P L D 2017 Balochistan 96
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
NOOR MUHAMMAD--- Petitioner
Versus
SAJJAD AKHTAR and 3 others ---Respondents
Constitutional Petition No.(T) 96 of 2016, decided on 12th June, 2017.
Establishment of Office of Ombudsman for the Province of Balochistan Ordinance (VI of
2001) ---
----Ss. 9(1), 29 & 32--- Constitution of Pakistan, Arts. 10- A & 199 ---Constitutional petition ---
Audi alteram partem, principle of ---Applicability ---Alternate remedy ---Scope ---Petitioner was
aggrieved of order passed by Ombudsman accepting complaint filed by respondent against him --
-Plea raised by petitioner was that he was condemned unheard whereas authorities contended
that alternate remedy of appeal was available to the petitioner ---Val idity---Ombudsman accepted
complaint of respondent without issuing notice to him --- Order passed by Ombudsman without
affording opportunity of hearing to petitioner could not be blessed with blanket of authenticity,
being violative of universally acknowled ged principle of audi alteram partem ---After insertion of
Art.10- A to the Constitution, said principle had gained much importance ---When alternate
remedy was available, Constitutional petition was not maintainable but in cases where order
assailed was patently illegal and without jurisdiction, Constitutional jurisdiction of High Court
could not be abridged on account of availability of alternate remedy ---High Court was custodian
of Fundamental Rights of citizens of the country and was under obligation to ta ke care of orders
passed by executives and quasi -judicial forums when same were brought before it in
Constitutional petitions ---High Court set aside orders passed by Ombudsman as same was
without lawful authority, void ab initio and of no legal effect as m atter pertained to civil dispute
and parties were at liberty to invoke court of competent jurisdiction for redressal of their
grievances ---Constitutional petition was allowed in circumstances.
Pakistan Cromines Limited v. The Inquiry Officer, WarRisk Ins urance (Sindh
Balochistan Ministry of Commerce) 1983 SCMR 1208; Muslim Abad Cooperative Housing
Society Limited v. M/s Siddiqa Faiz PLD 2008 SC 135 and Messrs Ahmed Clinic v.
Government of Sindh 2003 CLC 1196 rel.
Tahir Ali Baloch for Petitioner.
Jadain Dashti for Respondents.
Date of hearing: 22nd May, 2017.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of C.P. No.96 of 2016 filed by
petitioner Noor Muhammad S/o Gul Muhammad caste Baloch, resident of Turbat, against the
respondents with the ave rments that the petitioner is allotee of plots Nos.330 and 351 in Satellite
Town Turbat and the said property was allotted to him on 9th May 1996 and the petitioner has
regularly deposited the installments of the said plots besides by making huge expenses on
construction of a boundary wall over the plots and also having the peaceful possession of the
aforesaid plots.
2. It is further averred from the petition of the petitioner that the respondent No.1 Sajjad
Akhtar S/o Muhammad Usman filed an application (c omplaint) before the respondent No.4
Provincial Ombudsman (Mohtasib Balochistan) in the year 2011 wherein stated that the plot
Nos. B -330 and B -351 of Satellite Town Turbat were allotted to Haji Noor Muhammad and
Ghulam Sarwar respectively by the then Chai rman Municipal Committee Turbat and it was
alleged in the said application that the petitioner being an irrelevant person occupied these plots
illegally and unlawfully, had constructed a four wall without issuing NOC in his favour for
construction. It is f urther submitted by the petitioner that on such application of respondent No.1
the learned Ombudsman Balochsitan (respondent No.4) without issuing notice to the petitioner
and without investigating the matter directed the official respondent No.2 vide its
findings/decision dated 9th Apri1 2013, relevant portion whereof reproduced as under: -
Keeping in view the above there is no need of further investigation. The higher
authorities of Local Government Department needs to take action against officers not
fulfilling their duties properly and plots in satellite town Turbat are being
occupied/encroached by irrelevant persons, be vacated and entrusted to their lawful
owners. The case is closed and parties are informed accordingly.
3. The learned counsel for the pe titioner contended that on the directions of learned
Ombudsman Balochistan, the official respondents have started illegal interference in the peaceful
possession of the petitioner. He further contended that even otherwise, the matter pertains to
factual co ntroversy and is a civil dispute in nature, which could not be resolved or entertained by
the Ombudsman, as such, the order passed by the learned Ombudsman is without jurisdiction,
void ab initio, not sustainable and liable to be set aside.
4. The petition was contested by the respondents Nos.1,2 and 3 wherein categorically
denied the claim of the petition, Mr. Jadain Dashti, learned counsel for the respondent No.1
while arguing the case stated that basically the plots in question were allotted to Haji Noor
Muhammad S/o Gul Muhammad and Ghulam Sarwar S/o Muhammad Usman by the then
Chairman, Municipal Committee Turbat, which was later on occupied by the petitioner as a
result whereof the respondent No.1 filed a complaint on behalf of Haji Noor Muhammad and
Ghulam Sarwar allottees before the learned Ombudsman Balochistan and after proper
investigation and calling of record from the concerned quarters, the learned Ombudsman passed
directions to the concerned authorities to get vacate the plots from the petitione r/occupant. He
further contended that against the order of Ombudsman appeal is provided, as such, Constitution
Petition is not maintainable.
