2020 C L C 1942
[Balochistan]
Before Rozi Khan Barrech, J
ABDUL QADEER---- Petitioner
Versus
GOVERNMENT OF BALOCHISTAN through Secretary Public Health Engineering
and 2 others ----Respondents
Constitution Petition No.435 of 2020, decided on 9th June, 2020.
Constitution of Pakistan ---
----Art.199--- Constitutional jurisdiction of High Court ---"Aggrieved person" ---Personal
right ---Locus standi ---Public procurement ---Scope ---Petitioner sought cancellation of tender
for installation of water -supply on lands allegedly belonging to petitioner and his forefathers -
--Validity ---Petitioner was neither owner of said land nor his name was mentioned in
mutation entries and he had no concern with the same; and therefore he did not fall within
definition of "aggrieved person" in context of Art.199 of Constitution---Sine qua non for
initiation of proceedings under Art. 199 of Constitution was that petitioner should have locus standi ---Constitutional petition being not maintainable, was dismissed, in circumstances.
N.W. F.P. Public Service Commission and others v. Muhammad Arif and others 2011
SCMR 848 rel.
Habib -ur-Rehman for Petitioner.
Date of hearing: 8th June, 2020.
JUDGMENT
ROZI KHAN RARRECH, J. ----The instant constitution petition filed under Article
199 of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution") carries the
following prayer clause: -
"It is accordingly respectfully prayed that this Hon'ble court to declare the void
Notice inviting tender dated 4.05.2020 which is illegal, unlawful against the norms of justice and want to lose the petitioner as well as the people of the area the same may be cancelled, and the official respondent be directed t o acquire the said land
according to land Acquisition Act with any other relief and cost of the petition throughout, in the interest of justice.".
2. Brief facts of the case are that the petitioner being a farmer is having agricultural land
in different ar eas of Mauza Bazger Taref and at Tehsil Dalbandin District Chaghi. The
District Forest Officer entered into agreement dated 04.03.2020 for a period of five years
with the petitioner's tribe acquiring two hundred acres of land belonging to petitioner's tribe. Due to shortage of drinking water in Dalbandin city, the provincial government in order to provide the said facility to Dalbandin city approved funds for water supply scheme in the
annual budget 2019- 20 which was also included in the PSDP for 2019- 20. T he recently it
came to petitioner's knowledge that the official respondents issued tender through publication
on 14.05.2020 in daily newspapers at Puzhohi site Dalbandin for installing water supply scheme on the agricultural lands of the petitioner and his forefathers. The petitioner further
averted in the petition that the said lands are mutated in the name of forefather and other co-sharers whereas some of the area is unsettled but the petitioner and all co -sharers are
cultivating the said lands without a cquiring the same under the provisions of the Land
Acquisition
3. I have heard the learned counsel for the petitioner besides have also perused the
available record.
4. I consider it proper to first to decide the objection as to the maintainability of the
instant petition on the ground as to whether the petitioner is an "aggrieved party" as envisaged under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 or not and could competently take a recourse to this court under its constitutional jurisdiction.
5. The maintainability of the instant Petition has to be adjudged under Article 199 of the
Constitution of the Islamic Republic of Pakistan, 1973, which reads as under,:
"A High Court may if it is satisfied that no other adequate remedy is provided by
law:-
(a) On the application of any aggrieved party make an order -
(i) Directing
(ii) Declaring.."
6. The above referred Article lays emphasis (i) on the satisfaction of the Court about the
absence of any adequate remedy available under the law to the person/party invoking the
jurisdiction of this Court under the said Provisions of the Constitution and (ii) that the party is to be an aggrieved one which conditions have not been prescribed under sub- clause (b) of
clause (1) of Article 199 of t he Constitution. It is sine qua non for invoking the jurisdiction
of this Court through a Writ Petition, under the clauses referred to above under which the instant writ lies. The word aggrieved person/party has not been defined in the Constitution, but, f rom time to time it has been interpreted by the Superior Courts in the given
circumstance of each case.
7. The petitioner through the instant petition has invoked the constitutional jurisdiction
of this court under Article 199 of the Constitution of Islami c Republic of Pakistan, 1973,
therefore it has to be established by the petitioner that his legal or fundamental right
guaranteed under the Constitution has been violated and that he is the aggrieved person.
Similarly, the petitioner has to prove his locus standi to seek direction for initiation of action
against the respondents.
8. After perusal of the mutation entries attached with the petition neither the petitioner is
owner of the said lands nor his name is mentioned in the mutation entries and he has no concern whatsoever with the property over which the official respondents allegedly are installing the water supply scheme. The petitioner not being the owner of the said properties do not fall within the definition of the "aggrieved person", as neit her he is shown as to how
and in what capacity he can invoke the constitutional jurisdiction of this court nor he has been able to prove infringement of any of his fundamental rights.
9. It is sin qua non for initiation of proceedings under Article 199 of the Constitution
that the petitioner should have a locus standi to institute the proceedings or in other words the petitioner should be aggrieved party from the action of the respondents. In the case titled as N.W.F.P. Public Service Commission and others v. Muhammad Arif and others (2011
SCMR 848) the Hon'ble Supreme Court while dealing with the question of personal right observed as under:
"The right which is the foundation of an application under Article 199 of the Constitution is a personal and individual right. The legal right may be a statutory right or a right recognized by the law. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to perform relating to the right. There must not only be a right but a justiciable right in existence, to give
jurisdiction to the High court in the matter. Unless whatever right personal or
otherwise, on which the application is based is established, no order can be issued under Art. 199"
Thus, in view of the a bove it is evident that the petitioner cannot be termed to be
"aggrieved person" for challenging the orders, act or proceedings done or taken by the respondents' department. Consequently, the instant petition being not maintainable is dismissed in limine.
KMZ/86/Bal.
Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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