2004 PLP 1206 (YLR)

Art.199

Constitutional petition-- Constitutional petition during pendency of appeal

Maintainability

Where the appeal of the petitioner was still pending adjudication before public functionary, Constitutional petition was not maintainable. Ch. Tanbeer Ahmad Siddiky's case PLD 1968 SC 185 ref. (d) General Clauses Act (X of 1897)

S.24-A

Constitution of Pakistan (1973), Art.4

Duties and obligations of public functionaries

Public functionaries were bound to decide the appeals of the citizens without fear, favour and nepotism within reasonable time as envisaged by Art.4 of the Constitution read with 5.24-A of General Clauses Act, 1897. Messrs Airport Support Service v. The Airport Manager, Karachi, Airport 1998 SCMR 2268 ref. Arshad Qayyum for Petitioner. Muhammad Hanif Khatana, Additional Advocate-General. The brief facts out of which the present writ petition arises are that the respondents issued a public notice in the newspaper for the purpose of framing the rules in-question. The petitioner allegedly filed objections before the respondents. The respondents without adverting to the objections of the petitioner, framed the rules in-question. The petitioner being aggrieved filed ,Writ Petition No. 13818 of 2000, which was disposed of by this Court vide order dated 11-6-2002. The petitioner submitted appeal before respondent No.4 in terms of the order of this Court but respondent No.4 did not decide the same till date. The petitioner being aggrieved filed this Constitutional petition.

2. The learned counsel of the petitioner submits that the rules are in violation of the mandatory provisions of the Punjab Local Government Ordinance, 2001 and rules framed thereunder. He further submits that a thing is to be done in a particular manner, it must be done in that particular manner and not otherwise but the respondents framed the rules in-question in violation of the procedure prescribed under the law. He further submits that respondent No.4 failed to decide the appeal of the petitioner till date.

3. Mr. Muhammad Hanif Khatana, Additional Advocate-General, entered appearance on Court's call, he submits that Constitutional petition is not maintainable in the present form keeping in view the prayer clause of the Constitutional petition, which is exactly similar as in earlier Writ Petition No. 13818 of 2000.

4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.

5. It is settled principle of law that principles of C.P.C. are applicable in Constitutional proceedings as the law laid down by the Honourable Supreme Court in Hussain Bukhsh's case PLD 1970 SC 1 The second writ petition qua the same subject-matter and relief is not maintainable in view of the law laid down by the Honourable Supreme Court in Pir Bukhsh's case PLD 1987 SC

145. It is alleged by the petitioner that the petitioner has filed an appeal before respondent No.4, which is still pending adjudication before respondent No.4. In this, view of the matter. Constitutional petition is not maintainable as the law laid down by the Honourable Supreme Court in Ch. Tanbeer Ahmad Siddiky's case PLD 1968 SC

185. It is also settled principle of law that it is the duty and obligation of the public functionaries to decide the appeals of the citizens without fear, favour and nepotisms within reasonable time as is envisaged by Article 4 of the Constitution read with D section 24-A in the General Clauses Act as the law laid down by the Honourable Supreme Court in Messrs Airport Support Service v. The Airport Manager, Karachi, Airport 1998 SCMR 2268. In this view of the matter, let a copy of the writ petition be sent to respondent No.4, who is directed to decide the appeal-representation of the petitioner strictly in accordance with law after providing proper hearing to all the concerned including the petitioner and any other person, who would be aggrieved by his order, preferably within fifteen days after receiving the order of this Court, after verifying the record of the respondents, in case the petitioner had already filed appeal before him and he has not passed any order on the representation of the petitioner till date. The petitioner is directed to appear before respondent No.4 in his office on 29-1-2004, at 11-00 a.m., who is directed to decide the appeal of the petitioner strictly in accordance with law in terms of the aforesaid direction preferably within fifteen days till 13-2-2004 either himself or send the same to the competent authority for its decision, who is also directed to decide the appeal of the petitioner strictly in accordance with law, in the terms of aforesaid direction of this Court preferably within fifteen days till 13-2-2004. He is further directed to submit his report to the Deputy Registrar (J) of this Court within stipulated period. The learned counsel of the petitioner is directed to hand over copy of writ petition alongwith all the annexures to Mr. Muhammad Hanif Khatana, Additional Advocate-General, who is directed to send the same to respondent No.2 for necessary action and compliance. Office is also directed to provide one copy of this order to the aforesaid learned law officer for onward transmission to respondent No.4 for necessary action and compliance. With these observations, the writ petition is disposed of. Copy Dasti on payment of usual charges. M.A.W./A-14/L Order accordingly.