PLD 2023 Lahore 536
Mandatory provision --- Determining factor --- Provision of any law can only be termed as mandatory when on account of its non compliance some penal consequences are also provided --- In absence of any penal consequences generally such provision can be treated as directory .
Evacuee Trust Properties ( Management and Disposal ) Act 1975 ---
---- Ss . 25 & 30 --- Constitution of Pakistan , Art . 199 --- Constitutional petition --- Ejectment of lessee --- Vested right --- Malice in fact --- Factual controversy --- Petitioner was aggrieved of his ejectment from the evacuee property which was leased out to him --- Validity --- Federal Government is competent under S. 25 of Evacuee Trust Properties ( Management and Disposal ) Act , 1975 , to eject any person in possession or occupation of any evacuee trust property , if it is required for an object considered to be for public purpose --- Evacuee properties are mainly meant for charitable , religious and educational purposes --- Question as to a whether a property is required for public purpose , exclusively falls within the domain of Federal Government --- Lessee has no vested right to get it enforced through Constitutional petition --- Terms and conditions of lease agreement cannot be implemented by resorting to Constitutional jurisdiction of High Court --- Contention of petitioner that he was made victim of malice in fact by itself was question requiring factual determination --- Constitutional jurisdiction could not be exercised for determining a question of fact --- No fetters could be put to powers of executive to utilize such property for public welfare only on the whims and caprice of the lessee --- Such exercise or ejectment of petitioner would not cause prejudice to the rights of respondent as the lease property was no more available --- High Court in exercise of jurisdiction under Art . 199 ( 1 ) ( a ) ( ii ) of the Constitution declined to interfere in the matter as order cancelling lease was not without lawful authority
Writ of certiorari --- Object , purpose and scope --- Through a writ of certiorari , High Court on one hand is vested with power to correct errors committed by inferior Courts or Tribunals and on the other hand to annul acts or proceedings taken by inferior bodies without any lawful authority --- Order of certiorari is issued out of High Court and is directed to judge or officer of an inferior tribunal to bring proceedings in a cause of matter pending before the tribunal into the High Court to be dealt with in order to ensure that the applicant of the order may have more sure and speedy justice ; it may be had in either civil or criminal proceedings --- Court issuing a writ of certiorari acts in the exercise of a supervisory and not appellate jurisdiction --- Character and scope of certiorari issued is for correcting error of jurisdiction --- High Court is empowered to interfere in all cases of excess of jurisdiction , whether the person exceeding jurisdiction is a Court , a judicial or a quasi - judicial body or a purely executive or administrative Tribunal or officer , provided such body , authority or officer is performing functions in connection with the affairs of the Federation ,Province or a local authority --- Writ of certiorari cannot be used a substitute of appeal or revision as its scope is limited .
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