1997 PLP 2261 (MLD)

Salahuddin v. Frontier Sugar and Distillery PLD 1975 SC 244 rel. (b) Constitution of Pakistan (1973)

Art.199(1)(a)(i)

Constitutional petition

Maintainability

Primary test. The primary test for maintainability of petition under Art. 199(1)(a)(i) must always be whether the functions entrusted to the organization or person concerned are indeed functions of the State involving some exercise of sovereign of public powers; whether the control of the organization in a substantial manner is in the hands of Government, and whether the bulk of the funds is provided by the State. Salahuddin v.. Frontier Sugar and Distillery PLD 1975 SC 244 fol. Iftikhar Javaid Qazi for Petitioner. The petitioner claims to have been allotted a plot of land measuring 148 square yards vide order passed by the respondents, dated 12-2-1995. Subsequently, she was allotted an extra land measuring about 58 square yards which was adjacent to the petitioner's plot. The petitioner paid the respondent's dues for the said extra land but on 12-7-1996, the petitioner received a letter from the respondent intimating her that allotment of the said extra land, measuring 58 square yards, had been cancelled. Feeling aggrieved by such action, the petitioner has approached this Court for redress. The first question, which requires to be determined, is, whether this petition is maintainable against the respondent which is a housing authority. Under Article 199 of the Constitution, a writ can be maintained against a person who is performing functions in connection with the affairs of the Federation or a province or a local authority. The respondent does not fall within the ambit of any of the said expressions. It would not be out of place to make reference in this regard to the case of Salahuddin v. Frontier Suqar and Distillery PLD 1975 SC

244. In the said case, a question had arisen before the Supreme Court as to import of the said expressions occurring in Article 199(1)(a)(i) of the Constitution. It would be worthwhile to refer to the following observations made by the Supreme Court in this regard: "The primary test must always be whether the functions entrusted to the organization or person concerned are indeed functions of the State involving some exercise of sovereign or public powers; whether the control of the organization in a substantial manner is in the hands of Government, and whether the bulk of the funds is provided by the State." Needless to say that the respondent does not fulfil any of the said conditions as laid down by the Supreme Court in the said judgment, therefore, it is not amenable to the writ jurisdiction of this Court. In the result, the petition is misconceived and the same is, therefore, dismissed alongwith the miscellaneous applications. A.A./N-28/K Applications dismissed.