PLJ 2018 Judgments

PLJ 2018 Karachi 1

Present: Aziz-ur-Rehman, J.

MOHIUDDIN KHAN--Plaintiff

versus

M/s. STATE LIFE INSURANCE CORPORATION OF PAKISTAN and another--Defendants

Suit No. 606 of 1999, decided on 20.3.2017.

Limitation Act, 1908 (IX of 1908)--

----Art. 120--Licence agreement--Legal character--Suit time barred--Declaration to any legal character or right to any property for to sue accrues when such legal character, if any, or right to sue is denied right to sue, if any, for a declaration and his so-called legal character, therefore, filing of instant suit after about 10 years from date of denial, as such, is hopelessly time-barred--License Agreement, upon expiry, has never been renewed, as provided under its clause 13--Filing of suit on basis of an expired License Agreement as far as declaration to effect is beyond period of six years as such, reliefs sought by plaintiff were hopelessly time barred. [Pp. 8, 16, 17 & 18] A, B, C & D

Easements Act, 1882 (V of 1882)--

----S. 52--‘Lease’ & ‘License’--Question of--Whether agreement is a license or lease, intention of parties needs to be ascertained from formal document. [P. 45] E

Easements Act, 1882 (V of 1882)--

-----S. 52--Under agreement no right was conferred upon Plaintiff to assign sublet or part with possession of ‘subject plot’ save and except in terms of License Agreement--Relationship between parties, as established from record, was meant for to create a relationship of ‘landlord’ or ‘tenant’ between parties. [P. 50] F

Easements Act, 1882 (V of 1882)--

----S. 52--Rights under lease are right in rem and same are assignable and transferable--Under instant license agreement only a permission of car parking was granted to Plaintiff viz. a viz, subject plot--License Agreement cannot be termed and/or treated as a lease agreement. [Pp. 56 & 57] H

Easements Act, 1882 (V of 1882)--

----S. 52--Distinction between a ‘lease’ and ‘license’, no doubt, is very thin but this line of distinction can only be established by means of a recognized test i.e. in case of ‘lease there must be an ‘exclusive possession’ coupled with interest, otherwise, possession, if any shall not be deemed as an exclusive--Further mere occupation of an immovable property and its use in particular manner, of course, creates a ‘license’ and not a ‘lease’. [P. 62] I

Registration Act, 1908 (XVI of 1908)--

----S. 17--License Agreement dated 25.8.1985 is for three [3] years, and has not been registered as required under Section 17 of Registration Act, 1908--Under such circumstances, same cannot be termed as ‘Tenancy Agreement’. [Pp. 55 & 56] G

Transfer of Property Act, 1882 (IV of 1882)--

----S. 107--Moreover, according to Section 107 of Transfer of Property Act, 1882, a lease for a period of more than 1 year can only be created by means of a registered document/instrument--In case in hand, it is worth to mention, License Agreement is for 3 [three] years but it is not a registered document--In this view of matter as well, same is a License Agreement and not a Lease Agreement as being claimed by Plaintiff. [Pp. 55 & 56] G

Qanun-e-Shahadat Order, 1984 (10 of 1984)--

----Arts. 102 & 103--If there is a ‘conflict’ between ‘oral evidence’ and documentary evidence, then documentary evidence available on record, is to prevail over oral evidence. [Pp. 56 & 57] H

Administration of Justice--

----No such plea was taken and/or otherwise, established through evidence--One cannot be allowed to prove and/or build a case beyond scope of pleadings. [P. 62] I

Words and phrases--

----‘Vacate’ defined--So far word ‘vacate’ used in License Agreement is concerned, same, cannot be made basis for to show that Plaintiff is in exclusive possession of ‘subject plot’ or otherwise, Plaintiff is a tenant of Defendant No. 1 Per definition of word ‘vacate’, act of vacation is meant only for two things/purposes i.e.:

(a) Occupancy; and

(b) Possession. [P. 63] J

Mr. Moin Qamar & Mr. Zia-ul-Haq Makhdoom, Advocate for Plaintiff

Mr. Zeeshan Abdullah, Advocate for Defendants.

Dates of hearing: 19-10, 1, 7, 23-11, 8 & 21.12.2016.

Judgment

The Plaintiff has filed the instant suit on 11th May, 1999 for Declaration and Permanent Injunction with the prayers as below:--

a. to declare that the Plaintiff is a tenant of the Defendants in respect of land bearing Survey No. 7, Sheet RY-5, situated at Lakie Road, Karachi.

b. to declare that the Plaintiff being a tenant of the Defendants in respect of plot of land bearing Survey No. 7. Sheet RY-5. situated at Lackie Road, Karachi cannot be ejected/evicted therefrom otherwise than in due course of law.

c. to declare that the Plaintiff being lawful tenant of the Defendants is entitled to carry on the business of parking of vehicles on plot of land bearing Survey No. 7, Sheet RY-5, situated at Lackie Road, Karachi without any hindrance from the Defendants jointly and severally.

d. permanently restrain the Defendants jointly and severally their agents, servants employees, officials successors-in-interest and or any other person claiming through or under them from ejecting/evicting the Plaintiff from the plot of land bearing Survey No. 7. Sheet RY 5. situated at Lackie Road. Karachi.

e. permanently restrain the Defendants jointly and severally their agents, servants, employees, officials successors-in-interest and or any other person claiming through or under them from causing hindrance or let in lawful business of parking of vehicles being carried on by the Plaintiff on the plot of land bearing Survey No. 7, Sheet RY 5, situated at Lackie Road, Karachi.

f. any other relief or reliefs which this Hon’ble Court deems fir and proper, in the circumstances of this case.

g. cost of the suit.

1. The brief facts relevant for the purpose of deciding of this suit as disclosed in the plaint are as follows.

2. Defendant No. 1, is a Corporation established by the Life Insurance (Nationalized) Order, 1979. Defendant No. 2, is a Private Limited Company incorporated in Pakistan under the Companies Ordinance, 1984 and stated to be owner of land bearing Survey No. 7, Sheet RY 5, Lackie Road, Karachi [hereinafter referred to as ‘subject plot’]. Defendant No. 2, is wholly owned subsidiary of Defendant No. 1 and the latter has full power and authority to deal with the properties belonging to Defendant No. 2. As averred in the plaint, by a ‘Public Notice’ dated 19.4.1985. published in daily Newspaper of Karachi, Defendant No. 1 had invited tenders for renting out the ‘subject plot’ for Car parking purpose. The Plaintiff No. 1 in response, submitted his bid for acquiring the ‘subject plot’ on rent which offer/bid was accepted by Defendant No. 1. Per Plaintiffs version rent was payable for the subject plot from the date of handing over of possession of the subject plot to the Plaintiff.

3. On acceptance of Plaintiff’s offer/bid an agreement dated 25.8.1985 [Annexure ‘B’ to the Pliant], was executed between the Plaintiff and Defendant No. 1 which contains the mutually agreed terms’ and conditions’ for and in respect of subject plot. According to the Plaintiff’s stand, Plaintiff and Defendant No. 1 under the said agreement of 25.8.1985 acted as ‘tenant’ and ‘landlord’. The use of words ‘Licensor’ or ‘Licensee’ in the said agreement, according to the Plaintiff, in no manner can control or negate the ‘relationship’ of ‘landlord’ and ‘tenant’. Defendant No. 1, as per assertions made in the plaint used to issue receipts invariably for ‘rent’ and not for ‘license charges’/‘fee’. Moreover, upon execution of agreement dated 25.8.1985, the Plaintiff submitted a detailed plan of gates and site plan of the ‘subject plot’ for approval of Defendant No. 1. Pursuant to approval of Defendant No. 1, complete actual and physical possession of the ‘subject plot’ was handed over to the Plaintiff.

4. The Plaintiff as alleged, after taking over actual and physical possession of the ‘subject plot’ developed the same by spending quite a big amount on construction of RCC beams, steel gates, water well with pump and an office room. Thereafter, the plaintiff started using of the ‘subject plot’ for public parking of vehicles. According to plaintiff since, taking over ‘possession’ of the subject plot, the Plaintiff is enjoying un-hindered physical possession of the ‘subject plot’. The relationship between the Plaintiff and Defendant No. 1, according to the Plaintiff stand is that of a tenant and landlord. Not only this, upon expiry of the agreement dated 25.8.1985 [Annexure ‘B’ to the plaint], on 30th September, 1988, the Plaintiff has become a ‘statutory tenant’ of Defendant No. 1.

5. Defendant No. 1, no doubt, under its’ letter dated 19.1.1989 forwarded a ‘draft of fresh agreement’ to the Plaintiff but thereby. Defendant No. 1, in actual fact had attempted to convert tenancy rights of the Plaintiff in respect of the ‘subject plot’ to that of a licensee. The terms and conditions as contained in the Draft Agreement sent to the Plaintiff were materially different not only in ‘form’ but also in ‘substance’ from the original license agreement of 25.8.1985. Upon refusal of Plaintiff to sign/execute such Draft Agreement, Defendant No. 1, nevertheless. continued to receive rent in respect of the subject plot. On 8.4.1989, Defendant No. 1, however, refused to accept the same. Plaintiff, thereafter, started to deposit rent in the Court of VIth Senior Civil & Rent Controller, Karachi (South), in Misc. Rent Case No. 697/1989.

6. Per Plaintiffs version, right from the date of execution of the ‘License Agreement’ dated 25.08.1985 and handing over of possession of the ‘subject plot’, Defendant No. 1, never exercised any, control over the subject plot. The ‘parking plot’ is/was always open for use of general public and not restricted to ‘tenants’, visitors’ and ‘employees’ of Defendant No. 1. The ‘Electric charges’ etc. in respect of the ‘subject plot’ was exclusively payable by the Plaintiff. Per Plaintiffs stand, payments made by Plaintiff to Defendant No. 1 be deemed as ‘rent’ under the Sindh Rented Premises Ordinance, 1979, [XVII of 1979].

7. Plaintiff viz. Mohiuddin Khan s/o Niaz Muhammad Khan in the plaint of the above suit, has further averred that on or about 06.05.1999, some people claiming to be employees/officials of the Defendant No. 1, came over to the ‘subject plot’ and then they had attempted to ‘dis-possess’ the Plaintiff from the ‘subject plot’ forcefully and illegally. Nevertheless, at the intervention of the people who had gathered there, the employees/officials of Defendant No. 1, did not succeed to take over the vacant possession of the ‘subject plot’. The employees/officials of Defendant No. 1 while, going back, however, had extended threats to the plaintiff for dis-possessing him from the ‘subject plot’. For and in view of such circumstances, the matter was also reported to the Deputy Commissioner, District South, Karachi, the Senior Superintended of Police, District South, Karachi and the Station House Officer. Mithadar Police Station, Karachi. Again, on 10.05.1999, according to the plaintiff version, some/officials of Defendant No. 1, came at the ‘subject plot’ and they again tried to ‘forcibly’ and ‘illegally’ take over possession of the ‘subject plot’. But this time as well, due to the ‘security arrangements’ made in advance, the ‘employees’/’officials’ of Defendant No. 1 were compelled to go back without any success.

8. Under the aforesaid scenario the instant suit was filed on 11th May, 1999 for DECLARATION & PERMANENT INJUNCTION against the defendants with the prayers reproduced hereinabove.

9. On 11.05.1999, when the above suit came-up before the Court then the following order was passed:--

10. For Orders on Misc. No. 3453/99

11. For Orders on Misc. No. 3454/99

12. For Orders on Misc. No. 3455/99

Mr. Abul Inam, advocate for the plaintiff.

11.5.1999

1. Allowed

2. Time for payment of Court-fees is extended by one week.

3. It is the case of the Plaintiff that agreement dated 25.8.1985 was executed between the Plaintiff and Defendant No. 1. After taking over the actual and physical possession of the plot in question, the Plaintiff started using the same for parking the public vehicles and since then was enjoying the said facility unhindered. In May, 1989 Defendant filed Suit No. 583/1989. This Court passed the order which has been reproduced in Para 8 of the affidavit of plaintiff. On 6.5.1999 some persons claiming to be the employees of Defendant No. 1 came to site plot and attempted to forcibly dispossess the plaintiff from the said plot. This matter was reported by the plaintiff to the Deputy Commission, District South, SSP and also to SHO Mithadar Police Station, Karachi. On 10.5.1999 another attempt was made.

In view of above-mentioned facts, ad-interim injunction is granted as prayed against the defendants till the next date of hearing i.e. 28.5.1999. Notice be issued to defendants for the next date. [Underlining is mine].

Sd/-11.5.99 JUDGE”

1. Upon service, Defendants filed ‘common written statement’ on 23.6.1999, wherein, the adverse ‘averments’ and ‘assertions’ leveled by the Plaintiff were specifically and forcefully denied. In the ‘written statement’, it was averred that the ‘relationship’ between Mohiuddin Khan s/o Niaz Muhammad Khan [Plaintiff herein] and Defendant No. 1 viz. M/s. State Life Insurance Corporation is that of ‘licensee’ and ‘licensor’. The ‘LICENSE AGREEMENT’ dated 25.8.1985 executed between Defendant No. 1-and Plaintiff, as such, is not enforceable under law. Per Defendants’ stand. Plaintiff has no legal character or otherwise, has any right in the ‘subject plot’. Plaintiff, thus has no ‘locus standi’ to institute the above suit and that too merely on the basis of an expired license agreement dated 25.8.1985 [Annexure ‘B’ to the Plaint].

2. Per Defendant No. 1’s stand. Defendant No. 2, is the owner of ‘subject plot’ of land bearing Survey No. 7. Sheet RY-5, situated at Lakie Road, Karachi, which is wholly owned sub-sidiary of Defendant No. 1 i.e. M/s. State Life Insurance Corporation of Pakistan. Per averments, made in the ‘written statement’, Defendant No. 1 besides, not only authorized and empowered to issue LICENSE. TERMINATE, RENEW it but also fully authorized and competent to take all necessary steps inclusive but not limited to litigation, claiming ‘mesne profit’, seeking injunction and/or ejecting/evicting of trespassers from the ‘subject plot’.

3. According to Defendants’ stand, ‘quotations’ were invited for ‘open space’ of ‘subject plot’ on ‘LEAVE AND LICENSE BASIS’, being sufficient for parking of 360 Cars through ‘public notice’ of 19.4.1985, having published in ‘Daily Newspaper’ English ‘DAWN’ Karachi and not on renting out basis, as alleged, by Plaintiff. Further, the ‘quotations’ were invited for CAR PARKING with a right to reject any ‘offer’/’bid’ without assigning any reason. Plaintiff, in response thereof, no doubt, offered for ‘specified’ use of ‘subject plot’ through his letter dated 29.4.1985. Per ‘written statement”, Plaintiff’s offer was found suitable, as such, the same was accepted by the management of the Plaintiff. The acceptance of such ‘offer’ was also apprised/communicated to the Plaintiff’s through Defendants’ letter dated 21st July, 1985 [Annexure ‘A/1’ to the Plaint]. Upon acceptance of the Plaintiffs ‘bid’/’offer’, a ‘license agreement’ dated 25.8.1985 [Annexure ‘B’ to the Plaint], was consequently executed between Defendant No. 1 and Plaintiff. Under the mutually agreed ‘terms’ and ‘conditions’ thereof, the ‘relationship’ between Defendant No. 1 and Plaintiff was that of a ‘Licensor’ and the ‘licensee’ and not that of ‘landlord’ and ‘tenant’ as being claimed by plaintiff.

4. In the ‘common written statement’, it was also averred that the ‘subject plot’ is under ‘control’ and ‘possession’ of Defendants. The claim of Plaintiff regarding so called ‘exclusive possession’ of ‘subject plot’, was specifically and vehemently denied. Besides, the alleged ‘relationship’ of ‘landlord’ and ‘tenant’ as having been claimed by the Plaintiff, was not only categorically controverted but also specifically denied as being false and incorrect. According to the Defendants’ stand, under the provisions of the ‘License Agreement’ dated 25.8.1985 [Annexure ‘B’ to the Plaint]. Plaintiff is merely a ‘licensee’ and not a tenant. This factum is also evident from ‘handing’ and ‘taking over’ letter of 9th September. 1985 [Annexure ‘C’ to the Plaint].

5. Per Defendants, stand, the object of the License Agreement dated 25.8.1985, was only to grant a license to plaintiff. Calling such ‘License Agreement of 25.8.1985, now as ‘Tenancy Agreement’ by no means affects and/or alters the ‘relationship’ of ‘Licensor’ and ‘licensee’ created under their ‘terms’ and ‘conditions’ of the said License Agreement dated 25.8.1985, signed between the Defendant No. 1 and the Plaintiff. Under the said ‘License Agreement’ Plaintiff had been allowed only to do certain things, such as, collecting of Car Parking Charges. Reference in this regard, can be made to ‘Clause 7’ of the License Agreement dated 25.8.1985, which reads as follows:

“7. The LICENSEE shall always and at all times be under the control and supervision of the LICENSOR, its agents, servants and employees and shall observe all directions and orders as may from time to time, be issued by the LICENSOR, its agents, servants and employees regarding part thereof the anybody else in any event.” [Underlining is mine].

Besides, a further reference can be made to ‘Clause 5’ [wrongly mentioned as ‘Clause 4’] of said License Agreement dated 25.8.1985 where-under, the ‘subject plot’ was to remain in ‘joint possession’ of Plaintiff and Defendants. Per mutual agreed ‘terms’ & ‘conditions’ each lock’ of gate shall have ‘two keys’, one of which was to remain in possession of Defendant No. 1/Licensor and the other one with Plaintiff/Licensee. The said ‘Clause 5’ of the License Agreement dated 25.8.1985 [Annexure ‘B’ to the Plaint] reads as follows:--

“5. Each lock of the above said gates shall have two keys, one of which shall remain in the possession of LICENSOR.” [Underlining is mine].

1. Accrual of any ‘cause of action’ in favour of the Plaintiff on the dates referred to and mentioned in ‘para 13’ of the plaint or any other date was specifically denied by Defendants. Lastly, in ‘common written statement’ it was asserted/prayed that the instant suit as ‘framed’ and ‘filed’ by Plaintiff besides, having been filed with ‘ulterior motives’ and ‘malafide intentions’, is not maintainable, as such, the same is liable to be dismissed with cost.

2. Before proceeding further, at this juncture I would like to refer to Defendants’ suit bearing No. 583 of 1989 [M/s. State Life Insurance Corporation of Pakistan & another v. Mr. Mohiuddin & another Khan] filed on 21.5.1989 for DECLARATION. PERMANENT INJUNCTION. MESNE PROFIT AND POSSESSION before this Court and an order passed therein, on 19.10.1989. Being relevant, order dated 19.10.1989 is reproduced here-in-below:--

“1. For Hg. of CMA-6995/89

1. For Hg. of CMA-6996/89

2. For Hg. of CMA-6997/89

19.10.1989

Mr. Makhdoom Ali Khan, Advocate for Plaintiff.

Mr. Munir A. Malik, Advocate for defendant.

By consent it is ordered that the defendants shall furnish bank guarantee in the sum of Rs. 100.000 with 6% mark-up within three days hereof with the Nazir of this Court, whereupon order dated 15.10.1989 whereby the defendants, their agents and employees were restrained from allowing third parties to park their cars at the plot question and/or from collecting car parking charges from them shall stand vacated. Again by consent, the defendants are restrained from using the plot for purposes other than car parking or parting with the physical possession of the plot in question to any one till disposal of the suit or till further orders.

The learned counsel for the defendants also undertakes on behalf of the defendants to deposit all the arrears of license fee deposited by them in the Lower Court within four weeks hereof and to further deposit further license fee payable by them in this Court every month till disposal of this suit. In view of this consent order CMA No. 6995/89. CMA-6996/89 and CMAs-6997/89 & 3683/89 stand disposed off. [Underlining is mine].

Sd/- JUDGE”

1. Plaintiff herein [Defendant No. 1 in Suit No. 583 of 1989], it appears, had also filed an application under Order XXXIX Rules 1 & 2, CPC [CMA No. 6484 of 1998] in Suit No. 583 of 1989 [M/s. State Life Insurance Corporation of Pakistan & Another v. Mr. Mohiuddin Khan]. The said application [CMA No. 6484 of 1998], filed by present plaintiff [who is Defendant No. 1 in Suit No. 583 of 1989], when came-up before the Court on 18.7.1998 then, the following order was passed:

“1. For orders on CMA No. 6483/98

1. For orders on CMA No. 6484/98

18.07.1998

Mr. Arif Hussain Khilji, Advocate Defendant No. 1.

1. Granted.

2. It is contended by Mr. Arif H. Khilji that plaintiffs are closing the entrance gate of Building No. 1 situated at I.I. Chundrigar Road which in fact will amount to illegal & unauthorized dispossession of the Defendant No. 1. It was argued that if the, plaintiffs are permitted to raise hindrance or destruction then it will also amount to violation of this Courts order dated 19.10.1989. Issue notice to Plaintiffs for 24.07.1989. Till then Plaintiffs are directed to maintain status-quo. [Underlining is mine].

Sd/- JUDGE”

1. Later on, in view of ‘pro’ and ‘contra’, assertions and averments made in pleadings on 13.12.2006, the following six [06] issues were settled in the suit in hand:--

2. Whether the suit is not maintainable?

3. Whether the suit is time barred?

4. Whether the suit is barred by promissory estoppels?

5. What relationship the Plaintiff and the Defendant had i.e. either of tenant or of a licensee?

6. To what relief, if any, the Plaintiff is entitled to?

7. What should the decree be?

8. Subsequently by order dated 21.2.2007 and with consent of parties. Mr. Yousuf Moulvi, Advocate, was appointed as ‘commissioner’ for recording evidence of the parties. Order dated 21.2.2007 as being relevant, is also reproduced here-in-below:--

“21.2.2007

Mr. Zia-ul-Haq Makhdoom. Advocate for the plaintiff

Mr. Kh. Shamsul Islam Advocate holding brief for Mr. Siddiq Mirza, Advocate for the defendants.

Mr. Zia-ul-Haq Makhdoom has submitted that in this matter a commissioner may be appointed to record the evidence of the parties. Mr. Kh. Shamsul Islam on instructions from Mr. Siddiq Mirza has extended his no objection for appointment of a commissioner to record the evidence of the parties.

By consent of the learned counsel for the parties Mr. Yousuf Moulvi, Advocate, is appointed Commissioner to record the evidence of the parties. The parties may file their respective affidavits-in-evidence alongwith the relevant documents before the learned commissioner. The commission to be concluded within six months. The fee of the learned commissioner will be Rs. 10,000/- per witness to be borne by the respective parties.” [Underlining is mine].

SD/- JUDGE”

1. In the evidence, recorded before the learned commissioner, Mohiuddin Khan [‘PW-1’], in his ‘examination-in-chief’ besides, producing his ‘affidavit-in-evidence’ as ‘Exh-4’ produced other documents as ‘Exh-P/4/1’ to ‘Exh-P/4/31’. Like-wise, Defendants’ witness viz. Hafiz Arshad Hussain Shaikh [‘DW-1’], in his ‘examination-in-chief’, apart from producing his ‘affidavit-in-evidence’ as ‘Exh-D/1’ produced other documents as ‘Exh-D/2’ to ‘Exh-D/16’. Upon conclusion of evidence, the report submitted by the learned commissioner was taken on record vide order dated 24.8.2009 and then, the above suit was ordered to be fixed for arguments.

2. On 19.10.2016, 1.11.2016, 7.11.2016, 23.11.2016; 8.12.2016 and 21.12.2016 when the above Suit No. 606 of 1999 [Mohiuddin Khan s/o Niaz Muhammad Khan Vs State Life Insurance Corporation of Pakistan & another], filed by the Plaintiff for ‘DECLARATION’ AND ‘PERMANENT INJUNCTION’ and Suit No. 583 of 1989 [M/s. State Life Insurance Corporation of Pakistan & another v. Mr. Mohiuddin Khan & another], filed by the Defendants herein for DECLARATION. PERMANENT INJUNCTION, MESNE PROFIT AND POSSESSION, came-up before me then, I heard Mr. Moin Qamar a/w Mr. Zia-ul-Makhdoom, learned counsel for the Plaintiff in Suit No. 606 of 1999 and Defendants in Suit No. 583 of 1989 and Mr. Zeeshan Abdullah, learned counsel for the Defendants in Suit No. 606 of 1999 and Plaintiffs in Suit No. 583 of 1989 and also gone through the available record before me minutely with their valuable assistance.

ISSUE NO. 1:--

1. Mr. Moin Qamar a/w Mr. Zia-ul-Haq Makhdoom, learned counsel for the Plaintiff while, arguing Suit No. 606 of 1999 ‘issue-wise’ forcefully contended that as far as, Issue No. 1 which is to the effect as to Whether the suit is not maintainable is concerned, it is in fact for the Defendants to establish that the Plaintiff’s suit as ‘framed’ and ‘filed’ is not maintainable. So far, Plaintiffs stand is concerned, per Mr. Moin Qamar, the above suit filed by plaintiff is not only maintainable but also deserves to be decreed in favour of Plaintiff as prayed. Mr. Moin Qamar while, advancing his arguments on the maintainability of the suit, emphatically contended that Plaintiff, as being a ‘tenant’ of Defendants in respect of the ‘subject plot’ i.e. Survey No. 7, Sheet RY-5, situated at Lakie Road, Karachi, in no manner, is liable to be ejected by show of force on the part of Defendants. In this regard, learned counsel, focused the attention of this Court towards’ paras 10 & 11 plaint and forcefully contended that on or about 6.5.1999, some un-known people claiming to be ‘employees’/’officials’ of Defendant No. 1, had come at the ‘subject plot’ and had attempted to dis-possess the Plaintiff from the ‘subject plot’, indeed, forcibly and without observing ‘due process’ of law. But due to ‘intervention’ of people who had gathered there, the illegal attempt so made by Defendants for dispossessing the Plaintiff forcibly could not succeed. Per learned counsel, on 10.5.1999, officials/employees of Defendant No. 1, once again came on the ‘subject plot’ obviously with an intention to dispossess Plaintiff from the ‘subject plot’ forcibly and without adopting due course of law. Even this time as well, the malafide attempt meant for dis-possessing the Plaintiff from the ‘subject plot’ stand failed because of prior security arrangements made by Plaintiff in view of repeated threats having been advanced to Plaintiff by Defendants. For and in view of the above scenario, the Plaintiff was constrained to file the above case for relief sought in the plaint.

2. Against the above, Mr. Zeeshan Abdullah, learned counsel for the Defendants while, arguing Issue No. 1, submitted that in suit in hand, the controversy between the parties, in fact, revolves around the ‘License Agreement’ dated 25.8.1985 [‘Exh-P-4/3’]. Per Mr. Zeeshan Abdullah, learned counsel for the Defendants, the ‘relationship’ between the Plaintiff and Defendants is that of ‘licensee’ and ‘Licensor’ and not of ‘tenant’ and ‘landlord’, as claimed by Plaintiff. The paramount element/nucleus point involved needs to be ascertained is the intention of the parties. Such intentions of parties can and surely be ascertained from the contents of the said License Agreement [‘Exh.P-4/3’]. Per Mr. Zeeshan Abdullah, learned counsel for the Defendants, the said License Agreement dated 25.8.1985, is an un-disputed document. Being, this is the position, the ‘terms’ & ‘conditions’ of ‘Exh.P-4/3’ are fully and absolutely binding on parties to the License Agreement dated 25.8.1985 [Exh.P-’4/3’]. The Plaintiff, it is needless to say, has not only admitted the execution of License Agreement dated 25.8.1985 in Para 3 of the plaint but it was later-on also produced and exhibited in plaintiffs ‘examination-in-chief’ as Exh-P-’4/3’ of course, without any objection. Moreover, the contents thereof, have also been admitted by the Plaintiff during his ‘cross examination’ in words as “I see exhibit [‘Exh-P-4/3’] and say it is correct that the document is signed by me”. Like-wise, Plaintiff herein [who is Defendant No. 1] in Suit No. 583 of 1989 [M/s. State Life Insurance Corporation of Pakistan & another v. Mr. Mohiuddin Khan & another], has also admitted the factum of execution of the said License Agreement of 25.8.1985 in his cross examination where, he states that “I see the agreement ‘exhibit 9’ and it is signed by me. The agreement was read over to me and signed the same after I understood the same. “[It is worth to mention herein that Exh.9 is equivalent to ‘Exh. P’4/3’]

3. With regard to Issue No. 1, it is significant to note, the Defendant No. 1 herein, had filed Suit No. 583 of 1989 [M/s. State Life Insurance Corporation of Pakistan & another v. Mr. Mohiuddin Khan & another] and the Plaintiff herein, had filed an application under O.XXXIX Rr. 1 & 2 r/w S. 151, CPC [CMA No. 6484 of 1998], in Suit No. 583 of 1989. The said application when, came-up before the Court on 18.7.1998 then the Court while, issuing notice to Defendants herein, parties to Suit No. 583 of 1989, were directed to maintain status quo. The said Suit No. 583 of 1989, filed by Defendants herein, it is worth to mention herein, was dismissed for ‘non-prosecution’ on 11.03.1999. From such position, it appears, Defendants herein, after dismissal of their Suit No. 583 of 1989 [M/s. State Life Insurance Corporation of Pakistan & another v. Mr. Mohiuddin Khan & another] for non-prosecution, ex-facie had made attempts to dispossess Plaintiff herein, from the ‘subject plot’. Reference in this regard can be made to ‘paras 10 & 11 of the plaint’ in the present suit. Being relevant, the said paras are reproduced here-in-below:--

“10. That on or about 06.05.1999 some people claiming themselves to be employees/officials of Defendant No. 1 came to the said plot and attempted to forcibly and illegally dispossess the Plaintiff from the said plot. It was on the intervention of the people who gathered there that the employees/officials of Defendant No. 1 were persuaded not to take law into their own hands and refrain from taking illegal action of dispossession of the Plaintiff from the said plot. The employees/officials of the Defendant No. 1 went back extending threats of illegal dispossession to the Plaintiff. The matter was immediately reported by the Plaintiff to the Deputy Commissioner, District South, Karachi the Senior Superintendent of Police, District South, Karachi and the Station House Officer. Mithadar Police Station, Karachi. [Underlining is mine].

1. That again on 10.5.1999 some employees/officials of Defendant No. 1 came to the said plot and made an attempt to forcibly and illegally take possession of the said plot from the Plaintiff. Since by now the Plaintiff has made security arrangements the employees/officials of Defendant No. 1 went back empty handed hurling threats to come back again with a bigger force and dispossess the Plaintiff from the said plot.” [Underlining is mine].

2. Keeping in view the above scenario, it appears that Plaintiff herein was constrained to file the suit in hand [Mohiuddin Khan v. M/s. Stale Life Insurance Corporation of Pakistan & another] on 11.05.1999 for DECLARATION AND PERMANENT INJUNCTION, which in my view cannot be said and/or otherwise, termed as not maintainable absolutely, much-less, for the relief of seeking restraining order against the Defendants herein, viz-a-viz. ejecting/evicting Plaintiff herein, from the ‘subject plot’ of land bearing Survey No. 7, Sheet RY5, situated at Lackie Road, Karachi, forcibly and without observing ‘due process’ of law. ISSUE No. 1 accordingly is answered in ‘NEGATIVE’.

ISSUE NO. 2:--

1. As far as ‘Issue No. 2’ which is to the effect as to, whether the suit is time barred is concerned, Mr. Moin Qamar, learned counsel for the Plaintiff vehemently contended that the Plaintiff herein upon dismissal of Defendants’ Suit No. 583 of 1989 [M/s. State Life Insurance Corporation of Pakistan & another v. Mr. Mohiuddin Khan & another] for ‘non-prosecution’ on 11.3.1999 and of vacation of ‘status quo order’, operating therein against the Defendants herein. [Plaintiffs in Suit No. 583 of 1989]. Plaintiff herein, thus was constrained to file the instant suit on 11.5.1999 inter alia for seeking restraining order/permanent injunction against Defendants, their employees and/or agents jointly and severally from entering upon the ‘subject plot’ and/or causing any let or hindrance in the lawful business of parking of vehicles and/or creating any hurdle in the way of the plaintiff viz-a-viz. collecting ‘car-parking fee’ and/or otherwise interfering in any manner with the possession of the plaintiff. Per Mr. Moin Qamar, the instant suit as ‘framed’ and “filed” under the aforesaid given circumstances, in no manner, as alleged, is time barred.

2. Conversely, Mr. Zeeshan Abdullah, learned counsel for the Defendants, forcefully contended that Plaintiff ex-facie through the suit in hand interalia is seeking a declaration regarding his alleged character as ‘tenant’ instead of ‘licensee’ of Defendants in respect of the ‘subject plot’. Per Mr. Zeeshan, prayer clause ‘a’ is for a declaration which is to the effect that Plaintiff be declared as a ‘tenant’ of the Defendants regarding the ‘subject plot’ bearing Survey No. 7, Sheet RY-5, situated at Lakie Road, Karachi. For and in view of above position. Mr. Zeeshan Abdullah urged that in such like situation time period for a suit of ‘declaration’ is governed by Article 120 of Limitation Act [IX of 1908], which provides a period of six [06] years viz-a-viz. filing of a suit that is to say when such right for to sue accrues. For a declaration to any legal character or right to any property for to sue accrues when such legal character, if any, or right to sue is denied. Per Mr. Zeeshan Abdullah since. Plaintiff viz. Mohiuddin Khan s/o Niaz Muhammad Khan, in the suit is hand is seeking a declaration regarding his alleged legal character’ as ‘tenant’ and not as ‘licensee’ of Defendants, as such, the time period for filing of such kind of suit is six [06] years under Article 120 of the Limitation Act. 1908 [IX of 1908].

3. Mr. Zeeshan Abdullah, learned counsel for the Defendants in this regard also made reference to ‘para 8’ of the plaint [i.e. in Suit No. 606 of 1999], wherein, Plaintiff herein admits the factum of filing of Suit No. 583 of 1989 before this Court. In the said Suit No. 583 of 1989, it has been explicitly averred that Plaintiff herein, is a ‘licensee’ and not a ‘tenant’ as being claimed by the Plaintiff herein. Besides, in the said suit filed by Defendants herein, a declaration has also been sought that after expiry of License Agreement dated 25.8.1985 on 30.9.1988, the Plaintiff herein, viz. Mohiuddin Khan, has no right, power and/or authority either to enter upon the ‘subject plot’ or otherwise, allow any third party to park their cars and/or to collect parking fees/charges. Per Mr. Zeeshan Abdullah, the Defendant No. 1/Licensor has specifically denied any legal character of the Plaintiff as being a tenant i.e. when Suit No. 583 of 1989, was filed on 21.5.1989. The right to sue, if any, for a declaration and his so-called legal character accrued in the year 1989, therefore, filing of the instant suit on 11.5.1999 i.e. after about 10 years from the date of denial, as such, is hopelessly time barred.

4. With regard to the issue of time bar of the instant suit, it is significant to note, the instant suit filed on 11.5.1999 by the Plaintiff herein, is not only for declaration but also for permanent injunction. Per ‘averments’ and ‘assertions’ made in paras 10 and 11 of the plaint of the above suit, ‘cause of action’ in favour of Plaintiff regarding injunction accrued in year 1999. The instant suit, as far as, prayer for injunction is concerned, in my view, is not time barred. Rather, it is within time. The question, however, remains to be answered is as to whether Plaintiff herein, is entitled for any relief of ‘permanent injunction’. The same being an ‘equitable’ and ‘discretionary relief, in my view, can be seen and decided in the light of facts involved. At this juncture, it seems appropriate to refer to and reproduce herein para 13 of the plaint in the suit in hand which reads as follows:

“13. That the cause of action for the suit arose at Karachi within the jurisdiction of this Hon’ble Court firstly on 25.8.1985 when the said plot of land was given on lease by the Defendant No. 1 to the Plaintiff and on 9.9.1985 when actual and physical possession of the same was delivered to the Plaintiff by the Defendants and on expiry of the lease agreement dated 25.8.1985 when the Plaintiff became a statutory tenant of the Defendants and on 6.5.1999 and 10.5.1999 when the Defendants through their employees/officials made attempts to illegally or forcibly dispossess the Plaintiff from the said plot and since then it continues to accrue from day to day.” [Underlining is mine].

1. From bare perusal of the above, it would be seen that the ‘License Agreement’ dated 25.8.1985 [‘Exh-P-4/3’], at the time of filing of the instant suit on 11.5.1999, was no more in field/in existence. Rather, it had expired long ago i.e. on 31.9.1988. This position is quite evident from ‘clause 1.a’ of the License Agreement dated 25.8.1985 [‘Exh-P-4/3’]. The said ‘clause 1.a’ as well as ‘clause 13’ of License Agreement dated 25.8.1985 [Exh.P-’4/3’] being relevant are reproduced hereinbelow:--

“1a. This License agreement shall commence with effect from the 1st day of October, 1985 from which date the Licensee has leave and License to use the said plot of land, which is in the ownership and possession of the ‘‘LICENSOR”, for a period of 3 years on payment of Licensee fee Rs. 20.160.00 (rupees twenty thousand one hundred sixty only) per month for the privilege of use of the said plot of land for car parking. [Underlining is mine].

1. This License shall be valid, in the first instance, for a period of three years and may be extendable exclusively at the option of the LICENSOR on terms and conditions to be decided by the Licensor. The License agreement hereby executed by the parties, if not renewed as provided for hereinabove, before the expiry of the said period, shall automatically stand cancelled. For renewal, a written request by the LICENSEE made one month before the expiry of the term hereby created or of any subsequent extended term will be required. Upon receiving such request, the Licensor may at his sole discretion, grant him a License for the use of the said portion of plot of land for a further term and on such conditions as may be decided by the Licensor. On the expiry of the period of Licensee as herein provided or of any extended period or on revocation of the same the License shall stand cancelled.” [Underlining is mine].

2. No doubt, it is also an admitted position that the aforesaid License Agreement [‘Exh-P-4/3’], upon expiry thereof, has never been renewed, as provided under ‘clause 13’ of the said License Agreement dated 25.8.1985. Under such circumstances, the filing of the suit in the year, 1999, on the basis of an expired LICENSE AGREEMENT DATED 25.8.1985 [Exh.’P-4/3’], as far as, declaration to the effect and extent of prayer Clauses [a], [b], & [c] is concerned, in my view is beyond the period of six [06] years as such, the reliefs sought by the Plaintiff to the aforesaid effect, in my humble opinion, are hopelessly time barred. ISSUE NO. 2 is partly answered in ‘POSITIVE’ and partly in ‘NEGATIVE’ as far as, relief for injunction against the eviction/dis-possession of the plaintiff through ‘show of force’ is concerned.

ISSUE NO. 3:--

1. Issue No. 3 which is to the effect and extent as to whether the suit is barred by promissory estoppel, has not been pressed at the time of arguments. Accordingly, the same is answered as ‘NOT PRESSED’.

ISSUE NO. 4:--

1. With regard to Issue No. 4 which is to the effect as to what relationship the Plaintiff and the Defendants had i.e. either of tenant or a licensee. Mr. Moin Qamar a/w Mr. Zia-ul-Haq Makhdoom. learned counsel for the Plaintiff, contended that admittedly Defendant[s] had invited tenders by Public Notice dated 19.4.1985 [‘Exh-P-4/1’], published in ‘Daily’ Newspaper ‘DAWN of Karachi for ‘renting out’ the ‘subject plot’ for car parking place. In response thereof, Plaintiff herein, had submitted his bid/offer for acquiring the ‘subject plot’ on rent. The bid of the Plaintiff as being suitable was accepted by the Defendant No. 1 vide its’ letter dated 21.5.1985 [‘Exh-P-4/2’]. Mr. Moin Qamar while, arguing the case, focused the attention of the Court towards ‘tender notice’ published in Daily ‘DAWN’ of 19.4.1985, and contended that the very purpose of such Tender Notice was nothing but to ‘rent-out’ the subject plot for car parking on ‘Rent basis’ and not on License basis. For proper understanding the point of contention raised by Mr. Moin Qamar. I would like to refer to and reproduce herein the said ‘tender notice’ [‘Exh-P-4/1’] here-in-below:

“TENDER FOR RENTING OUR CAR PARKING SPACE

State Life Insurance Corporation of Pakistan (State Life) intend to rent out on leave and licence basis an open space of plot Survey No. 76, Sheet RY 5, Lackie Road Near Platforms No. 5 & 6 of City Railway Station and adjacent to State Life Building No. 2-A. Karachi sufficient for parking of 360 cars.

