer:

"That for the reasons afore-cited, it is humbly prayed that upon acceptance of this writ petition, the petitioners may graciously be declared entitled to the allotment of plots as per balloting and respondents may graciously be directed to issue offer and allotment letters in favour of the petitioners. Any other relief deemed fit in the circumstances and not specifically prayed for may also graciously be awarded.

AND presented the facts as under:--

WRIT PETITION NO. 561/2013

Petitioner was posted on deputation in CDA as Director Land and Rehabilitation on 11th Nov. 2011 and served in CDA on deputation until 27th Nov. 2012 where after posted as Deputy Project Director (MRP), Directorate General of Immigration and Passport which position is held by him till date.

WRIT PETITION NO. 607/2013

Petitioner No. 1 served in CDA on deputation basis as Director Project Said Pur Model Village from Jan. 13th 2007 to March 30, 2009, Petitioner No. 2 served in CDA on deputation basis as Deputy Director from Jan. 1st 2005 to 31st October 2009, Petitioner No. 3 is currently working as Deputy Director One Window in CDA on deputation basis from October 2010 till date, Petitioner No. 4 served in CDA on deputation basis as Deputy Director Parliament House from Jan. 31st July 2005 to April 5, 2010, Petitioner No. 5 served in CDA on deputation basis as Deputy Director one Window from 08.08.2009 to August 29th, 2012, Petitioner No. 6 served in CDA on deputation basis as Deputy Director Land Rehabilitation from Sept. 2005 to March, 2010 whereas Petitioner No. 7 served in CDA on deputation basis as Audit Officer from 23rd Dec. to 31st August 2009.

3. It is the case of the petitioners that, Respondent No. 2, CDA Board through its Secretary, vide decision dated 21.12.2006 interalia held that all the deputationist on the strength of CDA on 28.11.2005 are eligible for allotment of plot if they otherwise meet the required criteria specified by the CDA Board and all the deputationistsjoining thereafter i.e 28.11.2005 will automatically become eligible as and when they meet the other parameters. It was also approved that, Cut-off date fordeputationists is specified as 28.11.2005 and on completion of one year service in CDA on this date or thereafter. Therefore, a right having accrued to them a number of CDA officers including deputationists filed writ petitions before Hon'ble High Court which were decided in their favour were also upheld by the Hon'ble Supreme Court of Pakistan and all the petitioners in Writ Petition No. 3041/2011 were allotted plots by the respondents.

4.  Learned counsel for petitioners argued that petitioners had become eligible for allotment of plots after serving for a mandatory one year term in the CDA and in view of availability of plots in the their category, they had legitimate expectations of being dealt with in accordance with law and the principle of stare-decisis as held in earlier judgments of the superior Courts. Learned counsel for petitioners contended that petitioners duly applied for allotment of plots on the basis of their eligibility and balloting was also held in this regard and some plots were earmarked for petitioners but they have been ignored for the purpose of issuance of offer letters on the pretext that with expiration of their term of deputation, they could not be held entitled for issuance of allotment letters. Learned counsel further contended that till Jan. 9th 2013, respondents issued a total 113 offer letters which also include 22 such officers who joined CDA much after the petitioners and this aspect alone shows mala fide and unfairness on the part of respondent authority.

I have heard the learned counsel for the petitioner and perused the record.

5.  The petitioners have pressed their claim mainly on the basis of the anomaly that the petitioner's should also be treated as an employee of CDA as they have also remained on deputation in CDA for over a period of one year. In order to establish their claim, the petitioners have annexed the judgment of Hon'ble Lahore High Court dated 21-01-2004, the judgment of Apex Court of Pakistan dated 28.11.2005 and the judgment rendered by this Court on 09-03-2011. Perusal of the judgments of the Hon'ble Lahore High Court and august Supreme Court of Pakistan dated 28-11-2005 reveals that there was no issue in those cases that whether a deputationistshould be equated with the regular employee of CDA. There is nothing in these judgments that a deputationist enjoys equal status of a regular employee of CDA. Resultantly these decisions rendered by the Hon'ble Lahore High Court and the august Supreme Court of Pakistan do not extend any help to the petitioners.

