' Brief facts out of which the present writ petition arises are that respondent No,4 allotted the property in question to respondent No,2, vide order, dated 22-3-1981. Respondent No,2 filed a suit.
For declaration against respondents before Civil Judge 1st Class, Sialkot, the suit was decreed, vide judgment and decree, dated 22-9-1987. Respondent No,3 filed an application on 10-10-1987 before respondent No,5 for cancellation of allotment order, dated 22-3-1981. Respondent No,5 assumed the jurisdiction and issued notice to respondent No,2. Respondent No,2 filed Writ Petition No,2308 of 1999, against assumption of jurisdiction of respondent No,5 with regard to property in question on the basis of judgment and decree of Civil Court, dated 22-9-1987. Writ petition was dismissed by this Court, vide order, dated 21-11-1992 that Civil Court has no jurisdiction to take cognizance of the matter and proceedings initiated by respondent No,5 is legal and valid. Respondent No,5 after providing proper opportunity of hearing and recording evidence of the parties held that property in question is an Evacuee Property, vide order, dated 14-9-1995, and consequently, the order, dated 22-3-1981, was cancelled. Respondent No,2 being aggrieved filed a revision petition before Federal Government, which was accepted, vide order, dated 8-5-1987 by Federal Government and remanded the matter to respondent No,5 to decide afresh. Respondent No,5 after remand and proper hearing to all concerned upheld the earlier order, dated 14-9-1995. Respondent No,2 being aggrieved filed revision petition before Secretary to Government of Pakistan, Ministry of Religious Affairs, who accepted the same vide order, dated 21-11-1988, hence, present writ petition.
2. Learned counsel of the petitioner submits that the impugned order does not contain any valid 'reason. He further submits that respondent No,1 reversed the findings of respondent No,5 without adverting to the reasoning's of respondent No,5. He further submits that respondent No,5 had given findings after appointing Local Commission and recording evidence. The same was reversed by respondent No,1 without cogent reasons as is evident from the operative part of the findings of the impugned order of respondent No,l.
3. Learned counsel of respondent No,2 submits that writ petition is liable to be dismissed as the petitioner is a tenant of the property in question. He further submits that petitioner was not a party before the Tribunal below. He further submits that department did not challenge the order of respondent No,1, therefore, the order of respondent No,1 has become final. Department filed report and parawise comments through Rafiq Ahmed Malik, Advocate, whose name is mentioned in the cause list. Despite repeated calls, he did not enter appearance. Malik Muhammad Azam Rasool, Advocate who is on panel of the respondent department is also present in the Court in connection with another case. He was directed to assist the Court. After perusing report and parawise comments filed by department he submitted that property vests to Federal Government and Evacuee Trust Property Board has no authority under the law to challenge the same before this Court.
4. Learned counsel of the petitioner in rebuttal submits that the petitioner is an aggrieved person as the petitioner is a tenant of the department and ejectment petition is pending adjudication before Rent Controller, in which the department has taken its stand that property belongs to department, whereas respondent No,2 claimed titled of the property on the basis of valid order issued by respondent department in his favour. In support of his contention, he relied upon the following judgments:-- ' Muhammad Afzal and others v. Government of Pakistan and others 1987 SCMR 2078, Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (K.M.C.), Karachi 1999 SCMR 2883, Muhammad Akhtar v. Abdul Aziz and 2 others PLD 1996 Lah. 232 and Messrs Pioneer Cement Limited through Kanwar Iqbal Talib, duly authorized Director v. Province of the Punjab 2000 CLC 54.
' He further submits that the order of respondent No,1 is not sustainable in the eyes of law as the same is in violation of law laid down by the Superior Court. In support of his contention, he relied upon Pervaiz Oliver and others v. St. Gabrial School PLD 1999 SC 26.
5. I have given my anxious consideration to the contention of learned counsel for the parties and perused the record myself.
6. It is settled principle of law that Government property must be allotted to a citizen in accordance with law. In case public functionaries allotted land in derogation of law to any citizen then heavy duty casts upon the Court to rectify that mischief. Arriving to this conclusion, I am fortified from the law laid down by Honourable Supreme Court in case of Pervaiz Oliver and others v.. St. Gabrial School through Principal PLD 1999 SC 26 and the relevant observation is as follow:- "Pausing here, we consider it our bounden duty to observe that may of those in the administration, politicians and bureaucrats alike, virtually consider public property as their own to be appropriated or allocated at their whims or fancies nothing is further removed from legal realities. No public property, big or small, tangible or intangible, can be disposed of except in accordance with law.
Those who transgress, expose themselves to the severest of penalties under law, the cardinal principle being the higher the functionary the higher the responsibility and, for that reason, the stricter the punishment."
