AAMER FAROOQ, J.---The petitioners, in the instant Constitutional petition, seek inter alia declaration and direction to the effect that the police officers and civil servants are required to exercise authority through application of mind in accordance with law and that disciplinary proceedings initiated against respondents No, 5 & 6 are void ab initio.
2. The petitioners are retired Officers of Police Force. The present writ petition is in the nature of public interest litigation inasmuch as a declaration is sought that the civil servants in general and officers in police service in particular are required to perform their duties in accordance with law and are not to follow the illegal orders of the Superiors. The present writ petition has been filed in the wake of disciplinary proceedings initiated by respondents No, 1 to 4 against respondents No, 5 & 6 who allegedly failed to comply with the orders passed by the Superiors and take action against the protestors before the Parliament House.
3. Notices were issued to respondents No, 1 to 4 by this Court and in response thereto learned Additional Attorney-General entered appearance. At the outset learned Additional Attorney- General raised preliminary objection regarding maintainability of the Constitutional petition in light of Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 as well as on the ground that the petitioners are not aggrieved persons within the meaning of words as contained in Article 199(1)(a) of the Constitution. Learned Additional. Attorney-General in support of his objections inter, alia submitted that it is an established. principle that what is not permissible directly is also not permissible indirectly. In this behalf he contended that under Article 212. the Constitutional petition is barred and filing of the instant petition not by respondents No, 5 & 6 but by the petitioners is indirectly seeking what is prohibited expressly. In support of his submissions learned Additional Attorney-General placed reliance on the case titled Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue, Punjab and others (PLD 2003 SC 979) and Ali Azhar Khan Baloch v.
Province of Sindh and others (2015 SCMR 456).
4. Learned counsel for the petitioners on the issue of maintainability of the instant petition inter alia submitted that the bar provided in sub-Article (2) of Article 212 of the Constitution is not attracted in the instant case inasmuch as under section 4 of the Service Tribunal Act, 1973 only an aggrieved civil servant can file an appeal against the order of departmental authority, therefore, since the petitioners are not the aggrieved civil servants, they cannot agitate the matter before the Service Tribunal. In respect of the objection regarding the petitioners not being aggrieved party, the learned counsel submitted that the Courts have interpreted the concept as provided in Article 199 in a liberal manner and the same is not restricted to a person having direct interest in the issue. In support of his contention learned counsel placed reliance on the case titled Ardeshir Cowasjee and 11 others v. Sindh Province and others (2004 CLC 1353), Mushtaq Ali v. Government of Sindh (PLD 1998 Karachi 416), Mian Fazal Din v. Lahore Improvement Trust, Lahore and another (PLD 1969 SC 223) and Muhammad Afzal and others v. Government of Pakistan and others (1987 SCMR 2078).
Learned counsel further submitted that through the instant petition the petitioners seek enforcement of fundamental rights and for the referred purpose the objection pertaining to the maintainability as raised by learned Additional Attorney-General does not apply. In support of his contention learned counsel placed reliance on the case titled Pakistan Petroleum Ltd. v. Director- General Mines and Minerals Mines and Manpower Building and 2 others (PLD 2011 Quetta 1), Malik Changez Khan and 4 others v. Provincial Police Officer, Karachi and 7 others (2011 YLR 868), The State and others v. Director General FIA and others (PLD 2010 Lahore 23) and K.B. Threads (Pvt.)
Limited through Chief Executive and others v. Zila Nazim, Lahore (Amir Mehmood) and others (PLD 2004 Lahore 376). Learned counsel submitted next that the instant petition is in the nature of public interest litigation and hence is maintainable. In this behalf reliance was placed on the case of Muhammad Yasin v. Federation of Pakistan (PLD 2012 SC 132) and Philips Electrical Industries v.
Pakistan and others (2000 YLR 2724). Learned counsel finally submitted that the august Supreme Court of Pakistan has laid down the parameters in various pronouncements regarding the manner in which the civil servants in general and police offices in particular are to perform their duties and in this behalf has held that illegal orders are not to be followed. Learned' counsel placed reliance on the case titled Ali Azhar Khan Baloch and others v. Province of Sindh end others (2015 SCMR 456), Syed Mahmood Akhtar Naqvi v. Federation of Pakistan (PLD 2013 SC 195) and In the Matter of Arrest of Accused on Murder of Her Daughter Waheeda (2014 SCMR 83).