6.  After considering all the relevant law on the subject in juxtaposition to the fundamental rights as enshrined in the Constitution of Islamic Republic of Pakistan, I hold that provisions contained in Section 49 of CDA Ordinance and Regulations 4 & 5 of Islamabad Land Disposal Regulations 2005 provides that the authority constituted under the supra Ordinance may rent, exchange or otherwise dispose of any land vested in it. This unbridled power conferred on the authority is regulated through the Regulation Nos. 4 & 5 of the supra Regulations of 2005.

7.  In Regulation No. 5, it is provided that all residential plots in developed schemes shall be allotted with the manner that 75% of the plots will be allotted through open balloting at prevailing market price, 10% plots Will be allotted to the Federal Government Servants including employees of Federal Autonomous/Semi-Autonomous bodies, 5% plots to-be allotted to the Defence Service personals including civilians paid out of Defence estimates, 5% of plot to be allotted to the deprived groups and 5% are to be allotted to the CDA employees. The petitioners have merely served the CDA on deputation for few years and they may avail their right of allotment of any plot under 10% quota reserved for the Federal Government Servants and they have no right to claim their entitlement on the anomaly that they being thedeputationist be also considered as employee of CDA. Sub-clause (2) of Regulation No. 5 further provides that authority may reserve any land for the residence of Government Employees including employees of CDA, Autonomous and Semi-Autonomous bodies and for the affectees of Islamabad.

8.  The scanning of available record reflects that the CDA had reserved 20% of the plots in the schemes to be developed for the Government Servants and the petitioners being the Government Servants may avail the allotment of the residential plots in their capacity of Government Servant from the remaining quota of 80%. The petitioners have not shown any valid justification in the petition that why they have not availed the right of allotment of residential plot in the scheme reserved for Government Officers or that whether they have already obtained the allotment of some plot as regular Government employees. As per Section 37 of the supra Ordinance, the authority may appoint such officer, servant or consultant as it may consider necessary for performance of its functions and it is evident that the petitioners are neither appointed by the authority nor they have been absorbed in CDA and they joined the Federal Service in some other cadre. The decision of the CDA Board dated 21-12-2006 whereby the deputationists for some time have been considered to be having the equal status of regular employees of CDA is a door of corruption as a number of Government Officers will find it lucrative to serve on deputation in CDA for the allotment of residential plots as the employees of CDA instead of waiting in long queue of Government Officers and it seems to be an effort of some of the Government employees to obtain the residential plots in an irregular and illegal manner and they not only discourage the regular employees of CDA but also gains the illegal and unconstitutional advantage over their other colleagues who do not find any opportunity to obtain deputation in CDA. With these observations that petitioners being Government Employees may apply for the residential plot in their capacity of Government Servants on regular quota as provided for other Government servants, they are not entitled to take the shortcut which is not backed by the constitution and therefore, both the writ petitions are hereby dismissed in limine. No order as to costs.

(R.A.)  Petitions dismissed

Labour laws

- Constitutional Provisions
Article 9 gives right to life to everyone in Pakistan.
Article 17 gives right to form association and union. It has to be exercised within the provisions of laws.
No one can be forced to work under the provisions of Pakistan Penal Code.

- Industrial and Commercial Employment Ordinance, 1968
It provides the conditions for employment. This law doesn't apply if employees are less than 20. Commercial establishment is defined under section 2.b of this ordinance. Standing orders under section 2.g are defined. There are various other definitions under section 2. The classification of workmen include permanent, probationer, badli, etc. Salient features of this law include terms and conditions to b given in writing at the time of appointment or promotion. Leaves, wages, incentive schemes, group insurance, holidays, etc. All have to be on the notice board of establishment. Similarly shifts cannot be discontinued without one month notice and no permanent employee can be terminated on the closure of shift. There is a provision of payment of bonus in this law. Employer can stop work in certain events such as fire, accidents, power failure, etc. More than 50% work can't be closed unless things are beyond control. In other circumstanstances permission from labour court is mandatory.

- Shops and Establishments Ordinance, 1968
It is applicable in whole of Pakistan. It includes business establishments and social sector establishments. Public amusements are not covered under it. The section 6 define weekly holidays to be at least one. Section 7 has bar of opening and closing hours can't be more than 40 per week or 9 per day unless there is overtime. Section 11 include the terms and conditions of wages to be paid to employees. Annual leaves are fixed under section 14. Casual and sick leaves under section 15. Festival holidays are at least 10 to be notified in the beginning of calendar year by employer as per section 16.

