1999 PLP 2856 (MLD)

S. AHMED SARWANA, J.

On 13-8-1960 the Settlement Department transferred premises bearing H.No.C/204 situated in Johi Town to Respondent No.2, A primary School for Boys was -functioning in a portion of the said house. Respondent No.2 approached the Inspector of Schools Dadu for payment of rent for use and occupation of the premises from 13-8-1960, the date of transfer by the Settlement Department. After necessary procedure the rent for the premises in dispute was fixed by the Executive Engineer Roads Dadu at Rs.139.50 p.m. The District Inspector Schools referred the matter to the petitioner No.1 (Director of School Education. Hydereabad Region) to pay the settled rent but he failed to do so. Consequently, respondent No.2 filed a petition before the Provincial Ombudsman (Mohtasib Sindh/Respondent No.1) who rejected the request for payment of rent on the ground that there was not Written Tenancy Agreement but directed the petitioners to vacate and had over the premises to respondent No.2 as soon as the new school building was completed. Respondent No.2 filed an application for Review of the Order whereupon the Provincial Ombudsman by Order, dated 22-1-1995 directed the petitioner No.1 and District Education Officer Dadu (Petitioner No. 2) to pay the rent of the premises at the rate of Rs.139.50 p.m. from I-9-1960 to 5-7 1994 before the end of the financial year 1994-95. Being aggrieved by the aforesaid order of the Ombudsman the two Petitioners have filed this Constitution Petition challenging the later order of the Ombudsman on the ground that there is no provision for review in the Establishment of the Office of Ombudsman for the Province of Sindh Act, 1991 (hereinafter referred to as the Ombudsman Act). During the course of arguments Mr. Kishan Chand, learned advocate for respondent No.2 filed a copy of a letter, dated 20th March; 1997 issued from the Secretariat of Governor Sindh, Karachi rejecting on merits the representation under section 32 of the Ombudsman Act made by Petitioners against the Order of the , Ombudsman and also as time barred. The communication from the Governor's Secretariat included, inter alia, the following observations:-- "The proper and honourable approach of the Department should rather have been to tender rent to the transferee as soon as it came to know of the fact of transfer of ,roperty to him. The entire approach of the Department is extremely deplorable, illegal and unbecoming of a Government Department. It has behaved like an ordinary dishonest litigant. There is not an iota on merit in the stand taken by the Education Department. The representation, in my humble view, merits dismissal but I shall insist that, as suggest in para. 4, the then Secretary 'Education and the then District Education Officer may be first called upon to disclose what according to then is the justification for not paying, rent to the transferee of the premises. It is, therefore, requested that the comments of the then Secretary Education and the then District Education Officer (Male) Primary, Dadu may be obtained without 30 days and forwarded to the Ombudsman with a copy to this office." We have gone through the provisions of the Ombudsman Act and agree with the submission of the learned Additional Advocate-General that there is no provision for review in the Ombudsman Act. However, it would not be out o j place to mention here that the Ombudsman Act was enacted, inter alia, to diagnose, investigate, redress and rectify any injustice done to a person through mal administration. It is apparent that Ombudsman overlooked the fact that the property had been transferred to respondent No.2 under the provisions of the A Displaced Persons (Compensation and Rehabilitation) Act, 1958 and under section 30 of the said Act the transferee becomes the owner of the premises and the occupant becomes the transferee's tenant and that the rent of the premises had been determined by an appropriate officer of the Government of Sindh. The moment the Ombudsman saw his own mal administration which had resulted in injustice to a citizen he immediately rectified his order and issued a fresh one thereby justifying his creation and existence. Further, the second Order passed by the Ombudsman merged into the Order of the Governor when the representation made by the petitioners was rejected. The petitioners had withheld the fact, of having filed a representation to the Governor from the Court. They had come to this Court with unclean hands. They repeated the same behavior which the Governor had observed was extremely deplorable, illegal, and A unbecoming of a Government Department. Instead of following the order of the Governor by submitting their