5. The petition is in the nature of public interest litigation and the petitioners are retired police officers. The issues raised in the instant petition are both general and particular. Insofar as the general relief is concerned, the petitioners are seeking a declaration to the effect that civil servants/police officers are bound' to perform their duties in accordance with law and are not to follow the illegal orders of the Superiors. Insofar as this aspect of the case is concerned, there is no cavil to the proposition that the civil servants/police officers are required to perform their duties in accordance with law and no declaration vis-a-vis the same is required, as such, inasmuch as the Hon'ble Supreme Court of Pakistan in recently reported case titled Ali Azhar Khan Baloch v. Province of Sindh (2015 SCMR 456) has observed that public functionaries had to reinforce good governance by observing rules strictly and adhere to the same in public service. It was further observed that the public functionaries were not obliged to follow illegal orders of higher authorities.
6. The second limb of relief sought in the instant petition is with respect to the disciplinary proceedings initiated against respondents No, 5 & 6 and also direction to respondents to initiate proceedings against the persons who usurped the authority of the civil servants. Admittedly, respondents No, 5 & 6 are civil servants and disciplinary action has been initiated against them by respondents No, 1 to 4. Under Article 212 of the Constitution bar is provided whereby with respect to issues pertaining to the terms and conditions of service of any civil servant no Court shall have jurisdiction in the matter except the Courts/Tribunals established under the said Article. In this behalf Article 212 is reproduced below for the sake of brevity and is as follows:- "212. Administrative Courts and Tribunals. (1) Notwithstanding anything herein before contained, the appropriate Legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of. (a)matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters: (b)matters relating - to claims arising from tortuous acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or (c)matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law.
(2) Notwithstanding anything herein before contained, where any Administrative Court or Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal [other than an appeal pending, before the Supreme Court , ] shall abate on such establishment]: ' Provided that the provisions of this clause shall not apply to an. Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, Majlis-e-Shoora (Parliament) by law extends the provisions to such a Court or Tribunal.
(3) An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal."
7. The plain reading of the referred Article shows that disciplinary matters are included in the terms and conditions of persons who are or have been in the service of Pakistan. Moreover, under sub- Article (2) of Article 212 a bar is provided from entertaining any petition with respect to lis which falls under the jurisdiction of Administrative Court or Tribunal established under the said provision of the Constitution. The Hon'ble Supreme Court of Pakistan in 2015 SCMR 456 supra has clinched, the law on the subject and reaffirmed the bar provided in the afore-mentioned Article and observed that the High Court should not entertain a suit or petition filed by a civil servant relating to his/her terms and conditions of service in view of the bar contained under Article 212 of the Constitution. Under Service Tribunal Act, 1973 the remedy of appeal is provided to a civil servant who is aggrieved of any order passed by the departmental authority. Learned counsel for the petitioners has argued that since the petitioners are not civil servants, therefore, bar provided under sub-Article (2) of Article 212 as well as the right of initiation of appeal as provided in section 4 of Service Tribunal Act, 1973 is not applicable to them, hence the petition is maintainable. The referred argument by the learned counsel is not tenable inasmuch as it is an established principle of law that what is not permissible directly is also not permissible indirectly this behalf reliance is placed on the judgment of the Hon'ble Supreme Court of Pakistan in the case titled Haji Muhammad Buta and others v.
Member (Revenue), Board of Revenue, Punjab and others (PLD 2003 SC 979). If the argument of the learned counsel for the petitioners was to be accepted then that would tantamount to circumventing the bar provided by Article 212 inasmuch as any ,person could assail the proceedings initiated against him/her through another person in the garb of public interest litigation.
