1996 PLP 961 (MLD)

In view of the above, he is entitled to the allotment of a plot out of journalists quota in accordance with the rules and regulations." That in view of this letter, the Deputy Director/Secretary Housing and Physical Planning Division, Rahimyar Khan vide his letter, dated 31‑8‑1991 (Annexure B/4 to rejoinder) informed the Director, Housing and Physical Planning Circle, Bahawapur (respondent No.2) the relevant portion of which is as under:‑‑‑ "A certificate regarding eligibility/standing of 15 years in the profession has been received from Director, Public Relations, Lahore and a copy of the same is attached. It is proposed that the case of allotment in favour of Mr. M. Anwar may please be forwarded to higher authorities for consideration. " The Director in his turn vide letter dated 4‑9‑1991 Annexure B/5, after narrating the history of the case in the last 8 lines of the letter, forwarded the case to the Director‑General in the following words:‑‑‑ "Ch. Muhammad Anwar is eligible for allotment. Government Policy circulated vide No.S.O. (D‑III) 2‑B/51, dated 8th September 1987 laid down that final approval of the Government in this connection may be obtained before issuing formal allotment letter. The matter is, therefore, referred to your good self for the grant of approval so that the genuine grievance of the appellant could be resolved." That ultimately even the Secretary, Housing Physical Planning and Environment Department in his Summary for Chief Minister dated January 4, 1992 (Annexure M to the petition) recommended as under:‑‑‑ "

3. It has been confirmed that Mr. Muhammad Anwar son of Haji Nabi Bakhsh of Khanpur, District Rahimyar Khan is a senior journalist. His case for allotment of one Kanal plot in the past had been left out due to some misunderstanding and omission and as such could not be allotted one Kanal plot along with his colleague journalists in ADS Khanpur. Thus Muhammad Anwar deserves allotment of one Kanal plot in ADS, Khanpur. .

4. In view of above it is recommended that Mr. Muhammad Anwar son of Haji Nabi Bakhsh a senior journalist may be allotted one Kanal in ADS Khanpur out of Chief Minister's Discretionary quota. Submitted for information/orders of the Chief Minister. " The Chief Minister, however, vide Section Officer's communication/letter dated 16‑1‑1993 (Annexure N to the petition) conveyed the decision as under:‑‑‑ "Your above noted case has been considered and the Chief Minister Punjab has been pleased to observe that the one Kanal plot cannot be allotted according to the existing policy." Hence, the petitioner has filed the present writ petition impugning the said order, dated 16‑1‑1993, as prayed for herein.

3. The assertion raised in the writ petition was vehemently denied on behalf of respondents Nos.4 to 6 and in rebuttal it was submitted that the allotment of plots made to them does not call for any interference, having been made in a bona fide manner on their being duly qualified in every respect.

4. The Court has been constrained to note that the petitioner was not at fault. The fault was that of the department or Government. The entitlement of the petitioner to get a plot of one Kanal stands established on the record and in fact admitted by the department. He, therefore, should not be allowed to suffer loss for no fault of his. He is the most deserving journalist as neither he nor his wife own any house or plot anywhere in Pakistan. This fact was asserted in para. 21 of the petition and the assertion have not been controverted. The petitioner's case was far superior to the other allottees‑respondents‑journalists. If the Government Department (up to the Secretary's level) had thought it fit to remedy the grievance of the petitioner by accommodating him by giving him an alternate plot i.e. the plot previously reserved for the Chief Minister's quota, (Plot No.2‑A, Block W) in Area Development Scheme at Khanpur, the petitioner would have no grudge if the allotments of the allottee‑respondents remain undisturbed. However, the factual position is that the then Deputy Director of the Housing and Physical Department Division, Rahimyar Khan, for the reasons best known to him, wanted to deprive the petitioner of his due, and unnecessarily raised objections with regard to the case of the petitioner and then without waiting for or getting the clarification from the Directorate of Public Relations, Punjab, allotted the plots reserved for the journalists at ADA Khanpur to the respondents Nos.4 to 6, undeservedly, it has been asserted on behalf of the petitioner, as stated herein.

5. It is quite clear from the perusal of the documents, placed on the record, as Annexure to the petition and to the rejoinder, that in the beginning the department functionaries tried to elbow out the petitioner on false premises and when the only objection with regard to the alleged non‑fulfilment of 15 years' experience stood proved baseless, the department itself felt compelled to recommend the case of the petitioner to the highest Executive Authority in the Province in these words:‑‑‑ "It has been confirmed that Mr. Muhammad Anwar son of Haji Bani Bakhsh of Khanpur, District Rahimyar Khan is a senior journalist. His case for one Kanal plot in the past has been left out due to some misunderstanding and omission and as such could not be allotted one Kanal plot along with his colleague journalists in ADS, Khanpur. Thus Mr. Muhammad Anwar deserves allotment of one Kanal plot in ADS, Khanpur. " The decision/order, dated 16‑1‑1993 passed by the Chief Minister and conveyed for the petitioner vide Annexure N, to the effect that "one Kanal plot cannot be allotted according to the existing policy" is neither in accordance with law nor in accord with the principles of justice or fair play.

