2003 PLP 816 (MLD)

EJAZ AFZAL KHAN, J.

The facts of the case are that the petitioner being a consumer of respondent No.3 was charged on monthly basis and when on examination of the meter by the Surveillance Team, it was found to have been tampered with, he was charged for 83834 units. The petitioner filed a complaint with the Wafaqi Mohtasib (Ombudsman) who after thorough probe into the matter rejected it, vide his order, dated 31-1-1996. The petitioner then approached the Electric Inspector in this behalf who vide his order dated 11-2-1999 redressed his grievance according to his wishes. When on appeal filed by respondent Nos.4 to 6 the order of the Electric Inspector was set aside by respondent No.1, vide his order dated 21-7-2001, the petitioner invokes the jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.

2. The learned counsel appearing on behalf of the petitioner contended that the order passed by the Electric Inspector was not only well-reasoned but in accordance with the provisions-of sections 24 and 26 of the Electricity Act, 1910 as well, therefore, it could not have been set aside by respondent No. 1 through the impugned order, thus it being without jurisdiction and lawful authority is liable to be struck down by this Court in the exercise of its Constitutional jurisdiction, notwithstanding the fact that it was based on the order of the Ombudsman.

3. We have gone through the record and carefully considered the submissions of the learned counsel for the petitioner.

4. The question which emerges for our consideration is whether the order of respondent No. 1 which was mainly based on the order of Ombudsman can be held to be without jurisdiction and lawful authority. Before we answer the question, it is worthwhile to refer to Articles 9, 29 and 32 of the Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 which are relevant for the purpose of this case and are thus reproduced as under:--

9. Jurisdiction, functions and powers of the Mohtasib.

(1) The Mohtasib may on a complaint by an aggrieved person, on a reference by the President, the Federal Council, or the National Assembly, as the case may be, or on a motion of the Supreme Court or a High Court made during the course of any proceedings before it or of his own motion, undertake any investigation into any allegation of maladministration on the part of any Agency or any of its officers or employees: Provided that the Mohtasib shall not have any jurisdiction to investigate or inquire into any matters which-- (a) are sub judice before a Court of competent jurisdiction or judicial tribunal or board in Pakistan on the date of the receipt of a complaint, reference or motion by him; or (b) relate to the external affairs of Pakistan or the relations or dealings of Pakistan with any foreign State or Government; or (c) relate to or are connected with, the defence of Pakistan or any part thereof, the military, naval and air forces of Pakistan, or the matters covered by the laws relating to those forces. (2) Notwithstanding anything contained in clause (1), the Mohtasib shall not accept for investigation any complaint by or on behalf of a public servant or functionary concerning any matter relating to the Agency in which he is, or has been working in respect of any personal grievance relating to his service therein. (3) For carrying out the objectives of this order and, in particular for ascertaining the root causes of corrupt practices and injustice, the Mohtasib may arrange for studies to be made or research to be conducted and may recommend appropriate steps for their eradication. (4) The Mohtasib may set up regional offices as, when and where required.

29. Bar of jurisdiction.

No Court or other authority shall have jurisdiction-- (1) to question the validity of any action taken or intended to be taken, or order made, or anything done or purporting to have been taken, made or done under this Order; or (2) to grant an injunction or stay or to make any interim order in relation to any proceedings before, or anything done or intended to be done or purporting to have been done by, or under the orders or at the instance of the Mohtasib.

32. Representation to President.

Any person aggrieved by a decision or order of the Mohtasib may, within thirty days of the decision or order, make a representation to the President, who may pass such order thereon as he may deem fit."

5. A perusal of the above-quoted provisions will unmistakably indicate that the Ombudsman has power to undertake an investigation into any allegation of maladministration on the part of any Agency or any of its officers or employees and whereafter investigating the matter, he passes an order its validity cannot be questioned in any Court or authority and that it is only the President who on a representation made by an aggrieved person against it can pass such order thereon as he may deem fit.

6. When seen in this context, the Electric Inspector had no power or authority to pass an order which, in effect, would amend, alter or annul the order passed by the Ombudsman, therefore, respondent No. 1 by setting aside the order passed by the Electric Inspector cannot be said to have acted without jurisdiction and lawful authority by any stretch of imagination. He rather adhered to the soul and spirit of the law referred to above by passing the impugned order.

7. Even otherwise it is by now well-settled that a person invoking the jurisdiction of any forum for any remedy, relief or redress cannot turn round to question the validity of its verdict, moreso when it is adverse to him, through a Constitutional petition and thus cannot be allowed to approbate and reprobate, even though it has no jurisdiction altogether which is not the case here. The cases of Majid Ali Naqvi v. Additional District Judge and Ex-Officio Settlement and Rehabilitation Commissioner, Tharparkar and another 1970 SCMR 375), Nawab Khan and another v. Waris Iqbal and 5 others (PLD 1976 Supreme Court 394), Messrs Mian Brothers and 3 others v. The Additional District and Sessions Judge, Multan and others (PLD 1985 Lah. 562) and Yesser Bashir v. Farzana Tabassum and others (1996 MLD 1383) may be referred with advantage.

8. For the reasons discussed above, we do not feel inclined exercise our extraordinary equitable discretionary jurisdiction in favour of the petitioner and as such dismiss this petition in limine alongwith C.M. H.B.T./737/P Petition dismissed.