2004 PLP 1388 (MLD)

I intend to decide the following write petitions by one consolidated judgment having similar facts and law:‑‑ (i) W.P. No 22643 of 1999. (ii) W.P. No 3214 of 2002.

2. The brief facts out of which the aforesaid writ petitions arise are that respondents initiated proceedings against the petitioners. Petitioners being aggrieved filed Constitutional Petition No. 15881 of 1999 which was decided by this Court vide order dated 31‑8‑1999. The respondent Managing Director was directed to consider the viewpoint of the petitioner's society and should decide the contentions by speaking order. The respondent initiated proceedings against the petitioners subsequently. The petitioner being aggrieved filed the aforesaid Constitutional petitions.

3. Learned counsel of the petitioner submits that in spite of direction to pass a speaking order explained in the order dated 31‑8‑1999 in W.P. No.15881 of 1999, respondents have neither passed a speaking order nor have indicated their basis of their claim against the petitioner's society. He further submits that impugned demand is illegal and is not in accordance with Tire rules and regulations of the respondents and the respondents have no lawful authority to claim the said demand from the petitioner's society. Restraining order was passed by this Court on 31‑12‑1999. The respondents did not file any application for vacation of the said order. The respondents have not passed the speaking order in terms of the direction of this Court. He further submits that direction of this Court is binding on each and every organ of the State by virtue of Article 201 of the Constitution. 4 Learned counsel of the respondents submits that respondents have passed the order in obedience of the direction of this Court by the Managing Director after application of independent mind, therefore, contention of the learned counsel of the petitioner has no force. He further submits that demand of the respondents is valid in the eyes of law.

5. I gave given my anxious consideration to t e contentions of the learned counsel of the parties and perused the record.

6. It is better and appropriate to reproduce the operative part of the order dated 31‑8‑1999 to resolve the controversy between the parties:‑‑ "After hearing the two learned counsel it is clear that the insistence of respondent No. 2 for payment of the demand money without attending to the point of view of the petitioner Society is improper, if not illegal. In the circumstances, this petition is disposed of with the direction that respondent No. 2 will not coercively enforce the recovery of the impugned demand without considering the point of view of the petitioner Society. This consideration should be done by Managing Director of respondent. No 2 in the presence of representative of the petitioner‑society. The Managing Director should decide the contentions by a speaking order." The Managing Director has not decided the matter in terms of the direction of this Court, as is evident from the summary attached by the respondents with the report and parawise comments. It is pertinent to mention here that judgment of this Court passed in the aforesaid writ petition in the earlier round of litigation were not challenged by any of the party before any higher forum, therefore, judgment of this Court is final between the parties on the well known principle of res‑judicata as the law laid down by the Honourable Supreme Court in Pir Bakhsh's case (PLD 1987 SC 145). It is also settled principle of law that judgment of this Court is binding on each and every organ of the State by virtue of Article 201 of the Constitution. After addition of section 24‑A in the General Clauses Act; which contemplates duties and obligations of the public functionaries to decide the application of the citizens with reasons and section 24‑A newly added in the General Clauses Act has retrospective effect. The section 24‑A in the General Clauses Act has been interpreted by the Honourable Supreme Court in the following judgments and held that public functionaries are duty bound to decide the applications of the citizens with reasons:‑‑ M/s Airport Support Service v. The Airport Manager Karachi (1998 SCMR 2268). Zain Yar Khan v. the Chief Engineer (1998 SCMR 2419). Even otherwise it is the command of the Constitution which is a binding contract on each and every organ of the State according to which every body is bound to act in accordance with law as is envisaged by Article 4 of the Constitution. Even the Chief Executive of the country is bound to obey the command of the constitution in view of Article 5(2) of the Constitution as the law laid down by the Honourable Supreme Court in Ch. Zahoor Elahi's case (PLD 1975 SC 383). Our Constitution is based on trichotomy and according to the trichotomy, it is the duty and obligation of the public functionaries to implement the direction of this Court as the law laid down by the Honourable Supreme Court in Zia‑ur- Rehman's case (PLD 1973 SC 49) and Main Nawaz Sharif's case (PLD 1993 SC 473).

7. In view of what has been discussed above the aforesaid Constitutional petitions are accepted with no order as to costs. The Managing Director is directed to pass afresh order in terms of the direction of this Court passed in order dated 31‑8‑1999 in Constitutional Petition No. 15881 of 1999. Petitioners are directed to appear before the Managing Director who is directed to pass afresh order in terms of the aforesaid direction preferably within three months after receiving the order of this Court. Petitioners are directed to appear before the Managing Director on 5‑4‑2004 at 11‑00 a.m. in his office, who is directed to pass afresh order in terms of the aforesaid direction preferably within three months till 5‑7‑2004. He is further directed to submit report to the Deputy Registrar Judicial of this Court within the stipulated period. M.I./P‑20/L Order accordingly.