2026 PLP 711 (CLC)

ROZI KHAN BARRECH, J.

The petitioner has invoked the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the following prayer:- "it is, therefore, respectfully prayed that this Hon'ble Court may kindly be pleased to declare the findings/decision dated 07-07-2022 passed by respondent No.3, final notice dated 11-10-2022 issued by the respondent No. 1 for demolishing of shop in question and further the order dated 15-11-2022 passed by respondent No.4 in case No.466 to be illegal, in excess of authority and jurisdiction, consequently the findings/decision dated 07-07-2022 passed by respondent No.3, final notice dated 11-10-2022 issued by the respondent No.1 for demolishing of shop in question and further the order dated 15-11-2022 passed by respondent No.4 in case No.466 may kindly be set aside and the respondent No.1 may be restrained from interfering in the running business of auto parts of the petitioner in the shop/plot No.63BB, Bus Adda Hazar Ganji, Quetta in any manner and further the complaint filed by the respondent No.2 before the respondent No.3 may be dismissed, with any other relief and cost of the proceedings in the interest of justice, equity and fairplay."

2. Concisely, the facts, as emerged from the record, are that; respondent No. 2, namely Shafqatullah, son of Haji Wali Muhammad, filed complaint No. 53/2022/PMD/HQ/Ziarat before the Provincial Ombudsman (Mohtasib) Balochistan, Quetta, with the averment that a plot bearing No.63-BB situated at Bus Adda Hazar Ganji Chaman Parking Quetta was allotted to his father by Quetta Development Authority (QDA) in the year 2002 and in response to that he deposited its cost. In the year 2008, the site plan was issued, and in the year 2010, a map of the plot was approved; Afterward, he approached the QDA authorities to get approval for construction. , but when the Engineer of QDA visited the site, he came to know that construction was already made on the said pot. Lastly, he prayed that directives might be issued for the removal of the encroachment made on the plot and to hand over the possession of Plot No. 63-BB situated at Bus Adda Hazar Ganji Chaman Parking Quetta to him so that he could carry out the construction work.

3. Respondent No.3 i.e., the Provincial Ombudsman (Mohtasib) Balochistan, Quetta, allowed the complaint filed by respondent No. 2 vide order dated 07-07-2022 wherein it as held that "the Director General QDA is directed to hand over possession of plot No.63-BB Bus Adda Hazar Ganji to complainant Shafqatullah, of its original allottee Wali Muhammad within 30 days under intimation to this forum.". Being aggrieved from the order dated 07-07-2022 passed by the Provincial Ombudsman (Mohtasib) Balochistan, Quetta, the petitioner filed representation under section 32 of the Establishment of the Office of the Ombudsman for the Province of Balochsitan Ordinance, 2001 ("the Ordinance") before the Governor Balochistan and the same as dismissed vide order dated 15.11.2022 passed in Case No. 466, whereafter the instant petition was filed by the petitioner.

4. We have heard the learned counsel for parties and minutely perused the available record with their valuable assistance.

5. The claim of respondent No.2 Shafqatullah, son of Haji Wali Muhammad, is that a plot bearing No.63-BB situated at Bus Adda Hazar Ganji Chaman Parking Quetta was allotted to his father by Quetta Development Authority (QDA) in the year 2002 and in response to that he deposited its cost. In the year 2008, the site plan was issued, and in the year 2010, a map of the plot was approved. Afterward, he approached the QDA authorities to get approval for construction, but when the Engineer of QDA visited the site, he came to know that construction was already made on the said plot. On the other hand, the claim of the petitioner is that the shop bearing Plot No. 198-CS situated at Bus Adda Hazar Ganji, Quetta, was allotted to one Faizullah, son of Faiz Muhammad C/o Balochistan Transport Action Committee, Quetta, vide offer letter dated 30.06.2005 which was later on revised by respondent No.1 with the approval of competent authority vide letter dated 19.04.2008 whereby in lieu of Plot No.198-CS situated in Bus Adda Hazar Ganji, Quetta Plot No.63-BB, measuring 300 sq.ft situated at Bus Adda Hazar Ganji, Quetta was allotted to the said Faizullah. The petitioner further claims that in the year 2018, he purchased the said plot from Faizullah, whereas after completion of all codal formalities, payment of relevant dues, and taxes etc, Plot No.63-BB was transferred in the name of the petitioner vide transfer order dated 23.10.2018 issued by respondent No.1, i.e., Director General QDA Balochistan Quetta. Whereas after purchase, the petitioner, by making huge expenses, constructed a shop upon the said plot and started the business of spare parts in the same without interference and objection from any corner.

6. The learned Provincial Ombudsman (Mohtasib) Balochistan, Quetta (respondent No.3 herein) vide order dated 07.07.2022 held as under: "

06. In view of above mentioned position, it is observed that complainant's father Wali Muhammad is the original allottee of Plot No.63-BB Bus Adda Hazar Ganji and the plot has illegally been revised by QDA authorities without informing the original allottee having site plan and work permit, which proves sheer mal-administration under section 2(2) of the Ordinance VI of 2001 against the respondent agency, therefore, the Director General QDA is directed to hand over possession of Plot No.63-BB Bus Adda Hazar Ganji to complainant Shafqatullah, son of its original allottee Wali Muhammad within 30 days under intimation to this forum. The Director General QDA is further directed to take disciplinary action against the officers/officials involved in such an illegal act of negligence as per applicable law/rules. With these observations complaint is disposed of. Parities be informed accordingly."

