MUHAMMAD ASHFAQ vs IMRAN NADEEM S — 2023 PLD 694 LAHORE-HIGH-COURT-LAHORE

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MUHAMMAD ASHFAQ VS IMRAN NADEEM S. 12(2)---Constitution of Pakistan, Art. 199(1)(a)(i)---Writ of mandamus---Application filed under S. 12(2), C.P.C. for setting-aside a writ of mandamus issued by the High Court---Respondent had filed a Constitutional petition whereby he made complaint about the inaction of the Director General, Faisalabad Development Authority (DG, FDA) regarding non-deciding his pending application and sought direction to FDA for disposal of his pending application expeditiously---High Court issued writ of mandamus to the DG, FDA with the direction that respondent's application shall be decided strictly in accordance with law by providing opportunity of hearing to all concerned, within a period of one month---Present applicants filed an application under S. 12(2), C.P.C., for recalling/setting-aside the High Court's order on the plea that on account of inaction of the FDA regarding respondent's application he instituted a declaratory suit for obtaining the same relief, which was dismissed, and appeal thereagainst was also dismissed as withdrawn by the first appellate Court; that in such circumstances, the application filed by the respondent before the FDA had become infructuous, and thus, there was no occasion for the respondent to file the writ petition for getting direction from the High Court, which directions was obtained by concealment of facts and fraud---Validity---If the FDA made an incorrect decision, it did not create any right in favour of any party to approach the High Court to ask for recalling/setting-aside the impugned order of mandamus, as that concerned only the decision of the pending application which was to be decided in accordance with law---Direction of the High Court was only to take a decision on the undecided/unattended application in accordance with law---It should have been decided by the FDA after considering all the facts and circumstances of the case, relevant laws and affording proper opportunity of hearing to both the parties---If any illegality had been committed by the FDA while deciding the application by not giving due weight to the documentary evidence produced by the applicants, in such eventuality, the said order was liable to be challenged on the same grounds before an appropriate forum---Concealment of facts may be a good ground to challenge the validity of the order but it cannot be considered a ground for setting-aside the order passed by the High Court---It was never the intention of the High Court while issuing the impugned direction to favour any of the parties but the only purpose of the direction was to point out to that FDA to perform its duty qua a pending issue within parameters of the law---Application under S. 12(2), C.P.C was dismissed as being not maintainable. art. 199(1)(a)(i)---Writ of mandamus issued to an authority by the High Court---Scope---applicant mistakenly filing an application before an incompetent authority, having no jurisdiction in the matter---High Court issuing a writ to such authority on basis of which such authority assumes jurisdiction---Legality---assumption of such jurisdiction is wrong---It is the duty of any such authority that upon receiving any direction from the High Court, it has to first decide its competency about decision making powers regarding the matter concerned and on the basis of that either return the application or forward the same to the concerned competent authority for its decision along with a copy of order of the High Court---assumption of jurisdiction on the basis of the High Court's direction does not make any incompetent authority's order in accordance with law even if such a decision arises under the misconception that jurisdiction was assumed under the direction of the High Court. art.199(1)(a)(i)---Writ of mandamus---Meaning---article 199(1)(a)(i) of the Constitution empowers the High Court to issue direction to the authorities working within its territorial jurisdiction who have failed to decide any pending matter and thus have not performed their duties as required by law---High Court can (and must) issue direction to every functionary to do the needful provided that this is done in accordance with law as it is their duty to act fairly, justly and reasonably in the discharge of the said duties.

MUHAMMAD ASHFAQ vs IMRAN NADEEM S — 2023 PLD 694 LAHORE-HIGH-COURT-LAHORE

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