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P L D 2000 KARACHI 224

ABDUL HAQ AND OTHERS
V/S
PROVINCE OF SINDH AND OTHERS

Per Mushir Alam, J.(a) Constitution of Pakistan (1973) Art. 199

Indeed in contractual matters it is settled proposition of law that writ would not lie to enforce contract simpliciter, but observance of statutory rules and regulations by the public functionaries, governing such contract can be enforced through writ of mandamus (for reference one can look at 1992 CLC 2329, PLD 1992 Kar. 283, 1993 CLC 432, 1998 CLC 833 and PLD 1999 Kar. 472).

Petitioners in order to seek enforcement and due observance of statutory rules and obligations on the parts of public/executive functionaries must successfully demonstrate that there exists in their favour clear and undisputed right or interest which need be recognized, and respected only then they can seek enforcement of corresponding obligations and duties on the part of public/executive functionaries through appropriate writ.
[p. 230] A

(b) Constitution of Pakistan (1973) Arts. 129, 137 & 139

Under the Constitution of Pakistan, 1973 executive authority of the Province vests in the Provincial Governor, (Article 129). Such authority is to be exercised by him directly or through other functionaries under the Constitution; Chief Minister and other Minister of his Cabinet exercise executive authority as delegatee of the Provincial Governor by virtue of “Sind Government Rules of Business” (Rules of Business) framed under sub-Article (2) of Article 139 of the Constitution. Exercise of executive authority is not unfettered, unbridled or uncontrolled but under Article 137, is circumscribed, conferred and regulated by the Constitution or legislative instruments framed thereunder.[p. 232] B

(c) Constitution of Pakistan (1973) Art. 199

In a Constitutional set-up all the functionaries derive power and authority from the Constitution itself or from the law as may be framed by Legislature—Obedience to the Constitution and law is inviolable obligation of every citizen; higher the authority more the responsibility for such obedience and swear allegiance to discharge their respective duties and to perform functions honestly to the best of their ability, faithfully in accordance with the Constitution and the law, in the interest, well-being and prosperity of the Country—Any failure or disobedience in the due observance and performance of such inviolable obligation may attract judicial superintendence, enforcement and correction by way of appropriate writ in Courts of law. [p. 233] C

(d) Constitution of Pakistan (1973) Art. 139

Any effort to extract authority under the ‘Sindh Government Rules of Business, 1986’ is futile and dangerous, as ‘Rules of Business’ cannot be equated with statute law. Same are subordinate legislation tending to facilitate expeditious disposal of Government business of meet the convenience and requirement of the public in a democratic and Constitutional set-up, through the medium of authorities and public functionaries mentioned therein including the Chief Minister, this is in consonance with principles of policy as enshrined in Article 37(i) of the Constitution. Rules of Business do not enlarge or enhance the jurisdiction and scope of authority of executive/public functionaries but, merely regulate the exercise of already existing authority and jurisdiction as are conferred by the Constitution and statute law enacted thereunder.[pp. 233, 234]D,E.

(e) Constitution of Pakistan (1973) Art. 137

Federal Government of Pakistan and others 1996MLD 705), it was held that where appropriate Legislature is available, its provisions are to be followed by the executive authority in the matter of sale, mortgage or disposal of property vested in Government.[p.234]F
(f) Constitution of Pakistan (1973) Art. 137

In view of above discussion, there is no difficulty in arriving at a conclusion that under Article 137 of the Constitution read with M.L.Os. 60 and 69 and Reappropriation Rules, 1962 read together with clause 10(g) of the lease deed reproduced above, the Chief Minister lead no authority whatsoever, either to review or extend the lease in relaxation of rules, by passing, ignoring the Constitution, and law regulating such lease. The renewal/extension of lease granted by the Chief Minister is not only flagrant breach of this “inviolable obligation” to respect Constitution but also in disregard of the Oath of office which he had taken, as such, cannot be approved by the Courts of law. It is thus liable to be struck down. Above view also finds support from cases reported as the State v. Abdullah Shah 1988 MLD 216) and Zahur Illahi v. Mr.Zulfiqar Ali Bhutto (PLD 1975 SC 383).[p. 234] G
(g) Constitution of Pakistan (1973) Art. 137

From the facts on record, there is no difficulty in arriving at a conclusion that extension/renewal of lease is in breach of Constitution apart from statutory rules and regulations. Simply because renewal/extention was granted by the highest authority of the Province, will not give it any solemnity or lend validity. The principle “Ab initio non valet intractutemporis non condalescit” (that which was originally void does not by lapse of time become valid), would also strictly apply.
[p. 236] J

(h) Constitution of Pakistan (1973) Art. 199

High Court, in this writ jurisdiction will not extend the protection of law to a delinquent person to retain a gain, privilege or benefit which was acquired by manipulation and in flagrant violation of mandate of law. High Court will not endorse an executive act, even of the highest executive authority of the Province if the same is established to be in excess of authority and in breach of Constitutional provisions and law as is the case in the instant petition. [p. 237] M

(i) Constitution of Pakistan (1973) Arts. 199 & 137

Case in hand is one of the many, glaring examples of abuse of public confidence and breach of trust on the part of executive functionaries, who take pride in flouting the law, higher the authority more reckless it is. In an environment of nepotism and anarchy if a new incumbent in the office of Chief Conservator of Forests the respondent No. 3 has revoked the extension of lease which was inherently illegal and void ab initio, by doing so respondent No. 3 has in fact retracted the wrong step, in order to retrieve and restore the public property to be dealt with strictly in accordance with law. Such action even if in deviation of certain norms and procedure cannot be said to be altogether illegal and unjust as it is step in right direction that has set right a wrong. [p. 237] N

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