- Minimum Wages Ordinance, 1961
Boards are established under section 3 of this ordinance. Govt may refer such wages under section 4. Under section 7 they can be reviewed after 3 years.

- Minimum Wages for unskilled workers Ordinance, 1969
Applies to commercial and non commercial establishments with more than 50 workers. Unskilled workers are paid under this law.

- Workmans Compensation Act, 1923
It gives compensation to injured employees in the line of duty. The employer will not be liable in cases of violations by employees.

- Factories Act, 1934 is one of the important laws which give definitions to various labour law enactments in Pakistan.

- EOBI Act, 1976 applies on establishments with more than 5 employees. Registered employees don't go out of the ambit of this law if their employees become less. Founders are not employees under this law. 6% to be paid by employer while 1% by the employee at the end of month till the 15th of next month. Women are entitled for benefits at the age of 55 under this law...there is contribution of 15 years required but a person working in mining industry can contribute only for 10 years.

THE PUNJAB PARTITION OF IMMOVABLE PROPERTY ACT 2012 (Act IV of 2013)

C O N T E N T S

Section                                Heading

        1.           Short title, extent and commencement.

        2.           Limitation on scope.

        3.           Definitions.

        4.           Suit for partition of immovable property.

        5.           Appearance of defendants and consequence of non-appearance.

        6.           Written statement.

        7.           Mesne profits pending adjudication.

        8.           Question of title or share.

        9.           Appointment of referee for partition.

       10.          Internal auction.

       11.          Open auction.

       12.          Mesne profits.

       13.          Private settlement.

       14.          Time limit for disposal of the suit.

       15.          Application of Act V of 1908.

       16.          Instructions of High Court.

       17.          Repeal.

[1]THE PUNJAB PARTITION OF IMMOVABLE PROPERTY ACT 2012

(Act IV of 2013)

[5 January 2013]

An Act to amend and reform the law relating to

partition of immovable property.

Preamble.– Whereas it is expedient to amend and reform the law relating to expeditious partition of immovable property and to provide for ancillary matters;

      It is enacted as follows:-

1.   Short title, extent and commencement.– (1) This Act may be cited as the Punjab Partition of Immovable Property Act 2012.

      (2)  It shall extend to whole of the Punjab.

      (3)  It shall come into force at once.

2.   Limitation on scope.– Nothing contained in this Act shall be deemed to affect any law providing for the partition of agricultural land or land subservient to agriculture.

3.   Definitions.– (1) In this Act–

       (a)  “Code” means the Code of Civil Procedure, 1908 (V of 1908);

       (b)  “Court” means the Court of original civil jurisdiction competent to entertain and decide suits for partition of immovable property;

       (c)  “immovable property” means an immovable property, other than agricultural land or land subservient to agriculture, jointly owned by two or more persons;

       (d)  “internal auction” means the auction of the immovable property amongst the co-owners of the property in which at least two co-owners are eligible to participate; and

       (e)  “mesne profits” means the approximate rental benefit which the co-owner in possession of the immovable property gains to the exclusion of any other co-owner during the pendency of the suit under the Act.

      (2)  An expression used in the Act but not defined shall mean the same as in the Code.

4.   Suit for partition of immovable property.– An owner of immovable property may file a suit for partition of the property, giving details of the property, citing all other co-owners as defendants and attaching all the relevant documents in his reach or possession.

5.   Appearance of defendants and consequence of non-appearance.– (1) The Court shall issue notice to the defendants for appearance on a date, not later than ten days, through the process serving agency and registered post or courier service and, where possible, also through electronic and telecommunication means.

      (2)  Copies of the plaint and the documents annexed with the plaint shall be attached with the notice under subsection (1) served through the process serving agency and sent by registered post or courier.

      (3)  If a defendant fails to appear and the Court is satisfied that the notice has not been served on the defendant or the defendant is willfully avoiding the service of the notice, the Court may direct service of the notice by–

             (i)   affixing a copy of the notice at some conspicuous part of the residence of the defendant; or

             (ii)   publication in the press, electronic media or any other mode.

