' This judgment will dispose of (1) Writ Petition No,7361 of 2003 titled Mimi Ameer Nasir v. Tahir Gujjar, S.H.O., Police Station Defence Area, Lahore and others (alongwith C.M. No,901 of 2003); (2) Writ Petition No, 8976 of 2003 titled Muhammad Azhar Malik v. Defence Housing Authority and others and (3) Writ Petition No,8977 of 2003 titled Mian Amir Yassar v. Secretary, D.H.A., Lahore Cantonment and others.
2. The brief facts are that Mian Ameer Nasir, petitioner, filed Writ Petition No,7361 of 2003 on 31-5- 2003 to the effect that he is a practising lawyer and on 31-5-2003, around 9-30 a.m., three employees of respondent No,4 came to the shop of his brother namely: Mian Amir Yassar situated at 160-G, D.H.A., Lahore Cantt and asked about the water which was leaking out from the water pipe. Thereafter respondent No,3 came there with three employees of D.H.A. Equipped with arms and shouted that the amenities of the shop be cut of but due to intervention of the respectables of the locality and other shopkeepers, they could not do so. The brother of the petitioner called the petitioner on telephone and .Informed him about- what had happened and so the petitioner also reached there and alongwith his brother he went to the police station and submitted an application to respondent No,1 but respondent No,1 instead of taking legal action, stood up, caught hold of his neck-tie and told him that the society had the powers to do anything they liked.
Thereafter three employees of D.H.A. Alongwith others gave severe beating to the servant's of the petitioner and his brother and the injured persons were produced before respondent No,
1. On the refusal of respondent No,1 to get them medically examined, the petitioner obtained the order for their medical examination from the Court of learned Special Magistrate, Lahore Cantt and got the medico-legal examination conducted. In the petition it was prayed that (1) a criminal case be ordered to be registered against those who had taken the law into their hands and they be directed to be dealt with in accordance with law; (2) the police authorities may be directed to take departmental action against respondent No,1; (3) a direction be issued to the D.H. A. To deseal the shop of the brother of the petitioner as the same had been sealed without serving notice on him.
3. On 2-6-2003 this Court passed an order for sending copies of the writ petition to respondents Nos.1, 2 and 4 and requiring them to submit report/parawise comments.
4. On 10-6-2003 Tahir Mehmood, Inspector/S.H.O. i.e, respondent No,1 appeared and submitted reported/parawise comments. On the same day, on account of the allegations levelled by the petitioner against respondent No,1/S.H.O. a direction was issued to the S.P. Cantt., Lahore to hold an inquiry into the allegations against respondent No,1' and to submit his report to the Deputy Registrar (Judi.) of this Court.
5. In response to the order passed. By this Court, reply/parawise comments were also submitted on behalf of D.H.A. And wherein a number of preliminary objections were also raised including about the locus standi of Mian Amir Nasir who is a practising lawyer to file the writ petition. An objection was also raised that the petitioner had not availed of other efficacious remedy available to him under the law (before filing the writ petition) and hence the writ petition was not competent. From the side of the petitioner a replication was also filed in response to the report/parawise comments of D.H.A.
6. Before the arguments on Writ Petition No,7361 of 2003 were concluded, Writ Petition No,8976 of 2003 was filed by Muhammad Azhar Malik wherein a detail was given of his dispute with Mst.
Kishwar Javed Awan, wife of Malik Muhammad Javed Awan about the shop in dispute. In the petition it was also alleged by him that respondent No,I in league with respondent No,4 (Mst.
Kishwar Javed Awan) was extending threats to him of dire consequences. It was prayed by him that sealing of shop of his tenant i.e, Mian Amir Yassar be declared as without any justification. It was also prayed by him that the shop in question be ordered to be desealed and respondent No,1 be directed to remain within four corners of law and not to harass the petitioner and his family members.
7. At the same time Mian Amir Yassar also filed Writ Petition No,8977 of 2003 wherein he repeated the same story about the occurrence as was narrated in the Writ Petition No,7361 of 2003 and prayed that the orders be passed for desealing his shop as the sealing of his shop by the employees of the D.H.A. Was uncalled for, illegal and against the cannons of justice. It was prayed by him that a direction be issued to respondent No,1 to deseal the shop of the petitioner. It was also prayed by him that a direction be issued to the S.H.O. Of Police Station Defence Area, Lahore Cantt.
To remain within the four corners of law and to refrain from causing harassment to the petitioner and to other members of his family.
8. All the three petitions were resisted by the learned counsel appearing on behalf of the D.H.A. The learned counsel for Mst. Kishwar Javed who had filed an application under Order I, rule 10 read with section 151, C.P.C. (C.M. No,901 of 2003) for being impleaded as a party in Writ Petition No,7361 of 2003 was also provided an `opportunity to address arguments regarding the view-point of her client i.e, Mst. Kishwar Javed.
9. So far as Writ Petition No,7361 of 2003 is concerned, the same was filed by Mian Amir Nasir, Advocate, who is brother of Mian Amir Yassar. In the writ petition filed by him there is mention of sealing of shop of his brother by the employees of the D.H.A. Without issuing proper legal notice and a' mention is also made therein about the. Maltreatment on the part of respondent No,1/S.H.O.
