2021 PLP 301 (MLD)

MUHAMMAD SAJID MEHMOOD SETHI, J.

Through instant petition, petitioner has assailed vires of order dated 21.03.2017 passed by respondent No.1, whereby representation of respondent No.2 against decision dated 17.08.2016, passed by Federal Ombudsman, was accepted and impugned order was set aside.

2. Learned counsel for petitioner submits that representation of respondent No.2 has been accepted on the wrong assumption that contractual matters do not come within the domain of Federal Ombudsman. He has referred to law laid down by the Hon'ble Supreme Court of Pakistan in Capital Development Authority through Chairman and another v. Zahid Iqbal and another (PLD 2004 SC 99), wherein it has been held that it is an obligation of the Mohtasib to undertake an investigation into an allegation of maladministration on the part of any Agency or any of its officers or employees even in contractual matters, relevant part whereof is reproduced below:- "

16. The action of the President in setting aside the findings and the declaration of the WAFAQI MOHTASIB could also not be sustained in law for more than one reason. According to Article 9 of the Establishment of the Office of the WAFAQI MOHTASIB (Ombudsman) Order being President's Order No.1 of 1983 it is an obligation of the Mohtasib to undertake an investigation into an allegation of maladministration on the part of any Agency or any of its officers or employees. According to Article 2(2) of the said Ordinance maladministration included an act which was contrary to law, rules or regulations. Article 11 of the said Order enjoined upon the Mohtasib to find out whether the complained act did or did not amount to maladministration and then to communicate his findings to the concerned Agency. No provision either of the said President's Order No.1 of 1983 or of any other law for the time being in force took a matter out of the jurisdiction of the Mohtasib only because the same related to a contractual obligation. If as a result of the investigation conducted by the Mohtasib he came to the conclusion that the complained act was offensive of any law, rules or regulations then the Ombudsman was well within his powers to deal with the said matter in accordance with the provision of the said Order 1 of 1983. The action of the President in setting aside the findings and recommendations of the Mohtasib only because the matter related to a contractual dispute was thus no reason or ground justifying interference with the findings and the recommendations of the Ombudsman. As has been noticed above the learned Ombudsman had found the act of the cancellation of the sale on the plot in question to be illegal and void not on account of any matter arising out of the terms and conditions of the contract of sale or of the auction which had preceded the said sale but on the ground that the Authority which had cancelled the said sale was not authorized in law to do so."

3. Since the above reproduced dictum of law has not been kept in view while passing the impugned order, hence, the same is unsustainable in the eye of law. In this view of the matter, impugned order is declared to be illegal and without lawful authority and consequently, representation of respondent No.2 shall be deemed pending before respondent No.1, which shall be decided on merits strictly in accordance with law and case law cited above.

4. The instant petition stands disposed of accordingly. SA/A-78/L Order accordingly.