JUDGMENT MAULVI ANWARUL HAQ, J. -- A loan in the sum of Rs.4,0, 000/- was sanctioned to the petitioner on 28.7.1992. Before the expiry of one year the petitioner repaid the said amount to respondent No. 2 on 26.8.1993. The said respondent raised a demand of Rs. 58,994/- as service charges. The petitioner feeling aggrieved approached the learned Federal Mohtasib with plea that there was no term in the agreement justifying the demand of said amount when he had repaid the entire loan before the stipulated period. The learned Ombudsman heard the matter and vide finding recorded on 21.2.2001 (Annex-B) held that the demand amounts to mal-administration in the absence of any provision in the contract to the contrary. Respondent No. 2 filed a representation before the President of the country in terms of Article 32 of the Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983. Vide 'letter dated 19.6.2001 Ministry of Law, Justice and Human Rights Division, Government of Pakistan, informed the petitioner that the President has been pleased to hold that the demand of respondent No. 2 could not be termed as maladministration and that dispute between the parties is determinable in accordance with the contract between the parties. The representation of the agency is accepted and finding dated 21.2.2001 of Wafaqi Mohtasib are set aside.
2. The petitioner in person contends that the said order of the President of Pakistan is violative of the law laid down by the Supreme Court in the case of Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad v. Muhammad Tariq Pirzada and 2 others (1999 SCM R 2744) and further upheld while deciding Civil Review No. 92/99 (1999 SCM R 2189). Learned Federal Counsel on the other hand states that order has been passed after due consideration of the matter. Learned counsel for respondent No. 2 also supports the impugned order.
3. I have gone through the. Finding recorded by the learned Ombudsman on 21.2.2001 and order of the President conveyed to the petitioner by concerned Ministry. I find that the learned Ombudsman has recorded a finding, with reasons that the agreement between the parties was not based on concept of payment of interest and that it provided that construction was to be completed within agreed period of one year and thereafter monthly instalments to be paid for 240 months, it was further found that repayment in instalments had been calculated by determining the rental value of the building irrespective of fact whether it fetches said rental income or not. It was thus observed' that the application of a Notification, in the present case, which is based on the issue of calculation of interest to a partnership agreement amounted to miscarriage of justice and mis-use of the authority by the Government Agency and, therefore, it amounts to mal-administration. The learned Ombudsman further observed that the agreement/deed of assignment between the parties does not disclose at all that interest is recoverable from the partner, In nutshell the finding recorded was that since within time agreed between the parties to be made available to the petitioner for construction of the house, he had repaid the entire amount of the loan, there was no question of payment of any rental or any interest as the same had not accrued during the period provided for the said construction.
4. The order passed by the President as conveyed to the petitioner (Annex-A) on the other hand does not disclose any reason as to how it has been found that the demand of the agency cannot be termed as maladministration. To my mind, the said * order does not answer any of the reasoning forwarded by the learned Ombudsman while holding that the said act of the respondent No. 2 in making a demand of amount not found to be recoverable under terms of the agreement between the parties- is mal-administration.
5. The impugned order of the President thus fails to meet the criteria laid down in The Federation of Pakistan Vs. Muhammad Tariq Pirzada (1999 SCM R 2744). Mr. Justice Irshad Hasan Khan (as Hon'ble Chief Justice then was), thus expressed the opinion of the Court in para 9 of the said report appearing at page 2749:- "There is nothing in Article 32 of the Order to support the plea raised by the learned Deputy Attorney-General that while disposing of a representation the President can pass any order without assigning reasons. The Order is a self-contained code and provides methodology and manner of enforcement of the findings recorded and the recommendations made by the Mohtasib on complaints lodged by any person against mal-administration And injustice suffered by him. The institution of the Wafaqi Mohtasib was established for redressal of the people against mal- administration of the Agencies. Thus, visualized, the recommendations made by the Mohtasib cannot be lightly interfered by the President m exercise of power vested in- him under Article 32 of the Order, except for, valid reasons to be assigned in writing. Suffice it to say that even if the President, while seized of a petition under Article 32 of the Order, is considered as .An administrative authority, whether acting independently or on the advice of the Prime Minister, is under legal obligation to deal with the represent Question before him fairly and justly and complainant in whose favour finding has been recorded and recommendations made by the Wafaqi Mohtasib, has a legal right to demand that the President should decide the representation affecting his valuable right by assigning valid reasons, if the findings/recommendations by the Mohtasib are sought to be set aside, reviewed or modified."
This writ petition is accordingly allowed and the impugned order conveyed to the petitioner vide letter dated 19.6.2001 (Annex-D) is set aside. No order as to costs.