10. So far as the alleged conduct of the. S.H.O. Is concerned, a direction has already been issued to the S.P., Cantt. To hold an inquiry into the allegations levelled against respondent No,1/S.H.O. On the request of the petitioner a direction was issued to the S.H.O. On 10-6-2003 to proceed further in the matter in accordance with law, if the application of the petitioner discloses a cognizable offence.
As such concerning the aforesaid two matters further proceedings in this writ petition are not required.
11. As regards sealing of the shop of Mian Amir Yassar, he has himself filed Writ Petition No,8977 of 2003 about the same. So far as Mian Amir Nasir is concerned, he is obviously not an aggrieved person, so far as the question of sealing or desealing of the shop of his brother is concerned and hence his writ petition to that extent is not competent.
12. So far as C.M. No,901 of 2003 is concerned, as the main writ petition is being disposed of today, there is hardly any justification for impleading Mst. Kishwar Javed as a party to the said writ petition. Even otherwise the question of sealing or desealing of the shop is a matter between Mian Amir Yassar i.e, the tenant and the D.H.A. And hence the writ petition can be decided even without impleading her as a party to the petition. Keeping in view the subject-matter of the writ petition, there is hardly any justification for impleading Mst. Kishwar Javed as a party to the writ petition and hence this petition (C.M.) cannot proceed further and is accordingly disposed of.
13. Now we come to the writ petition filed by Muhammad Azhar Malik (Writ Petition No,8976 of 2003).
By filing this petition the petitioner i.e, Muhammad Azhar Malik has prayed that issuance of letter No,COM/461/PH/A, S.No,0054792, dated 19-4-2003 in respect of Property No,160-G, D.H.A., Lahore Cantt. Be declared as illegal, unlawful, void and of no consequence. He has also prayed that the shop of his tenant (which was sealed by the D.H.A.) be desealed as the same had been sealed without issuing a notice.
14. Admittedly the matter about the shop in question is sub judice before the Civil Court. In exercise of Writ Jurisdiction, this Court would like to transgress upon the jurisdiction of the Civil Court before which the matter is already pending. Even otherwise, in order to decide any dispute regarding the ownership of the shop in dispute, evidence will have to be recorded and this exercise cannot be undertaken while deciding a writ petition. The matter which is already pending before the Civil Court between Mst. Kishwar Javed and Muhammad Azhar Malik about the premises in question cannot be agitated before this Court through a writ petition. Hence the writ petition filed by Muhammad Azhar Malik in that respect is not competent.
15. Now we come to the writ petition filed by Mian Amir Yassar (Writ Petition No,8977 of 2003). In this writ petition the petitioner mainly narrated the same story as was narrated by his brother Mian Amir Nasir in Writ Petition No,7361 of 2003. In his writ petition he has taken the plea that he (being in possession of the shop in dispute) is directly aggrieved of the impugned action of the respondents and employees of D.H.A. He has taken the plea that the action taken by the D.H.A. Was unjust and had resulted into miscarriage of justice and had caused undue harassment to him and to his other family members. It was prayed by him that an order be passed for desealing his shop and a direction be also issued to the S.H.O., Police Station Defence Area to act in accordance with law.
16. I have heard the arguments at length. The learned counsel for the petitioner has referred to the Article 19(1) of the Defence Housing Authority Lahore Order, 2002 and which reads as below:-- "19(1). If any building, structure, work or land is erected, constructed or used in contravention of the provisions of this order or any rules, regulations, or orders made thereunder, the Authority or any person authorized by it in this behalf, may by order in writing, require the owner, occupier, user or person in control of such building, structure, work or land, to remove, demolish or alter the building, structure or work or to use it in such manner as may bring such erection, construction or use in accordance with the provisions of this Order.
19(2). If an order under subsection (1), in respect of any building, structure, work or land is not complied with in such time, as may be specified therein, the Authority or any person authorized by it in this behalf, may, after giving the person concerned an opportunity of being heard, remove, demolish or alter the building, structure or work, or stop the use of the land and in so doing, may use such force as may be necessary and may also recover the cost thereof from the person responsible for the erection, construction, or use of the building, structure, work or land in contravention of the provisions as aforesaid."
