1989 PLP 1196 (MLD)

AJMAL MIAN, C.J.‑‑This petition is directed against an order dated 18‑4‑1979 passed by the respondent, declining the petitioner's application for creating a charge for a sum of Rs.20,000 plus interest.

2. The brief facts leading to the filing of the above petition are that one Muhammad Noorul Alam, was appointed as a clerk of Grade II by the petitioner at their Head Office at Karachi on 13‑1‑1908 and was confirmed as such on 22‑2‑1970, with P.F. Index No.N‑

109. It appears that after the fall of Dhaka the petitioner asked its employees who had original domicile of the erstwhile East Pakistan to give option to go to East Pakistan or not to go to East Pakistan. Said Muhammad Noorul Alam opted not to go to East Pakistan and to serve in West Pakistan. After that in 1974 he applied for House Building Advance which was granted on 23‑7‑1974 amounting to Rs.20,

000. The above amount was paid to him by the petitioner in two instalments through two cheques of Rs.10,000 each dated 5‑11‑1974 and 19‑11‑1974. After that the said employee executed a Mortgage Deed on 10‑10‑1974 in favour of the petitioner in respect of plot of land, bearing No.342, Sector 32‑A, Korangi, Karachi, together with super structure thereon. The said employee also deposited the original allotment letters of the above plot, lease‑deed in favour of the original allottee and sale‑deed of the plot in his favour etc. It appears that on 1‑7‑1975 he absented from duties. After that he was dismissed from‑ service on 17‑11‑1975. The Abandoned Properties (Taking Over and Management) Act, 1975, Act XX of 1975, hereinafter referred to as the Act, was gazetted on 17‑2‑1975, which inter alia provided the vesting of abandoned properties in the Federal Government of specified persons as defined in clause (f) of section

2. It seems that in pursuance of the above provisions the aforesaid plot and construction thereon stood vested in the Federal Government under section 3 of the Act. The petitioner filed an application under section 13/14 of the Act before the respondent praying therein that a charge of the above loan amount of Rs.20,000 with interest thereon be created in their favour which application has been dismissed by the respondent through the impugned order. The petitioner being aggrieved by the above order has filed the present petition.

3. In support of the above petition Mr. Z. U. Ahmad learned counsel for the petitioner has vehemently urged that the order per se is illegal inasmuch as the respondent instead of applying his mind had referred the matter to the Legal Advisor of the Board of Trustees and upon his opinion declined the petitioner's above application. On the other hand, Mr. S. M. Noorul Hassan learned counsel for the respondent has submitted that the petitioner had alternate remedy in the form of an appeal before the Board and that though the petitioner had not availed the same but the Board in exercise of suo motu revisional power under section 15(3) has taken upon itself to decide the matter on merits and, therefore, the above petition is premature. He has further urged that the petitioner advanced the loan of Rs.20,000 without following the formalities and keeping the situation in view obtaining in those days in relation to East Pakistanis, the loan amount should not have been granted to Muhammad Noorul Alam. He has also submitted that even the alleged option obtained by the petitioner from said Muhammad Noorul Alam was not duly authenticated.

4. It will be pertinent to take up the question whether the above petition is premature as urged by the learned counsel for the respondent or the same is competent. In reply to the above submission of Mr. S. M. Noorul Hassan, Mr. Z. U. Ah nod has invited our attention to the fact that the respondent had referred the matter to the Legal Advisor of the Board on whose opinion the petitioner's application has been declined. He has therefore, submitted that it would have been futile to have filed the appeal before the Board as its Advisor had already given adverse opinion and that the petitioners are not bound to submit to the jurisdiction of the Board if the impugned order patently suffers from legal infirmity which attracts the Constitutional jurisdiction of this Court. Generally, the Court declines to entertain a writ petition if adequate alternate remedy is provided by law in the relevant enactment under which an impugned order is passed. However there is an exception to the above general rule, namely, that if the impugned order is without jurisdiction or is patently so infirm that it would not be just and proper to direct a party to approach the appellate forum the Court may not decline the petition on that ground, In the instant case we have examined the documents which have been produced, the genuineness of which were not even doubted by the respondent in his impugned order and therefore, we are of the view that the respondent in fact not applied his mind to the facts of the case and instead of applying his mind independently to the facts of the case, referred the case to the Legal Advisor to the Board of Trustees and on the basis of his opinion the impugned order has been passed. We could have referred the case back to the respondent or to the board of Trustees, but in' our view, it Would not be just and proper to do so as the order suffers from legal infirmity of the nature which attracts the Constitutional jurisdiction of this Court inasmuch as the respondent failed to exercise jurisdiction vested in him and secondly the Board is likely to act upon the advice of its legal advisor, which is against the applicant as observed hereinabove.

5. As regards the merits of the case, it has not been doubted by the respondent that the petitioner in fact had advanced the above amount, nor the mortgage deed in respect of the house has been doubted. The respondent has not produced any Notification or any other document to indicate that the grant of loan by the petitioner to its employees as house advance was prohibited at the relevant time to the employees originally belonging to East Pakistan. On the other hand the documents on record which inter alia include the option exercised by Muhammad Noorul Alam on 15‑7‑1972 indicate that he opted not tai, go to East Pakistan and continued to serve the petitioner. However, it was urged by Mr. S. M. Noorul Hassan .that the document containing the above option (i.e. Annexure `A' to the petition) is vague and is not m accordance with the instructions contained therein inasmuch as the words "to go to East Pakistan" have not been crossed out by Muhammad Noorul Alam which were to be crossed out as per instructions contained at the bottom of the above document. He has further submitted that the above document has not been authenticated by the Intelligence Branch. The above contention seems to be devoid of any force as there were two options given to employees belonging to erstwhile East Pakistan in the above document namely "to go to East Pakistan" or "not to go to East Pakistan". Muhammad Noorul Alam tick marked the words "not to go to East Pakistan". The above tictC marking clearly indicated the option exercised by said Muhammad Noorul Alam. The mere fact that the words "to go to East Pakistan" had not been crossed out in our view, would not render the above exercise of option irregular. The mere fact that Muhammad Noorul Alam continued to serve the petitioner upto the end of June, 1975 corroborates the above document that factually he opted to continue to serve the petitioner in West Pakistan. No Notification or any statutory rule has been pointed out by Mr. Noorul Hassan which provided the authentication of the above option by Intelligence Branch. However, he has referred to a letter written by Mr. Z. U. Ahmad to the Board of Trustees on behalf of the petitioner on 16‑4‑1983. In our view, in the absence of production of any Notification or pointing out any statutory rule, we cannot hold on the basis of the above letter of Mr. Ahmed that there was any legal requirement to get the option authenticated by Intelligence Branch as to its failure would render the exercise of the above option as illegal.

6. As regards the merits of the case, there are number of documents which have been filed by the petitioner which inter alia include the payment of the above sum of Rs.20,000 m two instalments, the allotment order in favour of one Hasnain Khan, the conveyance deed executed by him in favour of Muhammad Noorul Alain, Mortgage Deed etc. As observed hereinabove, the genuineness of the above documents has not been doubted by the respondent in the impugned order. In this view of the matter, we are of the view, that the petitioner was entitled to have a declaration for the creation of the charge of the above amount of Rs.20,000 plus interest if it was payable by said Muhammad Noorul Alam under the terms of the aforesaid house loan. We would, therefore, allow the above petition and would direct the respondent to create a charge of the above amount plus the amount of interest at the agreed rate if it was payable under the terms of the said house loan. The petition stands disposed of in the above terms with no order as to costs. H.B.T./S‑381/K ????????????????????????????????????????????????????????????????????????????????? Petition allowed.