8.It is sine qua non for initiation of proceedings under Article 199 that the petitioner (s) should have a locus standi to institute the proceedings or in other words the petitioner(s) should be an aggrieved party. Seminal judgment of the apex Court on this issue is Mian Fatal Din v. Lahore Improvement Trust, Lahore (PLD 1969 SC 223) wherein reliance was placed on a judgment of the Lahore High Court titled Montgomery Flour and General Mills Ltd. v. Director, Food Purchases (PLD 1957 Lahore 914) wherein it was observed that for a person to have locus standi to initiate a petition for issuance of writ, he must have some right in the matter and he need not have a right in that strict sense of the term which is provided in Article 170 of the Constitution. Similar view was taken by the august Supreme Court of Pakistan in 1987 SCMR 2078 wherein PLD 1969 SC 223 supra was followed and it was observed that it is enough if the applicant discloses that he had a personal interest in the performance of legal duty which if not performed or performed in a manner not permitted by law could result in loss of some personal benefit or advantage, curtailment of privilege or liberty of franchise. In the case titled Dr. Imran Khattak and another v. Ms. Sofia Waqar Khattak, PSO To Chief Justice and others (2014 SCMR 122) the Hon'ble Supreme Court of Pakistan held as follows:--- "It would exercise such jurisdiction under Article 199(1)(a)(i), (ii) and (c) on the application of an aggrieved person while under Article 199(1) (b) (i) & (ii) on the application of any person whether aggrieved or not, and not on an information or on its own knowledge. In .the case of "Tariq Transport Company, Lahore v. Sargodha Bhera Bus Service and others" (PLD 1958 SC (Pak) 437), this Court held that a High Court was not competent merely on an information or on its own knowledge to commence certiorari proceedings or other proceedings of a similar nature under Article 170 of the Constitution of Islamic Republic of Pakistan, 1956. In the case of "Fail-e-Haq, Accountant General, West Pakistan v. The State" (PLD 1960 SC (Pak) 295), this Court reiterated the view by holding that the extraordinary jurisdiction relating to a writ could only be exercised by the High Court when moved by a party whose legal rights have been denied." ' In Hafiz Hamadullah v. Saifullah Khan and others (PLD 2007 SC 52) the apex Court held as follows:--- "With regard to the first objection it may be noted that under Article 199(1) (a) of the Constitutional jurisdiction of the High Court can be invoked by an aggrieved person which denotes a person who has suffered a legal grievance, against whom a decision has been pronounced which has wrongfully deprived him or wrongfully refused him something which he was legally entitled to. It is also the requirement that the person invoking the Constitutional jurisdiction under Article 199 of the Constitution has to establish that any of his legal or fundamental right guaranteed under the Constitution has been violated resulting in legal loss."
' In N.W.F.P. Public Service Commission and others v. Muhammad Arif and others (2011 SCMR 848) it was observed as follows:--- ' "The right which is the foundation of an application under Article 199 of the Constitution is a personal and individual right. The legal right , may be a statutory right or a right recognized by the law. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to perform relating to the right. There must not only be a right but a justiciable right in existence, to give jurisdiction to the High Court in the matter. Unless Whatever right personal or otherwise, on which the application is based is established, no order can be issued under Art. 199."
The petitioners are retired police officers who have no locus standi in respect of seeking a declaration to the effect that disciplinary proceedings initiated against respondents No, 5 & 6 are ultra wires the Constitution. The referred declaration by the petitioners is being sought on the basis of enforcement of fundamental rights and on the touchstone that the action taken by respondents No, 1 to 4 is based on mala fide and is coram non judice. The Hon'ble Supreme Court of Pakistan in a series of judgments has held that even if an order pertaining to the terms and conditions of service is based on mala fide or is without jurisdiction even then a petition under Article 199 of the Constitution is not maintainable. In this behalf reliance is placed on Pir Muhammad v. Government of Baluchistan (2007 SCMR 54) and Muhammad Khan Ranjha and another v. Secretary, Government of Punjab, Irrigation Department Lahore and 5 others (2014 PLC (CS) 244). All factual and legal defences are available to respondents No, 5 & 6 in the proceedings before the competent authority or the Service Tribunal. Similarly the petitioners have no locus standi to seek direction, on the basis of afore-mentioned judgments of the apex Court for initiation of action against public office holders as they do not have a legal right to ask for such a relief.
9.For the foregoing reasons, the instant petition is not maintainable and is hereby dismissed.
Writ Petition Dismissed as not Maintainable. ' Government of the Punjab was a party but as it appears it did not make appearance in the said Civil Appeal. In the second round of litigation before this Court, the MDA also filed C.P. No, 3857-L of 2001, in which Government of the Punjab was a party. In the RFA No, 328 of 2001 filed by Mst.
