KHALID JAVAID Versus GOVERNMENT OF THE PUNJAB, through Chief Secretary Punjab, Civil Secretariat, Lahore

ORDER

The brief facts out of which the present Constitutional petition arises are that the petitioner and others established their houses since partition over the land in question and allegedly are residingtherein. The respondents have initiated proceedings against the petitioner and others under the influence of politicians of the area to dispossess the petitioner and others from their houses. The petitioner and others being aggrieved by the action of the respondents filed a suit for permanent injunction in the Court of Civil Judge, Okara alongwith an application under Order XXXIX, rules 1 and 2, C.P.C. The petitioner secured restraining order from the said Court on 24-1-2004, which was extended on 17-2-2004. The revenues officer has incorporated the said restraining order in the revenue record vide Rapats Nos.293 and 329 respectively. Respondent No.7 and others have also filed an application before the said Court to implead them as party in the said suit. Respondent No.7 in connivance with respondent No.41, lodged F.I.R. No.50 of 2004 dated 31-1-2004 under sections 447, 506, 34, P.P.C. At Police Station Sadar Okara, against the petitioner and others. SubseqUently, respondent No.7 filed an application before respondent No.5 and with the help of respondents Nos.8 and 9 succeeded to demolish the houses of the petitioner and others with the help of respondents Nos.6 and 11. Respondent No.6 also got registered a case against the petitioner and others at the police station concerned vide F.I.R. No.58 of 2004 dated 10-2-2004 under sections 332, 506, 186, 148, 149, P.P.C. The respondents have demolished the houses of the petitioner and others as is depicted from the news item appeared in Daily Nawa-e-Waqt dated 31-3-2004. The petitioner and others submitted various applications before respondent No.4 for the allotment of the land in question but respondent No.4 has not decided the same till date. The petitioner being aggrieved filed this Constitutional petition.

2. The learned counsel of the petitioner submits that petitioner and others have constructed their houses over the land in question since partition. The petitioner and others are penalized by the public functionaries under the influence of the politician of the area. He further submits that public functionaries have taken action against the petitioner and others in spite of the restraining order passed by the competent Court. He further submits that petitioner and others have submitted various applications before respondent N.4 and respondent No.4 has not decided the same till date, which is the duty and obligation of respondent No.4 to decide the application of the petitioner strictly in accordance with law. The petitioner has filed this writ petition with the prayer that direction be issued to respondent No.4 to decide the application of the petitioner in accordance with law.

3. Mr. Muhammad Hanif Khatana, Addl. Advocate-General, entered appearance on Court's call, he submits that Constitutional petition is not maintainable as the petitioner and others have already filed civil suit before the competent Court and secured a restraining order from the competent Court. He further submits that two F.I.Rs. Have already been lodged against the petitioner and others, and the Constitutional petition is not maintainable.

4. I have viven ni3', 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 proceedings as the law laid down by the Honourable Supreme Court in Hussain Bukhsh's case (PLD 1970 SC 1). The petitioner has filed this Constitutional petition in the representative capacity without fulfilling the mandatory requirement of 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 Arian Bhera v. Abdul Rashid (PLD 1973 Lahore 500). It is also admitted fact that two F.I.Rs. Have already been lodged against the petitioner and others. It is better and appropriate to reproduce prayer clause of the suit and of the present writ petition to resolve the controversy between the parties:

"Prayer ClauSe of Writ Petition:

It is, therefore, most respectfully prayed that this writ petition may kindly be accepted and respondents Nos.1 to 4 may kindly be ordered to constitute a Committee to examine the place of occurrence and allot the land to the petitioner and others who have established their houses above 56 years ago in accordance with law and according to the policy of the Government and Notification Annexure-K."

In case the aforesaid prayer clauses be read together then both have different causes. It is also settled principle of law that it is the duty and obligation of the public functionaries to decide the applications of the citizens without fear, favour and nepotism as is envisaged by Article 4 of the Constitution read with section 24-A in the General Clauses Act as the law laid down by the Honourable Supreme Court in Messrs Airport Support Service v. The Airport Manager, Karachi, Airport (1998 SCMR 2268). It is also settled principle of law that no body should be penalized by the inaction of the public functionaries as the law laid down by this Court in Ahmad Lateef Qureshi v. Controller of Examinations (PLD 1994 Lahore 3).In this view of the matter, let a copy Of writ petition be sent to the respondent No.4, who is directed to decide the application of the petitioler strictly in accordance with law after providing proper hearing to all the concerned including respondents Nos.5 to 9 and representatives of respondents Nos.10 and 11, the petitioner and any other person, who would be aggrieved by his order, preferably within four months after receiving the order of this Court, in case the petitioner had already filed application before him and he has not passed any order on the same till date. The petitioner is directed to appear before the respondent No.4 in his office at 11-00 a.m. On 7-6-2004, who is directed to decide the application of the petitioner strictly in accordance with law in terms of the aforesaid direction preferably within four months till 7-10-2004 either himself or send the same to competent authority for its decision, who is also directed to decide the application of the petitioner in the terms of aforesaid direction of this Court preferably within four months till 7-10-2004. He is further directed to submit his report to the Deputy Registrar (J) of this Court within stipulated period.

6. The learned counsel of the petitioner is directed to hand overcopy of writ petition alongwith all the annexures to Mr. Muhammad Hanif Khatana, Addl: Advocate-General, who is directed to send the same to respondent No.4 for necessary action and compliance. Office is also directed to provide one copy of this order to Mr. Muhammad Hanif Khatana, Addl. Advocate-General, for onward transmission to respondent No.4 for necessary action and compliance.

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

M.A.W./K-41/L Order accordingly.