1995 PLP 234 (CLC)

‑‑‑‑Art. 32‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Rejection of representation by President against order of Ombudsman‑‑‑President was empowered to pass such orders on representation as he deemed fit‑‑‑Right of hearing by President before making any order was not implicit in Art. 32 of President's Order 1 of 1983, nor was President required to give detailed reasons in support of his order‑‑‑Presumption, however, would be that President had applied his mind to the matter before disposing the same‑‑ Court in exercise of its extraordinary jurisdiction would not sit in appeal on the decision of either the Ombudsman or the. President for reappraisal of facts of case for substituting its opinion in place of their opinion‑‑‑Jurisdiction conferred on High Court was not akin to the jurisdiction .in appeal‑‑‑Decision of Ombudsman rejecting petitioner's complaint as also of the President dismissing representation against that decision was neither without jurisdiction nor without lawful authority‑‑‑Petitioner also had other legal remedies available to him for vindicating his grievance and such remedies could not be characterised inadequate remedies‑‑‑Judicial review against order in question, was declined in circumstances. Tanvir Bashir Ansari for Petitioner. Rai Muhammad Nawaz Kharal for Respondent No.1. Mansoor Ahmad, Standing Counsel Federal Government for Respondents Nos. 2 to

4. Decision of Acting Wafaqi Mohtasib given on 8‑12‑1987 dismissing the complaint as without merit and that of the President of Pakistan rejecting the representation from it on 1‑6‑1988 under Article 32 of President's Order 1 of 1983‑‑‑Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 were a subject‑matter of judicial review in extraordinary jurisdiction of this Court under Article 199 of the 1973 Constitution at the instance of the petitioner. First, the facts of the case. Property No.44/B, Edward Road, Rawalpindi was owned by the petitioner. It was transferred to him as evacuee property. It was mortgaged with possession by him to Standard Cooperative Bank Limited on 29‑8‑1962 for the mortgage amount of Rs.30,

000. Possession of the property was delivered to the mortgagee. Standard Cooperative Bank went into liquidation. Managing Director of Standard Bank Limited was appointed liquidator. In this way, Standard Bank Limited resumed possession of the mortgaged property. Under the Bank Nationalization Act, 1974, Standard Bank Limited was merged with Habib Bank Limited. Therefore, upon merger of Standard Bank Limited with Habib Bank Limited, possession of the mortgaged property was taken over by the Habib Bank Limited. Petitioner sought redemption of the mortgaged property from Standard Cooperative Bank Limited through its liquidator. Upon failing in the attempt, he filed a civil suit for redemption of the mortgage. Suit was instituted on 21‑2‑1969. It was decreed ex parte on 28‑4‑1983 upon payment of Rs.42,