      (4)  If the defendant fails to appear on the date fixed and the Court is satisfied that the notice had been duly served, it may proceed ex-parte against such defendant.

      (5)  If an ex-parte order is passed against a defendant, he may, within fifteen days from the date of knowledge, apply to the Court for setting aside the ex-parte order and shall submit along with the application the written statement and attach with such written statement copies of all the relevant documents in his reach or possession.

      (6)  If the defendant submits the written statement and shows sufficient cause for his non appearance, the Court may set aside the ex-parte order on such terms as it may deem fit.

6.   Written statement.– (1) Subject to section 5, a defendant in a suit for partition of immovable property shall file the written statement within thirty days of his first appearance in the Court and shall attach with the written statement copies of all the relevant documents in his reach or possession.

      (2)  If a defendant fails to file the written statement within the period mentioned in subsection (1), the Court shall strike off his defence and in that event he shall not be entitled to lead any evidence.

7.   Mesne profits pending adjudication.– (1) On the first date of hearing or as soon as thereafter, the Court may, pending adjudication of the suit, direct the co-owner, in possession of the immovable property, to deposit, either on monthly or quarterly basis, such interim mesne profits in the Court as it may determine on account of share of a co-owner not in possession of the property.

      (2)  If an order under subsection (1) is passed, the co-owner in possession of the property shall deposit the amount on or before the date fixed by the Court and, in the absence of any such order, on or before 15^th of the month or the first month of the quarter for which the amount is due.

      (3)  If the co-owner fails to deposit the amount under this section within the time specified under subsection (2), the Court shall–

             (a)  in case he is plaintiff, dismiss his suit; and

             (b)  in case he is defendant, strike off his defence and in that event, he shall not be entitled to lead any evidence.

8.   Question of title or share.– (1) When there is a dispute as to the title or share in the immovable property, the Court shall decide such question before proceeding further in the suit under this Act.

      (2)  The determination of a question of title or share of the immovable property by the Court under subsection (1) shall be deemed to be a decree in terms of the Code.

9.   Appointment of referee for partition.– (1) If all the co-owners agree in writing on partition of the immovable property through appointment of a referee, the Court shall appoint a referee for partition of the property within such specified or extended time as the Court deems appropriate.

      (2)  Subject to the restrictions imposed under any law governing town planning, the referee shall decide whether the immovable property is partible and if so, the referee shall propose partition of the immovable property.

      (3)  Notwithstanding anything in subsection (1) but subject to subsection (2), the Court may, on an application of one or more co-owners who desires his or their shares in the immovable property partitioned, appoint a referee who shall determine whether such share or shares is partible and if so, he shall propose partition of the property to that extent.

      (4)  The referee may, with the written consent of two or more co-owners of the immovable property, combine the shares of such co-owners in the proposal of partition.

      (5)  The Court shall affirm the proposal of the referee for partition of the immovable property through decree unless the Court is satisfied that the proposal is in contravention of any law.

      (6)  The Court may fix the fee of the referee to be paid by the co-owners according to their respective shares in the immovable property.

10.    Internal auction.– (1) If on the date fixed by the Court for the purpose, the co-owners fail to submit written agreement about the partition of the immovable property through appointment of a referee or the referee is of opinion that the property is not partible or the Court finds that the proposal of the referee is in contravention of any law, the Court shall determine the reserve price of the immovable property and direct sale of the property through internal auction on the next date of hearing.

         (2)  The Court shall require the co-owners to be present in person or through their authorized agents on the date of internal auction.

         (3)  The internal auction shall be conducted in the Court and the Court shall maintain record of internal auction which shall form part of the suit.

         (4)  Any two or more co-owners of the immovable property may submit their written offers or counter written offers until one of them makes the highest written offer.

         (5)  The Court shall declare the highest bidder as auction purchaser in internal auction and direct the auction purchaser to deposit the auction price within fifteen days of the auction but the auction purchaser may deduct from the auction price to be deposited such amount as equals his share in the immovable property.

         (6)  If the auction purchaser deposits the auction price under subsection (5) within the prescribed time, the Court shall confirm the sale, put the auction purchaser in possession of the property and distribute the auction price amongst the other co-owners according to their respective shares.