6. The petitioner's case was to be dealt with according to the scheme of allotment when the applications were called for. The petitioner's claim to the allotment of plot from the journalists' quota was genuine one. The Department instead of reopening allotments whether or not made to the undeserving respondents thought it proper to get the plot in Chief Minister's quota allotted in favour of the petitioner with a view to get his genuine grievance redressed. It was submitted by the learned A. A.‑G. as also by the Deputy Director, Housing that the Chief Minister's quota stood abolished. It means that the plot so reserved has become available for allotment. Since the petitioner is not at fault he should not be allowed to suffer. It has been held in Abdul Wahid v. Additional District Judge‑I PLD 1994 Quetta 89 that "in absence of legislative intent to give retrospective effect to repealing law, pending proceedings would be governed under the law, prevailing at the time when commenced". It has been held in Muhammad Ashraf and 14 others v. Ziarat Gul PLD 1994 Pesh. 48 that "mandatory requirement of assumption of jurisdiction is that a thing ordered to be done in a particular manner must be done in that manner or not all and doing something in conflict with that would be unlawful". Remedy by way of Constitutional jurisdiction is of discretionary nature, its main object was "to rectify the wrong and promote the justice", as laid down in Sheikh Muhammad Shafi and 24 others v. Price Control Board through Chairman and another PLD 1994 Quetta

101. It was the height of injustice that a senior journalist who owned no house of his own anywhere in Pakistan was deprived of the plot even though luck had favoured him in the draw of lots but the wicked hand of departmental functionaries had deprived him from getting the same in ADS, Khanpur.

7. Finally, the Court is constrained to observe that the "discretion" vested in any public functionary, but especially in the holder of a public office as representative of the people of Pakistan, has to be exercised and shall be exercised for attaining the objectives of justice generally, but specifically for the amelioration of the injustice, arbitrariness, or oppression to which a citizen of Pakistan may have become the unfortunate victim of, and the discretion so vested has to be exercised in a judicious manner; keeping in view the fundamental principles of natural justice, fair play and equity. In this respect, it may be pointed out that not only it has been held time and again, by the superior Courts of this country that the said principles shall be read to be a part of every enactment, but it has been specifically so stated in the Constitution of Islamic Republic of Pakistan in its preamble to the effect that, amongst others, the principle of social justice shall be fully observed, and that the fundamental rights in that respect stand guaranteed to every citizen of Pakistan in respect of social, economic and political justice. Therefore, in the instant case, as the impugned order, dated 16‑1‑1993 was passed by the Chief Minister of the Province of Punjab without taking into consideration, that the petitioner herein had been dealt with in a very unfair and shabbily manner by the State functionaries concerned and who, themselves, having realized that their own bureaucratic inefficiency and incompetence, had resulted in the injustice being perpetuated against the petitioner, had finally woken up to the said realization and had taken certain remedial measures for undoing the same by submitting the case to the Chief Minister for the redress of the grievance of the petitioner in that respect; but ignoring all those aspects of the matter the impugned order was passed in an arbitrary and unjust manner on the unsustainable ground that a favourable case in favour of the petitioner is not made out under the "existing policy", whereas it was manifestly clear that in accordance with the established law the matter had to be dealt with under the policy existing at the relevant time. The application of the policy existing at the relevant time without a shadow of doubt could only lead to an order that could have granted the relief sought without harming the interest of any individual and without being contrary to law, public morality or public policy. Consequently, it is hereby held that the impugned order was not sustainable in law and is accordingly set aside. Resultantly, accepting the present writ petition, it is hereby directed that the petitioner shall be allotted a one Kanal residential plot as prayed for, in the housing scheme in question, after expeditiously completing the necessary formalities in that respect.

8. It has been taken notice of in that respect, that respondents Nos. l to 3 had conceded before the Court through the Assistant Advocate‑General that certain plots of the said nature are available at present, i.e. Plots No.267‑A and 268‑A, Block X, and 2‑A/W, in Area Development Scheme Khanpur and it was further brought to the notice of the Court that none of the said plots falls in the discretionary quota of the Chief Minister, as the said quota stands abolished. It is pertinent to observe herein that the Court is not persuaded that any case is made out to interfere with the allotment of plots made to respondents Nos.4 to 6, as neither any mala fide can be attributed to them for the grievance of the petitioner agitated herein, nor the process whereby plots were allotted to them had been called into question or dealt with in any manner in the lengthy process and exercise undertaken by respondent No.1, i.e. department concerned, while submitting its summary recommending for rectification of the mistake it trot finalizing the allotment of plot to the petitioner subsequent to his being successful in the draw of ballots held for the said purpose on his being duly qualified to participate therein as a member of the profession of journalism. The parties are left to bear their own costs. A.A./2079/L Petition accepted.