Quotations are, therefore, invited which must be sealed and marked ‘QUOTATION FOR CAR PARKING’. A payorder for Rs. 10,000/- in favour of State Life, Insurance Corporation of Pakistan as caution money shall-accompany the quotation which must reach Real Estate Division. State Life 5th floor, State Life Building No. 9, Dr. Ziauddin Ahmed Road, Karachi within 15 days of publication hereof. Successful bidder shall have to deposit security Deposit equal to three months licence fee and advance licence fee of one month within a week of final acceptance of his offer failing which caution money shall be forfeited and tender treated as cancelled. [Underlining is mine].

State Life reserves the right to reject any or all of the offers without assigning any reason. Further detail if required may be obtained from Mr. Azad Ali Khan, Manager Real Estate Division on Phone No. 529196.

(M. HAMED MALIK) DEPUTY GENERAL MANAGER, REAL ESTATE DIVISION

1. According to Mr. Moin Qamar, the Plaintiff, is thus a tenant in respect of ‘subject plot’ of land Survey No. 7, Sheet RY5, situated at Lackie Road, Karachi, measuring 6000 sq.yrs and not a ‘licensee’ as being alleged by Defendants herein. Learned counsel for the Plaintiff Next contended that upon acceptance of Plaintiff’s bid, an Agreement dated 25.8.1985 [‘Exh-P-4/3’], was signed between the parties i.e. Defendant No. 1 and Plaintiff herein. Per Mr. Moin Qamar, under the agreed ‘terms’ & ‘conditions’, the said License Agreement creates a tenancy between the parties. Mr. Moin Qamar next contended that parties to the said Agreement [‘Exh-P-4/3’] thereafter had always acted as ‘landlord’ and ‘tenant’. Mr. Moin Qamar, also contended that the words ‘LICENSOR’ or ‘LICENSEE’ used in the said License Agreement dated 25.8.1985 [‘Exh-P-4/3’], by no means control or negate the substantive relationship of ‘landlord’ and ‘tenant’. Moreover, per Mr. Moin Qamar, Defendant No. 1 herein, has invariably issued receipts for ‘Rent’ and not for License Charges/fee. In this regard, reliance was placed on two RENT RECEIPTS No. 18501 dated 15.11.1987 for Rs. 20160/- and No. 19022 dated 11.1.1988 for Rs. 20160/- [i.e. ‘Exh-P-4/4’ and ‘Exh-P-4/5’ respectively], issued by Defendant No. 1 viz. M/s. State Life Insurance Corporation of Pakistan. The aforesaid two receipts i.e. Exh.P-’4/4’ & Exh.P-4/5’ respectively are reproduced here-in-below:--

A.

PRINCIPAL OFFICE KARACHI DATE 15/11

RECEIPT NO. 18501

Received from Mohiuddin Khan & Co.

Rs. 20160/- The sum of Rupees Twenty Thousand One hundred & Sixty only

By Cash/Cheque/Draft No. 11740 Dated 9.11.87

Drawn on U.B.L. I.I. Chundrigar Road,

On account of Rent

S.L.B. No. 1

(SUBJECT TO REALIZATION OF CHEQUE)

Sd/- Authorised Officer

B.

PRINCIPAL OFFICE KARACHI DATE 11/1/88

RECEIPT NO. 19022

Received from Mohiuddin Khan & Co.

Rs. 20160/- The sum of Rupees Twenty Thousand One hundred & Sixty only

By Cash/Cheque/Draft No. 117411 Dated 9.1.88

Drawn on U.B.L. I.I. Chundrigar Road,

On account of Rent

S.L.B. No. 1

(SUBJECT TO REALIZATION OF CHEQUE)

Sd/- Authorised Officer

1. Mr. Moin Qamar, learned counsel for the Plaintiff on the strength/basis of the aforesaid two receipts [Exh-P-’4/4’] and [Exh-P-’4/5’], argued that since, in two receipts word RENT has been used, as such, the Plaintiff is a ‘tenant’ and not a ‘licensee’ as being claimed by Defendants. Apart from the above, even word RENT has been used in the acceptance letter of Defendant No. 1 dated 21st May, 1985 [Exh-P-’4/2’]. For ready reference [Exh-P-’4/2’], is also reproduced here-in-below:

“State Life Insurance Corporation of Pakistan Principal Office, Karachi-4

Real Estate, Renting/Car-Parking/Lackie Rd./85. 21st May. 1985. Mr. Mohiuddin Khan, 31/107. Peoples Town, S.F. Colony, Karachi-35, Dear Sir, Sub: Quotation for Car Parking - Lackie Road, Near Platform 5 & 6. Opp. City Railway Station, Karachi.

This has reference to your quotation dated 28.4.1985, for renting out Car-parking space at Lackie Road, Karachi, which we are pleased to inform you, has been accepted. The lease & licence Agreement to be executed is under preparation and will be sent to you in next few day’s time. Please, remit a total sum of Rs. 80,640/- as detailed below:--

1. Rs. 60,480/- toward deposit equal to three month’s fee.

2. Rs. 20,160/- being advance fee for one month.

We may inform you that the rent of the plot will start from the date of possession to be given to you. Kindly remit the above amount within a week of receipt of this letter enabling us to proceed further. [Underlining is mine].

Thanking you.

Yours faithfully.

(Azad A. Khan) Manager (RED) “

1. Mr. Moin Qamar, learned counsel for the Plaintiff also argued that upon execution of the Agreement dated 25.8.1985 [‘Exh-P-4/3’], the Plaintiff herein had submitted a detailed ‘plan of gates’ and ‘site plan’ of the ground site to Defendant No. 1 and upon approval by Defendant No. 1, thereafter, a complete, effective, actual and physical possession of the ‘subject plot’ was handed over to the Plaintiff [see ‘Exh-P-4/26’]. To see as to whether the Plaintiff’s contention raised hereinabove, is true and correct or the position remains otherwise, I would like to refer to and reproduce herein, Exh.P-‘4/26’ as below:--

“STATE LIFE INSURANCE CORP. OF PAKISTAN REAL ESTATE DIVISION

9.9.1985.

SUBJECT: HANDED/TAKEN OVER

With reference letter No. Car Park/Cont/L.R./85. Certified that I have jointly handed/Taken over the possession 6000 Sq. Yards of State Life Lackie Road Plot (Ground) from Mr. Mohammad Ayub Khan, Security Incharge Real Estate Division on September 09, 1985.

HANDED OVER BY: TAKEN OVER BY:

Sd/- Sd/-

Mohammad Ayub Khan Mr. Moiuddin

Security Incharge House No. 21/107, RED. Peoples Town S.F. Colony, Karachi.

COUNTER SIGN:

Sd (AZAD A. KHAN) Manager, R.E.D.”

1. Regarding renewal of Agreement dated 25.8.1985 [Exh.’P-4/3’] in terms of ‘clause 13’ thereof. Mr. Moin Qamar, learned counsel for the plaintiff submitted that, indeed, the Defendant No. 1 herein, had forwarded vide its letter dated 19.1.1989 [‘Exh-P-4/27’] a ‘fresh draft agreement’ but the Plaintiff upon perusal thereof did not sign it, as Defendant No. 1, in fact thereby had attempted to convert the ‘relationship’ of ‘landlord’ and ‘tenant’ between the parties [i.e. Defendant No. 1 and Plaintiff] into ‘Licensor’ and ‘licensee’.

2. The Defendant No. 1, upon refusal of the signing of draft agreement refused to accept the so-called rent where-after Plaintiff started its’ deposit in the Court of VIth Sr. Civil Judge and R.C. Karachi [South], in Misc. Rent Application No. 697 of 1989. According to Mr. Moin Qamar, learned counsel for the Plaintiff, ever since, the execution of original Agreement dated 25.8.1985 [‘Exh-P-4/3’] and handing over possession of the ‘subject plot’vide [‘Exh-P-4/26’], Defendant No. 1 herein, did not exercise any sort of control over the ‘subject plot’. The parking plot, it is urged, was open for use of general public and in no manner it was restricted to the tenants, visitors and employees of Defendant No. 1.

3. Moreover, the electricity charges in respect of the ‘subject plot’ were always payable i.e. exclusively by Plaintiff and ‘no default’ in this regard was ever committed by the Plaintiff. All payments, so made, per Mr. Moin Qamar, be treated and deemed as RENT under the SRPO, 1979 [XVII OF 1979], Mr. Moin Qamar, learned counsel for the Plaintiff, in furtherance of his arguments vehemently contended that the Plaintiff, as being a statutory tenant of Defendants, cannot be evicted/ejected from the ‘subject plot’ much-less through show of force and without making recourse to the provisions of SRPO, 1979 [XVII OF 1979]. Mr. Moin Qamar next urged that Plaintiff is in ‘exclusively possession’ of the ‘subject plot’. Reference in this regard was also made to the ‘cross-examination’ of Plaintiffs witness viz. Riazuddin s/o Ziauddin recorded in Suit No. 583 of 1989 [M/s. State Life Insurance Corporation of Pakistan & another v. Mr. Mohiuddin Khan & another] wherein, per Mr. Moin Qamar, the said witness [PW-1], has made an admission to the extent and effect that it is correct to suggest that the plot in suit is in exclusive possession and control of Defendant No. 1’ [Plaintiff herein].

4. Lastly, Mr. Moin Qamar, learned counsel for the Plaintiff urged that the Plaintiff, besides, a ‘statutory tenant’ is holding ‘exclusive possession’ of the ‘subject plot’ as such, the Plaintiff cannot be evicted, save and except, in accordance with the provisions of SRPO, 1979. In support of his contentions. Mr. Moin Qamar, learned counsel for the Plaintiff placed reliance on i. PLD 1964 SC 106 [Abdullah Bhai and others v. Ahmad Din] ii. PLD 1962 [WP] Kar 663 [Ahmad Din v. Abdullah Bhai and others] iii. 1999 CLC 1076 [Sindh Industrial Trading Estate Ltd. through Secretary v. Kemia Industries Ltd. through Secretary] iv. PLD 1999 Kar 181 [M/s. Zaidi’s Enterprises & others v. Civil Aviation Authority & others], v. PLD 1971 Kar 35 [Government of West Pakistan v. Meezan Corporation & another] vi. PLD 1970 Kar 657 [Mst. Shirinbai v. Saleem Jamal & 7 others] vii. PLD 1963 [WP] Lahore 418 [Muhammad Hashim v. Zulfiqar Ali Khan, General Manager, West Pakistan, Road Transport Board & others], viii. PLD 1957 [WP] Kar 631 [M. A. Faruqi v. Sajid Ali Khan & another]. ix. 1998 CLC 374 [Royal Foreign Currency v. The Civil Aviation Authority & another], x. 2005 CLC 1982 [M/s. Sign Source v. M/s. Road Trip Advertisers & another], xi. 2006 CLC 1611 [M/s. Javed & Co. v. M/s. Daewoo Pakistan Motorway Services Ltd. through Chief Executive].

5. The relevant portions therefrom, referred to and relied upon by Mr. Moin Qamar, learned counsel for the Plaintiff, in support of his contentions respectively read as follows:

i. PLD 1964 SC 106 [Abdullah Bhai and others v. Ahmad Din]

“….The line of demarcation between a lease and a licence will sometimes be a very thin though there is no doubt as to the principle applicable. A lease as will appear from Section 105 of the Transfer of Property Act is a transfer of an interest in immovable property. Ownership of physical property consists of a number of rights and the owner of such property when he creates a lease, transfers to the lessee a part of the rights of ownership, i.e. the right of enjoyment of the property, for a period, for consideration. During the continuance of the lease the right of enjoyment of the property belongs to the tenant and not to the landlord. The right of ownership as well as the rights of which it is composed are rights in rem and not in personem and by the lease a right in rem is transferred to the lessee. On the other hand a “licence” as will appear from its definition in Section 52 of the Easements Act is merely a competence to do something which except for this permission would be unlawful. It does not confer any rights in physical property. There is in the case of a licence only a personal agreement between the licensor and the licensee whereby the licensor agrees not to interfere with the doing of particular acts on property which is in his possession. No right in rem passes to the licensee. Examples of a licence are a permission to cut grass from the land of another or to hold fares or run stalls on land in the possession of another. The right to cut grass from land belongs to the owner of land, being a part of the right of ownership. When the owner grants to another person a licence to cut grass, it does not even mean that the right to cut grass in so far as it is a right in the land (a right in rem) passes to the licensee. If a right in the land itself passed an interest in the land would pass and it would not be a licence. When the owner of land grants licence to another to cut grass there is a simple personal contract that the owner will not interfere with the cutting of grass by the licensee. This contract may be specifically enforced, but it grants only a right in personam.

As will appear from what is stated above the criterion for distinguishing between a lease and a licence is simple, i.e. whether any right in immovable property itself, a right in rem, has passed to the person concerned, but the determination of this question may be difficult in the circumstances of a particular case. It will be a matter of an inference from all the attendant circumstances. Where there is a document, of course, the evidence will have to be considered with due regard to the provisions of Sections 91 and 92 of the Evidence Act ....” [Underlining is mine].

ii. PLD 1962 [WP] Kar 663 (Ahmad Din v. Abdullah Bhai and others)

“16. We may now summarise our conclusions the most distinctive feature between a lease and a licence is that, in the former there is a transfer of interest in immovable property whereas in the latter that element is expressly excluded. The transfer of interest in a case of a lease consists of the grant to the lessee the exclusive right of possession of the demised premises. This right, in the first instance, vests in the lessor and is one of the most important incidents of ownership in granting a lease the lessor transfers this important right to tile lessee. The right of exclusive possession involves an element of ouster and when the lessor grants this right to the lessee; lie totally excludes himself from that right, though it may be only for a certain time. This right is assignable and heritable and constitutes property. On the other hand, in the case of a licence there is a total absence of transfer of interest in the immovable property. A licence is a personal right granted to an individual or to an ascertained number of individuals, to do or continue to do something in or upon the immovable property of the grantor, which in its absence would be unlawful. It is purely a permissive right and is neither assignable nor heritable. Notwithstanding the permission the grantor retains control over the property. The fact that a licensee occupies the property, that occupation does not confer upon him the right of exclusive possession as understood in law. Under the Transfer of Property Act, apart from the transfer of the right to enjoy property, there has to be also a consideration paid or promised and the lease has to be for a certain time. But these elements may often not be inconsistent with a case of licence. The mere fact that the occupant under the agreement pays a monthly sum to the owner may not be conclusive because a licence may be for consideration. Similarly, the mere fact that he was to cease to occupy the property by a certain date may not be decisive because a licence may be for a term. Therefore, when both these elements are present the factor which will decide the question whether the grant is a lease or a licence, would be the right of the grantee to exclusive possession of the property in the sense indicated above. If there is such a right then the transaction is clearly one of lease because in it there has been a transfer of interest in the property. When there is a written instrument recording the transaction it is the substance of it and not the form which will govern the case. The question of intention arises only when the terms whether written or oral are not clear or when they are consistent both with the existence of a lease or a licence. It is only in such cases that the matter has to be decided with reference to the true intention of the parties deduced from all the circumstances of the case. The use of certain technical expressions in a document cannot turn a lease into a licence. Where, therefore, the nature of the transaction presents some difficulty in construing whether it amounts to a lease or a licence, the question, to be asked is, has the occupant acquired an “interest in land”, that is, has the owner transferred a certain right of ownership in a way which extinguishes the enjoyment by him of that right and vests the same exclusively in the transferee. If he has then it is a case of a lease and not of licence.” [Underlining is mine].

iii. 1999 CLC 1076 [Sindh Industrial Trading Estate Ltd. through Secretary v. Kemia Industries Ltd. through Secretary]

“...It would be seen that a license merely grants the Licensee permission to enter upon the licensor’s property and do something, which in the absence of such grant would be unlawful; such grant or permission would amount to a license (as per Section 52 of the Easements Act). However, in our opinion, if such a grant creates an interest in the property the same could not be construed as a license and in this connection the intention of the parties would also have to be considered. In the present case, as we have already observed that the respondents applied for an allotment of the plot in question; paid substantial amounts to the appellants in lieu thereof whereupon the plot was allotted to the latter on the terms and conditions appearing therein. No doubt one of the terms was that the industry for which the plot was allotted should be completed within eight” months of the allotment order; however, it is the respondent’s case that they were unable to do so due to the appellants failure to provide the infrastructure facilities and hence they could not be penalized on this score. The subsequent correspondence between the parties also establishes that right from the very beginning it was the parties intention that the respondents be allowed to construct buildings of a permanent nature on the plot in question for which purpose they would be given ownership rights through proper lease documents. In the circumstances of the case we are of the view that based upon the documents brought upon the record the transaction between the parties amounted to an agreement to lease rather than a licence and hence the provisions of the Easements Act are not at all relevant to the facts of the matter. Reference can be made to Pakistan Employees Housing Society Ltd. v. Anwar Sultana PLD 1969 Kar 474 wherein similar circumstances a Division Bench of this Court came to the conclusion that the allotment order in question was in fact an agreement to lease ....” [Underlining is mine].

iv. PLD 1999 Kar 181 [M/s. Zaidi’s Enterprises & others v. Civil Aviation Authority & others]

“In order to decide the issue of maintainability of the suits and the pending Miscellaneous Applications, we have, to determine whether the agreement, several clauses of which have been reproduced above, is a lease or a licence. The line of demarcation between a lease and licence is some times very thin and one will have to look at the actual wordings and the spirit of the A agreement rather than the terminology used therein to find out the real nature of the relationship between the parties (PLD 1982 Karachi 532 and PLD 1963 Lahore 418). In Ahmed Din v. Abdullah Bhai and others PLD 1962 Karachi 663 at page 676 the learned Division Bench observed as follows:--

“The most distinctive feature between a lease and a licence is that, in the former there is a transfer of interest in immovable property whereas in the latter that element is expressly excluded. The transfer of interest in a case of a lease consists of the grant to the lessee the exclusive right of possession of the demised premises. This right, in the first instance, vests in the lessor and is one of the most important incidents of ownership. In granting a lease the lessor transfers this important right to the lessee. The right of exclusive possession involves an element of ouster and when the lessor grants this right to the lessee he totally excludes himself from that right, though it may be only for a certain time. This right is assignable and heritable and constitutes property. On the other hand, in the case of licence there is a total absence of transfer of interest in the immovable property. A licence is a personal right granted to an individual or to an ascertained number of individuals, to do or continue to do something in or upon the immovable property of the grantor which in its absence would be unlawful. It is purely a permissive right and is neither assignable nor heritable. Notwithstanding the permission the grantor retains control over the property. The fact that a licensee occupies the property, that occupation does not confer upon him the right of exclusive possession as understood in law.” [Underlining is mine].

v. PLD 1971 Kar 35 [Government of West Pakistan v. Meezan Corporation & another]

‘“7. ...The agreement was not merely for the use of the property in a certain way or on certain terms while the possession and control was of the Railway. It was put in exclusive possession of the Corporation and although there were no express words to that effect the nature of the acts to be done by the Corporation required exclusive possession of the plot in dispute. A similar situation arose In re: Burmah Oil Co. (AIR 1933 All. 735) before the Full Bench presided over by that distinguished and revered jurist Sulaiman, C. J., the consideration being an agreement to give temporary use of land on monthly rent described as a licence for constructing petroleum installation to which the licensor was to have access at any time and the licensee was to rebuild or repair at licensor’s request in which no right to transfer or sublet was given to the licensee and on breach of condition of the terms of the agreement the licensor was entitled to determine the licence by seven days’ written notice and to enter into possession. It was held that the document in all these circumstances must be held to be a lease. Their Lordships observed with reference to the definition of a ‘license’ as contained in the Easements Act and of a ‘lease’ as defined in the Transfer of Property Act and the Stamp Act that even though the parties called the document an agreement by way of a license and although throughout the document had been referred to in the same phrase the substance of the terms agreed upon was to be looked into and that the distinction between a ‘license’ and a ‘lease’ was a very narrow and thin one. The outstanding factors to be considered were exclusive possession and enjoyment of the land for the time being subject to the restrictions of inspection at sonic times by the licensor Their Lordships finally held that from all points of view the document between the parties there amounted to a lease chargeable with duty under the relevant section of the Stamp Act....” [Underlining is mine].

vi. PLD 1970 Kar 657 [Mst. Shirinbai v. Saleem Jamal & 7 others]

“6. The question for consideration under this issue is whether the above document was intended to operate as a demise of property was only an agreement for a lease, as it purports to be Section 105 of the Transfer of Property Act, 1882, defines a lease as the transfer of an interest in immovable property for a consideration which is called rent. This section does not lay down the manner in which a lease has to be executed, which is left entirely to the intention of the parties, therefore it is settled law that the question whether an instrument amounts to a lease or is only an agreement to obtain a lease depends on the intention of the parties, which is to be gathered from the instrument as a whole, the circumstances in which it was executed and even from the conduct of the parties. As was pointed out by Ellenborough, C. J. in a very old case Pool v. Bentley (104 E R 66) “The rule to be collected from all the cases is that the intention of the parties as defined by the words of the instrument must govern the construction … [Underlining is mine].

1. …. Their Lordships of the Supreme Court observed that the period of occupation fixed under the compromise recorded in the Rent Controllers Court was more than one year, that this compromise was not registered, and then observed at page 110 of the Judgment:--

“According to Section 49 of the Registration Act no document which is required by Section 17 of the Registration Act to be registered can either create a right in immovable property or be received as evidence of such right. According to Section 107 of the ‘Transfer of Property Act, a lease for a period of more than one year can be created only by a registered instrument or by an oral agreement coupled with delivery of possession. The document with which we are dealing is hit by both these provisions. The Transfer of Property Act is applicable to the area with which we are dealing and the lease could not have come into existence at all by means of this document. According to Section 17 of the Registration Act a document evidencing a lease for more than one year is compulsorily registerable.” [Underlining is mine].

1. The only question that remains for determinations is the plaintiffs claim for ejectment. Mr. Fakhruddin argued that the plaintiff is entitled to eject the defendants because of their flagrant breach of the provisions of the unregistered lease. On the other hand, learned counsel for the defendants argued that as the period of the unregistered lease was to have been 15 years, the defendants could not be ejected until the expiry of that period (which would be 15 years from 1.3.1958) therefore, according to learned counsel, the suit was premature, and in support of this argument he relied on the provisions of Section 53-A of the Transfer of Property Act, 1882.

2. Section 53-A of the Transfer of Property Act, in so far as it is relevant, reads as follows:--

“53-A. Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has in part performance of the contract taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract though required to be registered, has not been registered, or where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract....”

On a plain reading of this section the defendants can rely on it only by proving that they had at all times been ready and willing to carry out their obligations under the unregistered lease. I am fortified in my opinion by a judgment of the Bombay High Court in Bechardas Damodardas Kachia v. Borough Municipality of Ahmadabad (AIR 1941 Bom. 346) in which in reference to the provisions of this section, a Division Bench of the Bombay High Court observed that “...it is primarily intended for the benefit of the transferee and that being so when the section speaks of the performance of his part of willingness to perform his part it must mean in our opinion complete performance or complete willingness so far as he is concerned .... Accordingly, in order to claim the benefit of the equitable remedy conferred by this section the defendants have to prove that they had always been ready and willing to carry out their obligations under the unregistered lease. As I have held that both the deceased and the defendants have committed flagrant breach of their obligations under the unregistered lease it follows that they are not entitled to the benefit of this section. [Underlining is mine].

vii. PLD 1963 [WP] Lahore 418 [Muhammad Hashim v. Zulfiqar Ali Khan, General Manager, West Pakistan, Road Transport Board & others]

“‘6. In determining whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee, the decisive consideration is the intention of the parties, according to Halsbury’s Laws of England. Third Edition, Volume 23. paragraph 1022. The parties to an agreement cannot, however, turn a lease into a licence merely by stating that the document is to be deemed a licence or by describing it as such. The relationship of the parties is determined by law on a consideration of all relevant provisions of the agreement; nor will the employment of words appropriate to a lease prevent the agreement from conferring a licence only, if from the whole document it appears that it was intended merely to confer a licence. A licence is normally created where a person is granted the right to use premises without becoming entitled to exclusive possession thereof or the circumstances and conduct of, the parties show that all that was intended was that the grantee should be granted a personal privilege with no interest in the land. If the agreement is for the use of property in a certain way and on certain terms, while the property remains in the possession and control of the owner, the agreement will operate as a licence even though the agreement may employ words appropriate to a lease. The instance of agreements which have been held in English Courts to create licences include the letting of bookstalls on a railway platform, letting of space for a stall in an exhibition, permission to use a shed for particular purposes, an exclusive right to put pleasure boats on a canal, power to dig for fire-clay, liberty to fasten a coal-halk to a mooring in a river, liberty to lay and stack coal on land, liberty to search and dig for coal and permission to erect or affix advertisements, etc., etc. The relationship of landlord and tenant arises as a rule when one party confers on another the right to the exclusive possession of land, mines or buildings for a time, which is either subject to a definite limit originally, as in the case of a lease for a term of years, or which, though originally indefinite, can be made subject to a definite limit by either party, as in the case of a tenancy from year to year. As a rule there is incident to it the right to receive from the tenant payment for the use of the property in the shape of rent. The fact that the agreement grants a right of exclusive possession is not in itself conclusive evidence of the existence of a tenancy but it is a consideration of the first importance. [Underlining is mine].

1. A ‘licence’ is defined in Section 52 of the Easements Act as follows:--

“Where one person grants to another, or to a definite number of other persons; a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license”.

What has been conferred upon the petitioner is a right to do in or upon immovable property of the grantor which he could not lawfully do otherwise. He was permitted to put up a catering stall, which would have been unlawful for him to do without the licence, and it conferred no exclusive interest in the property. A ‘lease’ is defined in Section 105 of the Transfer of Property Act as a transfer of a right to enjoy such property, made for a certain tenure express or implied or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value to be tendered periodically or on specified occasions, to the transfer by the transferee, who accepts the transfer on such terms. Thus while in the case of a licence there is conferred a right to do something on the immovable property of another which he could not otherwise lawfully do, there is in the case of a lease a creation of interest in and a right to enjoy such property. This is the essential distinction between them. The distinction in some cases may be difficult to draw, but there is a distinction as indicated above. [Underlining is mine].

1. ...A “tenant” means under Section 2 (i) any person by whom or on whose account rent is payable for a building or rented land, and “rented land” means under Section 2 (f) any land let separately for the purpose of being used principally for business or trade. “Landlord” means under Section 2 (c) any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf or for the benefit of any other person. These are no doubt words of wide import, but rent is payable by a tenant in relation to transfer of an interest in and a right to enjoy a particular land, which is not the case here. What has been conferred here is a permission to do something on the land, i.e., to do catering business on the land, which is a licence. The difference is no doubt subtle but it is not difficult to see it. The words ‘landlord’ and ‘tenant’ have to be interpreted in the like manner. I cannot, therefore, hold that the petitioner is a ‘tenant’ within the meaning of Section 2 (i) of the Ordinance, and has its protection. [Underlining is mine].

viii. PLD 1957 [WP] Kar 631 [M. A. Faruqi v. Sajid Ali Khan & another]

“... It has been held there that the main test for deciding whether a person is a licensee of the property or a lessee is that of exclusive possession. If the effect of the agreement is to give exclusive possession to the holder, though subject to certain reservations, then it is a lease. If the agreement is merely for the use of property in a certain way and on certain terms whiles it remains in the possession and control of the owner, it is a license. To give exclusive possession ...’”

ix. 1998 CLC 374 [Royal foreign Currency v. The Civil Aviation Authority & another]

“8. ...the chief consideration to be borne in mind is whether any right of exclusive possession is given to the grantee or not. It was further held that a license is a mere voluntary suspension of the licensor’s right to treat certain acts as wrongful and that no person can put up any cabin on the street except with the permission of the Municipal Corporation and the keeping of such cabin is lawful so long as permission continues. In the present case, it is an admitted position that the premises of Quaid-e-Azam International Airport belongs to Civil Aviation Authority and no person or authority can put up any cabin or establish a shop in the said premises without the permission of the Civil Aviation Authority. The difference between a lease and a license was also considered by the Hon’ble Supreme Court of Pakistan in the case of Abdullah Bhai and others v. Ahmad Din (PLD 1964 SC 106). In this case, it was held by the Hon’ble Supreme Court that the line of demarcation between a lease and a license is some time very thin. It was held that the right transferred through the lease amounts to right in rem while the right transferred through the license as provided under Section 52 of the Easements Act is only a right in personam whereby the licensor agrees not to interfere with the doing of particular acts on a property which is in possession of a licensee. I am of the view that the principle laid down in the cases of Abdullah Bhai and Ashfaq Hussain is fully attracted in the circumstances of the present case. [Underlining is mine].

x. 2005 CLC 1982 [M/s. Sign Source v. M/s. Road Trip Advertisers & another]

“9. The essential features of license are three folds, which are as under:--

(1) A license is not connected with the ownership of any land but creates only a personal right or obligation hence it cannot be assigned.

(2) It is purely permissive right arising only by permission, express or implied, and not by adverse exercise or in any other way, hence it is generally revocable at the will of the grantor.

(3) It only legalizes a certain act, which would otherwise be unlawful and does not confer any interest in the property itself in or upon or over which such act is allowed to be done.

1. Thus, a license is a personal right granted to a person to do something upon immoveable property of the grantor, and does net amount to the creation of an interest in the property itself. It is purely a permissible right and is personal to the grantee. It creates no duties and obligations upon the person making the grant and is, therefore, revocable in certain circumstances expressly provided for in the Act itself. The license has no other effect than to confer a privilege, upon the licensee to go upon the land and to do a certain act. which would, in the absence of such license, be unlawful. A reference is invited to a case of Muhammad Khan v. Ranmarayan AIR 1956 Orissa 156.

2. “Lease” has been defined in Section 105 of Transfer of Property Act, 1882 that reads as under:--

“105. Lease defined. A lease of immovable property is transfer of a right to enjoy such property, made for a certain time, express or implied; or in perpetuity, in consideration of the price paid or promised, or of money, a share of crops, service of any other thing of value, to be rendered, periodically or on specified occasions to the transfer by the transferee who accepts the transfer on such terms.”

1. The cardinal distinction between the lease and the license is that in lease, there is a transfer of an interest in the property to, enjoy it, whereas in the case of license there is no transfer of interest, although the licensee may acquire the right to occupy the land. One of the essential conditions of a tenancy is that the tenant should have the right to the exclusive possession of the premises with transfer of an interest to enjoy the property, while license on the other hand, implies the permission to do some act which without the permission it would be unlawful to do.

2. In deciding whether a grant amounts to a lease or a license pure and simple regard must be had to the substance of the agreement and not to what it purports to be. Since exclusive possession coupled with the transfer of a right to enjoy the property, is the test in determining G whether a grant is a license or a lease, there can be no scope for doubt that when the grantee takes under the grant only the right to use the land without exclusive possession, the right granted is a license and not a lease. A reference is invited to case of Behari Lal v. Chhote AIR 1933 All. 911.

xi. 2000 CLC 1611 [M/s. Javed & Co. v. M/s. Daewoo Pakistan Motorway Services Ltd. through Chief Executive]

“Both the Courts below have given concurrent findings of fact against the petitioner that suit for declaration with permanent injunction is not maintainable. In view of the aforesaid circumstances, the petitioner has alternative remedy to file a suit for damages against the respondent-1 defendant. The lease period was already expired. Therefore, finding of both the Courts below are upheld... It is well-settled that the Court of law should not grant discretionary reliefs in such cases where they are liable to be frustrated by A the authorities concerned by passing a fresh order or where they will lead to injustice or clothe 4 suitor with an undeserving advantage or will inflict unjustified loss on the defendant. It is a necessary incidence in the trial of judicial issues that a suit which is on the face of it incompetent under the law should not be allowed to further encumber legal proceedings ...”

1. Mr. Zeeshan Abdullah, learned counsel for the Defendants on the other hand emphatically argued that upon perusal of License Agreement of 25th August, 1985 [Exh.P-’4/3’] one can easily reached the conclusion that License Agreement is for a period of three [03] years in terms of’clause-3 thereof. Besides, under Exh-P-’4/3’ Plaintiff herein, was only allowed to use the ‘subject plot’ as a car parking. In the License Agreement it has further clearly been mentioned that Defendant No. 1, has no intention whatsoever, to create any ‘relationship’ of ‘tenant’ and ‘landlord’ between the parties [i.e. Plaintiff and Defendant No. 1 herein]. The relevant part of [Exh-P-’4/3’] runs as ‘WHEREAS the “LICENSOR” has made it clear to the “LICENSEE” that the said “LICENSOR” has not intention, whatsoever, to create any relationship of landlord and tenants between the “LICENSOR” and the “LICENSEE’. According to Mr. Zeeshan Abdullah, learned counsel for the Defendants for to determine nature of relationship, ‘intention’ of the parties is of paramount consideration. The intention of the parties, as far as, in the case in hand is concerned, is very much clear. The said License Agreement dated 25.8.1985 [Exh.P-’4/3’] no doubt, per Mr. Zeeshan, creates only a relationship of licensee and licensor between the Plaintiff and Defendant No. 1 respectively.

2. Moreover, from the contents of the License Agreement dated 25.8.1985 [Exh.P-’4/3’], it is also abundantly clear that no interest as claimed by the Plaintiff in the ‘subject plot’ has ever been transferred to the Plaintiff. The overall possession and supervision of the “subject plot” always remained with the Defendant No. 1. Upon expiry of the said License Agreement dated 25.8.1985, the Plaintiff, of course, can be deemed and treated as a trespasser over the subject plot”. The said Agreement is admittedly for a period of three [03] years on agreed payment of license fee in the sum of Rs. 20,160/- per month. Per Mr. Zeeshan Abdullah. License Agreement of 25.8.1985, upon its’ expiry on 31.09.1988, has never, been renewed. The Plaintiff’s plea of alleged relationship of landlord and tenant between Defendant No. 1 and Plaintiff according to Mr. Zeeshan Abdullahy, carries no weight. Reference to so called License Agreement of 1st October, 1988, is not only misleading, misconceived but also seems tainted with malafide intention. Plaintiff, upon expiry of License Agreement dated 25.8.1985 [Exh.P-’4/3’], is no more a “licensee” to use the parking area. The present, suit as framed and filed by the Plaintiff, per Mr. Zeeshan Abdullah, is not maintainable, as the Plaintiff herein, has no ‘cause of action’ in his favour to file the same. In support of his contentions Mr. Zeeshan, Abdullah, learned counsel for the Defendants, has placed reliance on i. 2005 CLC 1982 [M/s. Sign Source v. M/s. Road Trip Advertisers & another”] ii. PLD 2002 Kar 502 [Khalid & Company v. Cantonment Board, Malir through President, Commander Station Headquarter, Malir Cantonment and Cantonment Executive Officer, Karachi], iii. 2009 PLD Kar 58 [Khaista Khan through Legally Constituted Attorney v. KW&SB through Managing Director/Executive Engineer Karachi & 3 others]. The relevant parts therefrom, on which Mr. Zeeshan placed reliance read as follows:--

i. 2005 CLC 1982 [M/s. Sign Source v. M/s. Road Trip Advertisers & another)

“8. On perusal of these documents viz. JVA and agreement executed between Defendants Nos.1 and 2 they clearly show that the Defendant No. 2 had given a license and provided the space of his land to the Defendant No. 1 for advertising through hoarding. The heading of the documents is “License for Advertisement”. This document clearly shows that the Defendant No. 1 was merely a licensee of the Defendant No. 2. This document cannot be called a lease deed, therefore, the Defendant No. 1 cannot be termed as lessee of the Defendant No. 2. As such, the Defendant No. 2 was simply a licensee; therefore, he cannot transfer more rights than the rights, which he himself had in the property. “License” has been defined under Section 52 of Easements Act, 1882 that reads as under:--

“52. ‘License’ defined: where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such a right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license.”

1. The essential features of license are three folds, which are as under:--

(1) A license is not connected with the ownership of any land but creates only a personal right or obligation hence it cannot be assigned.

(2) It is purely permissive right arising only by permission, C express or implied, and not by adverse exercise or in any other way, hence it is generally revocable at the will of the grantor.

(3) It only legalizes a certain act, which would otherwise be unlawful and does not confer any interest in the property itself in or upon or over which such act is allowed to be done.

1. Thus, a license is a personal right granted to a person to do something upon immoveable property of the grantor, and does net amount to the creation of an interest in the property itself. It is purely a permissible right and is personal to the grantee. It creates no duties and obligations upon the person making the grant and is therefore, revocable in certain circumstances expressly provided for in the Act itself. The license has no other effect than to confer a privilege, upon the licensee to go upon the land and to do a certain act, which would, in the absence of such license, be unlawful. A reference is invited to a case of Muhammad Khan v. Ranmarayan AIR 1956 Orissa 156.

ii. PLD 2002 Kar 502 [Khalid & Company v. Cantonment Board, Malir through President, Commander Station Headquarter, Malir Cantonment and Cantonment Executive Officer, Karachi]

“15. The question of licence came under discussion before the Honourable Supreme Court in PLD 1965 SC 83. The facts of the reported case were that the appellant was granted licence whereby he was given a right to use refreshments rooms allotted to them for the purpose of catering refreshment. It was held that such a contract does not amount to easement as defined in Section 4 of the Easements Act, 1882 or interest in the property nor it could be regarded as a licence within the meaning of Section 60 of the Easements Act. It was, thus, held that this being a revocable licence, the revocation thereof cannot be prevented by way of injunction. It was observed by the apex Court that in a case like this the licensee is entitled to a reasonable notice in accordance with the provisions of Section 63 of the Easements Act. The Honourable Supreme Court in the said case while dilating upon the provisions of Section 21 of the Specific Relief Act, observed that it is clear that as it is a revocable licence and as adequate relief could be obtained by way of damages, this contract cannot be specifically enforced as it was a contract which in its nature was revocable.” [Underlining is mine].

iii. 2009 PLD Kar 58 [Khaista Khan through Legally Constituted Attorney v. KW&SB through Managing Director/Executive Engineer Karachi & 3 others].

“11. The plaintiff has filed the suit with the prayer that the defendants have no right, interest or title in the hydrant installed by him. The defendants are not claiming any right, title or interest in the hydrant but their contention is that without proper license and N.O.C. the plaintiff cannot maintain the hydrant. The plaintiff has not produced the license or the N.O.C. The plaintiff can seek declaration to do a legal and lawful business. The plaintiff cannot seek declaration to do a business which he cannot run without proper license or permission from the authorities concerned. The plaintiff has taken contradictory pleas. At the one hand he states that no N.O.C. or permission license is required and on the other hand produced the license from Town Administration Gadap. The plaintiff has not sought any declaration that he is entitled to the renewal of the license issued to him. Since the plaintiff has no license to maintain the hydrant the prayers cannot be granted and no purpose will be served in keeping the suit pending. The prayer clause “B” is not an independent prayer but flows from the main relief, which itself is not maintainable.” [Underlining is mine].

1. Mr. Zeeshan Abdullah, learned counsel for the Defendants also contended that time period for a suit of declaration under Section 42 of the Specific Relief Act, 1877 [I of 1877], is governed by Article 120 of Limitation Act, 1908 [IX of 1908], which per Mr. Zeeshan, provides a period of 6 years viz-a-viz. filing of a suit from the date when the right to sue, if any, accrues i.e. when a the legal character or right to any property is denied.

2. Before proceeding further at his juncture, I would like to refer to the definition of license as given in Sections 52 and 54 of the Easement Act, 1882 [V of 1882] which reads as follows:--

a. “52. License defined, where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right be unlawful and such right does not amount to an easement or interest in the property, the right is called a License.”

b. “54. Grant may be expressed or implied. Grant of a License may be expressed or implied from the conduct of the grantor, and an agreement which purports to create an easement, but is ineffectual for that purpose, may operate to create a License.” [Underlining is mine].

