SHAUKAT AZIZ SIDDIQUI, J. - Petitioner invoked the Constitutional jurisdiction of this Court by way of filing instant writ petition with the following prayer:-
(a) The complaint before Respondent No. 1 (Annexure-A1) being outside the jurisdiction of said respondent in respect of a property in which judicial decisions are in the field I have attained the finality, be quashed.
(b) The impugned order Annexure-A be set aside as being without legal authority and of no legal effect.
(c) Respondent No. 1 be directed to adhere to the directives of the Supreme Court of Pakistan and refrain from proceeding further in the matter.
(d) Any other writ relief, remedy deemed just and/or appropriate be issued, granted or allowed."
2. Vide short order dated 26.04.2013, instant petition was allowed in the following terms:--- "(i) In the peculiar circumstances, respondent No. 1 is not vested with the authority to assume the jurisdiction in the subject-matter, therefore, all the I prceedings initiated before the learned respondent No. 1 by respondent No. 2 are illegal, without jurisdiction, besides the mandate of law, dictums laid down by the Hon'ble Supreme Court of Pakistan, offensive to the fundamental rights and rarity, therefore, proceedings and orders passed by learned respondent No. 1 are hereby quashed.
(i) The Chairman, CD A i.e. Respondent No. 3 is directed to supervise the process of auction of suit premises (Petrol Pump) in accordance with PEPRA Rules and decision taken by the Staff Welfare Committee. The terms of lease may be fixed afresh in the meeting of Staff Welfare Committee which shall be attended by the Chairman, CDA. The premises be de-sealed before the auction and complete inventory report under the supervision of some responsible Member may also be prepared. The facts and reasons of above order are as under:-
3. Precisely it is the version of the petitioner that CDA had established the Staff Welfare Committee (hereinafter will be referred as SWC) in year 1964, and leased certain properties to the SWC for utilization of the income to the welfare of the widows, retired staff, disabled and their children. Petrol Pump situated at Embassy Road, G-6/4, Islamabad was also leased out to the SWC which was subleased by SWC to one S.M. Ismail for a period of 30 years w.e.f. 01.01.1973 till 31.12.2002. CDA through its Board meeting dated 08.08.2000 had decided that SWC was fully competent to sub- lease properties leased to it without reference to the CDA Board and after the expiry of sub-lease period, petrol pump site should be put to open auction through transparent manner on annual basis. Thereafter the petitioner has narrated the chequered history of litigation concerning the petrol pump which the sub-lessee S.M. Ismail had instituted against the SWC and others. Petitioner has further provided that all the litigation finally culminated in favour of the petitinor and even the august Supreme Court of Pakistan dismissed the various CPs filed by the sublessee. Petitioner has further averred that the SWC got published proclamation for the auction of the petrol pump and in the meanwhile respondent No. 2 submitted a complaint before the respondent No. 1, that the petitioner submitted the reply to the petition and through impugned order the respondent No. 1 directed the maintenance of status quo due to which the auction could not be held. The petitioner has further submitted that the respondent No. 1 has no jurisdiction to interfere in the matter in hand as the august Supreme Court of. Pakistan has finality settled the controversy in favour of the petitioner.
4. Learned counsel for the petitioner reiterated the contents of the petition and he has further argued that the respondent No. 1 i.e, Wafaqi Muhtasib had no jurisdiction to entertain the complaint and to pass impugned order as the jurisdiction of the respondent No. 1 is limited and when the controversy has already been settled by the Courts of law, therefore the impugned order of the respondent No. 1 should be quashed.
5. Learned counsel for the respondents has opposed the contentions of the petitioner and contended that the respondent No. 1 enjoys the powers to interfere in the cases of maladministration and as the respondent No. 3 has failed to run the affairs of petrol pump, therefore, the exercise of jurisdiction of respondent No. 1 is quite lawful. Learned counsel for the respondents has prayed that instant petition be dismissed.
6. I have considered the respective contentions of the parties and also perused the available record. Before proceeding to discuss the scope of jurisdiction which the respondent No. 1 may exercise, it is appropriate to mention the undisputed fact?, that the SWC is the lease holder of the petrol pump situated at the Embassy Road, G-6/4, Islamabad who had subleased the said petrol pump to the S.M. Ismail for the period of 30 years w.e.f. 01.01.1973 to 31.12.2002. CDA through its Board meeting dated 08.08.2000 had authorized the SWC to further sub-lease the petrol pump on the annual basis through transparent auction without any further reference to the CDA. S.M. Ismail (tenant) had instituted a civil suit against SWC which was disposed of on 05.03.2003 with the observation that the tenant should not be ousted against due process of law, thereafter the S.M.
