1993 PLP 1745 (MLD)

Nemo for Respondent No.4. Date of hearing: 31st March, 1992. MAMOON KAZI, J.‑‑‑‑The petitioner was tenant in Shop No.6 attached to Masjid Al‑Falah, P.E.C.H.S., Block‑2, Karachi. The grievance of the petitioner is that in the month of January, 1985, respondent No.l started creating obstacles in the way of the petitioner in order to dispossess him unlawfully from the shop in question. The petitioner thereafter sent an application to the Chief Administrator of Auqaf (respondent No.3) but during the pendency of an enquiry before the said respondent the petitioner was informed that his shop was going to be put to auction on 14‑2‑1985 on the ground of its subletting by the petitioner. The petitioner filed an appeal under section 10 of the Sindh Waqf Properties Ordinance, 1979 before respondent No.3 but on 18‑3‑1985 the petitioner came to know that adverse order had been passed on his appeal after receipt of the report. Thereafter the petitioner's shop was put to auction on 21‑3‑1985 and the same has now been handed over to respondent No.4. The case of the petitioner is that no show‑cause notice was served upon the petitioner before taking the impugned action by the respondents. Even the appeal was decided against the petitioner without affording him an opportunity of hearing.

2. According to the counter‑affidavit filed on behalf of respondent No.l, there appears to be no controversy on the point that the petitioner was the tenant of respondent No.l as alleged by him but according to the said respondent, the petitioner had handed over the possession of the shop to one Abdul Jabbar who in turn passed on the same to one Mohammad Saleem. Consequently, the petitioner's tenancy was terminated and the shop in question was ordered to be auctioned. As to the allegation that the appeal was disposed of without affording an opportunity of hearing to the petitioner it has been contended that the petitioner duly participated in the enquiry connected with the petitioner's appeal where the factum of subletting of the shop had been clearly established, therefore, the shop was ordered to be put to auction. However, thereafter the shop has been handed over to respondent No.4 at the rent of Rs.172 per month and after receiving a donation of Rs.79,700 from him. It has, therefore, been denied that the action was taken against the petitioner in violation of the principles of natural justice. .

3. We have heard Mr. Mohammad Ibrahim Abbasi learned Counsel for the petitioner and Mr. S.H. Mujtaba, learned Counsel for respondents Nos.l to

3. None has appeared on behalf of respondent No.4.

4. The main contention of Mr. Mohammad Ibrahim Abbasi before us has been that the entire action has been taken by the respondents No.l to 3 without serving a show‑cause notice on the petitioner or affording him an opportunity of hearing. Learned counsel has invited our attention to sections 8 and 9 of the Sindh Waqf Properties Ordinance, 1979 which provide for a reasonable opportunity of showing cause against the proposed action in case of eviction of a person wrongfully in possession of a waqf property or in case of termination of lease or resumption of tenancy on account of breach of any condition of the tenancy. Although in the counter‑affidavit, it has been denied that the action against the petitioner was taken in violation of the principles of natural justice but at the same time nothing has been produced before this Court from which it can be spelled out that any show‑cause notice as required by the provisions of section, 8 or 9 of the said Ordinance was served upon the petitioner before taking the impugned action. The circumstances, therefore, clearly indicate that the action was taken against the petitioner by the respondents without observing the statutory provisions of section 8 or 9 of the said Ordinance. Although the principles embodied in the maxim audi alteram partem would be applicable under the circumstances of the case but as is evident from section 8 or 9 of the said Ordinance, the respondents were under statutory obligation to serve a show‑cause notice on the petitioner to afford him an opportunity of hearing before taking the impugned action. We have, therefore, no doubt, in our mind that the action taken by the said respondents . which was in clear violation of the provisions of section 8 or 9 of the said Ordinance was without lawful authority. However, the matter does not end here because admittedly the property now is in possession of respondent No.4. Consequently, the question is whether any effective relief can be granted by us to the petitioner even if the action taken by respondent No.l resulting in eviction of the petitioner from the shop was without lawful authority. Obviously, the answer cannot be in the affirmative. Under such circumstances, this Court has invariably declined to interfere where it cannot grant any effective relief to the petitioner. In the present case, the shop is no more in possession of respondent No.l as the same has already been handed over to possession respondent No.4. Consequently, even if a declaration is issued by this Court in favour of the petitioner, the possession of the shop cannot be handed over by respondent No.l to the petitioner. Therefore, under such circumstances, we have no other option but to dismiss this petition.

5. The upshot of the discussion is that under the circumstances enumerated above, this petition is dismissed. The parties are left to bear their own costs. H.B.T./M‑1755/K Petition dismissed.