Nasreen Zahra, Government of the Punjab was not impleaded as a party but in the RFA No 366 of 2001 filed by the MDA, -Government of the Punjab was very much a party. At the time of hearing of the two RFAs so also ICA No, 229 of 1999, Government of the Punjab was very much represented through its learned Assistant Advocate General namely Mr. Muhammad Qasim Khan and this is reflected from the impugned judgment. In the face of so many proceedings in which Government of the Punjab was a party, it is hard to imagine as to how Government of the Punjab could be considered to have remained unheard in the matter of determination of the compensation to Mst.
Nasreen Zahra. In the three proceedings in which the impugned judgment was announced by the High Court, at least in two of them Government of the Punjab was directly a party, and those proceedings contained all material facts relating to acquiring of labd from Mst. Nasreen Zahra for construction of Multan Bye-Pass and in the determination of compensation and giving of Award by the Collector. Government of the Punjab had an opportunity of raising this objection that it has not been heard in the proceedings of determination of compensation but no such objection seems to have been raised by Government of the Punjab before the High Court. In any case, it became aware of the fact of acquiring of land of Mst. Nasreen Zahra when initial Writ Petition No 7932 of 1980 was filed by her and the culmination of such proceedings into an Award when RFA of MDA was served upon it No steps were taken by Government of the Punjab to ensure its representation at the stage of determination of compensation before the Collector or before the Referee Court. It, however, was represented in the two RFAs which arose from judgment of the Referee Court. Thus, we find no substance in this objection of the learned Additional Advocate General, Punjab. As regard the next submission of the learned Additional Advocate General that there were 108 effectees of whom 107 have been paid compensation and only Mst. Nasreen Zahra has not received the compensation. Though such submission ,was made by the learned Additional Advocate General but he did not point outfrom record as to who were those 107 effectees to whom compensation was paid and if paid at what rate and on the basis of which Award and of what date, as the proceedings for acquiring of land for construction of Multan Bye-Pass were initiated; as early as on 7.5.1976 when the first Notification under Section 4 of the Act was issued. The Award in the case of Mst. Nasreen Zahra was made by the Collector on 26.8.1998 by which Mst. Nasreen Zahra was allowed compensation @ Rs, 20,000/- per marla and it was not shown to us from the record that such compensation, after the Award, was rendered to Mst. Nasreen Zahra and that she refused to receive the same. What this argument of the learned Additional Advocate. General reflects is that there was no cavil to the compensation awarded to Mst. Nasreen Zahra but the grievance was that she did not receive the same while the other effectees have received their compensation.- As regards the submission of the learned Additional Advocate General that the first Award given by the LAC was @ Rs, 20,000/- per acre which comes to Rs, 153/- per marla while in the present case the Award is given @ Rs, 20,000/- per marla and the latter Award is claimed to be challenged by Government of the Punjab before this Court. The Award in this case was made by the Collector as back as on 26.8.1998 and it could not be directly challenged. By Government of the Punjab before this Court by filing C.A. No 2786 of 2006. However, we have looked into the record to ascertain the factum on the basis of which this argument of the learned Additional Advocate General is based and have found a copy of an Additional Award of the Collector, Land Acquisition, MDA, Multan, dated 2.10.1980 in respect of land in villages Ravi Mari Seatal and Kotla Muhammad Baqa for Multan Bye-Pass Phase-II. This Additional Award is available at page 226 of CMA No, 1831 of 2006 filed by the learned Senior ASC for Mst. Nasreen Zahra. This Award was made under the Punjab Acquisition of Land (Housing) Act, 1973, where it was noted that average sale price for two years prior to acquisition proceedings supplied by the Tehsildar, Multan, was Rs, 91,318/40 P.A., whereas, the maximum compensation prescribed by the Act was Rs, 20,000/- per acre and the latter amount was awarded as compensation. It has already been noted above, that application of Punjab Acquisitions of Land (Housing) Act, 1973 for acquiring of land of Mst. Nasreen Zahra for Multan Bye-Pass was declared to be illegal by this Court vide its judgment dated 26.5.1998 and directions were given for computation of the Award according to the Land Acquisition Act. In the face of the judgment of this Court being in the field we, cannot at all look into this argument of the learned Additional Advocate General as the same is not tenable. In any case, there is nothing on record to show that compensation allowed by the Additional Award dated 2.10.1980 @ Rs, 20,000/- per acre was accepted by any of the effectees whose land was acquired for the construction of Multan Bye-Pass. As regards the liability of Government of the Punjab for payment of compensation for the land acquired for construction of Multan Bye-Pass, the very first Notification dated 7.5.1976 issued under Section 4 of the Act shows that the land was acquired by Government of the Punjab for public purpose i.e, construction of Multan Bye-Pass. Through a Corrigendum Notification dated 18.3:1977, the land of Mst. Nasreen Zahra was included in the project i.e, construction of Multan Bye-Pass. The beneficiary of land in terms of the above Notification is Government of the Punjab and this fact alone is sufficient to establish its liability for payment of compensation for the land acquired.