7. Admittedly, in the instant matter, one party claims the ownership of the plot in dispute, whereas the opposite party denies the said claim based on an allotment letter dated 23.10.2018 issued by the Director General QDA. In view of the contention raised by the petitioner and private respondent, there are certain controversial questions; when such controversy arises between the parties regarding the ownership of the plot in dispute, exclusive jurisdiction vests in the Civil Courts by section 9 C.P.C. to decide the title and ownership of such property after recording of evidence of the parties. The Civil Courts have the exclusive and ultimate jurisdiction to declare the rights, title, and status of a person or property.

8. At the outset, it may be observed that in this petition, the crucial question, without determination of which one cannot proceed further, is whether the orders passed the Forums defined in the Provincial Ombudsman Ordinance, 2001 (in short, "Ordinance of 2001) are with or without lawful authority and jurisdiction? To dilate upon this question, we have minutely studied the scheme and spirit of the Ordinance of 2001, which, in our concrete estimation, does not bestow the powers of examining the cases of a civil nature because such like matters are the exclusive jurisdiction vested in civil courts by Section 9, C.P.C. to decide the title and ownership of such property. It would be beneficial to see the jurisdiction, functions, and powers of the Ombudsman as defined in section 9 of the Ordinance of 2001, which reads as follows: "

9. Jurisdiction, functions and powers of the Ombudsman. (1) The ombudsman may on a complaint by an aggrieved person, on a reference by the Governor, or the Provincial Assembly or on a motion of the Supreme Court or a High Court made during the course of any proceedings before it or his own motion, undertake any investigation into any allegation of mal-administration on the part of any Agency or any of its officers or employees;"

9. Further, it may be seen that as per the spirit of section 11 of the Ordinance of 2001, the Provincial Ombudsman is the recommendatory body. For the sake of convenience, the said section is also reproduced herein-below: "Recommendations for implementations. (i) If, after having considered a matter on his own motion, or on complaint or on a reference by the Governor, or the Provincial Assembly, or on a motion by Supreme Court or a High Court, as the case, may be, the Ombudsman is of the opinion that the matter, considered amounts to mal-administration, he shall communicate his findings to the Agency concerned. (a) to consider the matter further; (b) to modify or cancel the decision, process, recommendation, act or omission; (c) to explain more fully the act or decision in question; (d) to take disciplinary action against any public servant of any Agency under the relevant laws applicable to him; (e) to dispose of the matter of case within a specified time; (f) to take action on his findings and recommendation to improve the working and efficiency of the Agency within a specified time; or (g) to take any other steps specified by the Ombudsman."

10. A mere glance over the above provisions envisages that upon a complaint, the Provincial Ombudsman shall undertake any investigation into the allegation of mal-administration. If it amounts to mal-administration he shall communicate his findings to the Agency concerned.

11. The findings of Mohtasib/Ombudsman are of a recommendatory nature and not a judgment/decision, and such performance of quasi‑judicial functions by itself does not convert an Authority into a Court. In order to constitute a Court in stricto senso, it should have the power to give a decision or a definite judgment, which has finality and authoritativeness; therefore, the office of Mohtasib is neither a Court nor a Judicial Tribunal within the scope of Article 175 of the Constitution. Reliance is placed on "Shafaatullah Qureshi v. Federation of Pakistan" (PLD 2001 SC 142) in which it has held that "the question of determination as to which forum is a Court and which is not a Court, is mainly dependant on the manner and method in which proceedings are regulated before it. This process naturally embraces the procedural laws, which bind it in its functions and determine its course of action. The evidence being the deciding factor in all kinds of disputes, it is also pertinent to see whether such forum follows the Evidence Act or not. It may be mentioned here that the Evidence Act by virtue of the definition describes such forums as 'Court' which follow its tenets. But it is only relevant for the purpose of the Evidence Act. Ordinarily the decision of a dispute by an arbitrator and a conciliatory body etc. may be termed as decision by a Court but that is not so because such forums are not bound by any law with regard to procedure and evidence, as such, they only settle the dispute but do not administer justice according to law, and are not, therefore, Courts. Hence, the Courts are such organs of the State which follow legally prescribed scientific methodology as to procedure and evidence in arriving at just and fail conclusions."

12. Furthermore, in "Dr. Zahid Javed v. Dr. Tahir Riaz Chaudhary and others" (PLD 2016 SC 637) be-functions of the Ombudsman have been explained in the words that "likewise, on the statutory plane, the office of the Ombudsman is essentially an executive function, which (Ombudsman) serves as a statutory check on the Government to so as to curb instances of mal-administration.

13. The crux of the above is that the scheme and spirit of the Ordinance of 2001 do not empower the Provincial Ombudsman to dilate upon the matters of civil nature as the above-reproduced provisions explicitly state that after having considered the matter being of mal-administration, the Provincial Ombudsman could only move the concerned Agency for taking disciplinary action against any public servant of that Agency, under the relevant laws applicable to him. The said Authority could not dilate or direct for giving any declaration on the rights, title, or status of the person or property under the relevant provision of law; therefore, the assumption of jurisdiction by the Provincial Ombudsman was erroneous and cannot be sustained. The error of jurisdiction was maintained by the Governor's Order, and hence, the fate of the same follows the Ombudsman's Decision.

14. In view of the reasoning and rationale contained herein-above, the Provincial Ombudsman's Decision vide order dated 07.07.2022 in case No. 53/2022/PMS/HHQ/Ziarat and the Governor's Order dated 15.11.2022 in the Case No. 466 are hereby determined to have been rendered in erroneous assumption of jurisdiction, hence, set aside. This petition is allowed in terms herein. It is pertinent to mention here that the observations made hereinabove shall cause no prejudice and shall not influence the adjudication of any proceedings between the parties to determine any rights and obligations concerning the controversy over the property in dispute considered herein before the forum of competent jurisdiction. UN/16/Bal Petition allowed.