1. Like-wise, a ‘license’ has also been defined in Halsbury Laws of England 4th Edition re-issued volume 27/1 in the following words:

“Creation of License: A license is normally created where a person is granted the right to use premises without becoming entitled to exclusive possession of them or where exceptional circumstances exist which negative the presumption of the grant of a tenancy. If the agreement is merely for the use of the property in a certain way and on certain terms while the property remains in the owner’s possession and control, the agreement operates as a license, even though the agreement may words appropriate to a lease.” [Underlining is mine].

1. Per definition of license [i]. Only a pure and permissive right comes into existence by means of a permission expressed or implied and not by an adverse exercise, [ii]. Generally the license is revocable on the will and wish of the grantor, [iii]. License can only legalize a certain act, such as right to do or continue to do in or upon the immovable property of the grantor which legal right otherwise, in absence of such permission besides becoming unlawful shall not confer an interest in the property itself, [iv]. The grant of license may be expressed or implied from the conduct of the grantor and [v]. Such right under license, to use the premises/property is always without any entitlement to hold possession of the premises, exclusively.

2. The burden of proof viz-a-viz. relationship as being claimed by the Plaintiff in its’ capacity as tenant and not a licensee is upon the Plaintiff herein. The Plaintiff herein, however, has miserably failed to discharge such burden. From the materials available on record, it is evident and an established position that the Plaintiff herein was a ‘licensee’ of Defendant No. 1/Licensor and not a ‘tenant’ as claimed by the Plaintiff. The factum can be seemed/established from the following aspects as well:--

(i) that before the execution of the License Agreement dated 25.8.1985 [Exh.P-’4/3’], for a part of a plot, admeasuring 6000 sq. yards, for car parking purpose it was abundantly made clear to the Plaintiff that Defendants had no intention of leasing out the ‘subject plot’ to the Plaintiff except giving it on leave and license under the License Agreement dated 25.8.1985 [Exh.P-’4/3’]. This intention of parties is quite clear from the said License Agreement dated 25.8.1985.

(ii) that the Defendants through a ‘Public Notice’ dated 19.4.1985, published in Daily DAWN, Karachi had invited tenders for the car parking on leave and license basis. The same ‘Public Notice’ has been produced in evidence as [‘Exh-P-4/1’]. The stand of Plaintiff as being a tenant is not supported by any authentic document/plausible evidence.

(iii) that Defendant No. 1, as is evident from available record, was and is in control of the ‘subject plot’ and this position is also evident from the letter of the Plaintiff dated 12 August, 1985, [Exh.’D/13’], wherein, he sought permission from the Defendants to change the design of the gate and this permission was granted by the Defendants through its’ letter dated 25th August, 1985, [Exh.’D/13’]. The Plaintiff’s said letter of 12 August, 1985 reads as follows:--

“August 12, 1985

Mr. Azad Ali Khan, Manager, Real Estate Division Karachi.

Sub: CAR PARKING AT LACKIE ROAD PLOT

Dear Sir, This has reference to your letter dated 4-8-1985 and the undersigned subsequent meeting with you before we take the possession of plot. We have observed from the attached plan of Gates to be fixed that as no specification have been mentioned as to make it clear about the usage of material, we feel that as the space will be already insufficient for developing facility for 360 Cars, instead of having such a gate if we fix a sliding gate this will also save space for few more cards, we suggest that we have sliding gates if approved by you in angle iron frame of “2 size with G.I. sheet of 20 guage fixed on it running on steel railing fixed on top for sliding, for 2 gates of 16 feet wide. One small gate will be fixed with turning on wall side. [Underlining is mine].

Please let us know your decision on this so as to enable us to process its development.

Thank you, Yours faithfully, Sd/- Mohiuddin Khan, House No. 21/107, Peoples Town, S.F. Colony, Karachi.”

1. The Defendants herein, as evident from the record, continued to supervise the use of the ‘subject plot’ in respect of which the Plaintiff is a ‘licensee’. The Plaintiff, it is significant to note, at one stage had raised constructed a ‘covered shed’ and ‘affixed a signboard’ on a portion of the plot but without seeking prior permission from the Defendants. The Defendants when, came to know about such illegal act of the Plaintiff issued notice to the Plaintiff whereby, Plaintiff was called upon to remove the same immediately otherwise, the Plaintiff has to suffer the legal consequences. This position is quite clear from letter dated 17.12.1987 [Exh. ‘D/10’]. The Plaintiff, as evident from Exh.‘D/10’, on Defendants direction, removed raised “structure” alongwith the ‘signboard’. The Plaintiffs letter dated 17.12.1987 [‘Exh-D/10’], for convenience purpose is reproduced herein-below:--

“MESSRS MOHIUDDIN KHAN & CO. PARKINC CONTRACORS

Site Office Lucky Road Parking Plot Adjacent to State Life Building No. 1 I.I. Chundrigar Road, KARACHI-0237

Ref: SLIC/GEN/CP Date December 17, 1987

The Manager, Real Estate Division, State Life Insurance Corp. of Pakistan, Dr. Ziauddin Ahmed Road, Karachi.

Dear Sir, Please refer to your letter dated 15.12.1987, Further to our letter dated 09.12.1987, as desired by you, we are pleased to inform you that M/s. Mazhar Industries Ltd., have got the Shed removed as per your instructions. [Underlining is mine].

We are also enclosing herewith a copy of their letter dated 16.12.1987 for your information.

We hope you will appreciate the spirit of coorperation and this matter will now be resolved.

Thanking you and assuring you of our best attention at all times.

Yours faithfully For M/s. MOHIUDDIN KHAN & CO.

Sd/- (Ghulam Hussain Rajan) Manager

End: Copy of letter.”

1. The intention of parties right from very inception is also evident viz-a-viz. the ‘subject plot’ while, giving it on a license basis. Under Exh. P-‘4/3’ i.e. License Agreement of 25.8.1985, the possession, supervision and control of the ‘subject plot’ have been retained by the Defendants. Moreover, the contents of License Agreement dated 25.8.1985 [Exh.P-’4/3’] also belief the Plaintiff in his so-called stand as being ‘tenant’ of the Defendant No. 1 and not licensee’. In order to reach at a right and just conclusion, as to whether Exh-P-‘4/3’ is a license or lease, the intention of the parties needs to be ascertained. For this purpose the contents of Exh-P-’4/3’ are to be seen and examined minutely. From perusal License Agreement dated 25.8.1985 [Exh.P-’4/3’], the intention of parties is very much clear. Any oral evidence, if any, contrary to the contents of Exh-P-’4/3’, cannot be given any weight. On this aspect of the matter reliance can be placed on the case laws: i. 1989 CLC 2070 & ii. PLD 1996 Kar 240. The relevant portions from the aforesaid case-laws referred to and relied upon by Mr. Zeeshan Abdullah, learned counsel for the Defendants respectively read as follows:--

i. 1989 CLC 2070 [Pakistan Industrial Credit and Investment Corporation Ltd. v. Habib Enterprises Ltd. and another

“13. ...The principle on which Sections 91 and 92 of the Evidence Act, 1872 (since repealed) and the present corresponding provisions in Articles 102 and 103, Qanun-e-Shahadat, 1984, appear to be founded is that where terms of a contract, grant or any other disposition of property are reduced into writing no oral evidence as to the terms’, of the same is admissible ....” [Underlining is mine].

ii. PLD 1996 Kar 210 [Parveen Begum and another v. Shah Jehan and another]

“10. ... Notwithstanding the variation in respect of the sale consideration I am of the view that in view of the legal bar contained in Sections 91 and 92 of the Evidence Act corresponding to Articles 102 and 103 of the Qanun-e-Shahadat, 1984 Defendant No. 1 cannot be allowed to lead evidence in contradiction to the written terms of a document. Crux of the above provisions of law and consistent view of the Courts has been that when the terms of a contract have been reduced to the form of a document and in all cases in which any matter is required by law to be reduced to writing, no evidence shall be given in proof of the terms of such contract, grant, or other disposition of the property, or of such matter except the document itself and no evidence of any oral agreement or statement shall be admitted as between the parties to any instrument or their representatives-in-interest for the purpose of contradicting varying, adding to, or subtracting from its forms. In view of this position in law. I am of the considered view that the, defendants are not legally entitled to adduce evidence contrary to the terms of a written document i.e. Agreement to sell and the acknowledgment receipt in respect of the consideration. Refer PLD 1986 Supreme. Court 519.” [Underlining is mine].

1. From the License Agreement dated 25.8.1985 [Exh. P-’4/3’], the following things/ingredients which are very much clear:--

i. Intention of the parties.

ii. License fee.

iii. Use for car-parking.

iv. Raising of no permanent construction.

v. Conferring no interest of transfer upon the Plaintiff.

vi. Keeping two sets of keys, one for each party.

vii. Possession of no exclusive nature but joint possession.

1. The various clauses of License Agreement dated 25.8.1985 [Exh.P-’4/3’], show that under the said License Agreement dated 25.8.1985, the Plaintiff was only given a license. Moreover, the permission granted to the Plaintiff as licensee is also revocable. The Plaintiff, upon expiry of Exh.P-’4/3’ has no right to file the instant suit. Further, Plaintiff, under Exh.P-’4/3’ is a licensee and not a tenant as claimed by the Plaintiff. In this regard, some of the very relevant terms & conditions of License Agreement dated 25.8.1985 [Exh-P-’4/3’] for ready reference are reproduced here-in-below:--

“1a. This License agreement shall commence with effect from the 1st day of October, 1985 from which date the Licensee has leave and License to use the said plot of land, which is in the ownership and possession of the “LICENSOR”, for a period of 3 years on payment of Licensee fee Rs. 20,160.00 (rupees twenty thousand one hundred sixty only) per month for the privilege of use of the said plot of land for car parking.

1b. The LICENSEE hereby undertake to pay the LICENSOR the said license fee monthly in advance before the 10th day of each month. Default on the part of the LICENSEE to pay License fee in time shall automatically render the License cancelled and the LICENSOR shall take possession of the said plot of land without giving notice to the LICENSEE in this behalf.

1. The License shall pay a sum of Rs. 60,488/- to the licensor by deposit equal to three months fee for the due performance of the terms and conditions contained herein, which will be refundable to the licensee after adjustments if any within a period of one month reckoned from the date of yielding up the licensor premises by the licensee. No interest shall occur on this deposit.

2. The LICENSEE shall not make any kind of permanent construction including; Masonry work of any kind on the said portion of the land, however, the LICENSEE shall be allowed to make an enclosure of barbed wires on the said plot of land two gates for incoming and outgoing cars a small gate for use of concerned persons and a wooden cabin near the gate for the Watchmen of the parking area.

3. Each lock of the abovesaid gates shall have two keys, one of which shall remain in the possession of LICENSOR.

4. The LICENSEE shall not use the said plot of land for any purpose other than that for which the Licensee is granted, nor shall the LICENSEE use the said plot of land in such a manner so as to cause damages to the said plot of land and/or inconvenience, disturbance, annoyance or nuisance to the quests, tenants, Licensees, Visitors and employees of the LICENSOR or the occupants/Licensees/tenants of the LICENSORS properties. Should the question arise as to whether the LICENSEE is causing such inconvenience, annoyance, disturbance or nuisance etc. the decision of the LICENSOR shall be final and binding on the LICENSEE.

5. The LICENSEE shall always and at all times be under the control and supervision of the LICENSOR, its agents, servants and employees and shall observe all directions and orders as may from time to time, be issued by the LICENSOR, its agents, servants and employees regarding part thereof the anybody else in any event.

6. The LICENSEE shall not exhibit any advertisement, playcard or any part thereof the anybody else in any event.

7. The LICENSEE shall pay in time and within due date to the appropriate person or authority all cess, rates, charges, fees duties and taxes in respect of the said plot of land and the cable so put and, the business conducted by the LICENSEE. The electric power consumed by the LICENSEE, shall be charged by the LICENSOR as per meter reading and shall be payable by the LICENSEE within 5 days of the bill being received by the LICENSEE. The default whereof shall give rise to a cause for cancellation of the License and in such an event the Licensor shall be authorized to disconnect electric power.

8. The Licensee shall indemnify the LICENSOR against all claims or liability in respect of any accidental, personal or other injury or damage which may at any time or times during the continuance of this license happen in the said plot of land or arising out of the same to any guest, visitor, customer, tenant. Licensee, occupant or employee of the LICENSOR or LICENSEE and/or costs incurred for defense in any action or proceedings for contesting, defending or securing such claim.

9. The LICENSES does hereby agree to indemnify the LICENSOR and keep it harmless from all claims, demands, damages, costs, actions, and charges to which the LICENSOR may become subject or that it may have to pay or be held liable therefore, by reason of any injury to person, reputation or property suffered or sustained by any agent, employees guest or visitor of the LICENSOR arising out of any activity or negligence, commission or omission.

10. This License shall be valid, in the first instance, for a period of three years and may be extendable exclusively at the option of the LICENSOR on terms and conditions to be decided by the Licensor. The License agreement hereby executed by the parties, if not renewed as provided for hereinabove, before the expiry of the said period, shall automatically stand cancelled. For renewal, a written request by the LICENSEE made one month before the expiry of the term hereby created or of any subsequent extended term will be required. Upon receiving such request, the Licensor may at his sole discretion, grant him a License for the use of the said portion of plot of land for a further term and on such conditions as may be decided by the Licensor. On the expiry of the period of Licensee as herein provided or of any extended period or on revocation of the same the License shall stand cancelled.

11. On the expiry of the License as herein provided, the LICENSEE shall forthwith remove himself and all property belonging to him from the said plot of land and vacate it by leaving, it in the same good proper condition in which it was at the commencement of the License agreement, unless the License agreement is revoked earlier in accordance with the terms and conditions contained herein by the LICENSOR.

12. The LICENSOR reserves the right to revoke the License agreement at any time by a notice of one month to the LICENSEE at his will or 24 hours notice in the event of any breach of the terms and conditions of the License agreement by the LICENSEE.

The possession of the said plot of land shall rest with the LICNESOR however the LICENSEE will has license and leave to use it for car parking. [Underlining is mine].

1. From the License Agreement dated 25.8.1985 [Exh.P-‘4/3’], the relationship between the parties is very clear. The License Agreement dated 25.8.1985, expressly specifies/shows the intention of parties viz-a-viz. creation of relationship as of licensor and licensee between the Defendant No. 1 and the Plaintiff and not relationship of a landlord and tenant as claimed. The License Agreement dated 25.8.1985 no doubt, is a License Agreement and not a tenancy/lease agreement. It is also an established position that Plaintiff was allowed only to use the ‘subject plot’ for car parking. Under |Exh.P-‘4/3’] no right was conferred upon the Plaintiff to assign sublet or part with the possession of the ‘subject plot’ to anyone else. In view of this position, no any exclusive interest/right was created in favour of the Plaintiff over the ‘subject plot’ save and except in terms of License Agreement dated 25.8.1985 [Exh.P-’4/3’.]. The Plaintiff, neither through his pleadings nor his evidence has established that the License Agreement dated 25.8.1985 [Exh.P-‘4/3’], in any manner, was meant for to create a ‘relationship’ of ‘landlord’ or ‘tenant’ between the parties. The relationship between the parties [i.e. Defendant No. 1 and the Plaintiff], as established from the record, is of a ‘Licensor’ and ‘licensee’ and not of ‘landlord’ and ‘tenant’ as claimed by the Plaintiff. In this regard reliance was placed on the case laws: i. 1990 ALD 412 at Head note (b) [Najmul Hassan Farooqui & 4 others, ii. PLD 2002 Khi 83 [M/s. Noorani Traders through Managing Partner v. Pakistan Civil Aviation Authority through Airport Manager, Karachi.

2. The relevant portion therefrom on which reliance has been placed by Mr. Zeeshan Abdullah, learned counsel for the Defendant reads as follows:--

i. 1990 ALD 412 at Head note (b) [Najmul Hassan Farooqui & 4 others v. M/s. United Carpets Ltd.]

“(b) Transfer of Property Act (IV of 1882)

----S.105--Easement Act (V of 1882). S. 52--Words “lease” and ‘“licence”--Distinction between--[Words and phrases].

The most conspicuous distinction between the lease and licence is that in the case of lease, there is transfer of right to enjoy the immovable property concerned, but no such transfer comes about in the case of licence. However, it is common experience that in case of lease, no words are specifically used to show that there is a transfer of a right to enjoy the demised property but such a transfer is always deducible from the terms of the agreement if studied carefully. It is for the reason of that peculiarity that it is quite often said that the dividing line between lease and licence is rather thin and occasionally blurred.

The line of demarcation between a lease and a licence will sometimes be a very thin though there is no doubt as to the principle applicable. A lease as will appear from Section 105 of the Transfer of Property Act is transfer of an interest in immovable property. Ownership of physical property consists of a number of rights and the owner of such property when he creates a lease, transfers to the lessee a part of the rights of ownership, i.e. the right of enjoyment of the property for a period, for consideration. During the continuance of the lease the right of enjoyment of the property belongs to the tenant and not to the landlord. The right of ownership as well as the rights of which it is composed are rights in rem and not in personam and by the lease a right in rem is transferred to the lessee. On the other hand a “licence” as will appear from its definition in Section 52 of the Easements Act is merely a competence to do something which except for this permission would be unlawful. It does not confer any rights in physical property. There is in the case of a licence only a personal agreement between the licensor and the licensee whereby the licensor agrees not to interfere with the doing of particular acts on property which is in his possession. No right is rem passes to the licensee. Examples of a licence are a permission to cut grass from the land of another or to hold fares or run stalls on land in the possession of another. The right to cut grass from land belongs to the owner of land, being a part of the right of ownership. When the owner grants to another person a licence to cut grass, it does not even mean that the right to cut grass is so far as it is a right in the land (a right in rem) passes to the licensee. If a right in the land itself passed an interest in the land would pass and it would not be licence. When the owner of land grants licence to another to cut grass there is a simple personal contract that the owner will not interfere with the cutting of grass by the licensee. This contract may be specifically enforced, but it grants only a right in personam.

The following propositions are to be taken as well as established.

(1) To ascertain whether a document creates licence or lease the substance of the document must be preferred to the form;

(2) the real test is the intention of the parties whether they intended to create a lease or a licence;

(3) if the document creates an interest in property, it is a lease but if it only permits another to make use the property, of which the legal possession continues with the owner, it is licence; and

(4) if under the document a party gets exclusive possession of the property prima facie, he is considered to be a tenant, but circumstances may be established which negative the intention to create lease.: [Underlining is mine].

ii. PLD 20102 Khi 83 [M/s. Noorani Traders through Managing Partner v. Pakistan Civil Aviation Authority through Airport Manager, Karachi

“... It would be seen that the controversy between the parties is that on the one hand, the appellant has disputed the cancellation of the Licence Agreement being an alleged arbitrary, mala fide and discriminatory exercise whereas on the other hand, the respondent has denied this claiming the right to cancel the Agreement in terms of powers derived from the Agreement itself as well as being in the public interest. The legal position regarding the rights and obligations of a licensee is well-settled inasmuch as a licence does not contemplate a transfer of interest in property and it is purely a permissible right which is at the behest of the grantor. This position is in contradistinction to a lease whereby there is a transfer of interest and an exclusive right to possession is granted. This would therefore mean that a licensee holds the licensed property purely at the Behest of the grantor which can at any stage be revoked in which event the licensee’s only namely would be a suit for damages, as specific performance or other equitable relief would not be permissible in the circumstances of the case. The above formulation of law finds full support in the Easements Act itself Section 60 of which allows the revocation of a licensee unless it is coupled with a transfer of property of the licensee has executed works of a permanent character in the licensed premises. Further Sections 63 and 64 of the said Act provides for the consequences of such revocation viz. reasonable time to the licensee for vacation of the property and his right to recover compensation for damages etc. as result of such eviction. In these circumstances, therefore, a suit for specific performance would not be maintainable as laid down by the Honourable Supreme Court long ago in M.A. Nasir v. Chairman, Pakistan Eastern, Railways and endorsed by the superior Courts from time to time viz., in Royal Foreign Currency Exchange v. Civil Aviation Authority, Zaidi’s Enterprises v. Civil Aviation Authority (supra) etc. [Underlining is mine].

1. From the record it has not been established that the Plaintiff is a ‘tenant’ in terms of SRPO, 1979 and/or that the License Agreement dated 25.8.1985 [Exh.P-‘4/3’], is a lease/tenancy agreement. Moreover, the Plaintiff in his ‘cross-examination’ recorded in Suit No. 583 of 1989 has also admitted that the “the Agreement was read over to me and I signed the same after I understood the same”. As admitted, the contents/phraseology of Exh-P-’4/3’ were properly understood and only thereafter, the Plaintiff put his signature on Exh-P-‘4/3’. Further, under the said License Agreement dated 25.8.1985, it has also been expressly agreed that Plaintiff does not wish to create any ‘relationship’ of ‘tenant’ and ‘landlord’ but instead Plaintiff had agreed to create relationship of ‘licensee and ‘Licensor’. The Plaintiff, it appears, now with a malafide intention and perhaps, in order to build a case of ‘tenant’ and ‘landlord’ in his letter dated 25.8.1988 has purposely used the term RENT and that too when the License Agreement dated 25.8.1985 has already expired. The Defendant’s letter dated 15.1.1989 [Exh-‘D/’7’] however, clarifies the actual and true position. Exh.’D/7’ reads as follows:--

“January 15, 1989 REAL ESTATE

Mr. Mohiuddin Khan Licencee Lackie Road Parking Plot. Adjacent to State Life Building No. 1 I. I. Chundrigar Road Karachi

Sub: RENEWAL OF LICENCE AGREEMENT IN RESPECT OF LACKE ROAD PLOT FOR CAR PARKING

Dear Sir, Please refer to your letter dated 25-8-1988 on the subject matter and have carefully noted the contents.

We hereby inform you that the above plot was given to you under the Licence Agreement dated 25-8-1985 and you had paid licence fee during the license period and not rent as mentioned in your letter under reply.

Since the said Licence Agreement dated 25-8-1985 stands expired on 30-9-1988 and you are liable to remove yourself and all the property belonging to you from the said plot of land and vacate it by leaving it in the same and in the proper condition in which it was at the commencement of Licence Agreement without loss of any time. [Underlining is mine].

Thanking you

Yours faithfully. (ASIM S.M. KHAN) Deputy General Manager”

1. As far as, the Plaintiff’s reliance on three [03] receipts i.e. Exh.P-‘4/4’ to Exh-P.‘4/6’ are concerned, the use of word RENT therein, per Mr.Zeeshan Abdullah, was nothing but an error of the issuing clerk of Defendants. In all other receipts, it was contended that word ‘license fee’ has been used. Plaintiff, nevertheless, as per available record, has badly failed to produce any document and/or any cogent evidence in support of his stand that the ‘relationship’ between the Defendant No. 1 and Plaintiff is that of a ‘landlord’ and tenant’ and not that of licensor’ and ‘licensee’.

2. The term ‘tenant’ has been defined in Section 2(i) of SRPO, 1979 [XVII of 1979], in the follows words:

(j) “tenant” means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of any premises by him or by any other person on his behalf and includes:--

(i) any person who continues to be in possession or occupation of the premises after the termination of his tenancy;

(ii) heirs of the tenant in possession or occupation of the premises after the death of the tenant; and

1. Like-wise, a Tenancy Agreement has been defined under Section 5 of the Sindh Rented Premises Ordinance, 1979 [XVII of 1979], in the following words:--

“Section 5(1) The Agreement by which landlord lets out any premises to tenant shall be in writing and if such agreement is not compulsorily registerable under any law for the time being in force, it shall be attested by, signed with the seal of the Controller within whose jurisdiction the premises is situate or, any Civil Judge or First Class Magistrate.

(2) Where any agreement by which a landlord lets out any premises to a tenant is compulsorily registerable under any law for the time being in force, a certified copy of the registered deed and where the agreement is not so registerable, the original deed duly attested under sub-section (1), shall be produced and accepted in proof of the relationship of the landlord and tenant:

Provided that nothing in this section shall affect any agreement between the landlord and tenant immediately before coining into force of this Agreement.’”

1. From the provisions of the Sindh Rented Premises Ordinance, 1979 [XVII of 1979], it comes clear that if, an agreement is compulsorily registerable under any law for the time being in force then, a certified copy of the registered deed and where the agreement is not so registerable, then the original deed duly attested under sub-section (i) shall be produced and accepted in proof of the relationship of landlord and tenant. In this case, Plaintiff herein rather, has expressly admitted, the execution of the License Agreement dated 25.8.1985 [Exh.P-‘4/3’]. Moreover, the said License Agreement dated 25.8.1985 is for three [03] years, and has not been registered as required under Section 17 of the Registration Act, 1908. Under such circumstances, the same cannot be termed as “Tenancy Agreement”. The same, in view of this position, as well, is a License Agreement, and not a Tenancy Agreement as claimed by the Plaintiff. The ‘License Agreement’ dated 25.8,1985 [Exh.P-’4/3’], in terms of clause ‘1-a’ is for three years but the same, it is admitted position, has not been registered as required, under Section 17 of the Registration Act, 1908. [XVI of 1908]

2. Being relevant Sections 17 (1) (d) of the Registration Act, 1908 [XVI of 1908] are reproduced here-in-below:--

“17(1) Documents of which registration is compulsory: The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after a date on which Act No. XVI of 1964 or the Registration Act, 1866, or the Registration Act. 1871, or the Registration Act, 1877, or this Act came of comes into force, namely:--

(a) --------------------

(b) --------------------

(c) --------------------

(d) Leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;

(e) --------------------.”

1. The License Agreement dated 25.8.1985 [Exh.P-’4/3’], in no manner can be considered a Lease Agreement, as per its’ definition. given under Section 105 of the Transfer of Property Act. Under Section 105, a lease of immovable property is a transfer of right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered, periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. Per definition of Lessor, lessee, premium and rent the ‘transferor’ is called the lessor’, the ‘transferee’ is called the ‘lessee’, the price is called the premium, and the money, service or other thing to be so rendered is called ‘the rent’.”

2. It is significant to note, that rights under lease are right in rem and the same are assignable and transferable. In the instant case, however, the Plaintiff, did not acquire any rights of transferable nature. This position, is quite evident from the contents of the License Agreement dated 25.8.1985 [Exh.P-‘4/3’] under which only a permission of car parking was granted to the Plaintiff viz-a-viz. the ‘subject plot’. For this reason as well the said License Agreement dated 25.8.1985 [Exh.P-’4/3’] cannot be termed and/or treated as a lease Agreement. Plaintiff, as per record available, is a ‘licensee’ of Defendant No. 1/Licensor in respect of the ‘subject plot’. The relationship between the Defendants and the Plaintiff as is evidently is that of ‘Licensor’ and ‘licensee’ and not that of a landlord and tenant. The Plaintiff’s occupation thus after expiry of the License Agreement dated 25.8.1985 [Exh.P-’4/3’] is not only illegal but is of trespasser in respect of the ‘subject plot’.

3. The Plaintiffs counsels, however, in contra contended that at the time of execution of License Agreement dated 25.8.1985 [‘Exh-P-4/3’], the intention of the Plaintiff was in fact to create a relationship of tenant and landlord and not that of licensee and licensor. In this regard, reliance has been placed on the evidence of the State Life’s witness viz. Hafiz Arshad Shaikh s/o Shaikh Abdul Razzak [DW-1/1], who, per Plaintiff counsel, in his ‘cross-examination’ has admitted the factum that possession of the ‘subject plot’ as was handed over to the Plaintiff and the ‘subject plot’ is in possession and control of the Plaintiff. The relevant part of ‘cross-examination’ of ‘DW-1’ reads as follows:--

“It is correct that the suit property is under control of the Plaintiff. It is correct to suggest that suit property is in exclusive control and possession of the Plaintiff. There is a room on the suit property but I do not know as to the purpose/use of the room....”

Nevertheless, it is also worth to mention that the ‘DW-1/1’ in his ‘cross examination’ has further stated as follows:--

“It is incorrect that relationship between the Plaintiff and Defendants is of landlord and tenant. Vol. Says that it is a license Agreement between the parties...”

1. As far as, the aforesaid contention of Mr. Moin Qamar is concerned, in my humble opinion, such piece of evidence is of no help to the Plaintiff interalia for the reason that License Agreement dated 25.8.1985 [Exh.P-’4/3’], was executed on 25.8.1985 for a period of three [03] years. Upon expiry of the License Agreement dated 25.8.1985 [Exh.P-’4/3’], it is admitted position that no any other fresh License Agreement was ever executed as provided under ‘clause 13’ of the License Agreement. In view of this positions the Plaintiff’s is occupation of ‘subject plot’ from the date of expiry onward i.e. 1st October, 1988 is nothing but a clear cut act of ‘trespasser’/’occupier’. The Plaintiff’s occupation of the ‘subject plot’ and that too after expiry of License Agreement dated 25.8.1985 [‘Exh-P-4/3’], is not only illegal but also un-authorized. The contents of the License Agreement dated 25.8.1985 [Exh.P-’4/3’] also belief the Plaintiff in his so-called stand of relationship as of ‘tenant’ and ‘landlord’ between the Plaintiff and Defendant No. 1. Apart from above. [Exh.P-‘4/26’], also belies the Plaintiffs contention regarding delivery of exclusive possession. Per Exh.P-‘4/26’ the ‘subject plot’ is in joint possession of the Plaintiff and Defendants.

2. Under the aforesaid circumstances, no any sanctity can be attached to or given to and/or ‘oral statement of witness’. Being relevant, the following un-numbered paragraphs from License Agreement dated 25.8.1985 [Exh.P-’4/3’] are reproduced here-in-below:

Whereas the “Licensor” has made it clear to the Licensee that the “licensor” has not intention, whatsoever, to create any relationship of landlord and tenant between the “Licensor” and the “Licensee”.

And whereas the “Licensor” has also expressly stated and does hereby expressly state that the “Licensee” in his turn has no intention, whatsoever to became a tenant, of the said plot of land in the “Licensors” property. [Underlining is mine].

Moreover, on the last page of the said License Agreement [‘Exh-P-4/3’] it has further been provided that:

The possession of the said plot of land shall rest with the “Licensor” however the “Licensee” will has license and leave to use it for car parking. [Underlining is mine].

1. Further, in terms of Articles 102 and 103 of Qanoon-e-Shahadat Order, 1984, if, there is a ‘conflict’ between the ‘Oral Evidence’ and Documentary Evidence then Documentary Evidence available on record, is to prevail over the oral evidence. In the case in hand, it is significant to note, the License Agreement [Exh.P-’4/3’] duly signed between the parties is not only an admitted document but the same has also been exhibited without any objections whatsoever. On the aforesaid aspects of the matter, reliance placed on the case-laws: i. 2014 SCMR 1217, ii. 2010 CLC 246, iii. 2013 MLD 1305 & iv. PLD 1986 SC 519.

2. The relevant portions therefrom referred to and relied upon by Mr. Zeeshan Abdullah, learned counsel for the Defendants read as follows:

i. 2014 SCMR 1217 [Elahi Bakhsh through Legal Heirs and others v. Muhammad Iqbal and another]

“7. ... It was accordingly reduced into writing and registered at the instance of the parties mentioned above. The respondent, however, averred that it was a sale and not exchange. The burden, therefore, law on him to prove, that it was sale. In his effort to prove his stance, he produced Saeed Ahmed and Mst. Sughran Bibi who were examined as P.W.1 and P.W.2. Both the P.Ws. stated in their evidence recorded in the Court that the transaction entered into between them and the appellants was one of sale and not that of an exchange. This statement, so to say, varies the terms of the deed and substantially so. The question that arises for the adjudication of this Court is whether an oral statement of a party to an instrument which varies or tends to vary its terms could be admitted into evidence? The answer to this question is a plumb no because Article 103 of Qanun-e-Shahadat Order 10 of 1984 excludes oral statement as between the parties to any such instrument or their representatives. The rationale behind this Article is that inferior evidence is excluded in the presence of superior evidence; that an agreement finding expression in writing is an out come of deliberate and well thought out settlement; that a party acknowledging a fact in writing is precluded to dispute it and that an agreement reduced into writing is immune from mischief, failure and lapse of memory....” [Underlining is mine].

ii. 2010 CLC 246 [Karam Din through L.Rs. and others v. Muhammad Idrees]

“12. ...During cross-examination he was confronted with the written statement. He denied having signed the written statement. However, he admitted his signatures on the front and back side of the agreement Exh.P.1. He also admitted that the I.D. Card number shown thereon related to him. Then he tried to take a shift saying that the stamp paper was got written through fraud. He however failed to state any particular of the so-called fraud. It is evident that he had admitted the execution of the agreement Exh. P.I dated 26-3-1996. The agreement Exh.P.1 was fully covered under. Article 102 of Qanun-e-Shahadat Order, 1984 and any oral evidence against its terms, would stand excluded from consideration vide Article 103 of the Order (ibid). [Underlining is mine].

iii. 2013 MLD 1305 [Shakeel v. H. Syed Masroor Ahmed]

“8. Both the Courts below have considered, discussed and relied upon the oral evidence of appellant without examining the documents i.e. Registered Power of Attorney executed by H. Syed Masroor Ahmed, Respondent No. 1 in favour of Saleemuddin and the registered sale deed executed by Saleemuddin as Attorney of Respondent No. 1 in favour of appellant Shakeel, the said documents were produced by the appellant before the trial Court in his evidence as Exhibit D/1 and D/2. The General Power of Attorney as per the endorsement of Sub-Registrar was registered at Serial No. 865 dated 20-10-2004, the photograph of executant H. Syed Masroor Ahmed is affixed on the General Power of Attorney, whereas the Sale Deed in respect of suit property, as per the endorsement of Sub-Registrar was executed under Register No. 417 dated 25.1.2005 about 3 months after the execution of General Power of Attorney, as such both the Courts below have given preference to the oral evident over the documentary evidence which amounts to mis-carriage of justice and violation of Articles 102 and 103 of Qanun-e-Shahadat, 1984 which relates to exclusion of oral evidence when the terms have been reduced into writing to form a document, oral evidence led to contradict the contents of a document would be inadmissible. Reliance can be placed on a matter reported as (Ali Muhammad v. Ghulam Haider) 2001 CLC 1440....’ [Underlining is mine].

iv. PLD 1986 SC 519 [Muhammad Shafi and others v. Allah Dad Khan]

“...The evidence of the respondent and of another person was admitted by the Trial Court for the purpose of proving the real intention of the parties and such evidence was relied on to some extent by the Courts below. In regard to the admissibility of this evidence their Lordships held that by reason of Section 92 of the Evidence Act, no oral evidence of intention was admissible for the purpose of constrain the deeds or ascertaining the intention of the parties, and the case had to be decided on a consideration of the contents of the documents themselves with such-extrinsic evidence of surrounding circumstances as may be required to show in what manner the language of the document is related to existing facts....” [Underlining is mine].

1. As far as, contention of Mr. Moin Qamar, learned counsel for the Plaintiff viz-a-viz. deposit of the rent in Misc. Rent Case is concerned, the same seems incorrect in view of order dated 19.10.1989 passed in Suit No. 583 of 1989 [M/s. State Life Insurance Corporation of Pakistan & another v. Mr. Mohiuddin Khan & another], filed by Defendants herein. Defendant No. 1 [i.e. Plaintiff herein], in the said Suit 583 of 1989, was directed to deposit the ‘license fee’ with the Nazir of the Court and seemingly since then, the same is being deposited. [Order dated 19.10.1989 has already been reproduced hereinabove]. Per Plaintiff’s counsel since. M/s. State Life Insurance Corporation of Pakistan, has failed to prove its claim regarding opening and closing the gate of parking of the ‘subject plot’ through their security guards, as such, the Plaintiff is a ‘tenant’ and not a ‘licensee’ in respect of the ‘subject plot’. In contra Mr. Zeeshan Abdullah, learned counsel for the Defendants while, referred Articles 117 and 119 of Qanoon-e-Shahadat [Order 10 of 1984] forcefully contended that under said Articles, ‘burden of proof’ lies on the person, who asserts existence of a particular fact, such as, in the case in hand, is the so-called ‘Relationship’ of ‘tenant’ and ‘landlord’ between the parties is concerned. From the record available, the Plaintiff, herein, has failed to discharge the burden of proof satisfactorily. On this score as well, the Plaintiffs case fails.

2. Moreover, under the License Agreement dated 25.8.1985. [Exh.P-’4/3’] Defendants Never divested themselves of possession of the ‘subject plot’ exclusively. Rather, the Plaintiff under Exh-P-‘4/3’, was given permission only to use the ‘subject plot’ and without creating any 3rd party interest in the ‘subject plot’. As far as the closing and opening of the main gate of the ‘subject plot’ is concerned, no any question was put to DW-1’ during his ‘cross examination’. Moreover, the contents of the License Agreement dated 25.8.1985 [Exh.P-‘4/3’]. also belie the Plaintiff in his such stand/version. Besides, in the pleadings, no such plea was taken and/or otherwise, established through evidence. Needless to say one cannot be allowed to prove and/or build a case beyond the scope of pleadings. On this aspect of the matter, reliance can be placed on the case laws: 2015 SCMR 21 [Muhammad Iqbal v. Mehboob Alam].

3. The relevant portion therefrom reads as follows:--

2015 SCMR 21 [Muhammad Iqbal v. Mehboob Alam]

“3. ... it is also settled that no litigant can be allowed to build and prove his case beyond the scope of his pleadings. Therefore, only plea that remained to be determined; as set out by the appellant in his defence (written statement) was if the time was the essence of the contract or not...”

1. Manifestly, as per ‘clause 5’ of Exh.P-’4/3’, each lock of gates referred to therein, shall have two keys, one in possession of the licensor and other in possession of the licensee. [Defendant No. 1 and Plaintiff herein]. This clause 5 also belies the Plaintiff/licensee in its’ alleged stand. Mr. Moin Qamar further argued that the word ‘vacate’ it as used in clause 14’ of the Agreement [Exh. P-’4/3’], if read, in juxta-position of’handing over letter [Exh.P-’4/26’] then, it becomes clear that the Plaintiff is/was in possession of the ‘subject plot’ and relationship between the parties [i.e. Plaintiff and Defendants], is that of the ‘tenant’ and not of ‘licensee’. This argument of the learned counsel for the Plaintiff is also mis-conceived. The distinction between a ‘lease’ and license’, no doubt, is very thin but this line of distinction can only be established by mean of a recognized test i.e. in case of ‘lease’ there must be an ‘exclusive possession’ coupled with interest, otherwise, the possession, if any shall not be deemed as an exclusive. Further mere occupation of an immovable property and its’ use in particular manner, of course, creates a “license” and not a “lease”.

2. From perusal of Exh.P-’4/26 inter alia it is quite clear that the possession of the ‘subject plot’ is to remain with the officer of M/s. State Life Insurance Corporation of Pakistan [Plaintiff]. So far, the word ‘vacate it’ used in the License Agreement dated 25.8.1985 [Exh.P-’4/3’] is concerned, the same, cannot be made basis for to show that the Plaintiff is in exclusive possession of the ‘subject plot’ or otherwise, the Plaintiff is a tenant of Defendant No. 1. Contrary to the stand of Plaintiff Exh.P-’4/3’ [i.e. License Agreement dated 25.8.1985], not only belies the Plaintiff but also it declares that possession of the ‘subject plot’ is with the licensor [Defendant No. 1] and ‘Licensee’ [Plaintiff herein], however, will have leave and license to use it for car parking. The claim of the Plaintiff under the above circumstances, besides false is without any foundation. The word vacate has been defined in Black’s Law dictionary in Ninth Edition at Page 1988. Per definition of the word ‘vacate’, the act of vacation is meant only for two things/purposes i.e:--

(a) Occupancy; and

(b) Possession ;

Like-wise, the word ‘vacate’ has been defined in Words & Phrases, 4th Edition. Lexis Nexis at page 1259 as under:--

“VACATE

New Zealand [Under a contract for the sale of land, the vendor undertook to transfer a certain Maori leasehold if he decided to vacate the property.]; ‘The word “vacate” will connote, in accordance with the context, either a withdrawal which results in emptiness or vacancy or a mere withdrawal or a departure where no state of vacancy is produced. In the present context, I think the latter is the appropriate meaning. McLean v. Grace [1953] NZLR 566 at 569. per F B Adams J.’” [Underlining is mine].