17. The learned counsel for the petitioner has argued that the petitioner i.e, Mian Amir Yassar is admittedly in possession of the shop in question. However, no order in writing was issued to him, requiring him as an occupant, user or person in control of the building/premises in question to use the same as required by the said Authority (to stop the leakage of water). He has argued that although the disputed leakage has nothing to do with the premises in question, yet even if it be assumed that it had anything to do with the shop of the petitioner, in that case an order should have been issued under Article 19(1) of the Defence Housing Authority Lahore Order, 2002, to him as occupier and user of the premises in his capacity as tenant and not to Mst. Kishwar Javed, who claims to be the owner of shop in question as the matter between her and Muhammad Azhar Malik is pending before the Civil Court and unless the Civil Court decides the matter in her favour, she cannot be described as the owner of the disputed property and hence there was no lawful jurisdiction for issuing the order/notice to Mst. Kishwar Javed who was not present there and was not in picture at all. He has argued that an opportunity of being heard, as required under Article 19(2) of the Defence Housing Authority Order, 2002 was not provided to the petitioner i.e, Mian Amir Yassar and hence the sealing of the premises without issuing any notice/order in writing to him and without providing him the opportunity of being heard was illegal and hence was liable to be set aside. The learned counsel for the petitioner has submitted that the shop of the petitioner remains sealed on account of the alleged leakage of water from the pipe, although about 1-1/2 months have elapsed and the petitioner has been deprived of the means of his livelihood without any lawful justification and hence he and other members of his family are hardly able to keep both ends meet as the premises where the petitioner was carrying on business had been sealed without any lawful justification. It was prayed by him that an order be passed for desealing the premises in question.
18. The learned counsel appearing on behalf of the D.H.A. Has vehemently argued that the petitioner was a trespasser and an illegal occupant of the property described as 160-G, D.H.A. And that he and his employees had in fact indulged in lawlessness and had resisted/obstructed the employees of D.H.A. In the performance of their duties and had tried to attack them. He has argued that the petitioner had filed a false affidavit and was liable to be prosecuted. He has argued that the petitioner has not availed of other efficacious remedy before coming to this Court and hence the writ petition filed by him is not competent.
19. Admittedly Mian Amir Yassar is the occupier/user or a person in control of the premises in question. As such it was incumbent upon the D.H.A. To issue an order in writing to him in case it had been found that he was using the building in contravention of the provisions of the Defence Housing Authority Lahore Order, 2002, or any rules, regulations or orders made thereunder. In case any such order issued under Article 19(1) was not complied with within such time as was specified in such order, it was incumbent upon the authority or any person authorized by it to give to the occupier/user of the building/ premises an opportunity of being heard and thereafter, if he failed to stop the use of premises in violation of the rules, the D.H.A. Could use such force as may be necessary, in order to stop him from using the building in said violation of law, rules and regulations. However, during the course of arguments it has transpired that a notice/order, was issued by the Authority to Mst. Kishwar Javed who claimed herself to be the owner of the premises and in that respect was litigating with the other claimant Muhammad Azhar Malik. The issuance of notice to Mst. Kishwar Javed as an owner of the premises did not fulfil the requirement of Article 19(1) of the Defence Housing Authority Lahore Order, 2002, as she was not occupier/user or the person in control of the premises in question and which was certainly in possession of a tenant i.e, Mian Amir Yassar and it was he who was allegedly violating the rules. The opportunity of being heard as required under Article 19(2) of the D.H.A. Order, 2002 was also not provided to the petitioner i.e, Mian Amir Yassar. Hence the impugned action of sealing the premises in question cannot be considered to be lawful.
20. In view of what has been stated above Writ Petition No,7361 of 2003 is disposed of with the remarks that Mian Amir Nasir was not an aggrieved person so far as the question of sealing of the shop of his brother was concerned and hence his prayer in that respect (as contained in the writ petition) cannot be granted (in the writ petition filed by him).
21. So far as Writ Petition No,8976 of 2003 filed on behalf of Muhammad Azhar Malik, through his special attorney namely Muhammad Zahid Malik is concerned, as the matter between him and Mst. Kishwar Javed is sub judice before the Civil Court and which is the proper forum for adjudicating such a dispute, the writ petition filed by him is misconceived and is accordingly disposed of.
22. So far as the writ petition filed by Mian Amir Yassar petitioner is concerned, he is admittedly the tenant/occupier/user or a person in control of the premises in question but no notice was issued to him under Article 19(1) of D.H.A. Order, 2002, nor an opportunity was provided to him of being heard (as required by Article 19(2) of the aforesaid Order). Hence the sealing of his shop without issuing a notice/order in writing to him and without providing him an opportunity of being heard is certainly unwarranted and hence it is declared as illegal. In consequence the writ petition filed by Mian Amir Yassar (Writ Petition No,8977 of 2003) is accepted to the extent that the sealing. Of the shop in question without issuing an order in writing to him as occupier or user of the premises in question and without providing him an opportunity of being heard is illegal and in consequence a direction is issued to respondent No,1 i.e, the Secretary, Defence Housing Authority to issue necessary orders for desealing the premises in question and in case the Authority feels that the petitioner is using the building/premises in contravention of the provisions of D.H.A. Order, 2002, or any rules, regulations or orders made thereunder, the Authority or any person authorized by it in this behalf, may by order in writing, as required under Article 19(1) of the D.H.A. Order, 2002, require the petitioner/occupier of the premises to remove such misuse of the building and in case such order is not complied with within such time, as may be specified in the said order, the Authority or any person authorized by it in this behalf, may after giving the petitioner an opportunity of being heard (under Article 19(2) of the D.H.A. Order, 2002) can proceed further to stop the said misuse of the building in contravention of rules/regulations.