5. Mr. Saleem Baloch, learned Additional Advocate General while arguing the matter on
behalf of respondents Nos.2 a nd 3 submitted that the respondent No.2 i,e. Municipal Committee
Turbat in his Para -wise comments declared the allotments of the petitioner as fake one, while
verified the allotment orders of the Haji Noor Muhammad and Ghulam Sarwar as genuine, who
were represented by the respondent No.1. He further contended that against the order of
Ombudsman, Constitution Petition is incompetent and the petition so filed by the petitioner is
liable to be dismissed.
6. We have heard the learned counsel for the parties and perused the record, the moot
question arised between the parties is that whether the learned Ombudsman having jurisdiction to
decide the civil dispute. The learned counsel for the petitioner mainly agitated the point of
jurisdiction that the Ombudsman having no jurisdiction to decide civil disputes pertaining to
factual controversies while on the other hand, the learned counsel for the respondent No.1 and
the learned AAG raised objection on the maintainability of the petition on the ground that the
order s o passed by the Ombudsman within the purview of the Ordinance of 2001 could not be
assailed in constitutional jurisdiction while appeal is provided under section 32 of the Ordinance
of 2001 to be filed with the worthy Governor of Balochistan.
7. After thorough analysis of the arguments put forth before us we are of the firm opinion
that so far as the contention of respondent regarding Section 29 of Ordinance of 2001 is
concerned, the such provisions contained in Section 29 of Ordinance of 2001 would only apply,
if the Ombudsman order is within the four corners of the law defining its jurisdiction, if there is
any lack of jurisdiction, the provisions contained in Article 199 of Constitution would be
attracted. It is by now settled by the Superior Courts that, where the order passed by the
Ombudsman, on the face of it is repugnant to law, under which it was made or suffers from want
of jurisdiction, this Court may invoke its inherent jurisdiction vested in it under the law so as to
prevent injustice being done to an aggrieved person. The jurisdiction of the Ombudsman is
restricted by Section 9 (1) of the Ordinance of 2001 and cannot be extended further.
8. It is also shocking to note that the Ombudsman while accepting the complaint of
respondent No.1 without iss uing notice to the petitioner. The order passed by the learned
Ombudsman, without affording an opportunity of hearing to the petitioner, cannot be blessed
with blanket of authenticity, being violative of universally acknowledged principle of "Audi
Alteram Partem", which has gained much importance after insertion of Article 10 -A of the
Constitution. In this respect, reliance is placed to the case of "Pakistan Cromines Limited v. The
Inquiry Officer, WarRisk Insurance (Sindh Balochistan Ministry of Commerce) (1983 SCMR
1208").
9 It is settled principle of law that the judgment of honorable Supreme Court of Pakistan is
binding on each and every organ of state by virtue of Articles 189 and 190 of the Constitution. It
is also settled by now that when the basic or der is without lawful authority, then the
superstructure shall have to fall on the ground automatically.
10. Now coming to the last limb of argument advanced by the learned A A.G and counsel for
the private of respondent that in presence of alternate remed y against the order passed by the
Ombudsman by way of appeal under section 32 of the Ordinance of 2001, this petition is not
maintainable. We are of the considered view though ordinarily, when alternate remedy is
available, the constitution petition is not maintainable, but in the cases, where the order
impugned is patently illegal and without jurisdiction, the constitutional jurisdiction of this Court
cannot be abridged on account of availability of alternate remedy, rather this Court, being
custodian of f undamental rights of the citizens of the country, is under obligation to take care of
the orders passed by the executives and Quasi judicial forums, when the same are brought before
it in the constitution petition. In this regard, reference can be made to the cases of "Muslim Abad
Cooperative Housing Society Limited v. M/s Siddiqa Faiz ( PLD 2008 Supreme Court 135) and
M/s Ahmed Clinic v. Government of Sindh 2003 CLC 1196, it was held by the Honorable
Supreme Court that the High Court will not entertain a w rit petition when other appropriate
remedy is available is not a rule of law barring jurisdiction, but a rule by which the Court
regulates it jurisdiction. When statutory functionary with mala fide or in impartial, unjust and
oppressive manner, the High Court in exercise of its writ jurisdiction has power to grant relief to
the aggrieved party.
11. Although the Court exercising writ jurisdiction cannot claim in the exercise of
constitutional power to usurp the functions of the authority on which the power had been vested,
but the Court exercising writ jurisdiction can insist for being satisfied that the action taken is not
mere a colorable power. Even otherwise, as already observed hereinabove, neither the petitioner
arrayed as party by the respondent No.1 in his application/complaint, nor did the Ombudsman
bother to give notice to him to join the proceedings, prior to passing the impugned order.
12. In view of the above discussion, we accept this Constitution petition and declare that
impugned order passed by the Ombudsman to have been without lawful authority, void ab initio
and of no legal effect as such, the matter pertaining to a civil dispute and the parties are left at
liberty to invoke the Court of competent jurisdiction for redressal of their grievances. No order as
to costs.
MH/96/Bal. Petition allowed.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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