1. Keeping in view, definition of the word ‘vacate’ and reading it in juxta-position of the ‘terms’ & ‘conditions’ of License Agreement dated 25.8.1985 [Exh.P-’4/3]’, particularly with ‘clause 5 thereof then it becomes quite clear that word ‘vacate’ has been used for occupancy purpose only. Likewise, the use of word ‘rent’ in two rent receipts i.e. [Exh-P-’4/4’] & [Exh-P-’4/5’] also in no manner, can change the mutually agreed ‘terms’ & ‘conditions’ of License Agreement dated 25.8.1985 [Exh.P-’4/3’]. The Plaintiff, it is significant to note, has never acquired any right in the ‘subject plot’ in its capacity as ‘licensee’ except to the extent of use thereof. Moreover, the license period, as per Exh.P-‘4/3’ has already expired. On expiry of the License Agreement dated 25.8.1985 [Exh.’P-’4/3’], the Plaintiff has even lost its’ right to use the ‘subject plot’ as ‘licensee’. For the reasons given hereinabove, the prayers sought by the Plaintiff cannot be granted or otherwise enforced under law.

2. Further, oral evidence viz-a-viz. intention of parties cannot be given weight in presence of written document i.e. Exh-P-’4/3’ herein. Moreover, according to Section 107 of Transfer of Property Act, 1882 [IV of 1882], a lease for a period of more than 01 year can only be created by means of a registered document/instrument. In the case in hand, it is worth to mention. License Agreement dated 25.8.1985 [Exh.P-’4/3’]. is for three [03] years but it is not a registered document. In this view of the matter as well Exh-P-’4/3’, the same is a License Agreement and not a Lease Agreement as being claimed by Plaintiff. Plaintiff, in view of the foregoing circumstances, is a ‘licensee’ and not a ‘tenant’, as according to Section 17 of the Registration Act, 1908 [XVI of 1908], a document for a term exceeding one year lease is compulsorily registerable.

3. For all the above discussion. I have come to the conclusion that the relationship of Plaintiff and Defendant No. 1 is not of ‘tenant’ and ‘landlord’, rather it is of ‘licensee’ and ‘Licensor’. ISSUE NO. 4 is answered accordingly.

ISSUE NO. 5:--

1. With regard to Issue No. 5, which is to the effect and extent as to what relief, if any, the Plaintiff is entitled to. I am of the considered opinion that the Plaintiff is not entitled for any relief as claimed in the plaint or otherwise. ISSUE NO. 5 is thus answered in NEGATIVE’.

ISSUE NO. 6:--

1. As far as. Issue No. 6 is concerned which is to the effect as to what should the decree be. For and in sequel of the above discussion. I am of the considered view that Exh-P-‘4/3’, is not a contract of lease but it is a license agreement and Plaintiff is a ‘licensee’ and not a ‘tenant’. Moreover, the License Agreement dated 25.8.1985 [Exh.P-’4/3’], has already expired, therefore, Plaintiff has/had no right whatsoever to file the instant suit for the reliefs sought in the plaint. Under such circumstances, Plaintiff’s suit stands dismissed, however, with no order as to costs.

(M.M.R.) Suit dismissed

PLJ 2018 Karachi 65

Present: Salahuddin Panhwar, J.

IN THE MATTER OF LETTER OF ADMINISTRATOR, SHOUKAT ALI BHOJANI (DECEASED), MST. PARVEEN SHOUKAT (WIDOW)--Petitioner

S.M.A. No. 83 of 1995, decided on 7.10.2016.

Succession Act, 1925 (XXXIX of 1925)--

----Scope--There can be no denial that scope of Succession Act, 1925 is summary in nature and does not permit determination of complicated question of facts. [P. 67] A

Succession Act, 1925 (XXXIX of 1925)--

----Scope of--Letter of administration--Title--Jurisdiction--Determination of legally entitled person--Letter of Administration may determine ‘entitlement’ of legal persons (legal heirs) but shall not vest ‘title’ in them for which such legally entitled persons shall have to follow course, provided by law, for getting title normally in record of rights--An exception to this however may be made but in appropriate rather exceptional cases by resorting course of auction of subject matter so as to distribute shares among legally entitled persons. [P. 59] B

Civil Procedure Code, 1908 (V of 1908)--

----O. XXI rr. 65, 66, 67, 68 & 69--Procedure and conduct of action--Procedure provided by Order XXI Rule 65 to 69 of CPC to extent of mode, manner and conduct of auction shall be followed which is meant to bring maximum price of property, to be auctioned by eliminating all chances of any prejudice to rights of any of legally entitled persons. [P. 69] C

Agreement--

----An agreement between two, even if allowed by Court, shall not make independent persons (not parties to agreement) liable to any obligation nor Court (in such proceedings) legally can presume consent/assent of such persons in an agreement independently arrived between parties. [P. 74] D

Non-Signatory--

----It is well established principle of law that neither a consent or assent of one shall dress an illegal act as ‘legal’ nor shall be a cause to deviate from mandatory requirement of law and procedure for doing a particular act. [P. 74] E

Civil Procedure Code, 1908 (V of 1908)--

----S. 12(2)--Legality of a judgment, decree and order--Application under Section 12(2), CPC legally can only be filed challenging legality of a judgment/decree or order which is capable of being enforced but cannot be sustained against right to file a separate suit because legally status of an agreement is’ nothing more than a right to file a suit for enforcement thereof which is always to be determined/decided by a competent Court of law--Object of Section 12(2) of is meant to provide a remedy to challenge legality of a decree or order and is not a substitute for an independent suit for enforcement of an independent right even if arose from an order passed in a suit/proceedings. [P. 74] F

Rana Azeem, Advocate for Petitioner (Mst. Parveen Shoukat).

Mr. Zeeshan Abdullah, Advocate for legal heirs

Mr. Khalid Mehmood Siddiqui, Advocate for Auction Purchaser.

Mr. Zaheer Minhas, Advocate present on hearing

Date of hearing: 8.9.2016.

Order

Through SMA No. 596/2005 under Section 12(2) read with Section 151, CPC applicant has challenged order dated 31.08.2001 being relevant prayer of such application is that:--

“……to recall/set aside the order dated 12th March 2004 passed by this honourable Court in the above matter as the said order has been obtained by the purchaser by misrepresentation of facts, inducement, pressure and collusion depriving the applicant and the minor form getting the actual market price of the property in question and it may kindly be ordered that the said property may be sold out by way of auction in fair and transparent manner in accordance with law and as per orders passed by this honourable Court in the above matter.”

1. Learned counsel for applicant inter alia contends that applicant was minor, during pendency of instant petition, he became adult and moved application that sale agreement between the petitioner (mother) and auction purchaser is void, without any substance; on his behalf his mother was not competent to enter into any sale agreement. He has also referred Section 364 of Muhammadan law, further contends that sale was allowed by this Court but due to instant application further proceedings were stayed by order dated 14.12.2009 issues were framed and evidence was recorded. He relied upon PLD 1976 SC 258, PLD 1975 SC 311, PLD 2009 SC 751, PLD 1981 Azad J&K 33, PLD 2015 Sindh 46, 2016 MLD 337 and 2011 SCMR 921.

2. Learned counsel for petitioner has contended that sale agreement cannot be acted upon as same was obtained by fraud and misrepresentation. He has relied upon CLC 2016 Lahore 73, PLD 2015 Karachi 646, PLD 2013 Karachi 513, YLR 2006 Lahore 820, CLC 2001 138 and CLC 1995 Quetta 1246.

3. Counsel for auction purchaser vehemently contended that petitioner was very much in knowledge and being guardian of minor she was competent to enter into sale agreement; that sale agreement was prepared in pursuance of order of this Court, such permission was granted hence plea of petitioner is not acceptable under these circumstances. This is not a case of simple sale agreement but such sale agreement was completed under supervision of this Court.

4. Heard and perused the record.

5. The peculiar circumstances of the instant matter compels me to first examine the scope and object of letter of Administration under Succession Act. There can be no denial that the scope of the Succession Act, 1925 is summary in nature and does not permit determination of complicated questions of facts.

6. The purpose of grant of Letter of Administration or that of. Succession Certificate is not meant to determine or declare the title and share of claimants (legal heirs). The former is rather meant to enable one to recover/collect the debts so as to protect the party, paying such debts to one, holding the Certificate who however continues with obligation to distribute the same amongst legally entitled persons. The later is meant to determine question about the assets left by the deceased and administration thereof. Either of two however does not confer any title. The reference in support of such legally established principle of law, if any, can well be made to the case of Aisha v. Mah Gul (2015 CLC 1719) wherein it was held as:

“A person may apply under Section 372 of the Act, 1925 for issuance of a certificate for the purpose but the application must be in described form with required details. On receipt the Court has to adopt the procedure, summary in nature, provided to deal with the application filed for the purpose. While Section 381 of the Act, 1925 described the effect of the certificate issued by a Court on such application. The logic behind Section 381 of the Act, 1925 is to enable a person to recover the debts on estate of a deceased, but the certificate issued for the purpose neither declared the rights of the persons interested, nor determined their shares in the recoverable debts. Rather issuance of the certificate is with sole purpose to protect the party paying the debts to holder of the certificate. However, a duty imposed on the holder of the certificate to disburse the amount realized under the certificate among the persons entitled in accordance with their respective rights. It is clear in view of the above discussion that a certificate issued under the Act, 1925 does not confer any title upon a person, but only enables him to recover the debts.”

In another case of Sindh Industrial Trading Estates Ltd. v. Muhammad Ilyas (2005 SCMR 309), it was categorically held as:

‘In the matter pertaining to letters of administration the Court only determined the question about the assets left by the deceased and inherited by the legal heirs and in appropriate cases undertook to investigate adverse claim between the legal heirs in the said proceedings, but the same does not tantamount to confirming title on the legal heirs.’

(Emphasis supplied)

1. The scope and object of the Letter of Administration should no more be confusing. The Court can competently exercise the following jurisdictions:--

(i) determine the question about the assets, left by deceased;

(ii) inheritance thereof by legally entitled persons (legal heirs);

(iii) may determine the adverse claim(s) between the legally entitled persons;

1. In short, through such exercise of jurisdiction the ‘entitlement’ is determined and not the ‘title’. I would add that the term ‘entitle’ is something different from ‘title’ and both cannot be termed as ‘synonym’ to each other. At this juncture, it would be appropriate to refer the meanings of both the above two with reference to Black’s Law Dictionary (Ninth Edition) which are:

“ENTITLE” -- To grant a legal right to or qualify for.

“TITLE”--The union of all elements (as ownership, possession, and custody) constituting the legal right to control and dispose of property.

Now, I can conclude that a Letter of Administration may determine ‘entitlement’ of legal persons (legal heirs) but shall not vest ‘title’ in them for which such legally entitled persons shall have to follow the course, provided by law, for getting title normally in Record of the Rights. An exception to this however may be made but in appropriate rather exceptional cases by resorting course of auction of subject matter so as to distribute the shares among legally entitled persons but only where property is partitionable and auction is only available course which exception shall first require existence of:

(i) determination of the legally entitled persons;

(ii) determination of assets;

(iii) determination of adverse claim, if any;

(iv) legal consent of all parties;

(v) consent by guardian in case one of legal persons is minor;

1. Needless to mention that in such exception the procedure, provided by Order XXI Rules 65 to 69 of the Code of Civil Procedure to extent of mode, manner and conduct of auction shall be followed which is meant to bring maximum price of the property, to be auctioned by eliminating all chances of any prejudice to rights of any of the legally entitled persons. Such object was highlighted by Honourable Apex Court in the case of Muhammad Attique v. Jami Limited (2015 SCMR 148). The operative and relevant portions thereof are reproduced hereunder:--

“.. It is, however, discretionary with the Court to execute the decree in accordance with the provisions of the Code, it cannot depart therefrom. Proclamation cannot be an exception to that. The relevant provisions need to be read once again for the sake of clarify which read as under:--

‘67. Mode of making proclamation. … ….’

‘54. Attachment of immovable property… … … …’

1. A careful reading of the above quoted provisions would reveal that the purpose behind their enactment, as for as it can be gathered from the words used therein, was to give wide publicity to the sale of the property so that maximum number of people may turn up to participate in it and give bids that match the price the property deserves. The words used in the aforesaid provisions may not sound mandatory and according to the judgment rendered in the case of Ghulam Abbas v. Zohra Bibi and another (PLD 1972 SC 337) are directory in their nature. But if we interpret these provisions by ignoring the purpose behind them then a sale held in the chambers of secrecy would be as good as the one held in accordance with the provisions of the Code. Failure to comply with such provisions, therefore, cannot be light ignored. We in view of the surroundings we live in, where people do not know what is happening to their next door neighbors or outside their houses, would rather desire the involvement of even electronic media for the publicity of such sale or auction so as to ensure compliance with the letter and spirit of the law. Therefore, the argument that the provisions contained in Rule 54 as well as 67 of Order XXI are directory in nature and failure to comply therewith cannot undo an auction could be held to be correct so long as it does not cause prejudice to any of the stakeholders. But where it is otherwise, failure to comply with the provisions cannot be brushed aside without due application of mind. The Court has to undo a sale if failure to comply with the provisions causes injustice. Needless to reiterate that these provisions have been enacted to advance and not to impede the cause of justice. (Emphases supplied).

2. Reverting to merits of the case, the perusal of the record shows that this Court did determine the rights and entitlement of the parties in instant proceedings but at its own never ordered for auction of the subject matter but it was passed on a joint application of the parties. The position shall stand clear from a direct reference to such application and order passed thereon which are:

ORDER DATED 31.8.2001

“Learned counsel confirm the contents of CMA No. 2223/2000 and state that the parties have also signed this application. They jointly submit that order may be made in terms of para 5 of the application. Accordingly, the application CMA No. 2223/2000 is allowed. Nazir is appointed as Commissioner for the purpose mentioned in para 5 of the application. His fee is tentatively fixed at Rs. 10,000/- which may be shared equally by the parties. Report within 30 days.”

The para-5 of the said joint application (CMA 2223/2000) reads as:

“That in view of the aforesaid facts and circumstances it is therefore prayed that this Honourable Court may be pleased to allow this application and appoint a Commissioner to sell the immovable properties and to secure funds of moveable properties for distribution of the same among all legal heirs according to law in the interest of justice and equity.”

Since, in the instant matter the legal persons and assets of deceased were not disputed therefore, on such joint application of parties the course of auction may have been consented/approved by the Court through Nazir. Such joint application, however, was without proper consent of guardian as one of legal persons was minor which otherwise was obligation of parties to have brought into notice of Court. Be as it may, since auction, if would have been completed as per procedure it would have protected the ultimate entitlement/right of the minor therefore, such failure/defect ipso facto alone shall not prejudice the legality of an auction if same is otherwise backed by law, as was/is held in the case of Muhammad Attique supra.

1. The record further spells out that the attempts to complete auction failed and such reports were submitted within notice and knowledge of all concerned. On failure of attempts to complete auction by authorized official appointment, the parties themselves came forward with a written request (CMA No. 478/2004) that:

‘That in the circumstances, it is prayed that this Honourable Court may graciously be pleased to grant the following relief to the parties herein:--

(a) To accept the bid of Rs. 5.5 Millions of Cdr. (Retd.) Amjad Javed Ubaid s/o Muhammad Ubaid, having NIC # 42301-1490037-3 for the property mentioned at Serial No. 2 i.e. House #64-B/1 Khayaban-e-Shahbaz, Phase VII, DHA Karachi

(b) To direct Nazir to issue notice to the tenant living therein to vacate the premises within one month as he has already committed with Nazir to do the needful in case notified one month in advance

(c) To direct the Nazir to receive and accept the balance sale consideration from Cdr. (Retd). Amjad Javed Ubaid s/o Muhammad Ubaid, having # 42301-1490037-3 and thereafter execute sale deed in his name of the property mentioned at Serial No. 2 i.e House # 64-B/1, Khayaban-e-Shahbaz, Phase VII, DHA Karachi

(d) To direct Nazir that after execution of sale deed of property mentioned at Serial No. 2 i.e House # 64-B/1 Khayaban-e-Shahbaz, Phase VII, DHA Karachi and vacation thereof to put Cdr. (Retd) Amjad Javed Ubaid s/o Muhammad Ubaid, having NiC # 42301-1490037-3 in possession of the property

(e) To direct Nazir to distribute the sale proceeds of Rs. 5,50,000 amonst the legal heirs as per their shares mentioned hereinbelow:

Mst. Parveen Shoukat widow Rs. 6,87,500

Kamran Bhojani son Rs. 19,25,000

Faizan Bhojani son Rs. 19,25,000

Humna Fatima daughter Rs. 9,62,500

It is pertinent to mention that since Faizan Bhojani and Humna Fatima are yet minors therefore their shares shall be retained by Nazir , and this Honourable Court may pleased to order the Nazir to invest the aforesaid shares belonging to minors in some lucrative scheme.

1. From above application , it should no more be disputed that such bid was not a ‘bid’ came through auction for an attached property under decree but it was on an independent move of parties themselves which stands evident from the ‘sale agreement’ later brought into light which, being material, is referred hereunder:--

‘This Agreement is made and entered into on 25th February 2004 at Karachi between Mst. Parveen Shaukat widow of Shoukat Ali Bhojani, Muslim, adult, resident of House No. 470-A, Street No. 10, F-10/2, Islamabad, being the party of the 1st Part and Cdr. (Retd) Amjad Javed Ubaid s/o Muhammad Ubaid, having NIC # 42391-1490037-3 being the Party of the 2nd party.

WHEREAS the Party of the 1st Part is the owner of the property in House # 64-B/1, Khayaban-e-Shahbaz, Phase VII, DHA Karachi with all its fittings and fixtures ;

AND WHEREAS the Party of the 2nd Part is desirous of purchasing the property from the Party of 2nd Part.

AND WHEREAS the parties herein have agreed to sell and purchase the property in Rs. 6700,000/ (6.7 Millions).

NOW THEREFORE it is hereby agreed by and between the parties that an amount of Rs. 5.5 Millions as official consideration shall be deposited by the Party of the 2nd Part in the High Court of Sindh in SMA No. 83/1995 and when ordered by the Honourable Court and an amount of Rs. 12,00,000/- as unofficial sale consideration shall be paid through Pay Order No. 2121338 drawn on Union Bank Limited DHA Branch Karachi, by the Party of the 2nd part to the Party of the 1st Part through Pay Order at the time of execution of this agreement.

IT IS FURTHER AGREED by and between the parties that in case this transaction does not conclude as it has been desired by the parties, the Party of the 1st Part shall be bound and hereby promise to refund the amount of Rs. 12,00,000/- to the Party of the 2nd Part and Party of the 1st Part shall have no claim whatsoever.

IN WITNESSES WHEREOF the parties hereto have set their hands to this deed in presence of witnesses on the day and place as mentioned hereinbefore.

1. Such application (CMA No. 478/2004) was however accepted by this Court vide impuged order in following terms:--

‘This is joint application made by the petitioner and the objector who are also present before the Court. It is submitted that earlier this Court had directed the Nazir to sell the property at Serial No. 2 in Para-2 of this application by way of auction but he failed to do and submitted his report to that extent. The learned counsel for the parties present before me have prayed that with the joint consent of the parties this application may be disposed of in terms of the scheme contained in Para 11 of the application.

The listed application is hence allowed by consent as prayed.

1. From above, it facts and record following facts are prima facie evident rather undeniable i.e:

(i) the auction proceedings ordered failed;

(ii) parties i.e. petitioner & objector only made application to accept a ‘bid’ ;

(iii) the petitioner and purchaser independently entered into an agreement of sale subject to conclusion thereof;

(iv) the minor and other legal heir (s) were/are not parties to such agreement;

1. Thus, even acceptance of such joint application shall not equate to a ‘confirmation’ of auction legally conducted by authorized official. An agreement between two, even if allowed by the Court, shall not make independent persons (not parties to agreement) liable to any obligation nor the Court (in such proceedings) legally can presume consent/assent of such persons in an agreement independently arrived between the parties because in the event of dispute, as in the instant case, the parties shall have to prove their independent plea(s) which this Court in a summary proceedings cannot determine. Therefore, even assent to such joint application shall not prejudice the entitlements and rights of independent legal persons nor shall bring a non-signatory under any legal obligation because it is well established principle of law that neither a consent or assent of one shall dress an illegal act as ‘legal’ nor shall be a cause to deviate from mandatory requirement of law and procedure for doing a particular act. Reference in this regard may be made to the case reported as PLD 2015 SC 380 wherein it is held as:

“If an act was done in violation of law, the same shall have no legal value and sanctity, especially when the conditions/ circumstances which rendered such an act invalid had been expressly and positively specified in law.”

In another case, reported as 2003 MLD 1626 it is held as:

“……… where names of applicants though were mentioned in the said compromise, but they were not signatories to the same. Applicants, in circumstances, were not bound by terms of compromise...”

1. I would also add here that an Application Under Section 12(2), CPC legally can only be filed challenging legality of a Judgment/Decree or Order which is capable of being enforced but cannot be sustained against a right to file a separate suit because legally the status of an agreement is nothing more than a right to file a suit for enforcement thereof which is always to determined/decided by a competent Court of law. The object of Section 12(2) of the Code is meant to provide a remedy to challenge legality of a Decree or Order and is not a substitute for an independent suit for enforcement of an independent right even if arose from an order passed in a suit/ proceedings.

2. It is further added that seller or purchaser cannot challenge the legality of their assent merely with reference to agreed & legal consideration of the agreement because if this is allowed to hold the field it shall result in (sic) alone. Thus, the application under Section 12(2), CPC, filed by petitioner, was never sustainable while regarding the application u/S. 12(2), CPC, independently filed by minor (non-signatory of agreement), it would suffice to reiterate that consent of petitioner, in absence of proper appointment of her guardian of minor, never bought to minor under any legal obligation hence in the instant matter there never occasioned a need to lead evidence with regard to enforcement thereof or otherwise nor evidence shall bring any change to established legal principle. The examination of agreement and enforcement thereof or otherwise falls within absolute and exclusive domain of Civil Court and not of the Court, exercising jurisdiction under Succession Act.

3. In view of above, I am of the view that impugned order is not in accordance with law and same is set aside. Since, these facts are not disputed:

(i) the assets, left by deceased;

(ii) the legality of legally entitled persons (legal heirs);

(iii) no adverse claims between legally entitled persons;

Which is the only scope of jurisdiction to be exercised for Letter of Administration, according the SMA stands allowed, subject matter property shall be transferred in the name of legal heirs.

1. With regard to in-question sale agreement it would not be proper to express any opinion; auction purchaser would be at liberty to approach civil Court if advised so as well auction purchaser would be competent to withdraw the amount deposited with the Nazir.

(M.M.R.) Order accordingly

PLJ 2018 Karachi 76

Present: Aziz-ur-Rehman, J.

M/s. STATE LIFE INSURANCE CORPORATION OF PAKISTAN and another--Plaintiffs

versus

MOHIUDDIN KHAN & another--Defendants

Suits No. 583 of 1989 and 606 of 1989, decided on 20.3.2017.

Easements Act, 1882 (V of 1882)--

----S. 52--Sindh Rent Premises Ordinance, 1979, S. 2(j)-- Lease & license--Question of--Whether a party is a “Licensee” or “Tenant”, the nature of ‘relationship’ between the parties needs to be determined--Under a License (a) a permissive right expressed or implied is created and such permissive right is also revocable on the ‘wish’ and ‘will’ of Licensor/Grantor (b)--A ‘License’ can only legalize a right act of doing something upon the property of a grantor--Such right, upon expire of stipulated period, however, becomes un-lawful if ‘fresh permission’ is not obtained (c) ‘Licensee’ stands deprived of any such interest conferred upon expiry of license (d) grant of license may be expressed or implied from conduct of grantor, (e) In the case of “License’ the only use of ‘premises’ is permitted but the possession is not exclusive with License--No doubt, ‘word rent’ was used in such receipts but merely, the ‘use of word rent in receipts’, cannot override provisions of License Agreement, where under ‘relationship between, is that of ‘licensor’ and ‘licensee’ and not that of a ‘landlord’ and ‘tenant’ as being claimed by defendant. [P. 108] A & B

Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--

----S. 5--Agreement between landlord and tenant--If, an agreement is registerable compulsorily, then a certified copy of registered deed and where, agreement is not so registerable then, original deed duly attested under sub-section (1), shall be produced and accepted in proof of ‘relationship’ of ‘landlord’ and ‘tenant’. [P. 109] C

Registration Act, 1908 (XVI of 1908)--

----S. 17--Duration of licence agreement--License agreement is for 3 years but same has not been registered as required under Section 17 of the Registration Act, 1908--Defendant cannot claim himself as ‘tenant’ of plaintiff--Rather, defendant herein, is a licensee in terms of the license agreement. [P. 109] D

Qanun-e-Shahadat Order, 1984 (10 of 1984)--

----Arts. 102 & 103--Oral and documentary evidence--If there is a conflict between ‘oral evidence’ and ‘documentary evidence’, then, in such like position ‘documentary evidence’ is to prevail over oral evidence. [P. 111] E

Mr. Zeeshan Abdullah, Advocate for Plaintiff.

Mr. Moin Qamar, Advocate along with Mr. Zia-ul-Haq Makhdoom, Advocates for Defendants No. 1.

Dates of hearing: 19-10, 1, 7, 23.11, 8 & 21.12.2006.

Judgment

The Plaintiff Messrs State Life Insurance Corporation of Pakistan and another have filed the present suit on 21.05.1989, for Declaration. Permanent Injunction, Mesne Profits and possession with the prayers as below:--

(i) Declare that the license expired on 30th September, 1988, and the Defendant No. 1 had no right, power or authority either to enter upon the portion of the plot or allow third parties to park their cars or to collect parking fee from them.

(ii) Declare that after 30th September, 1988, the privilege of license conferred by the Plaintiff No. 1 upon the Defendant No. 1 has expired and the Defendant No. 1 has no right to act in pursuance of any such privilege any further.

(iii) Declare that the Plaintiffs always were and continue to be in legal possession of the plot or in the alternative direct the Defendants to deliver the vacant possession of the portion of the plot to the Plaintiff.

(iv) Grant a permanent injunction restraining the Defendant No. 1 his employees or agents from entering upon the plot of land hearing Survey No. 7 Sheet RY 5, Lackie Road, Karachi, or from allowing third parties to park their cars or from collecting car parking charges from such third parties or from interfering with the property rights and legal possession of the plot by the Plaintiffs in any manner whatsoever or from trespassing either directly or indirectly upon the plot in any manner whatsoever.

(v) Grant permanent injunction directing the Defendant No. 1 to remove any of his things or encroachment or possessions which he may have placed upon the plot.

(vi) Direct the Defendants jointly and severally to pay Mesne profit at the rate of Rs. 50,160/- per month from 1st October, 1988 till 20th May, 1989 i.e. Rs. 384,560/-(Rupees Three Hundred Eighty Four Thousand and Five Hundred Sixty Only).

(vii) Direct the Defendants jointly and severally to pay Mesne profit at the rate of Rs. 50,160/- from the date of filing of suit till such lime that payment is made.

(viii) Grant interest on the above amount at the rate of 15% with quarterly rests.

(ix) Grant costs of the suit.

(x) Grant any other relief which this Hon’ble Court may deem just and proper in the circumstances of the case.

1. The brief relevant facts leading to the filing of the above suit run as follows:--

2. The Plaintiff No. 1, as averred, is a Corporation established by the Life Insurance Nationalization Order, 1972 while, Plaintiff No. 2, is a Private Limited Company, incorporated under the Companies Ordinance, 1984 [XLVII of 1984]. Plaintiff No. 2, as asserted is wholly owned sub-sidiary of Plaintiff No.

3. Plaintiff No. 1 thus has full authority and power not only to issue license[s] viz-a-viz the immovable property owned by Plaintiff No. 2 but also is authorized to terminate or renew the license[s]. Plaintiff No. 1 while, exercising it’s powers and authority agreed to execute a ‘LICENSE AGREEMENT’ for a portion of a plot of land admeasuring 6000 Sq. Yards bearing Survey No. 7. Sheet No. RY-5, Lackie Road, Karachi from a plot of land admeasuring 9180 square, yards owned by the Plaintiff No. 2 in favour of Defendant No. 1 [hereinafter referred as ‘subject plot’] for the purpose of a car parking.

4. Plaintiff No. 1, per it’s version, from the very beginning informed Defendant No. 1/Licensee viz. Mr. Mohiuddin Khan that Plaintiff No. 1 herein, had no intention to lease out the ‘subject plot’ to Defendant No. 1 and Plaintiff No. 1 would only execute, a License Agreement in favour of Defendant No. 1. Defendant No. 1, as proposed, was agreed to be a ‘licensee’ of the portion of the ‘subject plot’ of land referred to and described herein-above. Before executing License Agreement on 25th August, 1985. [Exh.’P-9’]. Plaintiff No. 1, had also asked Defendant No. 1 for arranging a ‘guarantor’ inter-alia for to ensure that Defendant No. 1, will vacate, the ‘subject plot’ as and when, it is required by Plaintiff No. 1. The purpose of seeking such a ‘Surety’/’Guarantee’ was to make it ensured that Defendant No. 1, at some subsequent stage did not abuse, the privilege of ‘License’/’Leave’ to be conferred upon Defendant No. 1 as a ‘licensee’. Defendant No. 1, in response did agree and without any reservation informed Plaintiff No. 1 through his letter dated 23rd June, 1985 [Annexure ‘B’ to the Plaint] that a guarantee as per Plaintiff No. 1’s wish has been obtained from Defendant No. 2 for ensuring the peaceful vacation of the ‘subject plot’.

5. Upon accepting the above conditions by Defendant No. 1 and in order to use the ‘subject plot’ as a ‘car parking’, Defendant No. 1, then requested Plaintiff No. 1 for an ‘entrance’ and an “exit” which was allowed by Plaintiff No. 1 by means of using ‘barbed wire fencing’ and of fixing a gate. The ‘barbed wire fencing’ and ‘fixing of a gate’, was to be done at the expenses of the Plaintiff No. 1. Towards barbed wire fencing and fixing of gate the expenses were to borne by the Plaintiff No. 1. According, one month’s license fee for the aforesaid purpose was adjusted towards such expenses incurred. Ex-facie, this is a proof of the fact that Defendant No. 1, never acquired any proprietary or any permanent vested right in the ‘subject plot’ Rather. Defendant No. 1 was allowed to use the ‘subject plot’ as a ‘licensee’. The ‘subject plot’ it is significant to note, always remained in overall control of Plaintiff No. 1. This factum is also evident for the letter dated 12.08.1985 [See Exh. ‘D/13’ produced in the evidence of Defendant No. 1 in Suit No. 606 of 1997, who is Plaintiff herein]. Evidently, per Exh. ‘D/13’. Defendant No. 1 herein, had requested Plaintiff No. 1 for permission to change the design of the gate. Such Permission, it appears, was granted by Plaintiff No. 1 through its letter dated 25.8.1985 [See Exh. ‘D/14’ produced in the evidence of Defendants No. 1 in Suit No. 606 of 1997 who is Plaintiff herein].

6. Plaintiff No. 1 herein, it is admitted position had entered into a License Agreement dated 25.08.1985 [Exh-09 equivalent to Ex.’P-4/3’, produced in Suit No. 606 of 1999]. Per said License Agreement [Exh-09]. the licensor [Plaintiff herein], had agreed to allow the licensee [Defendant No. 1 herein], to use ‘subject plot’ of land measuring 6000 Sq. yards, only for the purpose of a car parking, at a ‘license fee’ of Rs. 20,160/- per month for period of three[3] years. The said License Agreement [Exh.9], signed between Plaintiff No. 1 and Defendant No. 1, is an admitted document. The ‘intention’ of the parties therefrom, is very much clear particularly from the two un-numbered paragraphs of License Agreement dated 25th August 1985 [Exh.9] on typed paged 2 thereof. The said un-numbered paragraphs read as follows:

“Whereas licensor had made it clear to the licensee that the said licensor had no intention, whatsoever to create any relationship of landlord and tenants between the licenser and the licensee.

And Whereas the LICENSEE has also expressly stated and does hereby expressly, state that the licensee in his turn has no intention, whatsoever, to become a tenant of the said plot of land and in the “Licenser’s Property”.

1. Per said License agreement [Exh.9], Plaintiff No. 1, allowed the Defendant No. 1 herein, only to use the ‘subject plot’ for a limited purpose i.e. for car parking purposes. Under the ‘terms’ and ‘conditions’ of License Agreement dated 25.08.1985, Defendant No. 1, was never authorized or otherwise, in any manner permitted to use the ‘subject plot’ for any other purpose except for the purpose of Car Parking. Defendant No. 1, under Exh.9, having very limited privilege i.e. to use the ‘subject plot’ as a ‘licensee’ i.e. by allowing people to park their cars on the ‘subject plot’ and to collect car parking charges therefrom. Plaintiff No. 1, in any event, remained in legal possession/occupation of the ‘subject plot’ since, the execution of the License Agreement of 25th August. 1985 [Exh.9].

2. Per assertions made in the Plaint, Plaintiff No. 1, continued to supervise the use of the ‘subject plot’ having been given on ‘License basis’ to Defendant No. 1. The Plaintiff No. 1, at some later stage, upon coming to know that Defendant No. 1, had not only constructed a ‘cover shade’ but also has affixed a ‘sign board’ on a portion of the ‘subject plot’, immediately issued a notice to Defendant No. 1, calling upon thereby him to remove the ‘coyer shade’ and ‘sign board’ so raised/affixed otherwise, Defendants have to suffer legal consequences. On Defendant’s failure Plaintiff No. 1, issued another letter dated 15.12.1987 [Exh.10]. In response, the Defendant No. 1, through his letter dated 17.12.1987 [Exh.11], informed Plaintiffs that the structure, so raised was removed as per Plaintiff’s direction. The action of removing the aforesaid covered shade and ‘sign board’, per Plaintiffs’ version, is a clear cut proof of plaintiffs’ control, supervision and possession of the ‘subject plot’. Plaintiff No. 1, though wished that a ‘fresh license agreement’ be executed between the parties. This position is evident from Plaintiff’s letter dated January 19, 1989 [Exh. 25]. Alongwith Exh.25, a copy of ‘Draft Agreement’ to collect parking charges [Exh. 26], was also enclosed. Defendant No. 1, however, did refuse to sign it and thereafter obviously, with a malafide intention started to claim himself as a ‘tenant’ instead of ‘Licensee’. In this regard reference can be made to the Defendants No. 1’s letter Exh. ‘P-4/29’ [Produced in Plaintiff’s evidence recorded in Suit No. 606 of 1999], Later on, at the insistence of Defendant No. 1, negotiations were also held regarding the execution of a ‘Fresh Agreement’ viz-a-viz collection of car parking charges on the ‘subject plot’ but such negotiation remained un-conclusive and as such, no Fresh License Agreement was executed. The License Agreement of 25th August, 1985 [Exh.9], thus stand expired on 30.09.1988.

3. The Defendant No. 1’s objections can be seen and appreciated only if, Defendant No. 1’s letter dated 28.10.1989 [Exh.13] is reproduced which reads as follows:

MESSRS MOHIUDDIN KHAN PARKING CONTRACTORS

Site Office Lackie Road Parking Plot, Adjacent to State Life Building No. 1. I.I. Chundriger Road, Karachi-2

Dated 28.01.1989.

The Deputy General Manager, Real Estate Division, State Life Insurance Corporation of Pakistan, Karachi.

Sub: RENEWAL OF LICENSE AGREEMENT IN RESPECT OF LACKIE ROAD CAR PARKING PLOT.

Dear Sir, I am in receipt of your letter dated 15.01.1989 and 19.01.1989. The letter dated 15.01.1989 refers to license agreement whereas the other letter mentions an agreement to collect parking charges, the crux of the unilaterally introduced terminological gimmick is continuation of license agreement dated 01.10.1985, which already stands extended by implication through acceptance of license fee for period up-to January, 1989.

This being the position I request you to confine reference to license agreement in subsequent, exchange of correspondence. State Life Insurance Corporation is fully aware that vast discrepancies existed between position as advertised on 19.04.1985 and that really found on ground and that I had to spend considerable amount for the development of the parking area. Some further expenditure has also become necessary as a result of weather conditions.

Despite all this I am prepared to sign the extension of license Agreement for a period of three years with an increase of 10% in monthly fee, should development expenditure will be borne by me and I would suggest that in order to remove in terminological confusion, the term collection of right be introduced in extension of the license agreement of 1985. [Underlining is mine]

Thanking you

Yours faithfully, For M/s. MOHIUDDIN KHAN.

Sd/-

1. Plaintiff No. 1 under such circumstances, sent a ‘legal notice’ of 18.5.1989 [Exh. 14] to Defendants No. 1. For read reference and convenience purpose Exh. 14 is also reproduced herein below:

FAZLE GHANI KHAN & COMPANY

ADVOCATES

Karachi House, Telephone:239207-239173 Chundrigar Road, Cable: LAWING Karachi Karachi Pakistan Telex: 24605 SSL PK

U.P.C.

18 May, 1989

Mr. Mohiuddin Khan, Resident of 21/107, Peoples Town, S. F. Colony, Karachi-25

Sub: LEGAL NOTICE

Dear Sir, Under instructions from our clients Messrs State Life Insurance Corporation of Pakistan, having its principal office at State Life Building No. 9, Dr. Ziauddin Ahmed Road, Karachi, and Messrs State Life Lackie road properties (Pvt) Limited with its registered office at State Life Building No. 9. Dr. Ziauddin Ahmed Road, Karachi, we hereby serve you with the following legal notice:

1. That out client State Life Lackie Road Properties (Pvt) Limited (hereinafter referred to as SLLRPL) is the owner of a plot of land bearing Survey No. 7, Sheet RY 5, Lackie Road, Karachi, measuring 9/80 square yards.

2. That SLLRPL is a wholly owned subsidiary of State Life Insurance Corporation of Pakistan (hereinafter referred to as SLIC). That SLIC has the power and the authority to deal with the assets and property of SLLRPL, to issue license for the same and to take necessary action for the termination of the license and ejection of trespassers including the power to initiate and pursue legal proceedings.

3. In exercise of its power and authority our client SLIC had executed on 25 August, 1985 a License in your favour. Under the terms of this license you were, allowed the privilege to use a portion (6000 sq. yards) of the plot of land hearing Survey No. 7, Sheet RY 5, Lackie Road, Karachi, measuring 9180 square yards, owned by SLLRPL (hereinafter referred as the “Plot”). The plot was to be used for car parking. You were to allow owners of cars to park their cars in this plot and charge from them a parking fee.

4. The License issued by our clients clearly stated that its duration was for a period of three years and a license fee of Rs. 20,160.00 per month was to be paid by you. It was specifically stated in the License that you shall not use the said plot of land for any purposes other than that for which the license was granted. You were also restrained from making any permanent construction including masonry work of any kind on this plot.

5. The license specifically provides that you shall be under the control and supervision of our clients and that you shall observe all directions and orders issued by them.

6. It was a specific condition of the License accepted by you that the possession of the said plot of land shall remain with our clients. However, you had the license and leave to use it for car parking only.

7. You had on 23 June, 1985 also submitted a guarantee dated 17 June, 1985 from Messrs Ali Brothers guaranteeing it to and assuring our clients that you will peacefully vacate the plot as and when our clients desire.

8. At the time of the execution of the aforementioned license you one again agreed and undertook to vacate the plot as and when directed by our clients.

9. That after the expiry of the License on 30 September, 1988 you sought to persuade our clients and negotiate with them an extension of the period of the License or to issue afresh License. Our clients decided not to renew the license and also decided not to issue afresh license in this regard.

10. On 15 January, 1989 our clients communicated to you that the License had expired and that you should not use the property any further.

11. After the expiry of this License there were some further negotiations between yourselves and our clients regarding an agreement “to collect parking charges” for this plot. These negotiations were not successful.

