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| Restriction on sale of property Writ Petition |
In the name of ALLAH, the most beneficent, the most
merciful
This is the
format of Writ Petition filed before the High Court against the oral
restriction to sell out the property, imposed by department.
IN THE
W.P No. _______/2020
Jameel Ahmed (Ex-Brig. PA 220220) son of Nabeel Ahmed resident of House No. 420, Street No. 4, Gulshan
Sector –II, Gohar Road, Phase-9, Rawalpindi
…Petitioner
Versus
1.
Federation of
2.
General
Headquarters of Pakistan Army through Incharge, Adjutant General’s Branch,
General Headquarters,
3.
4.
Defence Housing
Authority,
5.
Administrator / Incharge,
DHA,
6.
General
Headquarters, AG’s Branch (Housing Directorate)
Respondents
WRIT PETITION
UNDER ARTICLE 199 OF THE CONSTITUTION OF ISLAMIC
Respectfully Sheweth:
1.
That the facts in
brief leading to the filing of the instant Writ Petition are that the
petitioner joined Pakistan Army in November 1993 and was commissioned in the Corps
of Engineers in October 1194, ultimately the petitioner with his untiring efforts rose to the coveted rank of
Brigadier and as a credit to his service performance was awarded with
Sitara-e-Imtiaz.
2.
That the
petitioner was dismissed from service vide impugned order dated
3.
That the
petitioner voiced his grievance through instant Writ Petition with regard to his
service benefits which are being withheld / restrained unconstitutionally, ,
those benefits are as follow:- illegally, unlawfully and without any cogent
rhyme or reason
i.
A single unit
house which is ownership of the petitioner having membership No. B-100406 in
the Housing Directorate.
ii.
A Plot No. 102
situated in Sector 5-D, DCK, DHA Karachi (W&R Dte),
4.
That the above
were the two properties which belong to the petitioner as a result of his
service benefits which he earned by rendering his services and the due amount of
the aforesaid properties was duly paid by the petitioner, it is pertinent to
mention here that the petitioner got the membership of the Housing Directorate back
in the year 2001 and till 30th June 2017 the petitioner paid the
entire amount of Rs. 14,40,000/-as per the requirement of Housing Directorate
and nothing is outstanding against the petitioner in respect of payment of the
above mentioned house which matured in favour of the petitioner in June 2017.
5.
That the
petitioner likewise purchased the plot in Pakistan Defence Officers Housing Scheme
which was residential in nature and the petitioner paid up to date installments
as per requirement of Pakistan Defence Officers Housing Authority, DHA,
6.
That agony of the
petitioner started when the petitioner opted to sale out the plot having its credentials
mentioned in the above paragraph and in this respect the petitioner conveyed
his intention of selling out the property to the concerned authority and the GHQ, Adjutant General’s Branch
(W&R Dte) Rawalpindi vide letter No. 5/NOC/2202110020/WSSC-7 dated 20 August 2019 granted the permission for sale
of plot in the following words:-
“1. PA 220255520 Brig. Jameel
Ahmed is CLEARED to sell/ transfer his
Army allotted Plot No. 102-Sec-5B-DCK,
held in his name in DHA
In pursuance of the above when
the petitioner approached the concerned office of DHA,
7.
That subsequently
the concerned officials of DHA Karachi informed the petitioner that as per instructions
of the GHQ, the plot in question is under observation and the petitioner cannot
for the time being sell out the plot, it was quite painful for the petitioner that
despite of having an NOC from the authority, the petitioner was restrained to deal
with his property the manner he liked.
8.
That Article 23
of constitution of Islamic Republic of Pakistan 1973 reads as under:-
“Every citizen shall have
right to acquire, hold and dispose of property in any part of Pakistan, subject
to the constitution and any reasonable restriction imposed by law in the public
interest”
Likewise, Sub Article (1) of
Article 24 of the Constitution of Islamic Republic of Pakistan 1973 reads as
under:-
“No person shall be deprived
of his property save in accordance with law”
The above articles of the
constitution, make it abundantly clear that no citizen of Pakistan could be
deprived of his property in any manner except in accordance with law, the
petitioner served the department, obtained membership of the concerned Housing
Scheme and after fulfilling all codal formalities, the petitioner was given plot
and a single unit house respectively as per procedure and law on the subject in
vogue/ applicable.
9.
That livelihood
of the petitioner and his family is dependent upon the sources of the petitioner,
at present, the petitioner is finding
out difficult to meet his expenditures and in this backdrop, the petitioner
wanted to dispose of / sale out the plot and the Adjutant General Branch of GHQ
issued an NOC in favour of the petitioner allowing the petitioner to sale out
his plot, the authorities of DHA Karachi do not have any justification to
refuse sale of the plot in question on any hypothetical ground, more so when the same is not based on any written
instrument rather allegedly on account of
verbal instructions issued by the GHQ. It is settled proposition of law that a person
having ownership/ proprietary rights over property cannot be refused to deal
with the property the manner he likes as it is the fundamental, constitutionally
protected right of every citizen which
cannot be snatched by any department or authority on any excuse.