justification for their improper conduct and filing their comments to the Ombudsman as directed with a copy to the Governor's Office, the petitioners filed the present Petition. The petitioners flagrantly flouted the order of the Governor. Such disobedience amounts to misconduct liable to strict disciplinary action by the Government. Further, the conduct of the petitioners in this case was totally against the norms of a civil servant of a civilized society not to mention an Islamic State where the Caliph goes around the city at night to ensure that all citizens sleep peacefully without inconvenience caused by any laspse on the part of the persons responsible for the administration of the State. This Court for the present will only express its displeasure and disapproval of the improper conduct of the petitioners with the expectation that such action will not be repeated by the petitioners or any other civil servant in future. Mr. Mian Khan Malik, learned Additional Advocate-General, conceded that respondent No.2 had been denied his right to receive rent of the premises and placed before us a letter, dated 15-4-1997 written by the Directorate of Primary Education, Hyderabad Region to the Sub-Divisional Education Officer, Johi, District Dadu, communicating the sanction of the Directorate for a sum of Rs.55,500.00 for making payment to respondent No.2 in whose premises the Boys Primary School was functioning. He submitted that though the Officer concerned was directed to draw and ultilize the aforesaid amount before 30-6-1997 but it was not done for which he could not give any valid reason. However, he agreed that he would have no objection if the concerned officer is directed to pay the arrears of rent amounting to Rs.55,500 sanctioned by the Government of Sindh by letter dated 15-4-1997, referred to above, to Respondent No.1 within six weeks. In view of the above discussion, the petition is disposed of in the following terms:-- (i) Petitioners shall pay to respondent No.2 a sum of Rs.55,500 towards the rent of the premises from 1-9-1960 to 5-7-1994 within six weeks from the date of this order. (ii) Petitioners shall also pay the rent of the premises to respondent No.2 at the rate of Rs.139.50 p.m. from 5-7-1994 to 31-12-1998 within eight weeks from today. (iii) Petitioners shall pay the future rent of the premises from 1-1-1999 till vacant possession of the premises is handed over to respondent No.2 at the rate of Rs.139.50 per month by the 15th of each succeeding month i.e. the rent for the' month of December, 1998 shall be paid by 15th January, 1999. Any delay in payment of rent by the due date shall be deemed to be a default under the provisions of Sindh Rented Premises Ordinance, 1979 entitling the Landlord to take action against the tenant under the said law. (iv) In case petitioners do not pay the aforesaid amount of Rs.55,500 to respondent No.2 within six weeks as specified above the latter shall be free to file an application for disobedience of this Court's order and/or file an application before the Ombudsman (respondent No.1 herein) asking him to punish the Officers concerned for contempt under section 16 of the Ombudsman Act. (v) In case respondent No.2 files an application before the Ombudsman for taking action under section 16 of the Ombudsman Act, he shall take expeditious action on the same and file compliance report to this Court within six weeks of filing of such complaint. (vi) If the petitioners do not pay the arrears of rent as stated above they shall be liable to pay to respondent No.2 compensation for delayed payment at the rate of 45 Paisas per Rs.1,000 per day for every day of delay in payment which rate is lower than the present mark-up rate charged by banks from its customers. (vii) Petitioners shall send compliance report of the Governor's order, dated 20-3-1997 to the Ombudsman and forward a copy of the same to the Governor within 30 days from today. (viii) Ombudsman is hereby directed to submit a report within 45 days from today whether the petitioners have complied with the Governor's order, dated 20-3-1997. In case his order and the order of the Governor have not been complied with as directed above he shall issue a show-cause notice to the petitioners and take action against them in accordance with the section 16 of the Ombudsman Act. A report of the action taken by him shall be submitted to this Court within 60 days. (ix) A copy of this order shall be sent to the learned Sindh Ombudsman for information and necessary action. (x) In view of the reasonable stand taken by the learned Additional Advocate-General in the disposal of this petition, there shall be no order as to costs. H.B.T./D-23/K Order accordingly.