Ismail (hereinafter be referred as tenant) filed an application for the determination of the fair rent and he also instituted a writ petition No. 346/2004 in the Hon'ble Lahore High Court whereby he challenged the notice of eviction, which was disposed of on 30.06.2004 with the direction to the SWC to reconsider the extension of the tenancy period. Order of the Hon'ble Lahore High Court was challenged through ICA No. 161/2004 which was allowed on 28.06.2005 and ultimately the august Supreme Court of Pakistan in CPLA No. 2577/2005 set aside the supra orders passed by the Hon'ble Lahore High Court through its order dated 05.10.2006. In the meantime the SWC took over the possession of the petrol pump and the pump was sealed, the tenant instituted a suit against his eviction which was dismissed on 20.06.2008. Learned Appellate Court dismissed the appeall of the tenant on 14.01.2009 and a Civil Revision Petition No. 5/2009 as well as writ petition No. 85/2009 instituted by the tenant were also dismissed on 08.04.2009 by Hon'ble Lahore High Court. ICA against the supra order was also dismissed on 11.05.2009 and the tenant withdrew his CPLA No. 981/2009 from the august Supreme Court of Pakistan oh 04.11.2009.
7. In the meantime, the petition for the determination of the fair rent of the tenant was dismissed on 09.04.2009 and the appeal of the tenant was accepted on 28.10.2009, whereas, fair rent was on determined to be Rs. 100,000/- per month which tenant failed to pay. SWC challenged the order dated 28.10.2009 through Writ Petition No. 3516/2009, whereas, tenant instituted a petition under Section 144 of Cr.P.C. Which the learned Rent Controller dismissed on 27.05.2010 and appeal of the tenant was also dismissed by the Appellate Court on 26.02.2011 and he instituted the Writ Petition No. 707/2011. The writ petition of the SWC No. 3516/2009 and the Writ Petition No. 702/2011 were decided by his Court in favour of the SWC on 24.06.2011. The tenant submitted the CPLA No. 1079/2011 and 1080/2011 in the august Supreme Court of Pakistan against the order of this Court dated 24.06.2011 and the august Supreme Court of Pakistan was pleased to dismiss above- mentioned civil petition on 11.10.2011 thus with order of the august Supreme Court of Pakistan the litigation in the Courts exhausted.
8. Thereafter the SWC got published proclamation in the newspaper for the auction of the petrol pump and respondent No. 2 while concealing all the facts about the above-mentioned litigation, submitted a petition before the Wafaqi Muhtasib and the Wafaqi Muhtasib (respondent No. 1) issued the impugned order to maintain the status quo. The tenant has entangled the SWC in the litigation which commenced when the tenant instituted a civil suit on 05.03.2003 and that culminated when the august Supreme Court of Pakistan dismissed the CPs on 11.10.2011. The rights, liabilities and obligations of the parties have been fully determined by the decision rendered by the Courts of law and the exercise of the jurisdiction by the Wafaqi Mohta I: i.e. Respondent No. T is illegal as the office of the Wafaqi Mohtasib was constituted through Establishment of the Office of the Wafaqi Muhtasib (Ombudsman) Order, 1983 and Section 9 of the supra Order narrates the jurisdiction, function and power of the Wafaqi Muhtasib. In this Section it is provided that the Wafaqi Muhtasib may on the complaint by aggrieved person, on the reference by the President, the Federal Government or National Assembly as the case may be or on the motion of the august Supreme Court of Pakistan or High Court made during the course of the proceedings before it or of his motion, undertake any investigation into the allegation of maladministration on part of any agency or any of its officer or employee. Proviso of this Section provide that the Wafaqi Muhtasib shall not have jurisdiction to investigate or enquire into any matter which is sub-judiced before the Court of competent jurisdiction, which relates to the external affairs of Pakistan or relates to matters connected with the defence of Pakistan. In the case in hand, the controversy about the subject-matter of the petition has already been settled up to the august Supreme Court of Pakistan and as per clause A of the Section 9, the respondent No. 1 has absolutely no jurisdiction to pass the impugned order.