12. That our clients have no intention of either executing a fresh License in your favour or of renewing the already old and expired License. You, therefore, have no power or authority to either permit any person to park his car in the plot or to collect car parking charges from any such person. Any, further, interference by you with the property of our clients and any attempt by you either directly or indirectly to enter into the properly of our clients will be considered an act of trespass.

Through the medium of this notice we, therefore, one again confirm that the License agreement executed in your favour by our clients has expired and you are directed not to trespass upon, enter into or in any other manner interfere with the property of our clients. You are, further, directed to remove anything which yon may have placed on this plot. In the event of your failure to carry out the above directions within 72 hours our clients will enforce its legal rights to restrain you from trespassing on the property, shall remove any encroachment placed upon the plot by you and have also instructed us to initiate legal proceedings in a Court of competent jurisdiction. [Underlining is mine]

Yours faithfully, Facle Ghani Khan & Co.

Makhdoon Ali Khan Barrister.

C.c. Ali Brother, You are directed to carry out your obligations as a guarantor and ensure that the aforesaid notice and directions contained therein are complied within 48 hours.

MAKHDOOM ALI KHAN Barrister.

1. Defendants, despite of such notice however, remained mum/failed and/or avoided to respond the aforesaid legal notice [Exh.14]. Hence, the above suit was filed on 21.05.1989.

2. On 15.10.1989, when the above suit filed by Plaintiffs for seeking Declaration, Permanent Injunction, Mesne Profits and Possession, came-up before Court for hearing of an Application under Order XXXIX Rules 1 & 2, CPC [CMA No. 3583 of 1989], filed by Plaintiffs in the above Suit, then the following order was passed:

For hearing of CMA No. 3589/1989.

15.10.1989

Makhdoom Ali Khan, Advocate.

This is an application under Order XXXIX Rules 1 & 2, CPC praying that the Defendant No. 1 his employees or agents be restrained from entering upon the portion of the plot of land bearing Surrey No. 7, Sheet RY-5. Lackie, Road, Karachi, and from allowing third parties to park their cars or from collecting car parking charges from such third parties or from interfering with the property rights and legal possession of the plot by the plaintiff in any manner whatsoever or from trespassing either directly or indirectly upon the portion of plot in any manner whatsoever and grant permanent injunction directing the Defendant No. 1 to remove any of his things or encroachments or possessions which he may have placed upon the portion of the plot.

It is contended by the learned counsel for the plaintiff that the defendants are their Licensees as per annexure ‘G’ to the plaint. The said License was for a period of 3 years commencing from 01.10.1985 and ending as on 30.09.1988. The said License has not been renewed by the plaintiff and the plaintiff vide Legal Notice dated 18.05.1989 have terminated this License and required the defendants to handover vacant possession of the property to them.

Defendants have filed their counter-affidavit stating that they are in exclusive possession of the property and that they have been depositing monthly rent with the Court of Rent Controller. It is contended by them that they are in legal possession of the property as tenants. Further, it is alleged that after the expiry of the license period, the defendants have become statutory tenants of the plaintiff and since the provisions of Sindh Rented Premises Ordinance, 1979, are applicable, the suit is not maintainable. Defendants, however, have not denied execution of License Agreement, dated 25.8.1985, marked ‘G’.

From the averments made in the plaint and from the contents of enclosed annexures, it appears that license in respect of the property in question was exclusively for the purpose of parking of cars. However, the exact nature of relationship between the parties cannot be ascertained in a summary manner but after careful examination of documents on record and upon proper appreciation of evidence of the parties.

None is present on behalf of the defendants. Under the circumstances, ad-interim injunction till further order is granted to the plaintiffs restraining the defendants, their agents and employees from allowing third parties to park their cars at the plot in question and or/from collecting car parking charges from them. [Underlining is mine]

Sd/- JUDGE

1. Upon Service Defendant No. 1, besides, filing ‘counter-affidavit’ to injunction application under Order XXXIX Rules 1 & 2, CPC [CMA No. 3583 of 1989], also filed its ‘written statement’ on 27.08.1989, wherein, the ‘averments’ and ‘assertions’ made by the plaintiff in plaint were denied. Defendant No. 2, also filed ‘written statement’ on 27.08.1989, wherein, the contents of ‘written statement’ filed by Defendant No. 1, were adopted. In the written statement filed by Defendant No. 2, it was further averred that the so-called ‘guarantee’ dated June 17, 1985 [Exh.7], is void as it is contrary to the provision of Sindh Rented Premises Ordinance, [XVII of 1979]. The said ‘Exh.7’ reads as follows:

AALI BROTHERS Building Maint. Contractors, Engineer Imports & Export 1st Floor, State Life Building No. 1, I.I. Chundrigar Road, Karachi.

Jane 17, 1985

TO WHOM IT MAY CONCERN

This is to certify that Mr. Mohi-ud-Din Khan resident of 21/107 Peoples Town, S.F. Colony, Karachi, who has been awarded the Car Parking Contract at Lackie Road Plot or State Life Insurance Corporation is known to us.

He has approached us to give a warranty from a person known to State Life Insurance Corporation to the effect that according to terms of his agreement as and when required he will peacefully vacate this plot. [Underlining is mine].

We hereby vouch for this statement.

Sd/- For Ali Brothers

1. Per Defendant No. 1’s, stand taken in the written statement the relationship between Plaintiff No. 1 and Defendant No. 1, is that of ‘landlord’ and ‘tenant’ and it is regulated by the Provisions of Sindh Rented Premises Ordinance, 1979 [In Short SRPO, 1979]. The suit, filed by Plaintiffs is essentially, a suit ‘for ejectment’ which per Defendants’ stand, can only be ordered by ‘Rent Controller’ that is to say in terms of Section 15 of SRPO, 1979. The instant suit, as ‘framed’ and ‘filed’ by Plaintiffs, per Defendants version, is not maintainable under law. Per stand of Defendant No. 1, he is paying rent for the subject plot which is in his ‘exclusive possession’. According to Defendant No. 1, on 19th January, 1989, Plaintiff No. 1, had attempted/sought to convert the ‘Tenancy Rights’ of Defendant No. 1 to that of ‘Licensee’ by attempting to get sign from Defendant No. 1 a Fresh Agreement materially different in ‘form’ & ‘substance’ from Original License Agreement dated 25th August, 1985 [Exh.9]. Further, upon expiry License Agreement on 30.09.1988, Plaintiff No. 1, accepted ‘rent’ from Defendant No. 1 i.e. until 08th April, 1989 when receipt of such rent was refused by Plaintiff No. 1.

2. Per stand taken by Defendant No. 1, in his written statement, the use of the words ‘Licensor’ or ‘Licensee’ cannot control or negate the substance and/or the relationship of ‘landlord’ and ‘tenant’ between Plaintiff and Defendant No. 1. As far as, the so-called ‘guarantee’ given by Defendant No. 2 is concerned, per Defendant No. 1’s version, the same by no means can override the express Provision of SRPO, 1979, which in fact is to regulate the ‘ejectment’ ‘eviction’ of Defendant No. 1 from the ‘subject plot’. The ‘barbed wire fence’ and gate, per version of Defendant No. 1, were erected to divide the main plot measuring 9.180 Sq. Yrds. into two plots of 6000 Sq. Yds. and 3180 Sq. Yds. and to put Defendant No. 1, in possession of the ‘subject plot’ measuring 6000 Sq. Yds. exclusively. Moreover, the Plaintiffs No. 1 has never exercised any ‘control’ or ‘supervision’ over the use of car parking plot/‘subject plot’. The removal of covered shade and ‘sign board’ was admitted however, it was only to avoid un-pleasantness. The removal of covered shades and sign board at the demand of Plaintiffs No. 1, as asserted by Defendant No. 1, was in its capacity as a ‘Landlord’ and not as a ‘Licensor’.

3. In the Written Statement, Defendant did agree that the ‘License Agreement’ dated 25th August 1985, had came in to end, on 30th September, 1988 but notwithstanding, expiry of the License Agreement [Exh. 9]. Defendant No. 1, is a ‘statutory tenant’. Per written statement. Defendant No. 1 was ready and agreed to enhance ‘license fee’ 10% per month. Lastly, it was prayed, that the Plaintiffs suit as being not maintainable under law is liable to be dismissed with cost.

4. On 19.10.1989 viz-a-viz restraining/injunction with consent of the parties the following order was passed:

5. For hearing of CMA No. 6995/1989.

6. For hearing of CMA No. 6996/1989.

7. For hearing of CM A No. 6997/1989.

19.10.1989

Mr. Makhdoom Ali Khan, Advocate for Plaintiff.

Mr. Munir A. Malik, Advocate, for defendant.

By consent it is ordered that the defendants shall furnish bank guarantee in the sum of Rs. 100,000 with 6% mark-up within three days hereof with the Nazir of this Court, whereupon order dated 15.10.1989 whereby the defendants, their agents and employees were restrained from allowing third parties to park their cars at the plot question and/or from collecting car parking charges from them shall stand vacated. Again by consent, the defendants are restrained from using the plot for purposes other than car parking or parting with the physical possession of the plot in question to any one till disposal of the suit or till further orders.

The learned counsel for the defendants also undertakes on behalf of the defendants to deposit all the arrears of license fee deposited by them in the Lower Court within four weeks hereof and to further deposit further license fee payable by them in this Court every month till disposal of this suit. In view of this consent order CMA Nos. 6995/89, CMA-6996/89 and CMAs-6997/89 & 3683/89 stand disposed off. [Underlining is mine].

Sd/- JUDGE

1. From the record, it appears that Defendants in the above suit, had also filed an Application under Order XXXIX Rules 1 & 2, CPC R/W Section 151, CPC [CMA No. 5484 of 1998], for seeking a restraining order against the plaintiffs. The prayer sought by Defendants in the said injunction application [CMA No. 6484 of 1998], reads as follows:

“It is respectfully prayed on behalf of the defendant that this Hon’ble Court would be pleased to restrain the plaintiff closing gate or creating other obstructions from I.I. Chundrigarh Road. Building No. 1 Entrance Gate into parking plot which will result in interfering the possession use of the defendant of parking plot and from violating the order of Hon’ble Court dated 19.10.1989.

Ad-interim order to above effect is also solicited.”

1. The aforesaid Injunction Application bearing [CMA No. 6484 of 1998], filed by Defendant No. 1, when came-up before the Court on 18.07.1998 then, the following order was passed.

2. or order on CMA No. 6483/21989.

3. For order on CMA No. 6484/1989.

18.07.1998

Mr. Arif Hussain Khilji, Advocate Defendant No. 1.

1. Granted.

2. It is contended by Mr. Arif H. Khilji that plaintiffs are closing the entrance gate of Building No. 1 situated at I.I. Chundrigar Road which in fact will amount to illegal & unauthorized dispossession of the Defendant No. 1. It was argued that if the plaintiffs are permitted to raise hindrance or destruction then it will also amount to violation of this Courts order dated 19.10.1989. Issue notice to Plaintiffs for 24.07.1989. Till then Plaintiffs are directed to maintain status-quo. [Underlining is mine]

Sd/- JUDGE

1. Subsequently, on 19.08.1990, keeping in view the ‘Pro’ and ‘Contra’ Versions of the parties, the ‘draft issues’ filed by plaintiff with some minor alteration were adopted/settled. The ‘consent issues’ so adopted/settled read as follows:

2. Whether the Defendant No. 1 is a Licensee of the premises and the Civil Court has jurisdiction in the matter?

3. Whether the license expired on September 30, 1988?

4. Whether the Defendants are obliged to pay mense profits at the rate of Rs. 50,160.00 per month from October 1, 1988 till such time that payment is made?

5. Whether the Defendant No. 1 violated the terms of license?

6. Relief?

7. Upon framing of the above ‘consent issues’, on 23.05.2001, another consent order was passed, which reads follows:--

8. For hearing of CM A No. 6484/1984.

9. Evidence.

23.05.2001

Mr. Siddique Mirza, Advocate Plaintiff

Mr. Zia Mukhdoom, Advocate for the Defendant.

Learned counsel make a joint statement after the examination in chief is over that the matter pertains to certain documents executed and exchanged amongst the parties and the narrow down the controversy, first the documents may be admitted and denied before further evidence is recorded.

Accordingly with the consent of learned counsel time is allowed for admission and denial of the documents as requested during which the learned counsel shall exchange details/lists of their respective documents within two weeks from today and file their respective statement admitting and/or denying the documents as the case may be within the next two weeks i.e. within four weeks from today. Case will proceed further after learned counsel have admitted and denied the documents and is adjourned to a date in office, to be fixed after summer vacations. However, the witness is directed to be present on the next date of hearing for cross-examination, if necessary. [Underlining is mine]

Sd/- JUDGE

1. Notwithstanding, admissions and denials, in compliance with aforesaid order dated 23.05.2001, when again the above suit came-up before the Court on 07.02.2003, then a Commissioner was appointed for recording evidence of the parties. Order dated 07th February, 2003 reads as follows:

7.2.2003

Mr. Siddique Mirza, Advocate Plaintiff.

Mr. Adnan Iqbal, Advocate holds brief for Mr. Munir A. Malik, Advocate for the Defendant.

After the admission and denial of the documents, Mr. Adnan Iqbal, learned Counsel states that he intends to lead oral evidence in support of the documents, contents of which are disputed by the otherside.

Mr. Siddiq Mirza, Advocate also states he also intends to lead oral evidence.

Both the learned Counsel suggest that the evidence can be recorded by a Commissioner Mr. Abdul Ghafoor Qureshi, Advocate is appointed as Commissioner to record the evidence of the parties. Commissioner fee is fixed at Rs. 5,000/- per witness, the costs shall born by the respective parties. Commissioner shall record the evidence within three months from the date of service of notice and shall have power to summon the parties. [Underlining is mine]

To come up for further proceedings after the recording of the evidence by the Commissioner.

Sd/- JUDGE

1. The learned Commissioner viz. Abdul Ghafoor Qureshi, on recording of evidence return the Commission along with his report dated 16.09.2004. The said report of learned Commissioner for ready reference and convenience purpose is also reproduced herein below:

COMMISSIONERS’ REPORT

The honourable Court by its order dated 7.2.2003 has been pleased to appoint the undersigned as commissioner to record the evidence of the witnesses on behalf of the parties and submit report within three months. Accordingly, notices were issued to the counsel for the parties to file affidavit-in-evidence of their respective witness and produce their witnesses for recording evidence.

The plaintiff filed the affidavit-in-evidence of P.W. 1 Riazuddin on 22.3.2003, and copy supplied to the learned counsel for the defendant. The matter was fixed for recording evidence of P.W.1 on 12.4.2003. The matter was adjourned at the request of the counsel for the parties from time to time. The examination-in-chief of P.W.1 was recorded on 14.5.2003 and was cross-examined by the learned counsel for the defendants on 10.01.2004. After recording evidence of P.W.1, the plaintiff closed their side and the defendants were directed to file affidavit-in-evidence of their witnesses.

The defendants filed the affidavit-in-evidence of D.W. 1 Moiuddin Khan on 27.3.2004 and supplied copy to the learned counsel for the plaintiff and the matter was fixed for recording evidence on 17.4.2004. The matter was adjourned from time to time at the request of the counsel for the parties and finally the D.W.1 was examined and cross-examined by the learned counsel for the plaintiff on 4.9.2004. After recording evidence of D.W.1 requested for time to file affidavit-in-evidence of his second witness but the learned counsel for the plaintiff objected to the filing of affidavit-in-evidence of D.W.2 at this stage as they have already been given sufficient time for filing affidavit but they have failed to file the same. Accordingly, the evidence recorded on commission is submitted herewith along with the document, for further orders by the honourable Court. [Underlining is mine]

Sd/- Abdul Ghafoor Qureshi Advocate/Commissioner

1. On 24.01.2005, when the above report of the learned Commissioner came-up before the Court then, learned counsel for Defendants sought time for filing ‘affidavit-in-Evidence’ of Defendant No. 2. Keeping in view the request of Defendants, as ‘last chance’ by way of ‘sheer indulgence’ four weeks’ time was granted for filing ‘affidavit-in-evidence’ of Defendant No. 2. In case of failure, the suit was ordered to be fixed in Court. The said Order dated 24.01.2005 reads as follows:

2. For orders on Commissioners report dated 16.09.2004.

24.1.2005

Mr. Zia Mukhdoom, Advocate.

Pursuant to the order dated, 07.02.2003, Commissioner was appointed to record the evidence of the parties. Plaintiffs and Defendant No. 1 have been recorded. Mr. Zia-ul-Haq Makhdoom, learned counsel submits that he could, not file the affidavit-in-evidence of Defendant No. 2 on account of unusual pressure of work. As a last chance by way of sheer indulgence, four weeks’ time is extended to file the affidavit-in-evidence of Defendant No. 2 with advance copy to the Plaintiff. In case, such affidavit-in-evidence is not filed within the stipulated time, the matter be fixed in Court. [Underlining is mine]

Sd/- JUDGE

1. Despite of giving of an opportunity to Defendant No. 2 to lead his evidence, Defendant No. 2, however, failed and/or avoided to lead any evidence. This factum of non-leading evidence by Defendant No. 2. is quite evident from order dated 07.03.2009. The said order runs as follows:

For further orders as no commissioner report has been received

07.03.2005

Mr. Siddiq Mirza, Advocate.

Mr. Zia Mukhdoom, Advocate.

Mr. Zia-ul-Haq Makhdoom, learned counsel for Defendants No. 1 & 2 states that Defendant No. 2 does not wish to lead any further evidence. Let the matter be fixed in Court for final arguments in due course. [Underlining is mine]

Sd/- JUDGE

1. Finally, 08.12.2016, and 21.12.2016, when the above suit came-up before me alongwith Defendants No. 1’s Suit No. 606 of 1999 [Mohiuddin Khan S/o Niaz Muhammad Khan Vs. M/s. State Life Insurance Corporation of Pakistan & another] then, I heard Mr. Zeeshan Abdullah, learned counsel for the plaintiff and Mr. Moin Qamar a/w Mr. Zia-ul-Haq Makhdoom, learned counsel for the Defendants and also gone through the available record before me with their valuable assistance.

ISSUE No. 1

1. Issues No. 1, which is to the effect as to (i) whether the Defendant No. 1 is licensee of the subject premises and the Civil Court has jurisdiction in the matter. Mr. Zeeshan Abdullah, learned counsel for the Plaintiff while, arguing the case of the Plaintiffs forcefully contended that Defendant No. 1, is a ‘licensee’ in respect of the ‘subject plot’/’premises’ i.e. Plot of land bearing Survey No. 7, Sheet No. RY-5, Luckie Road, Karachi, as per License Agreement dated 25th August, 1985 [Exh.9] and not a ‘tenant’ as being now-claimed by Defendant No. 1 herein. In this regard Mr. Zeeshan Abdullah inter-alia referred to paragraph 1(a). of the license Agreement [Exh.9]. which runs as follows:

“1a. This License agreement shall commence with effect from the 1st day of October, 1985 from which date the Licensee has leave and License to use the said plot of land, which is in the ownership and possession of the “LICENSOR “, for a period of 3 years on payment of Licensee fee Rs. 20,160.00 (rupees twenty thousand one hundred sixty only) per month, for the privilege of use of the said plot of land for car parking. [Underlining is mine]

1. Per Mr. Zeeshan Abdullah, the said License Agreement of 25th August, 1985 [Exh.9], was for a period of 3 years commencing from 01.10.1985 and ending on 30.09.1988. The said License Agreement [Exh.9], upon it’s expiry has never been renewed as alleged by Defendant No. 1. In support of his contentions, Mr. Zeeshan Abdullah also focused the attention of this Court towards Clauses i.e. 1b, 3, 5, 6, 7, and 8 and vehemently argued that as per License Agreement dated 25th August. 1985 [Exh.9], Defendant No. 1 is a ‘Licensee’ and by no means, as claimed he be termed as a ‘tenant’ in respect of the ‘subject plot’/’premises’. This claim of by Defendant No. 1, is also belied by ‘terms’ and ‘conditions’ of License Agreement dated 25th August, 1985 [Exh.9]. For ready-reference the aforesaid clauses of License Agreement [Exh.9], are reproduced herein below:

1b. The LICENSEE hereby undertake to pay the LICENSOR the said license fee monthly in advance before the 10th day of each month. Default on the part of the LICENSEE to pay License fee in time, shall automatically render the License cancelled and the LICENSOR shall take possession of the said plot of land without giving notice to the LICENSEE in this behalf.

1. The LICENSEE shall not make any kind of permanent construction including Masonry work of any kind on the said portion of the land, however, the LICENSEE shall be allowed to make an enclosure of barbed wires on the said plot of land two gates for incoming and outgoing cars a small gate for use of concerned persons and a wooden cabin near the gate for the Watchmen of the parking area.

2. Each lock of the abovesaid gates shall have two keys, one of which shall remain in the possession of LICENSOR.

3. The LICENSEE shall not use the said plot of land for any purpose other than that for which the Licensee is granted, nor shall the LICENSEE use the said plot of land in such a manner so as to cause damages to the said plot of land and/or inconvenience, disturbance, annoyance or nuisance to the quests, tenants. Licensees, Visitors and employees of the LICENSOR or the occupants/Licensees/tenants of the LICENSORS properties. Should the question arise as to whether the LICENSEE is causing such inconvenience, annoyance, disturbance or nuisance etc. the decision of the LICENSOR shall be final and binding on the LICENSEE.

4. The LICENSEE shall always and at all times be under the control and supervision of the LICENSOR, its agents, servants and employees and shall observe all directions and orders as may from time to time, be issued by the LICENSOR, its agents, servants and employees regarding part thereof the anybody else in any event. [Underlining is mine]

5. The LICENSEE shall not exhibit any advertisement, playcard or any part thereof the anybody else in any event.

6. Per Mr. Zeeshan Abdullah, learned counsel for the Plaintiffs, from bare perusal of the above clauses, it is quite clear that Defendant No. 1, is a ‘Licensee’ in respect of the ‘subject plot’/’premises’ and this Court, as such, besides, having jurisdiction to entertain the above suit is quite competent to grant the prayers sought by the plaintiff in the plaint of the above suit.

7. Against the above, Mr. Moin Qamar, a/w Mr. Zia-ul-Haq Makhdoom learned counsel for the Defendants forcefully argued that Defendant No. 1 since 1st October, 1985 is in ‘exclusive possession’ of the ‘subject plot’/‘premises’ and also depositing monthly ‘rent’, as such, he is ‘Tenant’ and not a ‘Licensee’. This being, the position, Civil Court/this Court, has no jurisdiction to entertain the above suit. Rather, it is the Court of concerned Rent Controller, who under law can properly and appropriately adjudicate upon the ‘lis’ involved herein i.e. under the Provisions of Sindh Rented Premises Ordinance, 1979, [XVII of 1979]. Per Mr. Moin Qamar since, the suit in hand ex-facie is for ‘ejectment’/’eviction’ of Defendant No. 1, as such, it falls within the scope of Section 15 of the SRPO, 1979 [In short SRPO 1979]. For and in view of this position, this Court as being a Civil Court has no jurisdiction to look into the matter, and to decide the issue involved in the case in hand.

8. For and to see, as to whether Defendant No. 1 is a ‘Licensee’ or ‘tenant’, the nature of ‘relationship’ between Plaintiff No. 1 and Defendant No. 1 needs to be determined. From the record, it is an established position, that initially a ‘License Agreement’ of 25th August, 1985 [Exh.9], was signed between the parties [i.e. The Plaintiff No. 1 and Defendant No. 1 herein]. Defendant No. 1, in ‘Para 10’ of his written statement’ has specifically admitted the Agreement of 25th August, 1985 [Exh.9] by saying, it has come into an end on 30th September, 1988. Defendant No. 1 herein, however, has taken the stand that Defendant No. 1, upon expiry of the License Agreement of 25th August, 1985 [Exh.9], has become a ‘statutory tenant’. In view of this contention as raised, the ‘intention’ of parties needs be seen and inter alia examined in the light of License Agreement of 25th August, 1985 [Exh.9]. Apart from the ‘various clauses’ referred to and reproduced hereinabove ‘clause-14’ of ‘Exh.9’ is also very relevant as it speaks viz-a-viz. the expiry of the License Agreement of 25th August, 1985 [Exh.9]. The said ‘clause-14’ reads as follows:

9. On the expiry of the License as herein provided, the Licensee, shall forthwith remove himself and all property belonging to him from the said plot of land and vacate it by leaving it in the same good and proper condition in which it was at the commencement of the License Agreement, unless the License Agreement is revoked earlier in accordance with the terms and conditions contained herein by the “Licensor”.

10. From bare perusal ‘inter-alia’ of ‘Clause-14’ of License Agreement of 25th August, 1985 [Exh. 9], it is crystal clear that the ‘licensee/Defendant No. 1 upon expiry of License Agreement of 25th August, 1985, is to remove forthwith from the ‘subject plot’ of land by leaving the ‘subject plot’ in same good and proper condition as it was at the ‘commencement’ of the ‘License Agreement’ of 25th August, 1985 [Exh.9], unless the License Agreement [Exh.9], is revoked on any earlier date, as per ‘terms’ and ‘conditions’ contained therein, by the Licensor [the Plaintiff herein]. Apart from the above, the un-numbered paragraphs/clauses at the start of License Agreement [Exh.9] also being very much relevant, are reproduced herein-below:

“THIS LEAVE AND LICENSE AGREEMENT is made at Karachi this 25th day of August 1985 between STATE LIFE INSURANCE CORPORATION OF PAKISTAN (established under the Life Insurance Nationalisation] Order, 1972 having its Principal Office at State Life Building No. 9, Dr. Ziauddin Ahmed Road, Karachi [hereinafter called the “LICENSOR” which term wherever the context so required or permits shall include their Successor-in-Interest and Assigns] of the ONE PART and Mr. Mohiuddin Khan resident of House No. 21/107, Peoples Town. S.F. Colony, Karachi-25. [hereinafter called “LICENSEE”] of the OTHER PART.

WHEREAS the “LICENSOR” owns and possesses the entire open plot of land bearing Survey No. 7 Sheet RY-5 Lackie Road, Karachi.

WHEREAS the said plot of land measuring 6000 square yards or more properly described in the attached plan, is lying vacant and the “LICENSEE” is desirous of taking on License, the said pot of land for using it as car parking area.

WHEREAS the Licensor has agreed to allow the Licensee the use of said plot for car parking, on the terms and conditions.

WHEREAS the “LICENSOR” has made it clear to the “LICENSEE” that the said “LICENSOR” has not intention, whatsoever, to create any relationship of landlord and tenants between the “LICENSOR” and the “LICENSEE”.

AND WHEREAS the “LICENSEE” has also expressly stated and does hereby expressly state that the “LICENSEE” in his turn has no intention, whatsoever, to become a tenant of the said plot of land in the “LICENSORS” property. [Underlining is mine]

1. The aforesaid un-numbered paragraphs/clauses also belie Defendant No. 1, in his stand that he is ‘statutory tenant’ and not a ‘Licensee’. The alleged claim of Defendant No. 1, to the effect and extent that he is also in ‘exclusive possession’ of the ‘subject plot’ in my view besides, incorrect is without any foundation. In this regard reference can be made to the 2nd last un-numbered clause of Exh.9 of Exh.9 which reads as follows:

“The possession of the said plot of land shall rest with the LICENSOR however the LICENSEE will has license and leave to use it for car parking. [Underlining is mine]

1. Moreover, the stand of Defendant No. 1 viz-a-viz the so-called exclusive possession cannot be believed true in view Exh.P-4/26 [Produced in the Plaintiff’s evidence in Suit No. 606 of 1999], which reads as follows:

“STATE LIFE INSURANCE CORP. OF PAKS1TAN REAL ESTATE DIVISION

09.09.1985.

Sub: HANDED/TAKEN OVER

With reference Letter No. Car Park/Cont/L.R./85. Certified that I have jointly handed/Taken over the possession 6000 Sq. Yards of State Life Lackie Road Plot (Ground) from Mr. Mohammad Ayub Khan, Security Incharge Real Estate Division on September 09, 1985. (Underlining is mine)

HANDED OVER BY: TAKEN OVER BY:

Sd/- Sd/-

Mohammad Ayub Khan Mr. Moiuddin

Security Incharge House No. 21/107, RED. Peoples Town S.F. Colony, Karachi.

COUNTER SIGN:

Sd

(AZAD.A. KHAN) Manager, R.E.D.”

1. Evidently, the possession of the ‘subject plot’ is in the joint possession of the Licensor [Plaintiff] and Licensee [Defendant No. 1]. Besides, the claim of the Defendant No. 1 that he is paying rent ex-facie is also incorrect. This position can also be seen and ascertained from ‘Exh.12’. For ready reference Exit. 12 is also reproduced here-in-below:

| | | | --- | --- | | state life card STATE LIFE BUILDING NO. 9, ZIAUDDIN AHMED ROAD P.O.BOX 5725 KARACHI-4 | Date January 15, 1989 DIVISION REAL ESTATE Reference |

Mr. Mohiuddin Khan, Licensee Lackie Road Parking Plot. Adjacent to State Life Bjuilding No. 1, I. I. Chundrigar Road, Karachi

Sub: RENEWAL OF LICENSE AGREEMENT IN RESPECT OF LACKIE ROAD PLOT FOR CAR PARKING

Dear Sir, Please refer to your letter dated 25-8-1988 on the subject matter and have carefully noted the contents.

We hereby inform you that the above plot was given to you under the License Agreement dated 25-8-1985 and you had paid licence fee during the license period and not rent as mentioned in your letter under reply.

Since the said License Agreement dated 25-8-1985 stands expired on 30-9-1988 and you are liable to remove yourself and all the property belonging to you from the said plot of land and vacate it by leaving it in the same and in the proper condition in which it was at the commencement of Licence Agreement without loss of any time. [Underlining is mine].

Thanking you

Yours faithfully.

Sd/- (ASIM S.M. KHAN) Deputy General Manager”

1. Per Mr. Zia-ul-Haq Makhdoom, Plaintiff No. 1 herein, had invited ‘Tenders’ by publishing a ‘Public Notice’ dated 19.04.1985 [Exh.’P-4/1’ Equivalent to ‘Exh.15’], in Daily News Paper ‘Dawn’ for renting out of the ‘subject plot’ for car parking place. Defendant No. 1 herein, in response had submitted his ‘bids’/’offer’ for acquiring the ‘subject plot’ on rent. According to Mr. Zia-ul-Makhdoom since, the bid/offer of Defendant No. 1, was suitable, as such, the same was accepted by the Plaintiff No. 1 vide its’ letter of 21.05.1985 [Exh.P-4/2 produced in evidence of Defendant No. 1 herein who is plaintiff in Suit No. 606 of 1999]. Per Mr. Zia-ul-Haq Makhdoom, learned counsel for Defendants, the purpose of the public Notice was ‘renting out’ of the ‘subject plot’ for car parking on ‘rent’ basis that is to say on ‘lease basis’ and not on licenses basis as the Plaintiff No. 1 herein is claiming. For to understand, the contentions of Mr. Zia-ul-Haq Makhdoom, learned counsel for Defendant No. 1 herein. I would like to reproduce herein, the said Public Notice of 19.04.1985 [Exh. P-4/1], here-in-below.

TENDER FOR RENTING OUR CAR PARKING SPACE

State Life Insurance Corporation of Pakistan (State Life) intend to rent out on leave and license basis an open space of plot Survey No. 7, Street RY-5, Lakie Road, Near Platforms Nos. 5 & 6 of City Railway Station and adjacent to State Life Building No. 2-A, Karachi sufficient for parking of 360 cars.

Quotations are, therefore, invited which must be sealed and marked QUOTATION FOR CAR PARKING’. A pay order for Rs. 10,000/- in favour of State Life Insurance Corporation of Pakistan as caution money shall accompany the quotation which must reach Real Estate Division, State Life, 5th Floor, State Life Building No. 9, Dr. Ziauddin Ahmed Road, Karachi within 15 days of publication hereof. Successful bidder shall have to deposit security Deposit equal to three months license fee and advance licence fee of one month within a week of final acceptance of his offer failing which caution money shall be forfeited and tender treated as cancelled. [Underlining is mine]

State Life reserves the right to reject any or all of the offers without assigning any reason. Further detail if required may be obtained from Mr. Azad Ali Khan, Manager, Real Estate Division on Phone No. 529196.

(M. HAMEED MALIK) Deputy General Manager, Real State, Division

1. In view of the above, Mr. Zia-ul-Haq Makhdoom, argued that Defendant No. 1 herein, is a tenant of the ‘subject plot’ land i.e. plot of land bearing Survey No. 7 Sheet RY-5 Lackie Road, Karachi and not as ‘licensee’ as being alleged by Plaintiff No. 1. Learned counsel for Defendants, however, admits the execution of License Agreement dated 25th August, 1985 [Exh.9], between the Plaintiff and Defendant No. 1. Per Mr. Zia-ul-Haq Makhdoom. Plaintiff No. 1 and Defendant No. 1 herein upon execution of ‘Exh.9’, have always acted as ‘landlord’ and ‘tenant’ respectively. The words ‘Licensor’ and ‘Licensee’ used in the License Agreement of 25th August, 1985 [Exh.9] per Mr. Zia-ul-Haq Makhdoom cannot ‘control’ or ‘negate’ the substantives relationship of landlord and tenant between the parties. Moreover, it is next contend by Mr. Zia that in ‘2 rent receipts’ No. 18501 dated 15.11.1987 for Rs. 20160/- and No. 19022 dated 11.01.1988 for Rs. 20160/- [i.e. Exh.18 and Exh.17 respectively], word ‘rent’ has been used, which per learned counsel, also establishes, the stand of Defendant No. 1 herein. According to Mr. Zia-ul-Haq Makhdoom Defendant No. 1 herein, is a ‘tenant’ and not ‘Licensee’ of the Plaintiff No. 1/Licensor. The aforesaid ‘2 rent receipts’ [‘Exh.17’ & ‘Exh.18’]’, for ready reference are also reproduced here-in-below:

A.

PRINCIPAL OFFICE KARACHI DATE 11/1/88

RECEIPT No. 19022

Received from Mohiuddin Khan & Co.

Rs. 20160/- The sum of Rupees Twenty Thousand One hundred & Sixty only

By Cash/Cheque/Draft No. 11741 Dated 9.1.88

Drawn on U.B.L. I.I. Chundrigar Road,

On account of Rent

S.L.B. No. 1

(SUBJECT TO REALIZATION OF CHEQUE)

Sd/- Authorised Officer

B.

PRINCIPAL OFFICE KARACHI DATE 15/11

RECEIPT No. 18501

Received from Mohiuddin Khan & Co.

Rs. 20160/- The sum of Rupees Twenty Thousand One hundred & Sixty only

By Cash/Cheque/Draft No. 11740 Dated 9.11.87

Drawn on U.B.L. I.I. Chundrigar Road,

On account of Rent

S.L.B. No. 1

(SUBJECT TO REALIZATION OF CHEQUE)

Sd/- Authorised Officer

1. Apart from the use of above ‘word rent’, Mr. Zia-ul-Haq Makhdoom also made reference to the Plaintiff No. 1’s letter of 21.5.1985 [Exh. P-4/2] and forcefully contended that ‘Exh. P-4/2’ also confirms and establishes the stand taken by Defendant No.
2. Plaintiff No. ‘1’ letter dated 21.5.1985 [Exh. P-4/2] produced by the Defendant No. 1 herein in his evidence recorded in Suit No. 606 of 1999 [Messrs State Life Insurance Corporation of Pakistan and another V/S Mr. Mohiuddin Khan and another], being relevant is reproduced herein:

Real Estate, Renting/Car-Parking/Lackie Rd./85. 21st May. 1985.

Mr. Mohiuddin Khan, 31/107. Peoples Town, S.F. Colony, Karachi-35, Dear Sir, Sub: Quotation for Car Parking - Lackie Road, Near Platform 5 & 6. Opp. City Railway Station, Karachi.

This has reference to your quotation dated 28.4.1985, for renting out Car-parking space at Lackie Road, Karachi, which we are pleased to inform you, has been accepted. The lease and licence Agreement to be executed is under preparation and will be sent to you in next few day’s time. Please, remit a total sum of Rs. 80,640/- as detailed below:--

1. Rs. 60,480/- toward deposit equal to three month’s fee.

2. Rs. 20,160/- being advance fee for one month.

We may inform you that the rent of the plot will start from the date of possession to be given to you. Kindly remit the above amount within a week of receipt of this letter enabling us to proceed further. [Underlining is mine].

Thanking you.

Yours faithfully.

Sd/- (Azad A. Khan) Manager (RED) “

1. Mr. Zia-ul-Haq Makhdoom next contended that upon execution of Agreement of 25th August, 1985 [Exh.9], Defendant No. 1 herein, had submitted a detailed ‘PLAN’ of ‘GATES’ and ‘SITE PLAN’ of the ground Site before Plaintiff No. 1, which after approved of Plaintiff No. 1, per Mr. Zia, complete, effective and physical possession of the subject plot was handed over to Defendant No. 1 on 9th September, 1985. For to see as to whether the stand taken by Defendant No. 1, is true or the position is otherwise, Exh.’P-4/25’, is reproduced here-in-below:

MESSRS MOHIUDDIN KHAN & Co. PARKING CONTRACTORS

Site Office Lucky Road Parking Plot Adjacent to State Life Building No. 1 I. I. Chundrigar Road, KARACHI - 0237

Ref: SLIC/GEN/CP Date January 10, 1987.

The Manager, Real Estate Division, State Life Insurance Corp. of Pakistan, Dr. Ziauddin Ahmed Road, Karachi.

Sub: ADVANCE RENT FOR LACKIE ROAD PLOT FOR JANUARY, 1987

Dear Sir, Enclosed please find herewith our Cheque No. 50301792 dated 10.01.1987 for a sum of Rs. 20,160.00 (Rupees Twenty Thousand one Hundred & Sixty only) being advance rent for the month of January, 1987, as per our agreement with you. (Underlining is mine)

Kindly acknowledge receipt of this amount.

Thanking you and assuring you of our best services at all times, we remain.

Yours faithfully For M/s. MOHIUDDIN KHAN & CO.

Sd/- (Ghulam Hussain Rajan), Manager

Encl: One Cheque for Rs. 20,160/-.

1. Indeed, per Mr. Zia, learned counsel for Defendants. Plaintiff No. 1 had forwarded a ‘draft Agreement’ vide its’ letter dated 19.09.1989 [Exh.P-4/27’], but Defendant No. 1 herein, upon perusal of the said Draft Agreement did not sign it, as Plaintiff No. 1, in actual fact, had attempted thereby, to convert the so-called ‘relationship’ between the Plaintiff No. 1 and Defendant No. 1 from the ‘landlord’ and tenant to ‘Licensor’ and ‘Licensee’. The Defendant No. 1’s letter dated 29.10.1989 [Exh. 13], in this regard being relevant is reproduced here-under:

MESSRS MOHIUDDIN KHAN & Co. PARKING CONTRACTORS

Site Office Lucky Road Parking Plot Adjacent to State Life Building No. 1 I. I. Chundrigar Road, KARACHI-0237

Dated 28.01.1989.

The Deputy General Manager, Real Estate Division, State Life Insurance Corporation of Pakistan, Karachi.

Sub: RENEWAL OF LICENSE AGREEMENT IN RESPECT OF LACKIE ROAD CAR PARKING PLOT.

Dear Sir, I am in receipt of your letter dated 15.01.1989 and 19.01.1989. The letter dated 15.01.1989 refers to license agreement whereas the other letter mentions an agreement to collect parking charges, the crux of the unilaterally introduced, terminological gimmick is continuation of license agreement dated 01.10.1985, which already stands extended by implication through acceptance of license fee for period up-to January, 1989.

This being the position I request you to confine reference to license agreement in subsequent exchange of correspondence. State Life Insurance Corporation is fully aware that vast discrepances existed between position as advertised on 19.04.1985 and that really found on ground and that I had to spend considerable amount for the development of the parking area. Some further expenditure has also become necessary as a result of weather conditions.