373. The decretal money was deposited in Court by the petitioner. The ex parte decree attained finality on 8‑I1‑1986. Possession of the mortgaged property was regained by the petitioner in execution of the decree for its redemption on 19‑11‑1986. Petitioner lodged a complaint for recovery of Rs.20,96,476 as compensation for unlawful use and occupation of the property by the Habib Bank Limited. Sardar Muhammad Iqbal, the then Wafaqi Mohtasib of Pakistan on 5‑8‑1987 found Habib Bank responsible for payment of compensation to the petitioner for use and occupation of the property in question from 1‑1‑1974 to 19‑11‑1986 itself and from 18‑9‑1963 to 31‑12‑1973 by the Standard Cooperative Bank Limited, its fore‑runner. The property was found to have remained in an unauthorised possession 'without payment of any rent or compensation to the petitioner. As far the award of compensation, Wafaqi Mohtasib gave a notice to the .Agency under Article 22 of President's Order 1 of 1983 to show cause as to why compensation should not be awarded to the aggrieved party for the loss suffered by him on count of Agency having remained in possession of his property without any lawful authority. The Wafaqi Mohtasib further observed that, "Although the complainant has indicated compensation to the tune. of over Rs.20 lacs, yet I would not like to determine the amount till receipt of reply from the Agency to the notice. Meantime, I hold in principle that the complaint be awarded compensation". Before the complaint could be finalized, it was taken up by Mr. Justice Shafi‑ur Rahman, the then Honourable Judge of Supreme Court of Pakistan, as Acting Wafaqi Mohtasib (Ombudsman). On examination of the complaint case, his Lordship was of the opinion that the complainant had no tenuous claim to compensation against the respondent and the respondent was not guilty of maladministration. In this view, the findings recorded by the predecessor in office were recalled by him. and the complaint was dismissed as without merit on 8th March, 1987. From the decision of 'the Ombudsman rejecting his complaint, petitioner preferred a representation to the President of Pakistan under Article 32 of the President's Order 1 of 1983. It was turned down on 1‑6‑1988 and petitioner was informed to it. Thereupon, Writ Petition No. 281 of 1992 was filed m this Court on 19‑2‑1992. Habib Bank Limited, Wafaqi Mohtasib (Ombudsman) and Islamic Republic of Pakistan were party respondents in this writ petition. On 21‑9‑1993, learned counsel for the petitioner‑‑Mr. Tanvir Bashir Ansari, Advocate stated to the Court, "that writ petition being not properly constituted, may be allowed to be withdrawn with a view to file a fresh petition". The Court ordered accordingly. On 12‑10‑1993, instant Writ Petition No. 1087 of 1993 was ref‑sled. Only addition in the writ petition was the respondent No.4‑‑‑President of Islamic Republic of Pakistan. Article 248 of the Constitution was a bar for impleadment of the President of Pakistan. Instead, the proceedings could be taken against the Federation of Pakistan. The Federation of Pakistan was already a party in Writ Petition No. 281 of 1992. The defect for the alleged improper constitution of the earlier writ petition necessitating its withdrawal for its reeling was not disclosed either by the learned counsel or in the order, of the High Court permitting conditional withdrawal of the writ petition. Nonetheless, the Writ Petition No. 281 of 1992 was instituted after expiry of more than three years from the date of the decision of the President of Pakistan rejecting the representation of the petitioner. Conditional withdrawal for refiling of the writ petition by itself would not excuse the delay of about 3/1‑2 years. 1t constituted gross laches. There was no acceptable explanation for overlooking it. The writ petition gave no account of it either It was silent on it. Without explaining inches for delayed filing of the writ petition, it was urged that the Wafaqi Mohtasib (Ombudsman) could not review the findings of his predecessor‑in‑office. It was further urged that the President of Pakistan was obliged to make a speaking order for rejecting the representation under Article 32 of the President's Order I of 1983 and he was further obliged to afford a personal hearing to the petitioner before making an adverse order on his representation. There could not be much dispute that in case of a mala fide, void or coram non judice order, remedy in judicial review was available for correction of the error, however, high the functionary who made the order may be. None was above the law of the land. Wafaqi Mohtasib and President of Pakistan were not exception to this statement of law. As said above, quantum of compensation allowable to the petitioner for the alleged maladministration of the Agency was not finally determined by the former Ombudsman when the case was taken over by .the Acting Ombudsman. Question was left over till after notice to and hearing of the Agency. Upon hearing the Agency, the Acting Ombudsman found that since the matter was sub judice in Court, Article 9 of the President's Order 1 of 1983 was a bar for exercise of jurisdiction to investigate by the Ombudsman. The conclusions arrived at on the admitted facts of the case were as follows:‑‑ "(i) The mortgage was, as admitted by the complainant usufructuary in nature. The very definition of usufructuary mortgage is `where the mortgagor deliveres possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage money and to receive the rents and profits accruing from the property‑‑(Section 58, clause (d) Transfer of Property Act). By the very nature of such a mortgage the complainant cannot claim any possessory right or any compensation in lieu thereof until payment of mortgage money. (ii) Even if the respondent Habib Bank was in unauthorised possession, it was the possessory rights of Standard Cooperative Bank, the mortgagee and that Bank being in liquidation its assets and liabilities continue to remain custodia legis, i.e. in custody of the Court and none can claim any right therein except through the Court seized of the liquidation proceedings. The possessory rights being exclusive and entirely of the usufructuary mortgagee whose assets and liabilities are the subject‑matter of Court proceedings since long before and continue to be so may jurisdiction in the matter is barred under Article 9, clause. (a) of P.O. 1 of 1983. (iii) The possessory rights of the complainant .undoubtedly revive from 22‑6‑1983 when he deposited the decretal amount but then the respondent Bank was bona fide, through unsuccessfully prosecuting its remedy against an ex parte decree in a suit in which it was not impleaded at all and it was only on 8‑11‑1986, that the decree became final and binding. The bona ride claim of right to be so impleaded, when the complainant's main attack all the time before me persisted against the respondent Bank cannot be disputed. Besides, these claims being relatable to Court proceedings and not entirely independent of it would not be appropriate matter for adjudication before me." Earlier to recording the aforesaid conclusions, the Honourable Acting Wafaqi Mohtasib in para. 9 of his decision had taken the view that he was not inhibited in the exercise of his jurisdiction as Acting Wafaqi Mohtasib in any manner, not in any case to the extent suggested by the complainant. The quantum of compensation was clearly relatable to the liability for its payment. Therefore, the Acting Wafaqi Mohtasib was competent to recall the findings recorded by his predecessor‑in‑office for correcting the record and the resultant errors in them. In this view, his decision rejecting the complaint without merit was' unexceptionable. Article 32 of President's Order 1 of 1983 gave a right to a person aggrieved by a decision or order of the Mohtasib to make a representation to the President who may pass such orders thereon as he may deem fit. Right of personal hearing by the President before making any order on the representation either way was not implicit in Article 32 of the above Order. Nor is the President required by the language of the statute to give detailed reasons in support of his order. There shall, however, be a clear presumption that the President has applied his mind to the matter before disposing of it. The Court in its exercise of extraordinary jurisdiction does not sit in appeal on the decision of either the Ombudsman or the President of C Pakistan for reappraisal of the facts of the. case for substituting its opinion in place of their opinion. Jurisdiction conferred on the High Court under Article 199 of the 1973‑Constitution though supervisory but was of a special nature. It was not akin or assimilable to the jurisdiction in appeal. Both the jurisdictions were markedly distinct and different in their reach and scope. Impugned decision by the Acting Wafaqi Mohtasib declining interference on the grounds given in it was neither without jurisdiction nor without lawful authority. Similarly, the decision by the President upholding it and dismissing the representation against it did not suffer from a fatal vice of jurisdiction. Furthermore, the petitioner had other legal remedies available to him for vindicating his grievance. Those. could not be characterised inadequate remedies. In this view, there was little scope for interference in judicial review. As a result of it, writ petition is dismissed in limine. A.A./A‑729/L Petition dismissed.