2024 PLP 1361 (SCMR)

Qazi Faez Isa, CJ. Learned Mr. Muhammad Umer Lakhani states that 'Karachi Metropolitan Corporation, formerly, the City District Government, Karachi' is arrayed as respondent No. 1, however, the successor-in-interest of the City District Government, Karachi in respect of this matter is the Karachi Development Authority ('KDA'). Learned Mirza Sarfraz, who represents KDA, agrees and so too does the learned counsel for the petitioner, and undertakes to array KDA by submitting an amended title.

2. Learned counsel for the petitioner, Mr. Muhammad Farough Naseem, states that the petitioner, which is a charitable institution, had applied for a one acre plot on 22 August 1983 and its application was accepted by KDA, which issued letter dated 21 April 1984 reproduced hereunder: REGISTERED A/D No. KDA/DLM/APC/84/572 KARACHI DEVELOPMENT AUTHORITY DIRECTORATE OF LAND MANAGEMENT (AMENITY PLOT CELL) 2nd Floor, Civic Centre, University Road, Karachi Karachi the 21 APRIL 1984 To The General Secretary, Kanpur Old Boys Association 1st Floor, Khatoon Market, S.M. Taufiq Road, Liaqatabad, Karachi-19. Subject: ALLOCATION OF AMENITY PLOT. Dear Sirs, In continuation of this office letter No. KDA/DLM/APC (3)/ 83/76 dated 10.12.1983, the undersigned is directed to inform you that the competent authority has been pleased to allocate Plot No. ST.8 Block 1, measuring 5000 sq. yds approximately, in KDA Schemes D.P. Township Gulistan-e-Johar, Scheme No.36 for the establishment of COMMUNITY HALL AND LIBRARY on the usual terms and conditions. If the allocation/offer is acceptable to you, please intimate within a week's time from receipt of this letter and return the enclosed copy of terms and conditions duly signed/stamped to enable the office to issue necessary challan towards 50% Occupancy Value of the plot @ Rs. 80 per sq.yd. Final Allotment Order along with Site Plan, on completion of the formalities if any will, thereafter, be issued. ASSISTANT DIRECTOR (APC)' It is submitted that, thereafter the petitioner was issued challans as under, which were paid by the petitioner: (i) One hundred thousand rupees (Rs.100,000) dated 28 December 1987; (ii) Fifty thousand rupees (Rs.50,000) dated 21 February 1989; and (iii) Fifty thousand rupees (Rs. 50,000) dated 2 March 1989.

3. Learned counsel for the petitioner submits that fifty percent of the occupancy value was paid and before the balance fifty percent could be paid a show cause notice dated 28 November 1995 was issued by KDA threatening to cancel the allocation of the plot because the petitioner had not raised construction thereon. The said show cause notice was not delivered to the petitioner. A second show cause notice dated 23 May 2003 by KDA stated that the plot, which had been allocated to the petitioner, cannot be allotted. The allocation of the plot was cancelled by KDA, therefore, learned counsel for the petitioner states, that since the same constituted maladministration, the petitioner submitted a complaint (which is not on the record) to the Provincial Ombudsman under the Establishment of the Office of Ombudsman for the Province of Sindh Act, 1991 (respectively 'the Ombudsman' and 'the Act').

4. The Ombudsman decided that KDA in not issuing the allotment letter/order to the petitioner and not putting the petitioner into possession of the plot constituted maladministration, and directed KDA to do the needful. The decision of the Ombudsman was assailed before the Governor who dismissed the representation filed by KDA. Therefore, learned counsel submits, the matter had attained finality and the High Court could not have interfered with the discretion concurrently exercised by the Ombudsman and the Governor. He further states that KDA did not cancel the allocation of the petitioner on the basis of any of the reasons given by it in the show cause notices, therefore, the cancellation was of no legal effect.

5. We have heard the learned counsel for the parties and have examined the documents on record: The questions which need consideration are whether the matter came within the ambit of the Act, whether the Ombudsman had jurisdiction to decide it and whether KDA's action/inaction constituted maladministration, as per section 9 read with section 2(2) of the Act, which defines maladministration.

6. We are of the considered view that the Ombudsman did not have jurisdiction and the petitioner's complaint was not maintainable, as what was complained of did not constitute maladministration. The petitioner had asserted purported transgression or non-fulfilment of its contractual rights which the petitioner could only do by the filing of a suit. However, the Ombudsman assumed the powers, which vest in civil court, under section 9 of the Code of Civil Procedure, 1908. The Ombudsman did that which the law neither envisages nor permits. This aspect was not considered by the Ombudsman, and the Governor dismissed KDA's representation on technicalities. Moreover, the complaint was submitted to the Ombudsman seventeen years after KDA had issued its letter dated 21 April 1984. whereas section 10(3) of the Act stipulates a period of three months within which a complaint may be preferred. There is also nothing on the record to show that the petitioner had accepted KDA's offer letter dated 21 April 1984 let alone that it did so within the period of one week mentioned therein. The requisite payment was also not made within the stipulated period, and only half of the occupancy value was ever paid.

7. We are dismayed to observe that the Ombudsman in complete disregard of the provisions of the Act, and the facts noted above, not only assumed jurisdiction but also granted extraordinary and uncalled for relief to the petitioner. The Ombudsman did not have jurisdiction and his decision was coram non judice. The Governor should have set aside the illegal decision of the Ombudsman, but instead dismissed KDA's representation on technicalities. Therefore, it was left to the High Court to set aside the decision of the Ombudsman and that of the Governor. No illegality with regard to the impugned judgment of the High Court has been pointed out. Therefore, this appeal is dismissed. MWA/K-5/SC Appeal dismissed.