1996 PLP 1434 (CLC)

‑‑‑‑Art. 199‑‑‑Constitutional petition ‑‑‑Mala fides‑‑‑Disconnection of telephone by Authority‑‑‑Document filed by Authority alongwith parawise comment/written reply was copy of survey report conducted a few days after the institution of Constitutional petition and orders of Court issuing notice to Authority‑‑‑Such survey report indicated that Authority after realizing that its department was on slippery ground, tried to create evidence against petitioner subsequent to institution of Constitutional petition which was a patent mala fide act‑‑‑Authority was directed to re‑connect petitioner's telephone forthwith. Mian Muhammad Nawaz for Petitioner. Inam‑ul‑Islam Khan for Respondents. Date of hearing: 22nd January, 1996. Abdur Rahim had .applied for telephone connection to the respondents at House No.9, Street No.26, Habib Ganj, Lahore and thereafter made an application for transferring the same to House No.45, Street No.4, Habib Ganj, Lahore on which place it was installed on 30‑1‑1994. The number of telephone allotted to the petitioner was 7285714. This telephone was disconnected by the respondent in June 1995 on the ground that the premises was defaulter regarding telephone connection No.7286566 against which an amount of Rs.11,549 was outstanding as arrears.

2. Telephone No.7286566 was in the name of Ashiq Rasool and was sanctioned as ED‑PCO in the year 1988 for the premises, Shop.No.4, Godown No.423, Habib Ganj, Lahore. On an application this telephone was transferred to House No.45, Street No.4, Habib Ganj, Lahore on 8‑7‑1992 and was disconnected in December, 1992 due to default in payment of the bill. It was for this default to payment of bill regarding Telephone No.7286566 that telephone connection of the Petitioner was disconnected in June, 1995.

3. Telephone No.7286514 was installed at House No.45, Street No.4, Habib Ganj, Lahore on 30‑1‑1994 when a period of more than one year had expired after the disconnection of Telephone No.7286566 and according to the record of the respondent the final disconnection of Telephone No.7286566 was notified on 7‑4‑1994. After a period of one year Telephone No.7286714 in the name of the petitioner was disconnected. The premises was defaulter even on the day the petitioner was allowed connection on 30‑1‑1994 and no objection was taken at that time.

4. It is an admitted fact that no notice was issued by the respondents to the petitioner who was condemned unheard and the impugned action of respondents was against principles of natural justice and infringed upon the protection provided to the petitioner and enshrined in Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 as the right to enjoy the facility was property.

5. The petitioner had been allowed the facility of telephone connection on 30‑1‑1994. The factum of default of the premises was already in existence on the said date. No default in payment of bill or any other breach of condition was alleged against the petitioner. The facility thus was not being withdrawn for his default. In the circumstances as aforesaid the facility allowed to the petitioner could not be withdrawn by the respondents for a cause which existed even on the day the facility was allowed. The respondents were thus estopped to disconnect the telephone for the said default not attributable to the present petitioner. The impugned action of the respondents was mot sustainable in law and was liable to be struck down. Reference may be made to Pakistan through the Secretary, I Ministry of Finance v. Muhammad Himayatullah Farukhi (PLD 1969 SC 407), Army Welfare Sugar Mills Ltd. v. Federation of Pakistan and others (1992 SCMR 1652), State v. Muhammad Ismail and others (1980 SCMR 268), Province of West Pakistan v. Muhammad Yasin (PLD 1964 SC 438), Alnoor Textile Ltd. v. Collector of Customs (1990 ALD 356), Muhammad Ibrahim etc. v. M.C., Chiniot (1990 ALD 655), Mumtaz Hussain v. District Magistrate (1990 PCr.LJ 1784) and Muhammad Ayub v. Custodian of Evacuee Property (PLD 1963 Karachi 551).

6. The action of the respondents is patently mala fide as the same is proved from the document Annexure E filed by respondents themselves alongwith parawise comments/written statement. It was copy of a survey report conducted on 17‑12‑1995 almost 10 days after the institution of the present writ petition and orders of the Court issuing notice to the respondents. It appears that the respondents, after realizing that the department was on a slippery ground, tried to create evidence against the petitioner subsequent to the institution of the writ petition. The, same was a patent mala fide.

7. In view of the foregoing reasons the writ petition is allowed and the respondents are directed to re‑connect Telephone No.7285714 forthwith.

8. The parties are, however, left to bear their own costs. A. A./A‑9/L Petition accepted.