PLJ 2018 Quetta 39 (DB)
Present : MUHAMMAD HASHIM KHAN KAKAR AND ABDULLAH BALOCH , JJ.
NOOR MUHAMMAD --Petitioner
versus
SAJJAD AKHTAR and 3 others --Respondents
C.P. No. 96 of 2016, decided on 12.6.2017.
Constitution of Pakistan, 1973--
----Arts. 10A & 199--Provincial Ombudsman (Mohtasib Balochistan) Ordinance, 2001, Ss.
29 & 329(1) --Complaint before Provincial Ombudsman--Without notice and without
investigation --Illegal interference in the peaceful possession --Factual controversy --Dispute of
a civil nat ure--Question of --Whether ombudsman having jurisdiction to decide civil dispute --
Lack of jurisdiction-- Validity --When basic order is without lawful authority, then
superstructure shall have to fall on ground automatically --When alternate remedy is availabl e,
the constitution petition is 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 --Petition was accepted. [P. 42] A
& B
Mr. Tahir Ali Baloch, Advocate for Petitioner.
Mr. Jadain Dashti, Advocate for Respondents.
Date of hearing: 22.5.2017. J
UDGMENT
Abdullah Baloch, J: --This judgment disposes of CP No. 96 of 2016 filed by petitioner nor
Muhamma d S/o Gul Muhammad caste Baloch, resident of Turbat, against the respondents
with the averments 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 h as
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 p etitioner that the Respondent No. 1 Sajjad
Akhtar S/o Muhammad Usman filed an application (complaint) 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 To wn Turbat were allotted to Haji Noor Muhammad and
Gulam Sawar respectively by the then Chairman Municipal Committee Turbat and it was alleged in the said application that the petitioner being an airrelevant person occupied these plots illegally and unlawfu lly, had constructed a four wall without issuing NOC in his favour
for construction. It is further 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 April 2013, relevant portion whereof reproduced as
under:
Keeping in view the above there is no need of further investigation. The hi gher
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 owne rs. The case is closed and parties are informed accordingly.
3. The learned counsel for the petitioner 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 controversy 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 Respondent 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 allotees before the learned Ombudsman Balochistan and after proper investigation and calling of record from the concerned quarters, the learned Om budsman
passed directions to the concerned authorities to get vacate the plots from the petitioner/occupant. He further contended that against the order of Ombudsman appeal is provided, as such, Constitution petition is not maintainable.
5. Mr.Saleem Balo ch, learned Additional Advocate General the while arguing the matter on
behalf of Respondent Nos. 2 and 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 factural 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 so passed by the Ombudsman within the purview of the Ordinance of 2001 could not be assailed in constitutional jurisdiction while appeal is provided u/S. 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 forcorners of the law defining its jurisdiction, is there is any lack of jurisdiction, the provisions contained in Ar ticle 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 in voke 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 issuing 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 Vs. 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 order is without lawful authority, then the superstructure shall have to fall on the ground automatically.
10. Now coming to the last limb of argument advanc ed by the learned AAG and counsel for
the private of respondent that in presence of alternate remedy against the order passed by the Ombudsman by way of appeal u/S. 32 of the Ordinance of 2001, this petition is not maintainable. We are of the considered vi ew though ordinarily, when alternate remedy is
available, the constitution petit- ion 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 abrid ged on account of availability of alternate remedy, rater this Court,
being custodian of fundamental rights of the citizens of the country, is under obligation to take care of the orders passed by the executives an 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 vs M/s. Siddiqa Faiz (PLD
2008 Supreme Court 135) and M/s. Ahmed Clinic vs. Government of Sindh 2003 CLC 1196,
it was held by the Honorable Supreme Court that the High Court will not entertain a writ 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 stat utory 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 e xercise 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 al ready 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 a bove 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 mater 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.
(W.I.B.) Petition acceptedThis 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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