10.
That Honourable
Supreme Court of Pakistan in many authoritative judgments has laid down that when
an act of an authority is based on malice or malafide then the protection
cannot be claimed by the concerned authority. Reference in this regard can
conveniently be placed on 2012 SCMR 1229 where the Honourable Supreme Court of
Pakistan has clearly laid down that the
article 199 (3) had to be strictly construed as whenever there is a colorful
exercise of power or the exercise is tainted with malice and malafide then the Writ
Petition is maintainable, likewise the Honourable Supreme Court of Pakistan in
a case reported as 2014 SCMR 1530 held as under:-
“An act of malafide, corum
non judice or without jurisdiction order can be assailed in writ jurisdiction”
Such a clear cut pronouncements
of the Honourable Supreme Court of Pakistan made it clear that when an act is corum
non judice or without jurisdiction then the protection cannot be claimed and an
illegal order can be assailed in writ jurisdiction. In the case in hand, the
petitioner is being restrained from usufruct of his property without any justifiable,
legal excuse and the colorful exercise of power used by the respondents should
be checked by this Honourable Court to undo
the wrong committed by the respondents against the petitioner.
11.
That the
properties belong to the petitioner and the petitioner is at liberty to use the
properties according to his desire and no stoppage or blockage can be placed in
the way of petitioner by the respondents.
12.
That all
authorities and departments are governed by the Constitution of Islamic Republic
of Pakistan 1973, action or a step taken by an authority which is in negation
of the constitutional mandate or erodes any article of the constitution is
nullity in the eye of law and to make the State a welfare, progressive state,
it is imperative that all the departments must adhere to the provisions of the
constitution and no departure could be allowed to be made to any department on
any lame excuse. By following the constitution, affairs of the State could be
managed in a more dynamic and magnificent way, whereas bypassing the mandate of
constitution brings anarchy, chaos and mayhem in the society, a collateral destruction of the smooth fabric of the
society which cannot be allowed to take place by this Honourable Court and while
exercising constitutional mandate, this Honourable Court have always intervened
in the matter and interpreted the constitution in the manner so that all the authorities
do function within their allotted framework so that the objective of a welfare
State could be achieved.
13.
That the Constitution is the supreme law of the
land and any rule, regulation, policy or notification which is in derogation of
the constitutional provision is a nullity, an illegality and an act without
basis which can be struck down by this Honourable Court by declaring the same as an unconstitutional act,
if the respondents opt to defend their illegal and unconstitutional act under
the blanket of any such
rule, policy or regulation the
same may graciously be declared as ultra vires of the constitution.
14.
That the
petitioner has assailed the order of his dismissal which is subjudic before
this Honourable Court and the punishment in shape of restrictions on the
utilization of properties cannot be stretched by the respondents in advance, livelihood
and survival of not only the petitioner but his family also rest upon the properties
mentioned above and the respondents cannot be allowed to take divergent stands according
to their own sweet wishes, since the matter pertains to the life and living of
the petitioner and his family as the above restriction multiply the financial
problems of the petitioner and his family.
15.
That the plot No.
2221212 was allotted to the petitioner as a first service benefit and the
entire installments/ all dues were cleared by the petitioner in time and till December
2017 all the installments were cleared and nothing was payable on the part of
petitioner.
16.
That the
petitioner does not have any other efficacious remedy available to him except
invoking the constitutional jurisdiction of this Honourable Court under Article
199 of Constitution of Islamic Republic of Pakistan 1973.
PRAYER
It
is most respectfully prayed that the instant Writ Petition may graciously be
allowed, the impugned oral restriction placed by the respondents in respect of sale
of Plot No. 1225402 situated in Sector 5-D, DCK, DHA Karachi (W&R Dte),
Karachi may graciously be declared unconstitutional, illegal, unlawful, without
any justification or reason and the respondents may graciously be ordered not
to create any hurdle in the enjoyment/ ownership of the petitioner in respect
of single Unit House of Housing Directorate in respect of membership No. 22244771
belonging to the petitioner and the petitioner may graciously be allowed to alienate/
transfer/dispose of the properties in accordance with his needs / desire without
imposition of any restriction or condition placed by the respondents, in the
interest of justice and fair play.
Any
other relief which this Honourable Court deems just and proper, may graciously
be extended in favour of the petitioner, to meet the ends of justice.
Petitioner
Through
Counsel
Advocate High Court
CC No.12000
CERTIFICATE:
1.
As per
information received from my client, this is the first Writ Petition on the
subject matter even moved before this Honourable Court.
2.
Further certified
that no such petition on the same subject matter is pending or decided by the
Honourable Supreme Court of Pakistan.
3.
Further certified
that this petition has arisen from violation / non fulfillment of an obligation
under the law and an alternate remedy provided by the law is being availed by
the petitioner.
Counsel