WAQAR ALAM SAEED vs DISTRICT COORDINATION OFFICER/CHAIRMAN and 3

ORDER

' The petitioner has filed this Constitutional petition with the following prayer:-- "In view of the above, it is most humbly prayed that the in action on the part of statutory authorities viz. Respondents Nos.1 to 3 in not stopping the absolutely illegal and unauthorized operation of D- Class Stand by respondent No.4 in residential area may graciously be declared to be illegal and without lawful authority and consequently respondents Nos.1 to 3 may graciously be directed to perform their legal duties and stop the unlawful operation of D-Class Stand by respondent No.4 immediately, which is Annexure-A."

2. The learned counsel of the petitioner submits that respondent No.4 has secured a licence to run a D-Class Stand in residential area without securing No-Objection Certificate from the inhabitants, which is not in consonance with the rules of the respondents. He further submits that respondent No.4 secured a licence under his political influence. He further submits that policy was changed by respondents Nos.1 to 3 under the political influence by respondent No.4 wherein the land prescribed earlier 3 Kanals was reduced to 2 Kanals, this fact alone is sufficient that action of the respondents is without lawful authority. He further urges that licence of respondent No.4 had already been expired on 6-2-2004; therefore, this Stand is illegally operating for the last more than a year without any sanction, licence or any backing in law. He further urges that respondent No.4 filed Constitutional Petition No.4774 of 2004 titled Hafeez Qadir Flying Coach Okara v. Chairman Punjab, P.T.A. Lahore etc, which was disposed of by this Court vide order, dated 11-5-2004 and the case was remanded to the Appellate Authority. The Appellate Authority again decided against respondent No.4. Respondent No.4 being aggrieved filed Constitutional Petition No.14092 of 2003 titled Hafeez Qadir Flying Coach v. Chairman Punjab, P.T.A. Etc., which was disposed of by this Court vide order, dated 26-11-2004 and the case was remanded to the Appellate Authority. The Appellate Authority remanded the case vide order, dated 24-3-2005 to respondent No.l. Respondent No.1 is not deciding the matter till date under the influence of respondent No.4. He further submits that respondent No.4 has no lawful authority to run D-Class Stand without securing licence from the competent authority. He further urges that inhabitants of the area are penalized due to the public nuisance created in view of the establishment of the D-Class Stand by respondent No.4.

3. Mr. Muhammad Hanif Khatana, Addl. Advocate-General entered appearance on Court's call, he submits that Constitutional petition is not maintainable.

4. I have given any anxious consideration to the contentions of the learned counsel of the parties and perused the record.

5. It is settled principle of law that principles of C.P.C. Are applicable in Constitutional petitions as per law laid down by the Honourable Supreme Court in Hussain Buksh's case (PLD 1970 SC 1).r The petitioner has filed this Constitutional petition in representative capacity without fulfilling the requirement prescribed under Order I, rule 8, C.P.C. Therefore, Constitutional petition is not maintainable in view of the law laid down by the Division Bench of this Court in Anjuman Araian, Bhera v. Abdul Rashid and 5 others (PLD 1973 Lahore 500). It is also settled principle of law that the petitioner has filed this Constitutional petition in view of the public nuisance created on account of establishment of D-Class Stand in the residential area; therefore, petitioner has to file Constitutional petition after fulfilling the requirements under sections 91 and 92 of C.P.C. In this view of the matter, Constitutional petition is also not maintainable. It is also admitted fact that the matter is pending adjudication before respondent No.1; therefore, it is a good ground not to exercise discretion in favour of the petitioner as per law laid down by the Honourable Supreme Court in Ch. Tanbir Ahmad Siddiky v. Province of East Pakistan and others (PLD 1968 SC 185).

6. In view of what has been discussed above, the Constitutional petition is not maintainable. It is also settled principle of law that public functionaries are duty bound to decide the matters without fear, favour and nepotism with reasons as is envisaged by Article 4 of the Constitution read with section 240-A of the General Clauses Act as per law laid down by the Honourable Supreme Court in Messrs Airport Support Services v. The Airport Manager (1998 SCM R 2268). It is pertinent to mention here that the petitioner or inhabitants of the area did not agitate the matter well in time and this writ petition is in fact filed by the petitioner to support the rival of respondent No.4; therefore, petitioner has no locus standi to file this Constitutional petition. In this view of the matter, let a copy of the writ petition be sent to respondent No.1 and Chairman Punjab P.T.A. ( Appellate Authority), Lahore. The Appellate Authority is directed to look into the matter what is happening in his department that his subordinates are not obeying his directions as respondent No.1 did not decide the matter in terms of the order, dated 24-2-2005 till date. Respondent No.1 is directed to decide the matter pending before him in terms of the order, dated 24-3-2005 preferably within one month even at the cost of day to day proceedings after notice to the parties qua the matter pending before him in case he has not passed any order till date after remand by the Chairman Punjab P.T.A. Lahore (Appellate Authority). The petitioner is also well within his right to file an application before respondent No.1 for his impleadment, who shall of course decide the same in accordance with law. Respondent No.1 and Chairman Punjab P.T.A. (Appellate Authority) are directed to submit their report to the Deputy Registrar Judicial of this Court within the stipulated period.

7. The learned counsel of the petitioner is directed to hand over copy of the writ petition along with all the annexures to Mr. Muhammad Hanif Khatana, Addl. Advocate-General, who is directed to send the same to respondent No.1 and Chairman Punjab P.T.A. (Appellate Authority) for necessary action and compliance. Office is also directed to provide one copy of this order to Mr. Muhammad Hanif Khantana, Addl. Advocate-General for onward transmission to respondent No.1 and Chairman, Punjab ' P.T.A. (Appellate Authority), for necessary action and compliance.

With these observations the writ petition is disposed of Copy Dasti on payment of usual charges.