6. We now take up the issue of payment of interest, as claimed by Mst. Nasreen Zahra in her petition dated/ 30.6.2006 filed before the Collector and in the Reference application also such claim was made by her. In RFA No, 328 of 2001 this was the only claim pressed by Mst. Nasreen Zahra. The relevant provisions that deal with payment of compensation in the Act is Section 31(1)`&
(2) which read as follows:--- "Sec.31. Paym ent of compensation or deposit of sum in the Court.---(1) On making an award under Section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them unless prevented by some one or more of the contingencies mentioned in the next sub-section.
(2) If they shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it the Collector shall deposit the amount of the compensation in the Court to which a reference under Sec. 18 would be submitted".
' Section 34 of the Act deals with the payment of interest and it reads as follows:--- ' "Sec.
34. Paym ent of interest.--When the amount of such compensation is not paid or deposited on or before taking possession of the land, the Collector shall pay the amount awarded with interest thereon at the rate of six per centunz per annum from the time of so taking possession until it shall have been so paid or deposited".
7. It is clear from reading of the provisions of Section 31 that on making of Award under Section 11 of the Act, the Collector is bound to tender the payment of compensation awarded by him to the person entitled thereto according to the Award. In case the Collector is prevented from tendering compensation awarded by him, the Collector is required to deposit the compensation in the Court to which Reference under Section 18 of the Act is made. The compliance of the provision of Section 31 of the Act by the Collector is mandatory for the simple reason that its non-compliance give. rise to penal consequences and such penal consequences are those as are provided in Section 34 of the Act i.e, interest prescribed therein will become payable.
8. Syed Najam-ul-Hassan Kazmi, learned Senior ASC for Mst. Nasreen Zahra has emphatically contended before us that neither the compensation awarded by the Collector to Mst. Nasreen Zahra was tendered to her nor was it deposited in the Referee Court where Reference was filed by Mst. Nasreen Zahra. The learned Additional Advocate General was unable to show us that on making of the Award, the Collector in fact tendered/offered compensation awarded by him to Mst.
Nasreen Zahra. Further we also note that the learned Additional Advocate General did not point out to us that the compensation awarded by the Collector was deposited in the Court where Mst.
Nasreen Zahra has filed Reference under Section 18 of the Act. The payment of interest as provided in Section 34 of the Act is mandatory and it has been so held by this Court in the case of Collector of Land Acquisition, Nowshera v. Fazal Rahim & 3 others [1984 SCMR 1043]. Therefore, in the absence of any proof that compensation amount awarded by the Collector was tendered to Mst.
Nasreen Zahra or was deposited with the Referee Court, in our view, will establish the claim for payment of interest, as provided under Section 34 of the Act. We may note that in the impugned judgment, the High Court while disallowing the claim for payment of interest to Mst. Nasreen Zahra assigned the reason that the Provincial Government has released Rs, 10 Million to the MDA for compensation. This reason from reading of the provisions of Sections 31 and 34 of the Act becomes altogether irrelevant in that the mandatory requirement of law is that the compensation amount awarded by the Collector was required to be tendered to Mst. Nasreen Zahra and in case the Collector was prevented from tendering the compensation amount to Mst. Nasreen Zahra, he was required to deposit the same in the Referee Court where Reference under Section 18 of the Act was filed by Mst. Nasreen Zahra. This having not been done, we are of the view that Mst. Nasreen Zahra is entitled to payment of interest, as provided under Section 34 of the Act.
9. We, therefore, allow Civil Appeal No, 1011 of 2006 to the extent as noted above and dismiss Civil Appeal No, 2786 of 2006. Civil Petition No, 538 of 2006 is converted into an appeal and is also allowed in the above terms.