Jurisdiction of Federal Ombudsman is limited

 PLJ 2014 Islamabad 4

Present: Shaukat Aziz Siddiqui, J.

CH. MUHAMMAD YASIN--Petitioner

versus

WAFAQI MOHTASIB (OMBUDSMAN), etc.--Respondents

W.P. No. 1356 of 2013, decided on 26.4.2013.

Wafaqi Muhtasib (Ombudsman) Order, 1983--

----Art. 9--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Scope of jurisdiction--Function and power--Wafaqi Muhtasib had no jurisdiction to entertain complaint and to pass order as jurisdiction of Wafaqi Muhtasib is limited when controversy had already been settled by Courts of law--Validity--Wafaqi Muhtasib shall not have jurisdiction before Court of competent jurisdiction, which relates to external affairs of jurisdiction, which relates to external affairs of Pakistan or relates to matters connected with defence of Pakistan--In instant case controversy about subject-matter of petition had already been settled upto Supreme Court and Wafaqi Muhtasib had absolutely no jurisdiction to pass the impugned order.          [P. 8] A

Syed Naeem Bukhari, ASC and Mr. M. Imad Khan, Advocate for Petitioner.

Mr. Muhammad Munir Paracha, ASC and Mr. Noman Munir Paracha, Advocate for Respondent No. 2.

Mr. Atta Ullah Hakim Kundi, Advocate for Respondent No. 3 (CDA).

Mr. Muhammad Ramzan Joya, Director (Admn), CDA and Mr. Muhammad Ali, Director (HRD-I), CDA for Respondents.

Date of hearing: 26.4.2013.

Judgment

Petitioner invoked the constitutional jurisdiction of this Court by way of filing instant writ petition with the following prayer:--

"(a)      The complaint before Respondent No. 1 (Annexure A1) being outside the jurisdiction of said respondent in respect of a property in respect of which judicial decisions are in the field have attained the finality, be quashed.

(b)        The impugned order Annexure A be set aside as being without legal authority and of no legal effect.

(c)        Respondent No. 1 be directed to adhere to the directives of the Supreme Court of Pakistan and refrain from proceeding further in the matter.

(d)        Any other writ relief, remedy deemed just and/or appropriate be issued, granted or allowed".

2. Vide short order dated 26.04.2013, instant petition was allowed in the following terms:--

"(i)       In the peculiar circumstances, Respondent No. 1 is not vested with the authority to assume the jurisdiction in the subject matter, therefore, all the proceedings initiated before the learned Respondent No. 1 by Respondent No. 2 are illegal, without jurisdiction, besides the mandate of law, dictums laid down by the Hon'ble Supreme Court of Pakistan, offensive to the fundamental rights and rarity, therefore, proceedings and orders passed by learned Respondent No. 1 are hereby quashed.

(ii)        The Chairman, CDA i.e. Respondent No. 3 is directed to supervise the process of auction of suit premises (Petrol Pump) in accordance with PEPRA Rules and decision taken by the Staff Welfare Committee. The terms of lease may be fixed afresh in the meeting of Staff Welfare Committee which shall be attended by the Chairman, CDA. The premises be de-sealed before the auction and complete inventory report under the supervision of some responsible Member may also be prepared.".

The facts and reasons of above order are as under:

3. Precisely it is the version of the petitioner that CDA had established the Staff Welfare Committee (hereinafter will be referred as SWC) in year 1964, and leased certain properties to the SWC for utilization of the income to the welfare of the widows, retired staff, disabled and their children. Petrol Pump situated at Embassy Road G-6/4 Islamabad was also leased out to the SWC which was subleased by SWC to one S.M. Ismail for a period of 30 years w.e.f 01.01.1973 till 31.12.2002. CDA through its Board meeting dated 08.08.2000 had decided that SWC was fully competent to sublease properties leased to it without reference to the CDA Board and after the expiry of sublease period, petrol pump site should be put to open auction through transparent manner on annual basis. Thereafter the petitioner has narrated the chequered history of litigation concerning the petrol pump which the sub-lessee S.M Ismail had instituted against the SWC and others. Petitioner has further provided that all the litigation finally culminated in favour of the petitioner and even the august Supreme Court of Pakistan dismissed the various CPs filed by the sub-lessee. Petitioner has further averred that the SWC got published proclamation for the auction of the petrol pump and in the meanwhile Respondent No. 2 submitted a complaint before the Respondent No. 1, that the petitioner submitted the reply to the petition and through impugned order the Respondent No. 1 directed the maintenance of status quo due to which the auction could not be held. The petitioner has further submitted that the Respondent No 1 has no jurisdiction to interfere in the matter in hand as the august Supreme Court of Pakistan has finally settled the controversy in favour of the petitioner.

4. Learned counsel for the petitioner reiterated the contents of the petition and he has further argued that the Respondent No. 1 i.e. Wafaqi Muhtasib had no jurisdiction to entertain the complaint and to pass impugned order as the jurisdiction of the Respondent No. 1 is limited and when the controversy has already been settled by the Courts of law, therefore the impugned order of the Respondent No. 1 should be quashed.