         (7)  If the auction purchaser fails to deposit the auction price under subsection (5) within the prescribed time, the Court shall fix another date for internal auction but such auction purchaser shall not participate in the subsequent internal auctions.

         (8)  The second or subsequent internal auction shall be held, as far as possible, in accordance with the procedure contained in this section for the first internal auction.

11.    Open auction.– (1) If the co-owners refuse to participate in the internal auction or only one co-owner shows his willingness to participate in such auction or the internal auction under section 10 has failed, the Court shall fix the reserve price of the immovable property and direct open auction of the property.

         (2)  A co-owner of the immovable property may participate in the open auction of the property.

         (3)  The Court shall appoint a court auctioneer for conducting the open auction and fix fee of the court auctioneer to be paid by the co-owners in proportion to their respective shares in the immovable property.

         (4)  The court auctioneer shall submit in the Court an auction plan in the form of a public notice which shall include detailed specifications of the immovable property, the time, date and place of open auction, and the amount of bid security for participating in the open auction, and the Court may approve the auction plan with or without modification and direct its publication in such manner as it deems appropriate.

         (5)  The court auctioneer shall conduct open auction under the auction plan approved and published by the Court and direct the highest bidder to deposit–

                (a)  earnest money equal to twenty per cent of the bid price immediately on the close of bidding; and

                (b)  the remaining amount of the bid price in the court within seven days.

         (6)  The court auctioneer shall maintain the record of the auction proceedings and return the bid security to unsuccessful bidders but shall adjust the bid security of the highest bidder in the bid price.

         (7)  The court auctioneer may, in an appropriate case, accept deposit under clause (a) of subsection (5) in the form of cash, crossed cheque, demand draft or banker’s cheque against a receipt.

         (8)  The court auctioneer shall, immediately after conclusion the auction, deposit in the Court the auction price collected by him along with the auction report.

         (9)  If the highest bidder deposits the auction price under subsection (5), the Court shall confirm the sale, put the highest bidder in possession of the property and distribute the auction price amongst the co-owners according to their respective shares.

         (10)   If the highest bidder fails to deposit the auction price under subsection (5), the amount deposited by him shall stand forfeited and the immovable property shall be put to open auction again, as far as possible, in accordance with the procedure contained in this section.

12.    Mesne profits.– (1) Subject to sections 10 and 13, the Court may, at the time of final settlement, award mesne profits to a co-owner not in possession of the joint immovable property by deducting the same from the share of the co-owner in possession of the property or by directing the co-owner in possession of the property to pay the same to the co-owner not in possession of the property.

         (2)  The Court shall, while awarding mesne profits under subsection (1), take into account the interim mesne profits deposited under section 7.

13.    Private settlement.–(1) All the co-owners of the immovable property may, at any stage of the proceedings before the date of open auction of the property, submit a private settlement in the Court.

         (2)  If the co-owners submit the private settlement under subsection (1), the Court shall pronounce judgment and decree in terms of the private settlement and cancel the order of open auction if already passed.

14.    Time limit for disposal of the suit.– (1) The Court shall finally dispose of the suit under this Act within six months from the date of the institution of the suit, failing which, the Court shall submit the case to the District Judge, with cogent reasons, seeking extension of time for disposal of the suit.

         (2)  The District Judge may, subject to such conditions as he deems appropriate to impose, grant extension in time to dispose of the suit taking into consideration the facts and circumstances of the case.

15.    Application of Act V of 1908.– Subject to this Act, the provisions of the Code shall apply to any proceedings under this Act.

16.    Instructions of High Court.– The Lahore High Court may issue instructions necessary for purposes of the Act.

17.    Repeal.– (1) The Partition Act, 1893 (IV of 1893) is hereby repealed.

         (2)  Notwithstanding the repeal of the Partition Act, 1893 (IV of 1893) and without prejudice to any previous proceedings in a suit, the suit for partition of immovable property pending in any court under the repealed Act shall be proceeded with and decided by the Court in accordance with the provisions of this Act.

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[1]This Act was passed by the Punjab Assembly on 27 December 2012; assented to by the Governor of the Punjab on 3 January 2013; and, was published in the Punjab Gazette (Extraordinary), dated 5 January 2013, pages 1961-65.