2005 PLP 1826 (YLR)

The petitioner who appeared to be aggrieved by the inaction of erstwhile of the K.D.A. in failing to grant N.O.C. for commercialization of his plot in New Karachi Housing Society, Black No.3, Shaheed-e-Millat Road, Karachi, despite the fact that N.O.C. was granted to others in the same area. He brought his grievance by way of a complaint against mal administration before the Ombudsman for the Province of Sindh. After obtaining the version of the erstwhile K.D.A. as well as the Respondent No.1 passed the order, dated 13-4-2000, holding that the matter has been unnecessarily delayed and that there was criminal negligence and discretion amounted to maladministration and specific direction was given to the K. D. A. to issue N. O. C. for commercialization of the petitioner's plot and report within thirty days. It seems that despite the aforesaid order no action was taken by the K.D.A. for several months and senior officers were called by Ombudsman on 4-9-2000. However, it was clearly explained to them that only the President or the Governor could set aside the decision of the Ombudsman upon the Reference made under section 32 of Sindh Ordinance, 1991. However it seems that after more then 17 months appeal/representation, dated 1-12-2001 was presented by the KDA before the Honourable Governor of Sindh under section 32 of the Act. It seems that comments from the Ombudsman were invited but the petitioner contends that he has received no notice of the appeal. In any event he has been regularly pursuing the matter with the concerned Officers of K.D.A. and thereafter the respondent No.2 was informed by letter, dated 30-7-2002 that the Governor had condoned the delay in filing the appeal/representation and allowed the same setting aside the order of the Ombudsman of dated 13-4-2000. Mr. Badar Alam argued in the first instant that in absence of specific statutory power delay in filing the appeal could not be condoned by the Governor. In support of his contention Mr. Badar Alam relied upon the pronouncement of the Honourable Supreme Court in Abdul Ghaffar v. Mst. Mumtaz, PLD 1982 SC

33. In this case it was pointed out that in normal civil proceeding before ordinary Court the provision of section 5 of the Limitation Act could be applied for the purpose of condoning the delay in filing the appeal, if sufficient cause is shown to the satisfaction of the Appellate Court. However, though by virtue of section 29 certain provisions of Limitation Act were required to be read in other special laws, but section 5 was not. As a consequence it was held that section 5 could not be extended to appeals preferred in the Sindh Rented Premises Ordinance and an aggrieved party has no remedy if it fails to prefer the appeal within the prescribe limitation period. In the instant case the period of 30 days has been provided for preferring the appeal/representation against the decision of the Ombudsman to the Governor. However, no provision for condonatoin of delay has been laid down nor, as discussed above, can section 5 of the Limitation Act be applied. Indeed Mr. Manzoor Ahmed, attempted to argue that inherent power was available in condonation of delay, but he was unable to refer any legal principle or precedent in support of his contention. We therefore find force in Mr. Badar Alain's argument. Even other wise the decision taken by Ombudsman and by the Appellate Authority have a wide been held to be at least of a quasi judicial nature by the Honourable Supreme Court in Federation of Pakistan v. Muhammad Tariq Ejaz Pirzada (1999 SCMR 2744). It was held in the aforesaid case that the principles of natural justice were required to be followed even in Appellate proceedings under section 32 of the Establishment Office of Wafaqi Mohtasib, Ordinance. The same principle would appear to apply to the present case as the provision of the President's Order and the 1991 Act seems to be identical. The allegation that the order of the Governor was passed without notice to the petitioner has not been referred therefore the appellate order is liable to be set aside on this ground as well. For the foregoing reasons we are constrained to hold the appellate order to be without lawful authority. Accordingly, the same is set aside and the respondent No.2 is directed to consider the question of issuance of N.O.C. for commercial purpose strictly in accordance with law. H.B.T./N-60/K Petition accepted.