Despite all this I am prepared to sign the extension of license Agreement for a period of three years with an increase of 10% in monthly fee, should development expenditure will be borne by me and I would suggest that in order to remove in terminological confusion, the term collection of right be introduced in extension of the license agreement of 1985. [Underlining is mine]

Thanking you

Yours faithfully, For M/s. MOHIUDDIN KHAN Sd/-

1. According, Mr. Zia-ul-Haq Makhdoom, upon refusal of the said ‘Draft Agreement’ [Exh.26], by Defendant No. 1 herein, Plaintiff No. 1 thereafter, became annoyed and refused to accept further ‘rent’ from Defendant No. 1 herein. For such reason Defendant No. 1 was thus constrained to deposit the ‘rent’ before the Court of VIth Senior Civil Judge & Rent Controller, Karachi [South], in Misc. Rent Application No. 697 of 1989. Per, Mr. Zia, upon execution of the License Agreement of 25th August, 1985 [Exh.9], and the ‘handing over possession’ of the ‘subject plot’ vide Exh. P-4/26 to the Defendant No. 1 herein, Plaintiff No. 1, thereafter, did not exercise any sort of ‘control over’ and in respect of the ‘subject plot’, meant for car parking purpose. Per Mr. Zia, car parking, was always open for the use of general public and in no manner it was restricted to the ‘tenant’s ‘employees’ of plaintiffs and visitors. Besides, Mr. Zia-ul-Haq Makhdoom next contended that Electricity charges in respect of the ‘subject plot’ were exclusively payable by Defendant No. 1 herein, no default was ever committed by Defendant No. 1 herein in that regard. According to learned counsel for Defendants, all such payments having been made are liable to be deemed and treated as rent under Sindh Rented Premises Ordinance, 1979 [In short SRPO, 1979].

2. Lastly, Mr. Zia-ul-Haq Makhdoom, learned counsel for the Defendants contended that Defendant No. 1 herein, is in exclusive possession of the ‘subject plot’ and this factum of possession, has been admitted by Plaintiffs’ witness namely Riazuddin S/o Ziauddin [‘PW-1’], in his ‘cross-examination’ recorded in the instant suit i.e. 583 of 1989. The so-called admission made by ‘PW-1’ in his cross-examination reads as follow:

“... it is correct to suggest that plot in suit is in exclusive possession and control of Defendant No. 1 ...”

Keeping in view of the above, it was argued that Defendant No. 1 herein, is a ‘statutory tenant’ of Plaintiff No. 1 and as such, he cannot be declared as a ‘Licensee’ at the Plaintiff No. 1’s ‘will’ and ‘wish’. Per Mr. Zia, Plaintiff No. 1, is a ‘landlord’ of Defendant No. 1 and not a ‘Licensor’ as claimed by Plaintiffs herein.

1. Mr. Zeeshan Abdullah, learned counsel for the Plaintiffs, in rebuttal argued that bare perusal of the License Agreement dated 25th August, 1985 [Exh.9], would show that Defendant No. 1 herein, is a ‘licensee’ and not ‘tenant’ as claimed. Moreover, ‘Exh.9’, was admittedly signed and was for a period of 3 years as per ‘Clause-3’ thereof. Per terms of License Agreement dated 25th August, 1985 [Exh.9]. Defendant No. 1 herein, was allowed only to use the ‘subject plot’ for car parking purposes. Moreover, in License Agreement dated 25th August, 1985 [Exh.9], it had clearly been mentioned that Plaintiffs herein have ‘no intention’ what-so-ever to create any ‘relationship’ between Plaintiff No. 1 and Defendant that is to say of ‘landlord’ and ‘tenant’. In this regard, the relevant stipulation from Exh.9, runs, as follows:

“WHEREAS the “LICENSOR” has made, it clear to the “LICENSEE” that the said “LICENSOR” has no intention, whatsoever, to create any relationship of landlord and tenants between the “LICENSOR” and the “LICESNEE”. [Underlining is mine]

1. According to Mr. Zeeshan Abdullah, for to determine the ‘relationship’ between the Plaintiff No. 1 and Defendant No. 1, the intention of the parties in this regard is of paramount consideration. No doubt, such intention of parties to Exh.9 is very much clear from the Provisions of the License Agreement dated 25th August, 1985 [Exh.9], From the said License Agreement [Exh.9], it is abundantly clear that it creates a relationship of ‘Licensor’ and ‘Licensee’ between the Plaintiff No. 1 and Defendant No. 1 herein, respectively and not that of ‘landlord’ and ‘tenant’ as claimed by Defendant No. 1 herein. To properly understand the stand so taken by the parties it would be appropriate to refer to and reproduce herein, the definition of license as given in Sections 52 and 54 of the Easement Act, 1882 [V of 1882] which reads as follows:

“52. ‘License’ defined: where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such a right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license.”

1. Grant may be express or implied. The grant of a license may be express or implied from the conduct of the grantor, and on agreement which purports to create an easement but is ineffectual for that purpose, may operate to create a license.

2. Apart from the above, a license has also been defined in Halsbury Laws of England 4th Edition re-issued volume 27/1 which reads as follows:

“Creation of License: A license is normally created where a person is granted the right to use premises without becoming entitled to exclusive possession of them or where exceptional circumstances exist which negative the presumption of the grant of a tenancy. If the agreement is merely for the use of the property in a certain way and on certain terms while the property remains in the owner’s possession and control, the agreement operates as a license, even though the agreement may words appropriate to a lease.” [Underlining is mine]

1. Manifestly, under a License [a] a permissive right expressed or implied is created and such permissive right is also revocable on the ‘wish’ and ‘will’ of Licensor/Grantor [b]. A ‘License’ can only legalize a right act of doing something upon the property of a grantor. Such right, upon expire of the stipulated period, however, becomes un-lawful if ‘fresh Permission’ is not obtained [c] The ‘Licensee’ stands deprived of any such interest conferred upon expiry of license [d] The grant of License may be expressed or implied from the conduct of the grantor. [e] In the case of ‘License’ the only use of ‘Premises’ is permitted but the possession is not exclusive with Licensee.

2. Per available record. Defendant No. 1 herein, has badly failed to discharge his burden of proof viz-a-viz; the claimed ‘relationship’ between the Plaintiff No. 1 and Defendant No. 1 i.e. to say of landlord and ‘tenant’. As far as the contention Mr.Zia-ul-Haq Makhdoom regarding use of word rent in ‘receipts’ i.e. ‘Exh.7’ & ‘Exh.8’ is concerned, no doubt, ‘word rent’ was used in such receipts but merely, the ‘use of word rent in receipts’, cannot override the Provisions of License Agreement dated 25th August, 1985 [Exh.9], where under the ‘relationship between the Plaintiff No. 1 and Defendant No. 1, is that of ‘Licensor’ and ‘Licensee’ and not that of a ‘Landlord’ and ‘tenant’ as being claimed by Defendant No. 1. The word ‘Tenant’, it is significant to note, has been defined in Section 2[j] of SRPO, 1979 [Sindh Ordinance No. XVII of 1979], which reads as follow:

“Tenant means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of any premises by him or by any other person on his behalf and includes:--

(ii) any person who continues to be in possession or occupation of the premises after the termination of his tenancy;

(iii) heirs of the tenant in possession or occupation of the premises after the death of the tenant:

1. Besides, under the said Sindh Rented Premises Ordinance, 1979 [In short SRPO, 1979], Tenancy Agreement has also be defined in Section 5[1] in the following words:

2. Agreement between landlord and tenant.--(1) The Agreement by which landlord lets out any premises to tenant shall be in writing and if such agreement is not compulsorily registerable under any law for the time being in force, it shall be attested by, signed with the seal of the Controller within whose jurisdiction the premises is situate or, any Civil Judge or First Class Magistrate.

(2) Where any agreement by which a landlord lets out any premises to a tenant is compulsorily registerable under any law for the time being in force, a certified copy of the registered deed and where the agreement is not so registerable, the original deed duly attested under sub-section (1), shall be produced and accepted in proof of the relationship of the landlord and tenant:

Provided that nothing in this section shall affect any agreement between the landlord and tenant immediately before coming into force of this Agreement.

1. From the above, it crystal clear that if, an agreement is registerable compulsorily, then a certified copy of registered deed and where, the agreement is not so registerable then, original deed duly attested under sub-section [1], shall be produced and accepted in proof of ‘relationship’ of ‘landlord’ and ‘tenant’. In the case in hand, it is however, worth to mention, the License Agreement dated 25.08.1985 [Exh. 9] in terms of ‘clause la’ is for 3 years but the same has not been registered as required under Section 17 of the Registration Act, 1908 [XVI of 1908]. In view of this position as well, Defendant No. 1, cannot claim himself as ‘tenant’ of Plaintiff No. 1. Rather, Defendant No. 1 herein, is a Licensee in terms of the Licensse Agreement of 25th August, 1985 [Exh.9]. Section 17[1][d] of the Registration Act, 1908 [Act No. XVI of 1908], being relevant are reproduced here-in-below:

2. Documents of which registration is compulsory.--(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after a date on which Act No. XVI of 1964 or the Registration Act, 1866, or the Registration Act, 1871, on the Registration Act, 1877, or this Act came of comes into force, namely:--

(a) ………………………………………………………………….

(b) ………………………………………………………………….

(c) ………………………………………………………………….

(d) Leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly 6 rent:

(e) ………………………………………………………………….”

1. Likewise, the subject License Agreement of 25th August, 1985, [Exh.9] by no strength of imaginations, can be treated and/or considered as a ‘Lease Agreement’ if, the definition as given in Section 105 of Transfer of Property Act, 1882 [IV of 1882] is also kept in mind. Per Section 105 of Transfer of Property Act, 1882 [IV of 1882], a lease of immovable property is a transfer of right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered, periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. Per ‘definition’ ‘transferor’ is called the ‘lessor’, the ‘transferee’ is called the ‘lessee’, the price is called the ‘premium’, and the money, service or other thing to be so rendered is called the ‘rent’.

2. Evidently, the ‘relationship’ between the Plaintiff No. 1 and Defendant No. 1 is that of ‘Licensor’ and ‘Licensee’ and not that of ‘landlord’ and ‘tenant’ as has been claimed by Defendant No. 1 herein. Per Mr. Zia the Plaintiff’s witness viz. Hafiz Arshad Shaikh son of Shaikh Abdul Razzaq in his ‘cross-examination’ recorded in Suit No. 606 of 1999 [Mohiuddin Khan vs. State Life Insurance Corporation of Pakistan & another] has admitted that the possession of the ‘subject plot’ was handed over the Plaintiff [Defendant No. 1 herein] and the ‘subject plot’ since then is in the possession and control of Plaintiff [Defendant No. 1 herein]. For better understanding, the ‘said so-called admission’ is reproduced herein-below:

“.... It is correct that the suit property is under exclusive control in possession of the plaintiff ...”

Notwithstanding the above, the said witness [DW-1/2], has also deposed in the said cross-examination;”…………… it is incorrect that relationship between the Plaintiff and Defendants is that of landlord and tenant. Vol says that it is a license Agreement between the parties ………..” [Underlining is mine]

1. Nevertheless, the contents of License Agreement of 25th August, 1985 [‘Exh.9’] as well as ‘Exh.24’ of 09.09.1985, belie Defendant No. 1, in his stand that either he was ‘tenant’ or otherwise. Defendant No. 1 was in ‘exclusive possession’ of the ‘subject plot’. From ‘Exh.24’, it is quite evident that ‘subject plot’ is in the ‘joint possession’ of the Plaintiff/’Licensor’ and ‘Defendant No. 1/‘Licensee’. For in view of the above, no any weight otherwise, can be given to the ‘oral statement’ made by a witness [DW-1] much-less, in presence of written License of 25th August, 1985 [Exh.9] and Handing/Taking over letter of 09.09.1985 [Exh.24]. In ‘Exh.9’ it has been specifically provided as under:

WHEREAS the “LICENSOR” has made it clear to the “LICENSEE” that the said “LICENSOR” has not intention, whatsoever, to create any relationship of landlord and tenants between the “LICENSOR” and the “LICENSEE”.

AND WHEREAS the “LICENSEE” has also expressly stated and does hereby expressly state that the “LICENSEE” in his turn has no intention, whatsoever, to become a tenant of the said plot of land in the “LICENSORS’’ property.

Besides, on the last page of the License Agreement Exh.9 it has further been provided

The possession of the said plot of land shall rest with the LICNESOR however the LICENSEE will has license and leave to use it for car parking.

1. It is also significant to note, under Articles 102 and 103 of Qanun-e-Shahadat Order, 1984, if there is a conflict between ‘oral evidence’ and ‘documentary evidence’ then, in such like position ‘documentary evidence’ is to prevail over the oral evidence. On this aspect of the matter reliance is placed on (i) 2014 SCMR 1217, (ii) 2010 CLC 246, (iii) 2013 MLD 1305 and (iv) PLD 1986 SC 519.

2. The relevant portions therefrom read as follows:--

i. 2014 SCMR 1217 [Elahi Bakhsh through Legal Heirs and others v. Muhammad Iqbal and another]

“7. ... It was accordingly reduced into writing and registered at the instance of the parties mentioned above. The respondent however, averred that it was a sale and not exchange. The burden, therefore, lay on him to prove, that it was sale. In his effort to prove his stance, he produced Saeed Ahmed and Mst. Sughran Bibi who were examined as P.W.1 and P.W.2. Both the P.Ws. stated in their evidence recorded in the Court that the transaction entered into between them and the appellants was one of sale and not that of an exchange. This statement, so to say, varies the terms of the deed and substantially so. The question that arises for the adjudication of this Court is whether an oral statement of a party to an instrument which varies or tends to vary its terms could be admitted into evidence? The answer to this question is a plumb no because Article 103 of Qanun-e-Shahadat Order 10 of 1984 excludes oral statement as between the parties to any such instrument of their representatives. The rationale behind this Article is that inferior evidence is excluded in the presence of superior evidence; that an agreement finding expression in writing is an out come of deliberate and well thought out settlement; that a party acknowledging a fact in writing is precluded to dispute it and that an agreement reduced into writing is immune from mischief, failure and lapse of memory....” [Underlining is mine].

ii. 2010 CLC 246 [Karam Din through LRs. and others v. Muhammad Idrees]

“12. ...During cross-examination he was confronted with the written statement. He denied having signed the written statement. However, he admitted his signatures on the front and back side of the agreement Exh.P.1. He also admitted that the ID. Card number shown thereon related to him. Then he tried to take a shift saying that the stamp paper was got written through fraud. He however, failed to state any particular of the so-called fraud. It is evident that he had admitted the execution of the agreement Exh. P.1 dated 26-3-1996. The agreement Exh.P.1 was fully covered under Article 102 of Qanun-e-Shahadat, Order, 1984 and any oral evidence against its terms, would stand excluded from consideration vide Article 103 of the Order (ibid). [Underlining is mine].

iii. 2013 MLD 1305 [Shakeel v. H. Syed Masroor Ahmed]

1. Both the Courts below have considered, discussed and relied upon the oral evidence of appellant without examining the documents i.e. Registered Power of Attorney executed by H. Syed Masroor Ahmed, Respondent No. 1 in favour of Saleemuddin and the registered sale deed executed by Saleemuddin as Attorney of respondent No. 1 in favour of appellant Shakeel, the said documents were produced by the appellant before the trial Court in his evidence as Exhibit D/1 and D/2. The General Power of Attorney as per the endorsement of Sub-Registrar was registered at Serial No. 865 dated 20-10-2004, the photograph of executant H. Syed Masroor Ahmed is affixed on the General Power of Attorney, whereas the Sale Deed in respect of suit property, as per the endorsement of Sub-Registrar was executed under Register No. 417 dated 25.1.2005 about 3 months after the execution of General Power of Attorney, as such both the Courts below have given preference to the oral evident over the documentary evidence which amounts to mis-carriage of justice and violation of Articles 102 and 103 of Qanun-e-Shahadat, 1984 which relates to exclusion of oral evidence when, the terms have been reduced into writing to form a document, oral evidence led to contradict the contents of a document would be inadmissible. Reliance can be placed on a matter reported as (Ali Muhammad vs. Ghulam Haider) 2001 CLC 1440.... [Underlining is mine].

iv. PLD 1986 SC 519 [Muhammad Shafi and others v. Allah Dad Khan]

“...The evidence of the respondent and of another person was admitted by the Trial Court for the purpose of proving the real intention of the parties and such evidence was relied on to some extent by the Courts below. In regard to the admissibility of this evidence their Lordships held that by reason of Section 92 of the Evidence Act, no oral evidence of intention was admissible for the purpose of constrain the deeds or ascertaining the intention of the parties, and the case had to be decided on a consideration of the contents of the documents themselves with such extrinsic evidence-of surrounding circumstances as may be required to show in what manner the language of the document is related to existing facts ...” [Underlining is mine].

1. For all he above, I reached the conclusion that Defendant No. 1 herein, is a Licensee of ‘Premises’/‘subject plot’ and the Civil Court, as such, has jurisdiction in the matter. ISSUE No. 1 which is to the extent and effect that ‘whether the Defendant No. 1 is ‘licensee’ of the premises and the Civil Court has jurisdiction is accordingly answered in ‘positive’.

ISSUE No. 2.

1. As far as, Issue No. 2 which is to the effect as to whether the license expired on September 30, 1988 is concerned, the same needs no debate as both parties admit that ‘License Agreement’ of 25th August, 1985 [Exh.9], has expired on September 30, 1988. In this regard reference can be made to prayer clause [i] sought by the Plaintiffs in the above suit and ‘para 10’ of the ‘written statement’ of Defendant No. 1. The relevant prayer clause [i] sought in the plaint and relevant part of ‘para-10’ of ‘written statement’ of Defendant No. 1 are respectively reproduced here-in-below:

(i) Declare that the license expired on 30th September, 1988, and the Defendant No. 1 had no right, power or authority either to enter upon the portion of the plot or allow third parties to park their cars or to Collect, parking fee from them. [Underlining is mine]

b. “10 ... The agreement dated 25th August, 1985, came to an end, on 30th September, 1988, whereafter the answering defendant became a statutory tenant. The Plaintiff No. 1 continued to accept rent and to term it as such, as would be evident from the receipt filed herewith (Annexure C1-C3). It is, however, admitted that the answering defendant continues to be in possession as a tenant and is conducting his business, that of running a parking lot, at the subject premises. The Plaintiff No. 1 accepted the rent without demur for six months. Thereafter the Plaintiff No. 1 sought enhancement of the monthly rent by 30%. However, the answering defendant was only prepared to agree to a 10% enhancement, to which the Plaintiff No. 1 countered with a proposal to change the status of the answering defendant from a tenant to that of a contractor. The answering defendant craves leave to rely on the draft agreement and the letter dated 19.01.1989 referred to above.” [Underlining is mine]

1. Keeping in view the above admitted position. Issue No. 2 does not need any debate as License Agreement [Exh.9] has admittedly expired on September 30, 1988.

ISSUE No. 3.

1. ISSUE No. 3 is to the effect as to ‘‘whether Defendants are obliged to pay mesne profits at the rate of Rs. 50,160.00 per month from October 1, 1988 till such time that payment is made”. Since, under Issue No. 1, it has been held that Defendant No. 1, is a ‘Licensee’ and not ‘tenant’. Likewise, under Issue No. 2, it is admitted position that License Agreement of 25th August, 1985 [Exh.9], has admittedly expired on September 30, 1988. In view of the above position. Defendant No. 1, as being ‘licensee’, is liable and obliged to pay ‘mesne profit’ w.e.f. October 1, 1988, till such time the payment of ‘mesne profit’ is made. The only question, now needs to be answered under ‘Issue No. 3’, is the quantum of ‘mesne profit’. To see whether, Defendant No. 1, is liable to pay Rs. 50,160.00 per month i.e. from October 1, 1988, or any other amount under the facts and circumstances of the case in hand. The case of the Plaintiff, as made out, is that Defendant No. 1, upon expiry of the license Agreement on September 30, 1988 has become trespasser/illegal occupier of the ‘subject plot’, as such, he is liable to pay Rs. 50,160.00 per month w.e.f 1st October, 1988 till such time the entire payment is made. The Plaintiff No. 1 herein, in their evidence have produced a letter dated January 15, 1989 [Exh.12], in which a reference has also been made to Defendant No. 1’s letter of 25.08.1988. Evidently in ‘Exh-12’ inter-alia, it has been mentioned that license Agreement dated 25.08.1985 [‘Exh. 9] stands expired on 30.09.1988 and you [Defendants No. 1 ] is liable to remove from the ‘subject plot’ alongwith all belonging and ‘vacate’ the same by leaving the ‘subject plot’ in same and ‘proper condition’ in which it was at the commencement of License Agreement [Exh.9], without any loss of time.

2. In response, Defendant No. 1 herein, sent a letter dated 28.01.1989 [Exh. 13], to the Deputy General Manager Real Estate Division State Life Insurance Corporation of Pakistan, Karachi, wherein, the factum of License Agreement [Exh.9] signed between the Plaintiff and Defendant No. 1, was not disputed. In the said letter ‘Exh.13’, it was also not disputed that License Agreement of 25th August, 1985 [Exh.9], has already stood expired on 30th September, 1988. In the said letter [Exh. 13], it was however, alleged that License Agreement of 25th August, 1985 [Exh.9], has stands extended by implication through acceptance of ‘License Fee’ for the period upto January, 1989. Herein, it is worth to mentions, Plaintiff No. 1, in its’ letter has made a reference to Defendant No. 1’s letter of 25th August, 1988. The License Agreement of 25th August, 1985 stands admittedly expired on 30th September, 1988. Per ‘Exh-12’ [already been reproduced herein above]. Defendant No. 1 was directed in express words to move from the ‘subject plot’ alongwith belongings if any without any loss of time. In view of this position, the stand of Defendant No. 1 that despite expiry of Exh.9 on 30th September, 1988 the License Agreement [Exh.9] be deemed as extended impliedly, in my view besides, incorrect cannot be believed. Even otherwise, such stand taken by Defendant No. 1 has not been established through cogent and plausible evidence.

3. Defendant No. 1, despite of such demand/direction of the Plaintiff, however, did not move out from the ‘subject plot’, and Plaintiff No. 1 herein, was constrained to send a legal notice of 18 May, 1989 [Exh. 14 reproduced herein-above] to Defendant No. 1 wherein, Defendant No. 1, was directed to refrain from interfering over and in respect of the ‘subject plot’, as the license Agreement of 25th August, 1985 [Exh.9], has already expired on 30th September, 1988.

4. From the above, it is quite clear that Defendant No. 1, interference/occupation over the ‘subject plot’, beyond 30th September, 1988, is nothing but an act of trespassing and/or illegal occupation. It is also worth to mention, that Defendant No. 1, in his letter dated 28th January, 1989 [‘Exh.13’], had also agreed for 10% enhancement in ‘monthly fee’ which ‘enhancement by 10% in monthly fee’ however, was not agreed by the Plaintiff/Licensor; According to Defendant No. 1’s own stand, the Plaintiff wanted enhancement by 30% and this factum is also evident from ‘Para-10’ of the ‘written statement’ of Defendant No. 1 filed in Suit No. 583 of 1989 [State Life Insurance Corporation Limited & another vs. Mohiuddin Khan and another] which has already been reproduced hereinabove.

5. For all the above, I have come to the conclusion that Defendant No. 1, as being found in wrongful possession and/or illegal occupation of the ‘subject plot’ w.e.f October 1, 1988, is liable to pay of Rs. 22.176/- as ‘mesne profit’ w.e.f. October 1, 1988 till the realization of the entire outstanding amount plus 6% markup thereon. ISSUE No. 3 is answered accordingly.

ISSUE No. 4

1. As far as, ISSUE No. 4 which is to the effect as to whether the Defendant No. 1 violated the terms of the license, is concerned, in view of the foregoing discussion. I am of the considered opinion that Defendant No. 1 herein, has clearly violated the ‘terms’ and ‘conditions’ of ‘License Agreement of 25th August, 1985 [Exh. 9], by calling and treating himself as a ‘statutory tenant’ under a ‘License Agreement’ already expired on 30th September, 1988.

2. In view of my findings on ISSUE NOS. 1 TO 4, the Plaintiff’s suit besides being decreed, for ‘mesne profit’ as above, Defendant No. 1, is further directed to move out from the ‘subject plot’ and handover vacant peaceful possession of the ‘subject plot’ to the plaintiffs within a period of 45 days hereof, positively.

3. RELIEF: The plaintiffs suit stands decreed in the above terms.

(M.M.R.) Suit decreed

PLJ 2018 Karachi 117

Present: Salahuddin Panhwar, J.

ANWAR SHAMIM JAFRI--Plaintiff

versus

M/s. GULF AIR COMPANY and another--Defendants

Suit No. 1089 of 2009 and CMA No. 12336 of 2016, decided on 4.10.2016.

Stamp Act, 1899 (II of 1899)--

----Ss. 33 & 35--Power of attorney--Admission of documents--Return of original power of attorney for compliance with regard to objection of deficiency of stamp duty--Validity--Neither the document has been impounded nor the Court/competent person has imposed penalty as per Section 35(a) so as to declare the document ‘admissible in evidence’ however, the defendants are ready to pay up the insufficiency of stamp for which seeking return of document--Defendants do not deny insufficiency of stamp on the document hence such produced document, having been produced before competent person, cannot be legally returned but has to be impounded even if the defendants do not want the document to be ‘admitted in evidence’, therefore, same is deemed to have been impounded--Appeal was disposed of accordingly. [P. 119] A & B

M/s. Moeen Qamar and Faisal Aziz, Advocates for plaintiff.

Mr. Mehmood Alam, Advocate for Defendants.

Date of hearing: 4.10.2016.

Order

Through instant application, defendant seeks return of original power of attorney for compliance with regard to objection of deficiency of stamp duty thereon.

1. It appears from the record that during proceeding before Commissioner defendants produced power of attorney but same was objected by learned counsel for plaintiff on the plea that it is not duly stamped as same was executed out of country (Bahrain); according to Section 33 of the Stamps Act, it is to be impounded and referred to Collector for penalty and compliance. In support of this contention he has relied upon 1989 MLD 3402 which contains that “Document admitted in evidence by the trial Court without applying its mind, hence it is not open to the appellant to call in question the admission of the document in view of provisions contained in Section 35 of the Stamp Act 1899,” as well it was observed that penal/Sections are there to impose the penalty. I am also of the view that undervalued power of attorney cannot be denied to be produced before the person, competent within meaning of Section 33 of the Act because what is to be seen at later stage is ‘admissibility’ of such document in evidence. Let’s have a direct reference to Section 33 of the Act which is:

“33. Examination and impounding of instruments: (1) Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable in his opinion with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same.”

1. A bare reading of the Section 33 of the Act, makes it clear that initial responsibility to examine such produced document lies on shoulder of the Court or the person, so authorized to receive evidence but if the Court or such person fails to examine the document and there comes no objection towards admissibility of such document from rival side, as is so evident from Section 36 of the Act. However, once either on its own the Court or competent person takes notice of deficiency of stamp on such document or the rival points it out, then such Court or person is left with no discretion but to examine the document to determine whether the document is duly stamped or otherwise, as is evident form Section 33(2) of the Act. If the document is found to be not duly stamped then there is no exception but to impound the document. The object of leaving no discretion seems to be that the government must receive due amount on proper stamping on such document, as was applicable when such document was executed or first executed couple with permissible penalty. At this juncture the operative part from judgment, referred supra is made hereunder:

“After a document has been impounded, it is the choice of the litigant to tender it in evidence on payment of requisite duty and penalty or to ask the Court to refer the matter to the Collector under sub-section (2) of Section 38. If the party does not want to produce the document in evidence or otherwise prefers to have the course laid down in Section 38(2) adopted by the Court, the latter cannot embank upon determination and realization of the duty and the penalty. It is noteworthy that when a part offers to tender an unstamped or insufficiently stamped document in evidence and the 10 times of the duty, payable on the instrument exceeds Rs. 5, the Court must impose a penalty, equal to 10 times of the duty chargeable thereon and in view of the provisions of Section 35, is, not left with any choice, to inflict a lesser penalty. However, in this behalf, under Section 40, the Collector appears to be possessed of wider powers.”

In the instant matter, it is a matter of record that neither the document has been impounded nor the Court/competent person has imposed penalty as per Section 35(a) so as to declare the document ‘admissible in evidence’ however, the defendants are ready to pay up the insufficiency of stamp for which seeking return of document.

1. All these facts prima facie, make it clear that defendants do not deny insufficiency of stamp on the document hence such produced document, having been produced before competent person, cannot be legally returned but has to be impounded even if the defendants do not want the document to be ‘admitted in evidence’, therefore, same is deemed to have been impounded. It is however, matter of record that the course, provided by Section 33 of the Act is not followed nor is being pressed by defendants then there shall remain available only course provided by Section 38(2) of the Act which reads as:

“(2) In every other case, the person so impounding an instrument shall send it in original to the Collector.”

who (Collector) shall follow the procedure provided by Section 40 of the Act which lasts on sub-section (3) of Section 40 of the Act i.e:

“(3) When an instrument has been sent to the Collector under Section 38, sub-section (2), the Collector shall, when he has dealt with it as provided by this section, return it to the impounding officer.”

Accordingly, it is hereby ordered that learned commissioner shall send the document to the Collector within meaning of Section 38(2) of the Act and the Collector shall deal therewith in accordance with Section 40 and 40A (Sindh Amendment). This exercise be completed preferably within a period of one month. Application is disposed of accordingly.

(M.M.R.) Order accordingly

PLJ 2018 Karachi 120

Present: Muhammad Faisal Kamal Alam, J.

KHALID MEHMOOD and 4 others--Plaintiffs

versus

M/s. MULTI PLUS CORPORATION (PVT.) LTD. and 2 others--Defendants

Suit No. 1042 of 2017, decided on 21.7.2017.

Companies Ordinance, 1984 (XLVII of 1984)--

----Ss. 159 & 178--Mandatory provisions--Scope and effect--Corporate entity--Transfer of shares--Board of directors--Holding of elections for directors--Convened extra-ordinary general meeting--Validity--In view of above discussion, since EOGM in dispute was not convened in accordance with mandatory provisions of Company Law, therefore, same is a nullity in eyes of law and any business transacted thereat is also illegal--Conscious of fact that Defendant No. 1 being a corporate entity cannot be run without a Board of Directors, thus, concept of transition contained in Section 176 of Company Law is invoked, but merely as an interim arrangement and solely for transitory period--Consequently, Board of Directors existing immediately before above EOGM is restored, with sole Object to hold fresh elections of Board of Directors, but strictly in accordance with law, inter alia, by giving twenty one (21) days clear notice before date of EOGM on which election is to be held, as mandated in Section 159 of Company Law, besides complying with other relevant provisions--It is also necessary to clarify that issue of transfer of shares by Defendant No. 2 as agitated by plaintiff’s and other pending disputes since require a proper trial, as discussed in foregoing paragraphs, inter alia, as defendants’ side has seriously questioned authenticity of documents (Annexure-C & C/1) of plaint, on basis of which issue of shareholding has been raised by plaintiff’s, hence it cannot be decided at this interlocutory stage--This order has only restored earlier Board of Directors for holding fresh election of Directors without disturbing present shareholding, powers and authority of present CEO-Defendant No. 2--Appointment of Buland Iqbal as Head of Productions and Operations is also set-aside, as he was appointed in aforementioned impugned EOGM. [P. 128] A, B & C

Case-Law cited by the Plaintiffs’ counsel.

1. PLD 2008 Supreme Court page-707 [Lahore Race Club and others v. Raja Khushbakht-ur-Rehman]

2. 2016 SCMR 213 [Mian Javed Amir and others v. United Foam Industries (Pvt.) Ltd., Lahore and others]

Case-Law relied upon by Defendants’ counsel.

1. 2005 SCMR page-318 [Adamjee Insurance Company Limited and others v. Muslim Commercial Bank Limited]

2. 1968 SCMR page 1043 [Asian Mutual Insurance Company Limited, Lahore v. Rana Zafarullah Khan and others]

3. 2014 CLD page-52 [Suleman Lalani v. Al-Abbas Sugar Mills Ltd. and others]

4. 1990 CLC page-1756 [Maqbool Ahmad and others v. Syed Farzand Ali Shah and others]

5. 1999 CLC page-1795 [Atta Muhammad Khan and another v. Lasbella Cement Ltd.]

Law under discussion: (1) Civil Procedure Code, 1908.

(2) Companies Ordinance, 1984.

(3) Pakistan Electronic Media Regulatory Authority Rules, 2009.

(4) The Companies (General Provisions and Forms) Rules, 1985.

M/s. Murtaza Wahab Siddiqui, M. Asad Iftikhar and Yahya Iqbal, Advocates for Plaintiffs

M/s. M. Zeeshan Abdullah, Saalim Salam Ansari and M. Adnan Abdullah, Advocates for Defendants No. 1 & 2.

Dates of hearing: 23.5.2017 and 25.5.2017.

Order

This order will dispose of the following Civil Miscellaneous Applications including the Review Application

(i) C.M.A. No. 5607 of 2017 (under Order XXXIX, Rules 1 and 2 Read with Order XL, Rule 1 of C.P.C.)

(ii). C.M.A. No. 7897 of 2017 (under Order XXXIX, Rules 1 and 2 Read with Section 151 of C.P.C)

(iii) C.M.A. No. 7898 of 2017 (under Article 204 of the Constitution of Islamic Republic of Pakistan, 1973, and

(iv) C.M.A. No. 8114 of 2017 (under Section 114 Read with Order XLVII, Rules 1 and 2 and Section 151 of C.P.C).

1. The Plaintiffs have filed the present suit against the Defendants, inter alia, calling in question the Extra Ordinary General Meeting (“EOGM”) held on 07.04.2017. The Plaint contains following prayer clauses:

“It is respectfully prayed that this Hon’ble Court be pleased to:

i. Declare that the Plaintiffs and Defendant No. 2 are bounds by the terms of the Agreement and Halafnama (Annexures C and C/1);

ii. Declare that the Plaintiffs are the lawful and legitimate owners of additional 30% shares of Defendant which were only given on trust to the Defendant No. 2;

iii. Permanently restrain the Defendant No. 2 from creating any third party interest in the 30% shares given to him on trust;

iv. Appoint a Receiver to manage the Company (Defendant No. 1) and run its day to day affairs;

v. Remove the name of the Defendant No. 2 from all the bank accounts held by the Defendant Company and restrain the Defendant from embezzling any amount from the same or in any other manner;

vi. Cancel the EOGM dated 07.04.2017 as the shareholding of the directors/shareholders is disputed and is pending adjudication before this Hon’ble Court;

vii. Costs of the proceedings; and

viii. Any other relief deemed appropriate by this Hon’ble Court in the circumstances of the case.”

1. It is not a disputed position that between the parties hereto other cases are also pending in the nature of Judicial Companies Miscellaneous No. 22 of 2016 and 04 of 2017, wherein, the issue with regard to purported transfer of shareholding to other persons by the members of Defendant No. 1 has been challenged and sub judice, as the stance of Plaintiffs is that Defendant No. 1 (Multi Plus Corporation Private Limited), being a private limited company, its shares cannot be transferred to outsiders considering the ‘restrictive covenant’ contained in the Articles of Association as well as recently inserted Rule 12-A of the Companies (General Provisions and Forms) Rules, 1985 (ibid)

2. The EOGM in dispute admittedly was held with the permission of this Court mentioned in its order of 06.04.2017, whereafter on 14.04.2017 this Court while overruling the objections with regard to instant proceeding, directed Defendant No. 2 to file relevant documents relating to the impugned EOGM of 07.04.2017. On 11.05.2017, it was ordered that Defendant No. 2 being a Chief Executive Officer (“CEO”) of Defendant No. 1 will run it in cooperation with its Board of Directors, but for the time being Buland Iqbal who is one of the purported newly elected directors in the impugned EOGM was restrained from acting as Head of Productions and Operations Against this order C.M.A. No. 8114 of 2017 is preferred under Section 114 read with Order XLVII, Rules 1 and 2 and Section 151 of C.P.C. (Review Application), by Defendants No. 1 and 2.

3. Learned counsel representing plaintiff’s and Defendants No. 1 and 2 have argued in detail on the overall state of affairs of Defendant No. 1 (Company), and significance of their investments made therein over a period of time.

4. On behalf of plaintiff’s, it has been argued that the election of three directors including Buland Iqbal, is a nullity in the eyes of law as two of them were not the original shareholders/members of Defendant No. 1 and they were made members by Defendant No. 2 by transferring of shares, which were given to the said Defendant No. 2 as a trust. The gist of the arguments of plaintiff’s’ counsel is that the shareholding as reflected in Form-A of 31.10.2016, available at page-325, is due to the fact that Defendant No. 2 was given 30% additional shares in Defendant No. 1 as a trust with the object to manage the affairs of Defendant No. 1 in a viable manner, but the said Defendant No. 2 has committed a breach of trust, by partly transferring these shares to M/s Imran Haider and Buland Iqbal, who subsequently got elected in the said EOGM in dispute. The present Form-29 (at page 443 of Court file) dated 07.04.2017, wherein, names of above persons have been mentioned as newly elected Directors, has been disputed by plaintiff’s. It is further contended that shares were illegally transferred in contravention of Articles of Association, Rule 12(A) as well as Agreement of 09.01.2007 and ‘Halafnama’ (Affidavit) between the plaintiff’s and Defendant No. 2, which are available at pages 59 and 61 of the Court file. In this regard, plaintiff’s have also sought a declaratory relief, inter alia, to the extent that the 30% share earlier reflected as shareholding of Defendant No. 2, is in fact owned by plaintiff’s, as no amount was paid by said Defendant No. 2 (Aamir Masood Shiekh) in respect thereof, as required by the provisions of the Company Law.

5. While controverting the arguments of learned counsel for the plaintiff’s, the crux of the stance of the defendants is that the EOGM in which the present Board of Directors got elected was duly held under the provisions of the Company Law, which has been further acted upon as the requisite documents, inter alia, Form-29 (dated 07.04.2017) have been submitted to and accepted by Defendant No. 3-SECP. To the contention of plaintiff’s’ side about the restraint put by Order of 06.04.2017 against non-implementation of decision taken in the impugned EOGM, the defendants’ counsel replied by referring to the record of present case that notice of the said order was issued on 11.05.2017, that is, four days after EOGM was held and businesses transacted thereat have been acted upon; consequently, Defendant No. 2 and Rana Iqbal Afzal Khan have been re-elected as CEO and Director respectively, whereas, Buland Iqbal Siddiqui and Syed Imran Haider Abidi have been elected as Directors. It was further contended that the plaintiff’s too participated in the said EOGM, though under protest, as clearly mentioned in the record and proceedings of the said meeting, available at page-419, Annexure “D/29” (second part of the Court file), appended with counter affidavit of defendant 2, which is a reply to the interlocutory applications of the plaintiff’s. Per counsel of Defendants No. 1 and 2, the plaintiff’s were given a fair opportunity at the said EOGM to exercise their right to Vote. Learned counsel representing the private defendants has seriously questioned the authenticity of the aforereferred documents; the said Agreement of 09.01.2007 and the ‘Halafnama’ [Affidavit]. Learned counsel for private defendants has also referred to the last Audit Report dated 30.06,2016 (available at pagc-359) to show that Defendant No. 1 Company is indebted to Defendant No. 2 (Aamir Masood Sheikh) for an amount of Ks.43 Million (approximately).

6. I have thoughtfully considered the arguments of learned counsel representing the plaintiff’s and Defendants No. 1 and 2. At this stage, two issues have been agitated by plaintiff’s with vehemence; i) the alleged transfer of shares by Defendant No. 2 (Aamir Masood Sheikh) in favour of aforenamed persons, and ii) legality of impugned EOGM of 07.04.2017 and decisions taken thereat. As mentioned in the preceding paragraphs, that shareholding dispute is also a subject matter of other sub judice cases, besides the fact that genuineness of the; afore referred documents can be proved by leading evidence. Notwithstanding this aspect, at this interlocutory stage, the undisputed questions can be considered in the light of the Company Law to address the second issue about the legality of EOGM.