7. It is settled proposition of law that Courts had to protect interest of the tax-payers as well as the public exchequers notwithstanding follies of illogical and some time even casual attitude of the custodian of the public exchequer as per principle laid down by the Honourable Supreme Court in Province of Punjab and 30 others v. Muhammad Dawood Khan Tariq 1993 SCMR 508. Reference in this regard can be made to Javed Iqbal Abbasi & Company v. Province of Punjab 1996 SCMR 1433. It is also settled proposition of law national interest must take precedent over private interest and individual rights as per principle laid down by the Honourable Supreme Court in Haji Saif Ullah's case PLD 1989 SC 166. It is pertinent to mention here that the order of respondent No,1 is not in accordance with law and is result of misreading and non-reading of the record, therefore, it is without lawful authority as per principle laid down by superior Courts. In case of S.A. Matin and another v. Province of Sindh through Secretary, Department of Excise, Taxation, Housing, Town Planning and Local Government and 9 others PLD 1976 Kar.
36. Relevant observation is reproduced hereunder:-- "In the face of these findings, it is difficult to conceive how learned Provincial Secretary could have possibly reached the conclusion that the dangerous portion of the building can be retained after proper repairs. We, therefore, find that each and every conclusion reached by learned Provincial Secretary in the impugned order has been based on facts that are erroneous or have no basis on the record. The legal position in such a situation is well-settled. In words of the Supreme Court of Pakistan in Government of Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14: 'Action taken upon extraneous or irrelevant consideration is also not action in accordance with law. Action taken upon no grounds at all or without proper application of the detaining authority would also not qualify as action in accordance with law and would, therefore, have to be struck down as being action taken in an unlawful manner'. These observations fully apply to the impugned order passed by the Provincial Secretary in this case, and he, therefore, declare it as illegal and without lawful authority."
It is the duty and obligation of public functionaries to pass orders in accordance with law as is envisaged by Article 4 of the Constitution as per principle laid down by the Honourable Supreme Court in PLD 1987 SC 447 in Utility Corporation's case.
8. In view of the aforesaid circumstances, I intend to decide now preliminary objection raised by learned counsel of the respondents that petitioner has no locus standi. Similar objection was raised and turned down by my learned brother Karamat Nazir Bhindari, J. In case of Messrs Pioneer Cement Limited v. Province of the Punjab 2000 CLC 54. Relevant observation is as follows:-- "It is sufficient if it is shown that the performance of a legal duty or action in accordance with law by the respondent has the tendency to benefit the person. I, therefore, overrule this preliminary objection."
Since the property of the Government had been allotted by respondent No,4 to respondent No,2 in derogation of law, which was set aside by the Chairman, Evacuee Trust Property Board, whereas, the order of respondent No,4 was upheld by respondent No,1 without any justification. In this view of the matter preliminary objection has no force, in view of the law laid down by superior Courts in following judgments:-- ' Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (K.M.C.), Karachi 1999 SCMR 2883; Muhammad Afzal and others v. Government of Pakistan and others 1987 SCMR 2078 and Fazal Din v. Lahore Improvement Trust PLD 1969 SC 223.
Since the impugned order does not contain any reason, therefore, the same is not sustainable in the eyes of law. It is the duty and obligation of the public functionaries to decide the controversy with reason after addition of section 24-A in the General Clauses Act. I am fortified by the judgment of the Honourable Supreme Court in case of Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268. Since the impugned order of the Secretary is not in accordance with the dictum laid down by the Honourable Supreme Court and is in violation of the mandate of the Constitution. Therefore, the same is not sustainable in the eyes of law. It is better and appropriate to reproduce the operative part of the impugned order of respondent No,1 and operative part of the order of respondent No,5 for comparison, which compelled me to exercise my discretionary jurisdiction under Article 199 of the Constitution.
9. The operative part of the order of respondent No,1 is reproduced as follows:-- "After careful consideration of the facts of the case, I come to the conclusion that the Chairman, E.T.P. Board had declared the property to be an evacuee trust property on the basis of record of Excise and Taxation whereas according to the statement of NaibTehsildar, Narowal and Excise Inspector, E.T.O., Narowal, it appears that there is no record available regarding this property in the Revenue as well as Excise and Taxation Department. The Chairman, E.T.P. Board had declared the property as an evacuee , trust property, on presumption. I, therefore, accept the revision petition and set aside the order of the Chairman, E.T.P. Board."
' The operative part of the order of respondent No,5 is reproduced as follows:-- "The record of the Excise and Taxation Department clearly indicates that the property in question is attached to Mandir. It is also a fact that all the surrounding sides of the property in question are Mandir properties and opening of the property in question is also in the Mandir premises. This all leads to the conclusion that the property in question is an evacuee trust property which is declared so. Let a notification be published in the official gazette.
' As far as transfer of the property in question in favour of the respondent No,1 by the respondent No,2 is concerned it was without competence and also the T.O., dated 22-3-1981 is of after the target date which is cancelled."
10. Mere reading of the aforesaid conclusion of both the Authorities, it is crystal clear that the order of respondent No,5 is valid based on reason, whereas the order of respondent No,1 is not sustainable in the eyes of law as respondent No,1 did not give any cogent reason to reverse the findings of the order of respondent No,5.
9. In view of what has been discussed above, this writ petition is accepted with no order as to cost.
The order of respondent No,1 is set aside. #EndJudgment