5. Learned counsel for the respondents has opposed the contentions of the petitioner and contended that the Respondent No. 1 enjoys the powers to interfere in the cases of mal-administration and as the Respondent No. 3 has failed to run the affairs of petrol pump, therefore, the exercise of jurisdiction of Respondent No. 1 is quite lawful. Learned counsel for the respondents has prayed that instant petition be dismissed.

6. I have considered the respective contentions of the parties and also perused the available record. Before proceeding to discuss the scope of jurisdiction which the Respondent No. 1 may exercise, it is appropriate to mention the undisputed facts, that the SWC is the lease holder of the petrol pump situated at the Embassy Road G-6/4 Islamabad who had subleased the said petrol pump to the S.M. Ismail for the period of 30 years w.e.f 01.01.1973 to 31.12.2002. CDA through its Board meeting dated 08.08.2000 had authorized the SWC to further sub-lease the petrol pump on the annual basis through transparent auction without any further reference to the CDA. S.M. Ismail (tenant) had instituted a civil suit against SWC which was disposed of on 05.03.2003 with the observation that the tenant should not be ousted against due process of law, thereafter the S.M. Ismail (hereinafter be referred as tenant) filed an application for the determination of the fair rent and he also instituted a Writ Petition No. 346/2004 in the Hon'ble Lahore High Court whereby he challenged the notice of eviction, which was disposed off on 30.06.2004 with the direction to the SWC to reconsider the extension of the tenancy period. Order of the Hon'ble Lahore High Court was challenged through ICA No. 161/2004 which was allowed on 28.06.2005 and ultimately the august Supreme Court of Pakistan in CPLA No. 2577/ 2005 set aside the supra orders passed by the Hon'ble Lahore High Court through its order dated 05.10.2006. In the mean time the SWC took over the possession of the petrol pump and the pump was sealed, the tenant instituted a suit against his eviction which was dismissed on 20.06.2008. Learned appellant Court dismissed the appeal of the tenant on 14.01.2009 and a Civil Revision Petition No. 5/2009 as well as Writ Petition No. 85/2009 instituted by the tenant were also dismissed on 08.04.2009 by Hon'ble Lahore High Court. ICA against the supra order was also dismissed on 11.05.2009 and the tenant withdrew his CPLA No. 981/2009 from the August Supreme Court of Pakistan on 4.11.2009.

7. In the mean time, the petition for the determination of the fair rent of the tenant was dismissed on 09.04.2009 and the appeal of the tenant was accepted on 28.10.2009, whereas, fair rent was determined to be Rs. 100,000/- per month which tenant failed to pay. SWC challenged the order dated 28.10.2009 through Writ Petition No. 3516/2009, whereas, tenant instituted a petition u/S. 144 of Cr.P.C. which the learned Rent Controller dismissed on 27.05.2010 and appeal of the tenant was also dismissed by the appellate Court on 26.02.2011 and he instituted the Writ Petition No. 707/2011. The writ petition of the SWC No. 3516/2009 and the Writ Petition No. 702/2011 were decided by this Court in favour of the SWC on 24.06.2011. The tenant submitted the CPLA No. 1079/2011 and 1080/2011 in the august Supreme Court of Pakistan against the order of this Court dated 24.06.2011 and the august Supreme Court of Pakistan was pleased to dismiss above mentioned civil petition on 11.10.2011 thus with order of the august Supreme Court of Pakistan the litigation in the Courts exhausted.

8. Thereafter the SWC got published proclamation in the news paper for the auction of the petrol pump and Respondent No. 2 while concealing all the facts about the above mentioned litigation, submitted a petition before the Wafaqi Muhtasib and the Wafaqi Muhtasib (Respondent No. 1) issued the impugned order to maintain the status quo. The tenant has entangled the SWC in the litigation which commenced when the tenant instituted a civil suit on 05.03.2003 and that culminated when the august Supreme Court of Pakistan dismissed the CP'S on 11.10.2011. The rights, liabilities and obligations of the parties have been fully determined by the decision rendered by the Courts of law and the exercise of the jurisdiction by the Wafaqi Muhtasib i.e. Respondent No. 1 is illegal as the office of the Wafaqi Muhtasib was constituted through Establishment of the Office of the Wafaqi Muhtasib (Ombudsman) Order 1983 and Section 09 of the supra Order narrates the jurisdiction, function and power of the Wafaqi Muhtasib. In this section it is provided that the Wafaqi Muhtasib may on the complaint by aggrieved person, on the reference by the President, the Federal Government or National Assembly as the case may be or on the motion of the august Supreme Court of Pakistan or High Court made during the course of the proceedings before it or of his motion, undertake any investigation into the allegation of mal-administration on part of any agency or any of its officer or employee. Proviso of this Section provide that the Wafaqi Muhtasib shall not have jurisdiction to investigate or enquire into any matter which is subjudiced before the Court of competent jurisdiction, which relates to the external affairs of Pakistan or relates to matters connected with the defence of Pakistan. In the case in hand, the controversy about the subject matter of this petition has already been settled upto the august Supreme Court of Pakistan and as per clause A of the Section 9, the Respondent No. 1 has absolutely no jurisdiction to pass the impugned order.

(R.A.)  Petition accepted