7. I have examined the relevant provisions of the Company Law with regard to holding of EOGM and election of the Directors. In my considered view, this is a fundamental question. It would be advantageous to reproduce Sections 159 and 178 of the Company Law.

159. Calling of extraordinary general meeting.--(1) All general meetings of a company other than the annual general meeting referred to in Section 158 and the statutory meeting mentioned in Section 157, shall be called extraordinary general meetings.

(2) The directors may at any time call an extraordinary general meeting of the company to consider any matter which requires the approval of the company in a general meeting and shall, on the requisition of members representing not less than one-tenth of the voting power on the date of the deposit of the requisition, forthwith proceed to call an extraordinary general-meeting.

(3) The requisition shall state the objects of the meeting, be signed by the requisitionists and deposited at the registered office of the company, and may consist of several documents in like form, each signed by one or more requisitionists.

(4) If the directors do not proceed within twenty-one days from the date of the requisition being so deposited to cause a meeting to be called, the requisitionists or a majority of them in value, may themselves call the meeting but in either case any meeting so called shall be held within three months from the date of the deposit of the requisition.

(5) Any meeting called under sub-section (4) by the requisitiohists shall be called in the same manner, as nearly as possible, as that in which meetings are to be called by directors.

(6) Any reasonable expense incurred by the requisitionists by reason of the failure of the [directors duly to convene a meeting shall be repaid to the requisitionists by the company, and any sum so repaid shall be retained by the company out of any sum due or to become due from the company by way of fees or other remuneration for their services to such of the directors as were in default.

(7) Notice of an extraordinary general meeting shall be sent to the members at least twenty-one days before the date of the meeting, and in the case of a listed company shall also be published in the manner provided for in sub-section (3) of Section 158:

Provided that, in the case of an emergency affecting the business of the company, the registrar may, on the application of the directors, authorise such meeting to be held at such shorter notice as he may specify.

(8) Every officer of the company who knowingly or willfully fails to comply with any of the provisions of this section shall be liable,-

(a) if the default relates to a listed company to a fine not less than ten thousand rupees and not exceeding twenty thousand rupees and in the case of a continuing default to a further fine which may extend to two thousand rupees for every day after the first during which the default continues; and

(b) if the default relates to any other company, to a fine which may extend to two thousand rupees and in the case of a continuing default to a further fine which may extend to two hundred rupees for every day after the first during which the default continues.

[Underlined to add emphasis]’

1. Procedure for election of directors.--(1) The directors of a company shall, subject to Section 174, fix the number of elected directors of the company not later than thirty-five days before the convening of the general meeting at which directors are to be elected, and the number so fixed shall not be changed except with the prior approval of a general meeting of the company.

(2) The notice of the meeting at which directors are proposed to be elected shall among other matters, expressly state--

(a) the number of elected directors fixed under sub-section (1); and

(c) the names of the retiring directors.

(3) Any person who seeks to contest an election to the office of director shall, whether he is a retiring director or otherwise, file with the company, not later than fourteen days before the date of the meeting at which elections are to be held, a notice of his intention to offer himself for election as a director:

Provided that any such person may, at any time before the holding of election, withdraw such notice.

(4) All notices received by the company in pursuance of sub-section (3) shall be transmitted to the members not later than seven days before the date of the meeting, in the manner provided for sending of a notice of general meeting in the normal manner or in the case of a listed company by publication at least in one issue each of a daily newspaper in English language and a daily newspaper in Urdu language having circulation in the Province in which the stock exchange on which its securities are listed is situate.

(5) The directors of a company having a share capital shall, unless the number of persons who offer themselves to be elected is not more than the number of directors fixed under sub-section (1), be elected by the members of the company in general meeting in the following manner, namely:--

(a) a member shall have such number of votes as is equal to the product of the number of voting shares or securities held by him and the number of directors to be elected;

(b) a member may give all his votes to a single candidate or divide them between more than one of the candidates in such manner as he may choose; and

(c) the candidate who gets the highest number of votes shall be declared elected as director and then the candidate who gets the next highest number of votes shall be so declared and so on until the total number of directors to be elected has been so elected.

[(6) The directors of a company not having share capital shall be elected by members of the company in general meeting in the manner as provided in articles of association of the company.]

1. Provision of penalty or a consequence in the above Sections makes them mandatory in nature, as sub-section (7) of Section 159 of the Company Law in clear terms has mandated that twenty one (21) days clear notice should be given to the members before the date of meeting, as far as non-listed corporate entity is concerned, which is the present case. Undisputedly, the impugned notice of EOGM is of 18.03.2017, appended as Annexure-F, (page-79) of the plaint, wherein the members were informed about the holding of elections for Directors. Admittedly, the said EOGM has been held on 07.04.2017, that is, on the 21st day, even if the date of notice (18.03.2017) is also included, whereas the said meeting should have been held on 8.4.2017, in order to comply with the mandatory statutory provision of Section 159. Participation though under protest of the plaintiff’s in the EOGM in question will not lend any validity to the said EOGM, nor the order of 06.04.2017, inter alia, as it was in the nature of an ad-interim order with an implied effect, that the meeting to be held on 07.04.2017, would be in accordance with provisions of the Company Law and not otherwise.

2. In view of the above discussion, since the EOGM in dispute was not convened in accordance with the mandatory provisions of the Company Law, therefore, the same is a nullity in the eyes of law and any business transacted thereat is also illegal. Conscious of the fact that Defendant No. 1 being a corporate entity cannot be run without a Board of Directors, thus, the concept of transition contained in Section 176 of the Company Law is invoked, but merely as an interim arrangement and solely for the transitory period. Consequently, the Board of Directors existing immediately before the above EOGM is restored, with the sole Object to hold fresh elections of the Board of Directors, but strictly in accordance with law, inter alia, by giving twenty one (21) days clear notice before the date of EOGM on which election is to be held, as mandated in Section 159 of the Company Law, besides complying with other relevant provisions.

It is also necessary to clarify that issue of transfer of shares by Defendant No. 2 as agitated by the plaintiff’s and other pending disputes since require a proper trial, as discussed in the foregoing paragraphs, inter alia, as the defendants’ side has seriously questioned the authenticity of the documents (Annexure-C & C/1) of the plaint, on the basis of which the issue of shareholding has been raised by the plaintiff’s, hence it cannot be decided at this interlocutory stage. This order has only restored the earlier Board of Directors for holding fresh election of the Directors without disturbing the present shareholding, powers and authority of present CEO-Defendant No. 2.

The appointment of Buland Iqbal as the Head of Productions and Operations is also set-aside, as he was appointed in the aforementioned impugned EOGM.

In this view of the matter, decisions cited by both learned counsel for the parties at present do not require any discussion.

1. Accordingly, C.M.A. No. 5607 of 2017 seeking injunctive relief for holding EOGM on 07.04.2017, CM.A.No. 7897 of 2017, seeking suspension of the Notification dated 28.04.2017, whereunder Buland Iqbal was appointed at Head of Productions and Operations, CMA No. 7898 of 2017 for initiating contempt proceedings against Defendant No. 2 as well as CMA No. 8114 of 2017 filed by Defendants No. 1 and 2 seeking review of the order dated 11.05.2017, stand disposed of. Office is directed to fix present cause with the aforementioned Judicial Companies Miscellaneous No. 22 of 2016 and 04 of 2017, in order avoid conflicting decisions.

(M.M.R.) Order accordingly

PLJ 2018 Karachi 129

Present: Muhammad Ali Mazhar, J.

NAVED ALAM ZUBAIRI--Plaintiff

versus

FEDERATION OF PAKISTAN through Secretary M/O Petroleum & Natural Resources and 3 others--Defendants

Suit No. 1675 of 2016 & C.M.A. No. 10565/2016, decided on 30.7.2018.

Specific Relief Act, 1877 (I of 1877)--

----S. 42--Civil Procedure Code, (V of 1908) O. XXXIX, Rr. 1 & 2--Suit for declaration and permanent injunction--Appointment as M.D. APL--Issuance of explanation letter under suspension--Inquiry was conducted and also matter was referred to FIA--Recommendation of inquiry officer--Disciplinary proceedings were stopped and plaintiff was restored--Lodging of FIR by FIA--Acquittal by special Court--Inquiry was reopened--Issuance of explanation letter regarding embezzlement of company funds--Inquiry committee--Prerogative to management--Challenge to--It is not case here at moment that plaintiff has challenged his dismissal based on inquiry so this Court may undertake an exercise of evaluating inquiry report but approached this Court prematurely without any order of dismissal or termination--In case services of plaintiff are dismissed, he may off course challenge dismissal letter if he considers it wrongful dismissal and under relationship of Master and Servant he can claim damages and compensation--It is well settled exposition of law that management/ employer has an unbridled right and prerogative to issue show-cause notice explanation letter if any employee is found to have committed any misconduct or dereliction of duty and then conduct a fair and impartial inquiry for taking administrative and / organizational action--It is legally recognized right of management to consider inquiry report and decide fate of delinquent--Interference with an employer's fair judgment in conduct of its business is discouraged unless it is manifestly against statutory requirements or due process of law/fair trial--Plaintiff asks for injunction must satisfy Court that his own acts and dealings in matter have been fair, honest and free from any taint or illegality and that if in dealing with person against whom he seeks relief, he has acted in an unfair or inequitable manner he cannot have this relief--Application was dismissed.

[Pp. 134, 135, 136 & 137] A, B, C & D

2016 PLC (CS) 426 and 1985 PLC (CS) 1108 ref.

Mr. Yasir Ahmed Shah, Advocate for Plaintiff.

Mr. Kashif Hanif, Advocate for Defendants No. 2 to 4.

Mr. Naveed Ahmed, Senior Executive (Legal), P.S.O.

Dates of hearing: 27.3, 5 & 10.4.2018.

Order

This suit for declaration and permanent injunction has been brought to challenge the suspension and inquiry letter dated 04.07.2016 with the request to restrain the Defendants No. 2 to 4 from initiating any inquiry and dismissing the plaintiff from service. The plaintiff has also filed an application under Order XXXIX Rule 1 & 2 C.P.C for soliciting the interim orders consonant to the relief as entreated in the plaint.

1. The learned counsel for the plaintiff argued that the plaintiff was appointed as General Manager vide appointment letter dated 10.06.2002. PSO is shareholder in the Asia Petroleum Company Ltd. (APL). The plaintiff was appointed as MD APL and served until year 2009. After repatriation to PSO, the internal auditors of APL found some irregularities in the procurement process and referred the matter to the APL Board but the BOD took no further action and closed the matter within the company. Notwithstanding, the plaintiff was issued an Explanation Letter dated 19.07.2010 and placed under suspension. PSO appointed enquiry officer and also referred the matter to the FIA. Having found no evidence, the PSO Board authorized the MD to examine the case. The MD PSO after considering the written explanation of the plaintiff recommended closure of the disciplinary proceedings. The Board considered the recommendations in its 199th BOM meeting and decided to close the case. This decision was acted upon and the plaintiff was restored. After almost three years, the FIA lodged an FIR in which the plaintiff was arrested and obtained bailvide order dated 04.11.2015. He voluntarily deposited Rs.1.2 million in Court to obtain bail. Subsequently, the plaintiff was acquitted by the Special Court vide order dated 17.06.2016 on application moved under Section 265-K, Cr.P.C.

2. He further argued that the inquiry proceedings were illegally reopened vide PSO BOM decision dated 04.07.2016. The second disciplinary proceedings are exactly based on the same charges in which the plaintiff was earlier discharged. It was further contended that no one can be vexed twice for the same allegations. The reopening of inquiry amounts the violation of Article 13 of the Constitution. It was further avowed that the criminal and departmental proceedings are totally independent having no bearing on each other and both may result in different conclusions. If the Appeal against the acquittal of the plaintiff is allowed, trial is resumed and if the plaintiff is convicted then off course PSO may decide to take any further disciplinary action. In support of his contention, the learned counsel for the plaintiff referred to 2010 PLC (C.S.) 426, 1985 PLC (C.S.) 1108, 2000 PLC (C.S) 1373; 1989 SCMR 1224 and 2010 PLC (C.S) 495.

3. Quite the opposite, the learned counsel for the Defendants No. 2 to 4 argued that on 19th July 2010, an explanation was issued to the plaintiff by the Defendant No. 2 on seven counts including the embezzlement of the company funds. The inquiry committee was constituted vide letter dated 05th April, 2011 to probe but before the commencement of inquiry, the Board of Management on the statement of the then Managing Director closed the inquiry for an erroneous reason. Subsequently it transpired that the statement made by the then Managing Director was incorrect and the Board of Management had closed the inquiry on the basis of erroneous facts therefore, the Board of Management of Defendant No. 2 reopened the inquiry in its 233rd meeting held on 02 & 3rd July 2016. Accordingly, an inquiry letter was issued on 4th July 2016 and through a separate letter, the plaintiff was also placed under suspension. The matter was taken up by this Court on 19.07.2016 when interim orders were passed but it is matter of record that this Court on 26.07.2016 directed the Defendant No. 2 to ensure that the enquiry is conducted fairly but through the same order the plaintiff was also directed to participate in the enquiry proceedings. In order to meet the ends of justice, the Enquiry Officer provided many opportunities to the plaintiff and in this regard five notices were issued to the plaintiff on July 4, 2016, July 13, 2016, July 21, 2016, July 26, 2016 and August, 5, 2016 but the plaintiff never. participated in the inquiry. After providing ample opportunity, the enquiry officer concluded the inquiry on 14. 10.2016.

4. The learned counsel also focused on the allegations that payment of Rs.5 Million was made to M/s. Nasir & Co. without any evidence of performing any services to the APL. A sum of Rs.4.7 Million was paid to M/s. Nasir & Co. on 9th March 2007 and from the same account of M/s. Nasir & Co. Rs. 1.2 Million was received by the plaintiff. On same charges FIR No. 18/2015 was lodged against the plaintiff and the plaintiff during the proceedings have returned the embezzled amount to the FIA. The learned counsel expressed much reservation to the acquittal order and pointed out that a Criminal Acquittal Appeal No. 263/2016 is pending. He further argued that during the period from March to October, 2006, Rs.800,000/- was paid to Major General Ret. Saleemullah whereas no consultation report/ evidence of work performed by him was available on the record. During the inquiry it came on the record that certain individuals and families have travelled at the expenses of APL who were not APL employees and due to such unauthorized travelling the company sustained a loss of 0.22 million and the name of such individuals are available at page Nos. 291 & 295 of Court file. During inquiry it also revealed that plaintiff failed to take any action against some fake guaranties against which a sum of Rs.1,225,819/- was paid for the supply of batteries but M/s. Oil Field Services failed to supply the same.

5. Heard the arguments. The record reflects that on 19.07.2016 the injunction application was placed for orders before the learned Judge (O.S) of this Court. While issuing notices to the defendants, the learned Judge restrained the defendants not to take any coercive action against the plaintiff. The operation of the suspension letter was suspended with the directions to the defendants to commence and conclude the investigation against the plaintiff within three months, however, till such time no final order shall be passed nor the services of the plaintiff be terminated. However, when this matter was again placed before the learned Single Judge on 26.7.2016, the Court directed the plaintiff to participate in the inquiry proceedings and the defendants were directed to ensure that the inquiry is conducted fairly. The defendants were also directed to submit the conclusive findings in Court. This order further reflects that the counsel for the plaintiff raised some reservation against the person who was heading the inquiry but the DGM Legal Affairs, PSO present in Court apprised that besides the Managing Director there are only two officers who are senior to the plaintiff against one of those the plaintiff is already under litigation, therefore, the only possibility was to appoint Yaqoob Sattar to conduct inquiry. It appears from the order that this aspect was considered by the learned Single Judge and despite that, the plaintiff was directed to participate in the inquiry proceedings before the same inquiry officer.

6. The learned counsel for the plaintiff made much emphasis that earlier on the similar allegations inquiry was conducted but the board approved the M.D's proposal that the case be closed and the plaintiff be restored. He further argued that the second inquiry cannot be conducted on the same allegations. It is clearly reflecting from the board decision that earlier the inquiry was not completed but pending inquiry, the M.D proposed to close the case. The minutes of 233rd meeting held on 2nd and 3rd July 2016 shows the reasons for reopening of inquiry against the plaintiff. It is further stated that while the formal inquiry against the plaintiff was under way, the then M.D informed the board of management in its 199th meeting held on 09.02.2012 that he has examined the case of the plaintiff and after review, he proposed that case be closed and the plaintiff be restored to its position. It is further mentioned in the minutes that subsequently certain incriminating evidence came on record against the plaintiff in FIA Inquiry No. 12/2013 and FIR No. 18/2015 including the depositing of cheques by the plaintiff amounting to PKR. 1.2 Million, the board of management unanimously resolved that the inquiry against the plaintiff be reopened. The state of affairs lead to an unambiguous aftermath that earlier the case was not closed after full-fledged inquiry and or the basis of the findings of Inquiry Officer so after finding some incriminating material against the plaintiff, the management decided to reopen the inquiry to probe into the allegations against the plaintiff. In my considered view the reopening of an incomplete inquiry against the plaintiff cannot be considered illegal or unlawful act on the part of the management. I have also seen the inquiry report brought on record by the management in which it is stated that five opportunities were given to the plaintiff to appear before the Inquiry Officer to defend the allegations but he did not appear on any date despite the fact that he was directed to participate in the inquiry by this Court. He was also provided the copies of statement of prosecution witnesses along with documents and was allowed opportunity to cross-examine the prosecution witnesses but he failed to do so. Consequently, the Inquiry Officer submitted the report to the management and concluded that the allegations leveled against the plaintiff in the explanation letter dated 19.07.2010 have been established.

7. The bail granting order passed by the Special Court (Central-I), Karachi in FIR No. 18/2015, lodged under Section 161/409/420/468/471/34/109 PPC read with Section 5(2) of Prevention of Corruption Act, 1947 at P.S. FIA, Corporate Crime Circle, Karachi do show that the learned Special Court (Central-I), Karachi granted the bail to the plaintiff on medical grounds. Furthermore, the plaintiff deposited Rs.500,000/- in Court in favour of APL/PSO and requested for time to deposit Rs.700,000/- more within three months. The Learned Prosecutor, FIA on medical ground conceded to the grant of bail subject to deposit of amount as mentioned above. Subsequently on an application moved under Section 265-K Cr.P.C the plaintiff was acquitted but the learned counsel for the defendants robustly argued that being dissatisfied with the acquittal order, the defendants have already filed acquittal appeal which is pending. An austere look to the prayer clauses make evident that the plaintiff approached this Court to challenge the suspension letter and inquiry letter with further prayer not to initiate inquiry proceedings against him but the order dated 26.07.2016 passed by the learned Single Judge of this Court makes it clear that the Court directed the defendants to conduct an inquiry so the prayer made in the plaint to the effect of restraining order against the initiation of inquiry has become infructuous as the inquiry has been completed by the management and the report has been submitted.

8. It is an admitted position that PSO (Defendant No. 2) has no statutory rules of service, therefore, the relationship of their employees with the management is of Master and Servant. Since at the time of filing of suit only suspension letter and inquiry letter were in field and naturally at that time neither the inquiry was initiated nor it was completed but the plaintiff was called upon to appear before the Inquiry Officer so the plaintiff could not plead anything to challenge the inquiry report which was not in existence. So the premise and precincts of this suit is confined only to the challenge to suspension letter including the prayer to restrain the defendants not to initiate the inquiry which has been otherwise completed under the orders of this Court. No damages have been claimed in the suit nor after filing the inquiry report any application was filed for seeking any amendment in the plaint keeping in view the changed circumstances. I have seen the inquiry report in which the Inquiry Officer has discussed the allegations point to point and sent his report to the management with the findings that the charges against the plaintiff have been established.

9. Now it is the dominion and province of the management to consider the report and pass appropriate order on it. At this stage, this Court can neither exercise supervisory jurisdiction nor the appellate jurisdiction over the inquiry report because it is premature at this stage to articulate as to what action the management will take against the plaintiff on the basis of report. It is not the case here at the moment that the plaintiff has challenged his dismissal based on inquiry so this Court may undertake an exercise of evaluating the inquiry report but approached this Court prematurely without any order of dismissal or termination. In case the services of the plaintiff are dismissed, he may off course challenge the dismissal letter if he considers it wrongful dismissal and under the relationship of Master and Servant he can claim damages and compensation. At this point of time, I do not want to dilate upon the inquiry report in detail before passing any order by the management nor do I want to give any findings on the inquiry report which may influence and prejudice the mind of the management. However, at this premature stage, this may be left at the prudence of the management to fairly consider the inquiry report and take appropriate action.

10. It is well settled exposition of law that the management/ employer has an unbridled right and prerogative to issue show-cause notice explanation letter if any employee is found to have committed any misconduct or dereliction of duty and then conduct a fair and impartial inquiry for taking administrative and organizational action. The employer possesses what is generally acknowledged as management prerogative. Under the doctrine of management Prerogative, an employer has natural and inherent right to regulate its business according to own wisdom and judgment with regard to hiring, work assignments, working methods, the time, place and manner of work, work supervision, transfer of employees, lay-off, discipline and dismissal. The only limitations to the exercise of this prerogative are those imposed by laws, norms and canons of equity, fair play and substantial justice. The show-cause and termination/ dismissal are entirely two distinct features and phenomena. The show-cause/ explanation letter is issued to a person who is found to be guilty of misconduct and or doing something against the interest of organization/ management. It means an order issued by Organization asking an individual to explain or to show-cause in writing as to why the disciplinary action should not be taken due to involvement in certain incidents, misconduct, poor performance and wrongdoing. A show-cause/explanation letter may be issued after reviewing the entire incident and if finds that the person accused or is involved in wrongdoing however the exceptions are there that any disciplinary action should be taken keeping in mind the principle of natural justice and right to fair trial/due process of law. Mere issuance of show-cause notice or explanation letter asking explanation does not always mean the outcome of a drastic action of termination or dismissal but the purpose of asking the reply and if the reply is not found satisfactory then off course the management may hold an independent and impartial inquiry into the allegations of misconduct. The inquiry officer is appointed to hold the inquiry who submits the report with his findings as to whether the allegations are proved or not. The rest is left at the fine sense of judgment of the management. After considering the entire report and evidence if any led before the inquiry officer, the management may decide the quantum of punishment if delinquent is found guilty. It is also solely rests on the discretion of the management whether they want to impose major penalty which includes the dismissal from service or some minor penalty which may include stoppage of increment; demotion to lower stage, fine etc. In all fairness it is legally recognized right of management to consider the inquiry report and decide the fate of delinquent. The interference with an employer's fair judgment in the conduct of its business is discouraged unless it is manifestly against the statutory requirements or due process of law/fair trial.

11. The learned counsel for the plaintiff in support of his contention referred to the case of Ghulam Mustafa Khan vs. Federation of Pakistan (2010 PLC (C.S.) 426). In this case the petitioner was reinstated by Service Tribunal in earlier round of litigation and the judgment was maintained by Supreme Court but permission was granted to the authorities to conduct fresh inquiry. Authorities initiated fresh inquiry and on the basis of previous allegation again dismissed the petitioner from service. High Court directed the authorities to reinstate the petitioner in service with back-benefits. This case is somewhat diverging to the facts of the case in hand. Neither the inquiry was completed nor the plaintiff was earlier dismissed nor was he reinstated. The counsel thence cited the case of Muhammad Saifullah vs. Chief Secretary, Government of Sindh (1985 PLC (C.S) 1108). Accused was not found guilty in departmental enquiry and acquitted by competent authority. Successor in office decided to proceed afresh, cancelling acquittal order. In the present case, the plaintiff was never acquitted but the incomplete inquiry was closed so this also does not attract to the present case. In the case of Muhammad Khaliq vs. Board of Intermediate & Secondary Education, Faisalabad (2000 PLC (C.S) 1373), a civil servant was punished by imposition of minor penalty and the action attained the finality so the Court held that by no principle of law same matter could be re-opened for purpose of imposing a higher penalty. No penalty was imposed in this case on the plaintiff which attained finality but only inquiry was reopened. In the case of Secretary Local Government and Rural Development, Government of Punjab vs. Ahmad Yar Khan (2010 PLC (C.S.) 495), a civil servant was awarded penalty of censure under Punjab Removal from Service (Special Powers) Ordinance, 2000. The Court held that recovery could have been made by competent authority but only minor penalty was imposed probably for the reason that civil servant was exonerated by inquiry officer regarding alleged loss suffered. This case is also distinguishable. In last, the learned counsel referred to the case of Director General (Field), Agricultural Department, Lahore vs. Haji Abdul Rehman (1989 SCMR 1224) in which Court held that the civil servant was reinstated in the departmental appeal but he was again terminated on the same charges hence the subsequent order found unlawful. This judgment is also distinguishable to the facts and circumstances of the case.

12. In the case of Ghulam Nabi Shah versus Pakistan International Airlines Corporation, reported in 2013 PLC (C.S.) 768, I have discussed the object of interlocutory injunction which is precisely granted to protect the plaintiff against the injury by violation of his right for which he could not be adequately compensated for damages recoverable in the action if the uncertainty were resolved in his favour at the trial, but the plaintiff needs for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercise of his own legal right for which he could not be adequately compensated if the uncertainty would be resolved in the defendant's favour at the trial. The Court must weigh on need against another and determine where the balance of convenience lies. In my another judgment reported in 2010 MLD 1267(Sayyid Yousaf Hussain Shirazi v. Pakistan Defence Officers' Housing Authority). I have discussed in detail the essential conditions to be considered by the Court while granting temporary injunction, which includes prima facie existence of right of the plaintiff and its infringement by the defendant or the existence of prima facie case in favour of plaintiff, an irreparable loss, damages or injuries which may occur to the plaintiff if the injunction is not granted, inconvenience which the plaintiff will undergo from withholding the injunction will be comparatively greater than that which is likely to raise from granting it or in other words the balance of inconvenience should be in favour of the plaintiff. All the three essential ingredients must be fulfilled and absence of anyone of such ingredients would not warrant grant of injunction. Relief of injunction is discretionary to be granted according to sound legal principles and ex debito justitiae. The plaintiff asks for injunction must satisfy the Court that his own acts and dealings in the matter have been fair, honest and free from any taint or illegality and that if in dealing with the person against whom he seeks the relief, he has acted in an unfair or inequitable manner he cannot have this relief.

13. For the foregoing reasons, I am not inclined to confirm the interim orders passed earlier. Consequently, the injunction application (CMA No. 10565/2016) is dismissed and the interim orders are recalled.

(Y.A.) Application dismissed

PLJ 2018 Karachi 138 (DB)

Present: Muhammad Ali Mazhar and Omer Sial, JJ.

SardarMUHAMMAD USMAN ALMANI & others--Petitioners

versus

ELECTION COMMISSION OF PAKISTAN & others--Respondents

C.P. Nos. D-4225, 4358 & 4364 of 2018, decided on 5.7.2018.

Election Act, 2017--

----S. 20--Election Rules, 2017, R. 10(5)--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Representations with regard to delimitation of constitutencies--Modification in preliminary delimitation--Distribution of population--Shifting of area--Variation of population--Geographically compactness--Challenge to--We have examined impugned order minutely which shows that 29 representations were filed for delimitation with different proposals to ECP for constituencies of district Naushahro Feroz--It is also reflecting from impugned order that Commission afforded reasonable opportunity of hearing and also perused maps--While considering principles of delimitation and necessary factors, ECP accepted some proposals which were considered viable to meet criteria of public convenience and facilities and accordingly TC Gher Gaju was excluded from NA-212 and included in NA-211, TC Mad Alim and TC Tharu Shah were excluded from NA-212 and included in NA-211, TC Vhorti was excluded from NA-211 and included in NA-212--Population of NA constituencies are well within range of 10% criteria of population--TC Mad Alim is part of Taluka Bhiriya which has been rightly included in PS-34 keeping in mind revenue system--We have also considered total population of areas in which there is no variation more than 10% except in one PS for which ECP has already provided reasons while allowing variation from 10% to 12.9%--Principles of delimitation are provided under Section 20 of Elections Act, 2017 in which as far as practicable, constituencies may be delimited having regard to distribution of population in geographically compact areas, physical features, existing boundaries of administrative units, facilities of communication and public convenience and other cognate factors to ensure homogeneity in creation of constituencies.

[Pp. 141 & 142] A, B, C & D

Election Rules, 2017--

----R. 10(5)--Delimitation--Contenancy--It is sole responsibility of ECP to finalize delimitation but at same time one cannot claim vested right that whatever proposal placed by him should be accepted in letter and spirit nor any person can claim to contest elections in constituency carved out according to his desires, wishes and proposals--After going through impugned order and record available before us, we do not find any, illegality in impugned order--Petitions were dismissed. [P. 142] E

Ch. Atif Rafiq, Advocate for Petitioner (in C.P. No. D-4225/2018).

Syed Mureed Ali Shah, Petitioner in person (in C.P. No. D-4358/2019 and for interveners in C.P. No. D-4225/2018).

Mr. Ali Asghar Buriro, Advocate for Petitioner (in C.P. No. D-4364/2018).

Ms. Memona Nasreen, Advocate for E.C.Pak.

Mr. Shaikh Liaqat Hussain, DAG.

Ms. Rukhsana Mehnaz Durrani, State Counsel.

Mr. Zaheer Ahmed Sehto, District Election Commissioner, Kashmore/Member Delimitation Committee.

Date of hearing: 21.6.2018.

Order

Muhammad Ali Mazhar, J: These Constitution Petitions have been brought to challenge the order dated 26.4.2018 passed by the learned Election Commission of Pakistan on the representations moved by different persons with regard to delimitation of constituencies of Naushahro Feroz. It seems from the impugned order that 29 representations moved by different persons were decided through a consolidated order and after considering pros & cons, the learned Election Commission of Pakistan made some modification in the preliminary delimitation with regard to NA-211 and NA-212 as well as in PS-33, PS-34 and PS-35, Naushahro Feroz.

1. Learned counsel for the petitioner in C.P. No. D-4225 / 2018 pointed out the name of the petitioner appearing at Sr. No. 4 of the impugned order to show that he filed representation before Election Commission of Pakistan (ECP). Learned counsel for the petitioner argued that the proposal given by the petitioner to the ECP was partially accepted but through this petition, he insists the shifting of Gher Gaju from PS-34 to PS-35 which is according to him closer to Naushahro Feroz headquarter as opposed to Bhiriya Taluka. He further argued that population of PS-34 in the final delimitation has crossed the limit of 10%, therefore, shifting of this area back to PS-35 will balance population. He further proposed the shifting of Town Committee Tharu Shah and TC Mad Alim from PS-35 to PS-33 which will in line with guidelines for delimitation in which preference has to be given to maintain administrative boundaries. He further argued that the impugned order is violative of Section 20 of the Elections Act, 2017 and Rule 10(5) of the Election Rules, 2017. Learned counsel requested for the directions to the respondents to shift the TC Gher Gaju from PS-34 to PS-35 for Provincial Assembly and in alternate NA-211 to NA-212. Further directions have been sought against the respondents to shift Tharu Shah and Mulhan from PS-34 along with Mulhan from PS-35 to PS-33 and TC Mulhan from NA-212 to NA-211. Lastly, he requested for the directions to shift the entire STC Halani from PS-33 to PS-34.

2. The petitioner in C.P. No. 4358/2018 in person pointed out his appearance in the impugned order at Sr. No. 7 and Sr. No. 25. He moved representation for the purpose of modification in NA-211 and NA-212 as well as PS-34. The petitioner argued that the final delimitation of constituencies PS-34 and PS-35 is disproportional which can be rationalized with minor changes. He proposed exclusion of TC Mad Alim from PS-34 and its inclusion in PS-33, exclusion of TC Gher Gaju and Tharu Shah from PS-34 and inclusion in PS-35. He himself admitted that in the impugned order, changes were made to maintain ratio of population criteria in NA-211 and NA-212, PS-33, PS-34 and PS-35 but at the same time, he argued that due to said changes, the population of NA-211 and PS-34 exceeded the limit and disturbed the geographically compactness and homogeneity which is the violation of Elections Act.

3. Learned counsel for the petitioner in C.P. No. D-4364 /2018 argued that some directions may be issued to the respondents to consider the representation of petitioner afresh under the guidelines of Elections Act, 2017 and Election Rules, 2017. He pointed out that the petitioner submitted two representations; one for NA-212 and the other for PS-33 as his name is appearing in the impugned order at Sr. No. 12 and 13. He also argued that the present form of delimitation has been carried out in violation of Section 20 of the Elections Act, 2017 and Election Rules, 2017. The petitioner through his representation placed all relevant facts and figures regarding distribution of population in geographically compactness, facilities of communication, public convenience and homogeneity but the proposals placed by the petitioner were not considered as a whole. The petitioner wants shifting of Mad Alim from PS-34 to PS-33 and exclusion of Tharu Shah from PS-34 to PS-35.

4. Heard the arguments. We have examined the impugned order minutely which shows that 29 representations were filed for delimitation with different proposals to the ECP for the constituencies of district Naushahro Feroz. Learned ECP jot down all proposals separately which are highlighted in the impugned order in Paragraph No. I to XVI. It is also reflecting from the impugned order that the Commission afforded reasonable opportunity of hearing and also perused the maps. While considering the principles of delimitation and necessary factors, ECP accepted some proposals which were considered viable to meet the criteria of public convenience and facilities and accordingly TC Gher Gaju was excluded from NA-212 and included in NA-211, TC Mad Alim and TC Tharu Shah were excluded from NA-212 and included in NA-211, TC Vhorti was excluded from NA-211 and included in NA-212. As far as constituencies of Provincial Assemblies are concerned, TC Mad Alim and TC Tharu Shah were excluded from PS- 35 and included in PS-34, TC Vhorti was excluded from PS-33 and included in PS-35, TC Gher Gaju was excluded from PS-35 and included in PS-34 and TC Behlani was excluded from PS-34 and included in PS-33. Learned ECP further observed in the order that the population of PS-34 slightly exceeded up to the limit 12.9% which is allowable to maintain geographically compactness and to cater homogeneity and cognate factors. In view of the above modification, all the representations were disposed of by ECP.

5. The representative of ECP shown us the relevant maps in presence of the petitioner's counsel and according to their representations all PS constituencies mostly comprising entire Taluka/Tehsil. Tehsil is an administrative unit with all necessary communication system, Government offices and Courts which shows the area is homogenous and physically compact. In only one PS there is slight variation of population more than 10% which has been highlighted in the order of ECP with clear justification and reasons. The official of ECP further stated that all polling stations will be established at a distance of 1 to 2 k.m. from main areas/villages which will not cause hurdle to the public nor to disenfranchise the voters. The population of NA constituencies are well within the range of 10% criteria of population. TC Mad Alim is part of Taluka Bhiriya which has been rightly included in PS-34 keeping in mind the revenue system. Record reflects that according to the final delimitation, the population of PS-33 is 385952, PS-34 436,014, PS-35 397023 and PS-36 393384. The petitioners want shifting of Tapa Mad Alim from PS-34 to PS-33. The total population of TC Mad Alim is 27659 which the petitioner wants to raise in PS-33, whereas the population of TC Tharu Shah is 10,769 which is presently in PS-34 but the petitioner wants its shifting in PS- 35. Similarly, the population of Tappa Gher Gaju is 17337 which is presently in PS-34 but petitioner wants its shifting in PS-35. They also want that the Gher Gaju which is presently in NA-211 be shifted in NA- 212. In totality they want ECP to carry out totally fresh exercise of delimitation. This is not a simpliciter a case of shifting one T. C from one PS to another PS or NA constituencies but it will change the entire complexion of delimitation which will badly affect the criteria to maintain homogeneity and population among the constituencies. The petitioners want us to remand back the matter to the ECP for fresh exercise of delimitation when the nomination forms have already been accepted and the constituencies have been carved out. The population of Tappa Molhan is 11541 which again petitioners want that this should be included in PS-34 instead of PS-35. We have also considered the total population of the areas in which there is no variation more than 10% except in one PS for which the ECP has already provided the reasons while allowing variation from 10% to 12.9%.

6. The principles of delimitation are provided under Section 20 of the Elections Act, 2017 in which as far as practicable, the constituencies may be delimited having regard to the distribution of population in geographically compact areas, physical features, existing boundaries of administrative units, facilities of communication and public convenience and other cognate factors to ensure homogeneity in the creation of constituencies. It is further provided in the same section that as far as possible, variation in population in constituencies of an Assembly shall not ordinarily exceed ten percent and if it is exceeded in exceptional circumstances, the Commission shall record reasons in the delimitation order. There is also no issue that the delimitation was not started from the Northern end and failed to proceed clockwise in zigzag manner keeping in view the population among the constituency as provided under sub-Rule (5) of Rule 10 of the Election Rules, 2017. Though the law provides rights to submit proposals by means of representation to ECP for making some changes and modification in the preliminary delimitation and after considering all cognate factors, it is the sole responsibility of ECP to finalize the delimitation but at the same time one cannot claim vested right that whatever proposal placed by him should be accepted in letter and spirit nor any person can claim to contest elections in the constituency carved out according to his desires, wishes and proposals. After going through the impugned order and the record available before us, we do not find any illegality in the impugned order.

7. As a result of above discussion, the aforesaid petitions are dismissed.

(M.M.R.) Petition dismissed

PLJ 2018 Karachi 143 (DB)

Present: Muhammad Ali Mazhar & Agha Faisal, JJ.

Mir SHABBIR ALI KHAN BIJARINI & others--Petitioners

versus

FEDERATION OF PAKISTAN & others--Respondents

C.P. Nos. D-1310, 811, 844 & 845 of 2018, decided on 10.7.2018.

Election Rules, 2017--

----R. 20--Delimitation of Constituency, 1974, S. 8(2)(4)--D.C. limitation of contrary of general seats in assembly--Share of restrict or Kota per seat of provincial assembly--On fraction of more than 0.5 shall be counted as one sea and fraction of less than 0.5 may be ignored. [P. 150] A

Delimitation of Constituency Act, 1974--

----S. 9(2)--Election Rules, 2017, R. 10(5)--Delimitation committee--Obligation and since of duty of delimitation committee to obtain district map--Constituency of an Assembly shall not ordinarily extend to more than one district except in exceptional circumstances for reasons to be recorded by Delimitation Committee with a further stipulation that a Patwar Circle or as case may be a Tapedar Circle shall be basic unit for delimitation and it shall not be broken under any circumstances. [P. 152] B

Election Act, 2017--

----S. 239--Delimitation Committee--Excess variation of population District--Allocation of seats--Population of constituency shall not ordinarily exceed 10% and in case it is exceeded Commission shall record reasons in delimitation order whereas, proviso under challenge only exemplifies and differentiates that fraction of more than 0.5 may be counted as one seat--So in our considerate view and for all intents and purposes, there is no direct clash, collision and or inconsistency at heart of proviso attached to rule under challenge--One provides that population shall not exceed 10% in any constituency whereas later relates solitary to allocation of seats--It would not be possible in all constituencies and districts to maintain strict harmony exactly to 10% variation and this may be a far sightedness that variation over and above 10% is permissible to some extent but in such eventuality and contingency, Commission has to record reasons--ECP in order to decide population criteria has evolved a formula with variation of 10% plus-minus but at same time, a criteria or modality was also required to deal with quota and benchmark of seat allocation to particular area/districts--Proviso under challenge only bring to life and comprehends a distinction that fraction of more than 0.5 may be counted as one seat which does not in any way disregard or transgress provisions of Act.

[Pp. 153 & 160] C, D & M

Words & Phrases--

----If an act entails legal authority and it is done with such authority, it is symbolized as intra vires (within precincts of powers) but if it carries out shorn of authority, it is ultra vires. [P. 154] E

Administration of Justice--

----It is a well settled that constitutionality of any law can be scrutinized and surveyed--Law can be struck down if it is found to be offending against Constitution for absenteeism of lawmaking and jurisdictive competence or found in violation of fundamental rights. [P. 154] F

Delegated legistation--

----It is also established law that vires of delegated legislation may be subject to judicial review. [P. 154] G

Constitutionality of Justice--

----Law should be saved rather than be destroyed and Court must lean in favour of upholding constitutionality of legist on unless ex facie violative of a Constitutional provision--When subordinate or delegated legislation is made by authority exercising its power mala fide or with ulterior motive or in an unreasonable and arbitrary manner then off course this Court may declare it invalid. [P. 154] H

Principle of Law--

----It is well known principle that Rule cannot go beyond Act. [P. 154] I

Interpretation of Statute--

----Delegate cannot make a rule which is not authorized by parent statute and delegated legislation must fall within four corners of parent statute. [P. 155] J

Judicial Review--

----Nature of Jurisdiction--Where jurisdiction of Courts to judicially review any executive act has been competently taken away, then Court will not be able to assert its jurisdiction to do so under any circumstances but this must depend upon nature of jurisdiction sought to be ousted and nature and extent of ouster itself. [P. 160] K

Interpretation of Law--

----Courts having right to interpret law will in each given case decide precise nature of ouster clause an extent to which jurisdiction of Courts been ousted, keeping in mind principles consistently affirmed by all Courts that provisions seeking to oust jurisdiction of superior Courts are to be construed strictly with a pronounced leaning against ouster--Petitions were dismissed. [P. 160] L

Mr. Rafiq Ahmed Kalwar, Advocate for Petitioners (in (C.P. Nos. D-811, 844 and 845 of 2018).

Mr. Haq Nawaz Talpur, Advocate for Petitioner (in C.P. No. D-1310/2018).

Mr. Asim Mansoor, DAG.

Malik Qamar Afzal, Advocate for Election Commission of Pakistan.

Mr. Abdullah Hanjra, Law Officer, Election Commission, Mr. Zaheer Ahmed Sahito, District Election Commissioner, Kashmore, Mr. Sain Bux Channar, Director, Headquarter, Election Commission and Mr. Rasheed Ahmed Bhatti, Joint Provincial Commissioner, Sindh, Mr. Muhammad Yousuf,District Election Commissioner, Karachi Central.

Mr. Masood Ahmed Qureshi, Deputy Director, Headquarter, Election Commission and Syed Nadeem Haider, Regional Election Commissioner, Shaheed Benazirabad.

Mr. Ghulam Shabbir Shah, Addl. A.G. Assisted by Mr. Hasnain Shah, Ms. Nadia Afzal and Ms. Sabeen, Advocates.

Ms. Rukhsana Mehnaz Durrani, State Counsel.

Dates of hearing: 11, 17, 29.5.2018.

Order

Muhammad Ali Mazhar, J.--These Constitution Petitions have been brought to challenge the first proviso attached to Sub-rule (2) of Rule (8) of the Elections Rules, 2017 which provides that fraction of more than 0.5 may be counted as one seat and fraction of less than 0.5 may be ignored. All the petitioners in one voice have challenged the vires of the proviso being ultra vires to the Elections Act 1997 and also entreated for rectification in the delimitation of national assembly constituencies of District Kashmore, Jacobabad and Shikarpur.

1. The combined effect and crux of arguments articulated by the learned counsel for the petitioners is that before promulgation of the Elections Act, 2017 the delimitation of the constituencies were being carried out under Delimitation of Constituencies Act, 1974 and under Section 9(2) it was postulated that as for as may be the constituencies for the election shall be equal among themselves in population. So for intent and purpose, it was unequivocally well-defined that the constituencies in terms of populations shall be equal in size and no specific limit or percentage of deviation was specified. Earlier the population deviation was varied on case to case basis but in the current law this mischief and discontent has been removed and a specific limit of deviation if any has been placed under Section 20 (3) of the Election Act. It was further averred that on promulgation of the Election, 2017 all the laws relating to elections have been consolidated in one Act and provisions relating to delimitation are encompassed in chapter III of the Act. The learned counsel for the petitioners further argued that the impugned proviso is inconsistent with Sections 19 (1) and 20 (3) of the Elections Act, 2017. The Respondent No. 2 (ECP) acted beyond the compass and radius of Sections 19 (1) and Section 20 (3) of the Election Act, 2017 which only permits variation up to 10% plus-minus whereas the impugned proviso allows variation to higher limit.

2. The Election Commission of Pakistan, issued a Notification Bearing No. F. 8(1)/2018-Elec-1 dated 15.1.2018, wherein they notified the share of Districts/Agencies, FATA and Islamabad Capital Territory regarding National Assembly and Provincial Assemblies seats. The districts Jacobabad and Kashmore have been discriminated in the allocation of seats and their votes have been debased. It was further contended that the Respondent No. 2 has allowed excess variation of 28% of population in district Jacobabad and 39% excess variation in District Kashmore which is higher than the permissible limit of 10% as provided Section 20(3) of the Elections Act, 2017. They further averred that it is well settled principle of law that Rules cannot go beyond the Act. The Rules cannot create new rights or subjugate the rights created under the parent statute, therefore, the impugned proviso is inconsistent with parent statute. Debasement of vote is caused when the weight of the vote is diminished. In the instant case 02 votes of the Kashmore district and 02 votes of the Jacobabad District are equal to 01 vote of the neighboring district of Shikarpur. Debasement has been universally recognized as violative of one man, one vote the basic tenet of democracy and is declared unconstitutional. Debasement is defined in Black's law Dictionary as the act of reducing the value, quality and purity of something degradation. The principle of one man one vote is fully entrenched in our country in view of Articles 51(5) of the Constitution and 20(3) of the Election Act, 2017. The ECP has radically disturbed the concept of uniformity of population by creating such irrational disparity and has made it difficult to conduct elections in an honest, just and fair manner on the contrary it amounts to commit gerrymandering. It was further argued that the administrative/revenue districts are distinct from the electoral units. The Administrative/revenue districts are formed on the basis of factors other than population. Article 51 (5) of the Constitution of Pakistan provides that the seats in the National Assembly shall be allocated on the basis of population in accordance with the last preceding census officially published. The learned counsel also invited attention to Rule 10(4) of the Election Rules which permits the Commission to overlap the administrative boundary in exceptional circumstances. The ECP in the instant delimitation has overlapped district boundaries in the province of Baluchistan citing the below average population ratio as exceptional circumstances.

3. The learned counsel also focused on the Ouster Clause provided under Section 236(3) of the Elections Act, 2017, that ''the validity of the delimitation of any constituency or of any proceedings taken or anything done by or under the authority of the Commission under this Act shall not be called in question in any Court”. To cover up the bar contained in the ouster clause, the learned counsel argued that the constitutional jurisdiction of the High Court cannot be taken away by subordinate legislation and placed reliance on PLD 2014 Lahore 221, PLD 2001 SC 607, PLD 1996 SC 632, PLD 1972 SC 139 and PLD 1989 SC 26. It was further argued that the Rules have been framed under Section 239 of the Elections Act, 2017 by the ECP under the principles of delegated legislation which always considered to be subordinate, legislation. The power and authority of the ECP to frame rules is subject to law and constitution. The learned counsel close down with the prayer that the first proviso of Rule 8(2) of the Election Rules, 2018 is ultra vires, illegal and unconstitutional being, inconsistent with the parent statute hence the allocation of the NA seats while applying the formula provided in said rule may be set aside. In support of contention, the learned counsel for the petitioners cited following judicial precedents:--

[1. 2003 SCMR 370 (Pakistan through Secretary Finance, Islamabad and others vs. Aryan Petro Chemical Industries (Pvt.) Ltd., Peshawar and others). 2. 2005 SCMR 186 (Khawaja Ahmad Hassaan vs. Government of Punjab and others). 3. 2013 SCMR 642 (Zarai Taraqiati Bank Limited and others v. Said Rehman and others). 4. PLD 2014 SC 389. Suo Motu Case No. 11 of 2011. (Action taken on the news, clipping regarding scandal of billions of rupees of National Police Foundation Land) 5. 2014 CLC 335 (M.Q.M. and others vs. Province of Sindh and others). 6. PLD 2014 Lahore 221 (Arshad Mehmood vs. Commissioner-Delimitation Authority, Gujranawala and others). 7. PLD 2014 Supreme Court 531 (Province of Sindh through Chief Secretary and others vs. M.Q.M. through Deputy Convener and others). 8. 2015 SCMR 1152 (Sue Evenwel, ET AL vs. Greg Abbott, Governor of Texas ET AL). 9. Kirkpatrick v. Preisler [394 US 526 (1969)]. 10. Reynolds v. Sims [377 US 533]. 11. Wesberry v Sanders [376 US 1]. 12. AIR 1986 SC 434 (State of Madhya Pradesh and Others v. Devilal). 13. AIR 2009 SC 3278 (Association of Resident of Mhow (ROM) v. Delimitation Commission of India).

1. The learned counsel for ECP argued that under the law for the purpose of delimitation the Commission may hold inquiries, summon witnesses and record evidence and publish a preliminary report. The representation with regard to preliminary report may be filed within thirty days. Any voter may make a representation to the Commission and after hearing and considering the representations, amendments, alterations or modifications may be made. It was further contended that the ECP is cognizant of its duties commanded by the Constitution to conduct and organize free and fair elections. The learned counsel further averred that in the year, 2002 the Kashmore was Taluka of District Jacobabad but it was notified as independent district in 2004. As per Article 51(5) of the Constitution, the Commission re-described the limits of the constituencies throughout the country before the General Election 2008 including NA-209 Jacobabad-cum-Kashmore (Old Jacobabad-II) and NA-210 Kashmore (Old Jacobabad-III).

2. The learned counsel for the Election Commission of Pakistan referred to sub-Article (3) of Article 218 of the Constitution and argued that it is the duty of the Election Commission to organize and conduct the elections and make such arrangement to ensure that the election is conducted honestly, fairly and in accordance with law. He further referred to Article 222 of the Constitution of Islamic Republic of Pakistan, 1973 which germane to Electoral Laws and under clause “b” the Majlis-e-Shoora (Parliament) may by law provide inter alia for delimitation of constituencies by the Election Commission including delimitation of constituencies of local government. He also referred to the definition of population provided in clause (xxix) of Section 2 of the Elections Act, 2017 which means the population in accordance the last preceding censes officially published. The learned counsel for the Election Commission made much emphasis that according to Section 3 of the Elections Act, 2017, the Commission may regulate its own procedure. He also referred to us Chapter III of the 2017 Act which applies to the delimitation of constituencies. Under Section 17, the Commission has a right to delimit territorial constituencies for election of the National Assembly and Provincial Assembly and local government in accordance with the provisions of the Constitution, the Elections Act, 2017 and Elections Rules, 2017. He further referred to Section 236 of the 2017 Act in which the jurisdiction of Courts is barred with further emphasis that validity of the delimitation of any constituency or of any proceedings taken or anything done by or under the authority of the commission under this Act shall not be called in question in any Court. The learned counsel for ECP cited following judicial precedents:

[1. 2013 CLC 1712 (Abdul Qadir Patel vs. Chief Election Commissioner and 2 others). 2. PLD 2014 Lahore 330 (Pakistan Peoples Party vs. Government of Punjab and others). 3. 2014 YLR 1583 (Ghulam Mustafa and others vs. Commissioner/Delimitation Authority, D.G. Khan Division, Dera Ghazi Khan and others). 4. 2014 CLC 335 (M.Q.M. and others vs. Province of Sindh and others). 5. PLD 2012 Supreme Court 681 (Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and others vs. Federation of Pakistan and 2 others). Art. 218(3). 6. PLD 2011 Supreme Court 997 (Watan Party another vs. Federation of Pakistan and others).

1. The learned DAG adopted the arguments of learned counsel for ECP. Whereas the learned A.A.G argued that there may be some lapses in the delegated legislation permitting to frame the rules by ECP devising the method for the allocation of seats but at present, entire nation is geared up for the elections to choose their representatives so at this stage if proviso under challenge is strike out, it will seriously hamper the general elections. In support of his contention, the learned A.A.G referred to the dictum laid down by the apex Court in the case of Federation of Pakistan vs. Haji Muhammad Saifullah Khan, reported in PLD 1989 S.C. 166.

2. Heard the arguments. All the petitioners in one voice pursued the declaration that the first proviso attached to sub-rule (2) of Rule 8 the Elections Rule, 2017 is illegal, ultra vires and inconsistent with the Elections Act, 2017. Directions have also been sought against the respondents to carve out the constituencies under strict compliance of Sections 19 and 20 of the Elections Act, 2017 and fix the average population ratio within the legally permissible 10% plus-mines variation. The anthology and conception of delimitation is provided under Section 19 of the Elections Act, 2017 in which for the purpose of election of the National Assembly the Commission may divide each province in to as many separate territorial constituencies as the number of general seats allocated to that province under Article 51 of the Constitution and for the purpose of election of provincial assemblies, the Commission may divide each province into as many separate territorial constituencies as the number of general seats specified in Article 106. In tandem, the principles of delimitation are provided under Section 20 of the Elections Act, 2017. The conspicuous and salient features of the quantified principles to be kept in mind are the distribution of population in geographically compact areas, physical features, existing boundaries of administrative units, facilities of comrnunication and public convenience and other cognate factors to ensure homogeneity in the creation of constituencies with the rider that as far as possible, variation in population in the constituencies shall not ordinarily exceed 10% and if it is exceeded in an exceptional case, the Commission shall record reasons.

3. In the sphere of Section 239 of the Elections Act, 2017 the Election Commission has framed Elections Rules, 2017. Chapter-III of the Rules is germane to delimitation of constituencies. In line with Rule 7 the Commission is vested with powers to carry out the delimitation of constituencies of general seats in an Assembly in accordance with Section 19 and the procedure laid down in Chapter-III of the Rules on the basis of population in accordance with the last preceding census official published. However, Rule 8 provides for configuration of quota in which the Commission may determine and notify the share of a district by dividing total population thereof with the quota per seat of National Assembly and will also determine and notify the share of a district by dividing total population with the quota per seat of the Provincial Assembly. It is significant to note that sub-rule (2) of Rule 8 is relevant to the quota per seat of the National Assembly, whereas, in sub-rule (2) the Commission may determine the share of district or quota per seat of Provincial Assembly but the proviso attached to sub-rule (4) and sub-rule (4) are couched in same phrasings and expressions which expound that on fraction of more than 0.5 shall be counted as one seat and fraction of less than 0.5 may be ignored. For the ease, of convenience, Section 20 and Rule 8 of the Election Rules, 2017 are produced as under:--

Elections Act, 2017

1. Principles of delimitation.--(1) All constituencies for general seats shall, as far as practicable, be delimited having regard to the distribution of population in geographically compact areas, physical features, existing boundaries of administrative units, facilities of communication and public convenience and other cognate factors to ensure homogeneity in the creation of constituencies.

(2) For the purpose of delimiting constituencies for the general seats of the National Assembly for the Tribal Areas two or more separate areas may be grouped into one constituency.

(3) As far as possible, variation in population of constituencies of an Assembly or a local government shall not ordinarily exceed ten percent.

(4) If the limit of ten percent under sub-section (3) is exceeded in an exceptional case, the Commission shall record reasons thereof in the delimitation order.

Elections Rules 2017

1. Determination of quota.--(1) The Commission shall, after allocation of seats referred to in Rule 7, determine the average population (hereinafter referred to as `quota per seat' of a constituency for each Province, the Tribal Areas and the Federal Capital by dividing total population thereof by general seats in the National Assembly allocated to a Province, the Tribal Areas or, as the case may be, the Federal Capital.

(2) The Commission shall determine and notify the share of a district or districts, an agency or agencies or, as the case may be, the Federal Capital by dividing total population thereof with the quota per seat of the National Assembly as determined under this rule:

Provided that a fraction of more than 0.5 may be counted as one scat and a fraction of less than 0.5 may be ignored: [emphasis applied]

Provided further that the Commission may deviate from the principle laid down in the first proviso in exceptional cases for reasons to be recorded.

(3) The Commission shall divide total population of a Province by the number of general seats in the Provincial Assembly to determine quota per seat in that Assembly.

(4) The Commission shall determine and notify the share of a district or districts by dividing total population thereof with the quota per seat of the Provincial Assembly concerned as determined under this rule:

Provided that a fraction of more than 0.5 shall be counted as one seat and a fraction of less than 0.5 may be ignored. [emphasis applied]

Provided further that the Commission may deviate from the principle laid down in the first proviso in exceptional cases for reasons to be recorded.

1. It is also significant to note that Rule 10 emanates and originates command to the Delimitation Committee to obtain population data of last census officially published by Pakistan Bureau of Statistics along with relevant maps showing census charges, census circles and census blocks. It is also an obligation and sense of duty of Delimitation Committee to obtain district maps authenticated by Pakistan Bureau of Statistics or district head of Revenue Department indicating details of all administrative and revenue units to the level of a Patwari Circle or Tapedar Circle as well as prominent geographical and physical features. At the time of preparing draft proposals the Delimitation Committee is obliged to follow the principles of delimitation as laid down in Section 20 including the procedure provided under the Rules and the guidelines provided by the Commission from time to time. In sub-rule (4) there is a strict condition that the constituency of an Assembly shall not ordinarily extend to more than one district except in exceptional circumstances for reasons to be recorded by the Delimitation Committee with a further stipulation that a Patwar Circle or as the case may be a Tapedar Circle shall be the basic unit for delimitation and it shall not be broken under any circumstances. At the same time sub-rule (5) of Rule 10 pave the way to start delimitation from Northern end of the district and proceed clock wise in zigzag manner so that population among the constituencies of an assembly shall remain as close as may be practicable to the quota.

2. Though by means of these petitions, no more than the vires of proviso attached to the rules is under challenge but the learned counsel for the petitioners have also made much emphasis to the tune of excess variation of population in district Jacobabad and District Kashmore as compare to the neighboring District of Shikarpur. The Elections Rules, 2017 have been framed under Section 239 of the Elections Act, 2017 after prior publication and hearing and deciding objections or suggestions filed within 15 days. Nevertheless Section 20 of the Act accentuates that the population of constituency shall not ordinarily exceed 10% and in case it is exceeded the Commission shall record reasons in the delimitation order whereas, the proviso under challenge only exemplifies and differentiates that fraction of more than 0.5 may be counted as one seat. So in our considerate view and for all intents and purposes, there is no direct clash, collision and or inconsistency at the heart of proviso attached to the rule under challenge. One provides that the population shall not exceed 10% in any constituency wheres the later relates solitary to the allocation of seats. The second proviso of Rule 8 further envisages that the Commission may deviate from the principle laid down in the first proviso. Though the petitioners have challenged the variation in the constituencies of district Jacobabad and Kashmore but at the same time it cannot be lost sight that the proviso in the Rules added much prominence and distinction that the constituencies shall not ordinarily extend to more than one district and the Patwar Circle or Tapedar Circle shall be the basic unit which cannot be broken in any circumstances. The petitioners want that the entire delimitation exercise should be carried out again with strict observance and implementation of rigors of 10% variation in the population but keeping in mind the relevant proviso of the rules which are otherwise not under challenge in these petitions except the first proviso of Rule 8, there are many other characteristics and prerequisites which are to be in conformity with by the Delimitation Committee at the time of delimitation including the checks and control that constituencies may not extend to more than one district and the Patwar Circle or Tapedar Circle may not be broken. It would not be possible in all constituencies and districts to maintain strict harmony exactly to 10% variation and this maybe a far sightedness that variation over and above 10% is permissible to some extent but in such eventuality and contingency, the Commission has to record the reasons.

3. The Petitioner in C.P. No. D-844/2018 attached the copy of his representation filed on 16.01.2018 to the Election Commission of Pakistan. He contended in his representation that as per census the total population of the district Jacobabad is 1,006297 and total population of district Kashmore is 1,089169 collectively so the total population of both the districts is 2,095466. Keeping in mind the population ratio with 10% plus-minus according to the petitioners the Jacobabad and Kashmore district qualified for three seats of the National Assembly but the Election Commission of Pakistan reduced the National Assembly seats of district Jacobabad and Kashmore from 3 to 2 on the ground of overlapping of administrative boundaries. The petitioner in C.P. No. D-811 of 2018 has also attached with his petition the same copy of representation of the petitioner in C.P. No. D-844/2018, whereas, petitioner in C.P. No. D-1310/2018 filed his proposal to the Election Commission on 7.1.2018. He proposed to the Election Commission of Pakistan to delimit district Jacobabad and Kashmore though NA-208, 209 and 210 may be allowed to continue under new numbers. If his proposal was taken into consideration by ECP, he basically wanted fresh delimitation of all constituencies in view of his proposal. The above proposals unequivocally show that the petitioner wanted delimitation and carving out of areas by overlapping population from one district to another through jumping and breaking TC which under the letters of law cannot be broken. They further want that the population of three districts Kashmore, Jacobabad and Shikarpur should be combined. On the contrary, learned counsel for the Election Commission of Pakistan made much emphasis that in 2002 the Kashmore was Taluka of district Jacobabad which was notified as an independent district in 2004. He further contended that as the delimitation has already been notified in 2002 and the seats in National Assembly remained same, therefore, the Commission re-described the limits of constituencies throughout the country before the General Election, 2008 including NA 209 Jacobabad-cum-Kashmore (Old Jacobabad - II), NA-210 Kashmore (Old Jacobabad-III).

4. Ultra vires is a Latin phrase and expression which means “beyond the powers”. If an act entails legal authority and it is done with such authority, it is symbolized as intra vires (within the precincts of powers) but if it carries out shorn of authority, it is ultra vires. Acts that are intra vires may unvaryingly be acknowledged legal and those that are ultra vires illegal. The validity of the subordinate or delegated legislation can be challenged on the ground of being ultra vires the enabling or parent Act. If the subordinate or delegated egislation is found in excess of the powers conferred by the parent Act or is made without following the procedure to be followed, the delegated or subordinate legislation may be declared invalid. It is a well settled that constitutionality of any law can be scrutinized and surveyed. The law can be struck down if it is found to be offending against the Constitution for absenteeism of lawmaking and jurisdictive competence or found in violation of fundamental rights. It is also established law that the vires of delegated legislation may be subject to judicial review. At the same time it also well-known through plethora of dictums laid down by the superior Courts that law should be saved rather than be destroyed and the Court must lean in favour of upholding the constitutionality of legislation unless ex facie violative of a Constitutional provision. When the subordinate or delegated legislation is made by the authority exercising its power mala fide or with ulterior motive or in an unreasonable and arbitrary manner then off course this Court may declare it invalid. In literal sense, the expression ultra vires connotes that the rule making authority had no substantive powers under the parent statute to make rules in question. It is well known principle that Rule cannot go beyond the Act. The delegate cannot make a rule which is not authorized by the parent statute and the delegated legislation must fall within the four corners of the parent statute. To strengthen this particular scenario, we surveyed and browsed a few dictums which deduced and deciphered following tenets of law: --

5. This is a settled principle that a statutory rule cannot enlarge the scope of the section under which it is framed and if a rule goes beyond what the section contemplates, the rule must yield to the statute.

6. The authority of executive to make rules and regulations in order to effectuate the intention and policy of the Legislature, must be exercised within the limits of mandate given to the rule making authority and the rules framed under an enactment must be consistent with the provisions of said enactment.

7. The rules framed under a statute if are inconsistent with the provisions of the statute and defeat the intention of Legislature expressed in the main statute, same shall be invalid.

8. The rule making authority cannot clothe itself with power which is not given to it under the statutes and thus the rules made under a statute, neither enlarge the scope of act nor can go beyond the act and must not be in conflict with the provisions of statute or repugnant to any other law in force.

9. Rules must be read together with the Act under which they are made, cannot repeal or contradict express provisions in the Acts from which they derive their authority, and if the Act is plain, the rule must be interpreted so as to be reconciled with it, or, if it cannot be reconciled, the rule must give way to the plain terms of the Act.

10. If the rules framed under the statute are in excess of the provisions of the statute or are in contravention of or inconsistent with such provisions then those provisions must be regarded as ultra vires of the statute and cannot be given effect to.

11. The “rules” and “regulations” framed under any Act are meant to regulate and limit the statutory authority.

12. Rules and regulations being forms of subordinate legislation do not have substantial difference as power to frame them is rooted in the statute.

13. Statuary bodies are invariably authorized under the Act to make or adopt rules and regulations not inconsistent with the Act, with respect to such matters which fall within their lawful domain to carry out the purpose of the Act.

14. Rulemaking body cannot frame rules in conflict with or in derogation of the substantive provisions of the law or statute, under which the rules are framed.

15. Rules cannot go beyond the scope of the Act. No rule can be made which is inconsistent with the parent statute, whereas, no regulation can be framed which is inconsistent with the parent statute or the rules made thereunder.

16. If a statute is ex facie discriminatory or capable of discriminatory application or violated any provision of the Constitution, it may be declared void ab initio since its inception.

17. When a right is safeguarded by a Constitutional guarantee is called 'fundamental right ' because by doing so it has been placed beyond the power of any organ of State, whether, Executive or Legislative to act in violation of it. Such a right cannot be taken away, suspended or abridged.

18. The fundamental rights are natural rights which are personal to the individual as a citizen of a free and civilized community.

19. The essential characteristic of fundamental rights is that they impose limitations, express or implied, on public authorities, interfering with their exercise. It is the duty of the Court to protect Fundamental Rights granted in the Constitution.

Ref: 1. 2003 SCMR 370 (Pakistan through Secretary Finance, Islamabad and others vs. Aryan Petro Chemical Industries (Pvt.) Ltd., Peshawar and others). 2. 2005 SCMR 186 (Khawaja Ahmad Hassaan vs. Government of Punjab and others). 3. 2013 SCMR 642 (Zarai Taraqiati Bank Limited and others v. Said Rehman and others). 4. PLD 2014 SC 389. Suo Motu Case No. 11 of 2011. (Action taken on the news clipping regarding scandal. of billions of rupees of National Police Foundation Land) 5. 2014 CLC 335 (M.Q.M. and others vs. Province of Sindh and others).

1. The learned counsel for the petitioners referred to case of 2014 CLC 335 (M.Q.M. and others vs. Province of Sindh) and PLD 2014 Lahore 221 (Arshad Mehmood vs. Commissioner-Delimitation Authority, Gujranawala and others). It is unequivocally perceptible that in both the matters, the elections of local government and some delimitation issues and amendments made by provincial governments in the local government laws were taken into consideration. Earlier to these judgments, no powers were vested in ECP for delimitation of boundaries/UCs for local government elections. Here for general elections not only Elections Act, 2017 is already in force/vogue but the Elections Rules, 2017 have also been framed. Precisely, thru these constitution petitions, the attack has been forestalled and envisioned on the propriety and legitimacy of the proviso alone which primarily designed and devised to allocate the seats which does not affect the right to vote which is a fundamental right and not a statutory right. Let us discuss the pith and substance of judicial precedents quoted vice versa .In the case of Sue Evenwel (2015 SCMR 1152), the principle of “one person, one vote” was discussed keeping in mind Equal Protection Clause of the Fourteenth Amendment to the US Constitution. It was held that use of a total- population baseline in drawing legislative districts served the principle of representational equality. In our laws also principle is not somewhat different but a cap/ceiling of 10 variation in the population has been allowed. The Court in the case of Kirkpatrick v. Preisler [394 US 526(1969)] held that unless population variances among reapportioned congressional districts are shown to have resulted despite a state's good faith effort to achieve precise mathematical equality, the state, in order to establish the constitutionality of its legislation reapportioning such districts, must present acceptable reasons to justify each variance. Here in our laws also despite fixing outer limit/ maximum limit of 10% variation in population, the venue of exceeding limit is available provided ECP record the reasons of variation beyond 10%. In the case of Reynolds v. Sims [377 US 533], the Court held that the Equal Protection Clause requires that a State make an honest and good faith effort to construct districts in both houses of its legislature as nearly of equal population as is practicable. The Court further realized that it is impossible to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters. Mathematical exactness or precision is hardly a workable constitutional requirement. We also go along with the views expressed in the above cited case. One may wish for the equal population in all constituencies of the country with a plea to avoid debasement of vote or principle of one man one vote but in realism and practicality it is not possible and workable so in order to meet the exigency and emergent situations, the legislature has devised the principles of delimitation with some permissible limits and variations in the population in the constituencies subject to providing reasons and under the delegated authority, ECP has also framed the rules to deal with certain procedural matters including determination of seat quota. In the case of Wesberry v Sanders [376 US 1], the Court held that it may not be possible to draw congressional districts with mathematical precision, that is no excuse for ignoring our Constitution's plain objective of making equal representation for equal numbers of people the fundamental goal for the House of Representatives. In the case of Abdul Qadir Patel vs. Chief Election Commissioner, reported in 2013 CLC 1712, the Court held that any interference in election process at such belated stage would cause interruption in the process and delay the same. (this is more or less seems to be in line with the dictum laid down in the case of Haji Muhammad Saifullah Khan, PLD 1989 S.C. 166), In the case of Ghulam Mustafa vs. Commissioner/Delimitation Authority, D.G. Khan, reported in 2014 YLR 1583, the Court declined to interfere in delimitation process of union councils and wards merely for the reason that the entire process of delimitation was already finalized by competent authorities and election schedule had been announced. In the case of M.Q.M. and others vs. Province of Sindh, reported in 2014 CLC 335, the Court inter alia held that proviso attached to any section could not be read in isolation. Powers given in the proviso could not be uncontrolled or independent to the original section. Normal function of a proviso was to except something out of the enactment or to qualify something enacted therein, which but for the proviso would be within the purview of the enactment. When the enacting portion of a section was not clear a proviso appended to it might give an indication as to its true meaning. The apex Court in the case of Workers' Party Pakistan vs. Federation of Pakistan, PLD 2012 Supreme Court 681 held that Election Commission is under a direct constitutional obligation to exercise all powers vested in it in a bona fide manner, meeting the highest standards and norms, therefore, as a natural corollary all discretionary powers were also to be exercised and tested against such standards. Election Commission is charged with the duty to organize and conduct the election and responsible not only for conducting the election itself, but also for making all necessary arrangements for the said purpose, prior to the Election Day. Constitution conferred such responsibility on the Election Commission that all activities both prior and subsequent to Election Day were adhered to standards of justness and fairness, and free from corrupt and or illegal practices. In the case of Watan Party, PLD 2011 Supreme Court 997, the apex Court held that to avoid political polarization and to break the cycle of ethnic strife and turf war, boundaries of administrative units like police stations, revenue estates, etc., ought to be altered so that the members of different communities may live together in peace and harmony, instead of allowing various groups to claim that particular areas belong to them and declaring certain areas as no go areas under their fearful influence.

2. In the case of Federation of Pakistan and others vs. Haji Muhammad Saifullah Khan, reported in PLD 1989 S.C. 166, the apex agreed that the grounds contained in the President's Order dated 29th May, 1988, dissolving the National Assembly and dismissing the Federal Cabinet had no nexus with the preconditions prescribed by Article 58(2)(b) of the Constitution but was not inclined to grant the reliefs to restore the National Assembly and reinstate the dissolved Federal Cabinet despite this finding. The reasons for so doing were stated thus:

“But we are not unmindful of the fact that the whole nation is geared up for elections and we do not propose to do anything which makes confusion worst confounded and creates a greater state of chaos which would be the result if the vital process of elections is interrupted at this juncture.

The Courts always keep in view the higher interest of Pakistan while resolving matters of national importance in accordance with the Constitution and law. National interests must take precedence over private interests and individual rights. The forthcoming elections are at hand and the people of Pakistan must be allowed to choose their representatives for the National Assembly on party basis, a right which is guaranteed to them under the Constitution.

The writ jurisdiction is discretionary in nature and even if the Court finds that a party has a good case, it may refrain from giving him the relief if greater harm is likely to be caused thereby than the one sought to be remedied. It is well settled that individual interest must be subordinated to the collective good. Therefore, we refrain from granting consequential reliefs, inter alia, the restoration of the National Assembly and the dissolved Federal Cabinet.”

1. So far as the ouster clause provided under Section 236 of Elections Act, 2017, we have no hesitation in our mind to hold that it cannot taken away our constitutional jurisdiction. In this regard, we are also fortified by the dictum laid down in the case of Mrs.Shahida Zahir Abbasi and others v/s. President of Pakistan & others (PLD 1996 S.C. 632), in which the apex Court held that a provision barring jurisdiction of Courts contained in a sub-constitutional enactment, however, expressly and widely worded, cannot affect or taken away jurisdiction of superior Courts conferred on them under the Constitution. Likewise, the apex Court in the case of Federation of Pakistan and another vs. Malik Ghulam Mustafa Khan (PLD 1989 S.C. 26), held that there is a presumption against the ouster of jurisdiction of the superior Courts and any law which has the effect of denying access to them has to be narrowly construed for the reason that these are the fora created by people for obtaining relief from oppression and redress for the infringement of their rights. Where the jurisdiction of the Courts to judicially review any executive act has been competently taken away, then the Court will not be able to assert its jurisdiction to do so under any circumstances but this must depend upon the nature of the jurisdiction sought to be ousted and the nature and extent of the ouster itself. If the language used is such that it leaves no room for doubt as to the intention of the Legislature to oust the jurisdiction of the Courts in all circumstances, then that will have to be given effect and even acts performed without jurisdiction or mala fides will not be open to judicial scrutiny. But the Courts having the right to interpret the law will in each given case decide the precise nature of the ouster clause and the extent to which the jurisdiction of the Courts has been ousted, keeping in mind the principles consistently affirmed by all Courts that provisions seeking to oust the jurisdiction of superior Courts are to be construed strictly with a pronounced leaning against ouster.

2. In summing-up, we have no reluctance or disinclination in our minds to hold that ECP in order to decide population criteria has evolved a formula with the variation of 10% plus-minus but at the same time, a criteria or modality was also required to deal with the quota and benchmark of seat allocation to particular area/districts. The proviso under challenge only bring to life and comprehends a distinction that fraction of more than 0.5 may be counted as one seat which does not in any way disregard or transgress the provisions of Act. Neither the proviso seems to us ultra vires the provisions of Elections Act, 2017 nor it looks like that the Rule making authority inserted the proviso with mala fide intention nor the realm of the proviso seems to have travelled beyond the provisions of Elections Act, 2017 or in conflict with or in derogation but it is only a practical solution to first determine population under a workable formula then allocation of seats which has been applied by ECP across the board.

3. As a result of above discussion, the aforesaid constitution petitions are dismissed.

(Y.A.) Petition dismissed

PLJ 2018 Lahore 1 [Multan Bench, Multan]

Present: Abdul Rahman Aurangzeb, J.

KAREEM BAKHSH--Petitioner

versus

ASLAM KHAN--Respondent

Civil Revision No. 977 of 2017, heard on 1.8.2017.

Civil Procedure Code, 1908 (V of 1908)--

----O.XXXVII, R. 4 & O.IX R. 13--Negotiable Instruments Act, (XXVI of 1881)--Limitation Act, 1908, Arts. 159 & 164--Suit for recovery--Promissory note and receipt--Exparte proceedings--Decreed--Application for setting aside exparte decree--Leave to defend dismissed for non-prosecution--Application for restoration--Dismissed--Challenge to--Validity--There is mark difference for the procedure of setting aside exparte judgment and decree for ordinary suit and the suit field under provisions of Order XXXVII, CPC--Decree may be set-aside under Order XXXVII, Rule 4, CPC upon application of defendant showing “Sepcial circumstances” of his inability to appear and obtain leave within prescribed period i.e. within 10 days under Article 159 of Limitation Act, 1908--It is case of wilfull disappearance of petitioner during pendency of proceedings--When petitioner was perusing his case diligently, then it was his responsibility to take all necessary steps and measures for further pursuance--Meaning thereby that petitioner was in absolute knowledge hence, he would face consequence of his non-appearance--Petitioner try to rejoin proceedings by filing an application on 22.9.15 after the delay of more than two years and five months for which no plausible justification put forth by petitioner--It is also not out of place to mention here that when petitioner having conscious knowledge of delay of more than two years and five months than it is also obligatory for him to explain delay of each and every day, but no application for condonation of delay was even filed by petitioner which manifestly shows that he wants to avoid implementation of decree--Therefore in such circumstances petitioner is not entitled for any discretionary relief against which also a valuable right accused to respondent--Civil revision dismissed. [Pp. 4, 5 & 6] A, B, C & D

Hafiz Muhammad Riaz, Advocate for Petitioner.

Nemo for Respondent.

Date of hearing: 1.8.2017.

Judgment

Through this civil revision, the petitioner has challenged the validity of order dated 22.05.2017 whereby the application for setting-aside exparte judgment and decree dated 07.02.2013 was dismissed.

1. Brief facts giving rise to the above revision petition are that Aslam Khan respondent (herein after to be referred as “respondent”) filed a suit under Order XXXVII, C.P.C. for recovery of Rs. 400,000/- against the petitioner Karim Bakhsh on the basis of promissory note and receipt dated 05.05.2012. The petitioner disappeared during the course of trial and hence exparte proceeding were initiated against the petitioner on 21.01.2013. Later on, the learned trial Court recorded exparte evidence of the respondent and the suit was decreed in favour of respondent on 07.02.2013.

2. The petitioner then filed an application under Order XXXVII Rule 4, C.P.C. for setting-aside the exparte proceeding as well as exparte judgment and decree. This application was dismissed for non-prosecution on 08.02.2016. Thereafter, another application for restoration of application for setting-aside exparte judgment and decree was filed, which was dismissed on 28.04.2016. The aggrieved petitioner filed a revision petition before this Court bearing CR. No. 822 of 2016. On 01.03.2017 with the concurrence of the parties the above mentioned civil revision was allowed and impugned orders dated 08.02.2016 and 28.04.2016 were set-aside subject to payment of costs of Rs. 5000/-. After the acceptance of above said civil revision, the initial application for setting-aside the exparte judgment and decree became alive. The written reply of this application was also filed by the respondent. The learned trial Court after having heard the arguments of the parties dismissed the application for setting-aside exparte judgment and decree vide order dated 22.05.2017. Hence, this civil revision.

3. Learned counsel for the petitioner strenuously contends on the sole ground of limitation that it has not been provided any time limit for filing of application under Order XXXVII Rule 4, C.P.C.; therefore, the matter would be governed under Article 181 of the Limitation Act, 1908 and hence, the application is well within time and the same is liable to be accepted. He placed reliance on “Naseer Ahmad versus Muhammad Mushtaq” (2006 MLD 1936 Lahore).

4. I have heard learned counsel for the petitioner and have perused the annexed record.

5. I have considered the respective contention of the petitioner noted above. There is no denial with this fact that the suit is based on Negotiable Instrument Act, 1881 and the petitioner on his second appearance after passing the exparte judgment and decree filed an application for setting-aside the exparte judgment and decree but the application was dismissed for non-prosecution, and later on the application for restoration was also dismissed. The application for setting-aside exparte proceedings has been restored with the concurrence of the parties through Civil Revision No. 822 of 2017. Now the subject matter is the application for setting-aside expartejudgment and decree dated 07.02.2013 which was examined by the learned trial Court and the learned trial Court after having not satisfied with the assertion of the petitioner dismissed the application on 22.05.2017.

6. I have also anxiously gone through the annexed record of the learned trial Court which reveals that the petitioner after the acceptance of application for leave to appear and defend the suit, filed his surety bond but before filing the written statement he went to Saudi-Arabia in connection with his job affairs. Before going to Saudi Arabia he could not manage any proper representation in the pending suit, therefore, due to non-appearance of the petitioner as well as due to non-representation, the learned trial Court decreed the suit on 07.02.2013.

7. Before proceedings further it would be appropriate to mention the provision of law asserted by the petitioner. Order XXXVII Rule 4, CPC provides as under:--

“Power to set aside decree.---After decree the Court may, under special circumstances, set aside the decree, and if necessary stay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the Court so to do, and on such terms as the Court thinks fit.” (emphasis supplied)

1. Perusal of above referred context of the Code reveals that there is mark difference for the procedure of setting-aside exparte judgment and decree for ordinary suit and the suit filed under the provisions of Order XXXVII, C.P.C. The decree may be set-aside under Order XXXVII Rule 4, C.P.C. upon the application of defendant showing “special circumstances” of his inability to appear and obtain leave within the prescribed period i.e. within 10 days under Article 159 of the Limitation Act, 1908.

2. Interestingly, it is not the case of the petitioner which falls under Order XXXVII Rule 4, C.P.C., as he has already been appeared and granted permission for leave to appear and defend the suit. Contrarily, it is a case where the petitioner, during the pendency of the suit, had disappeared from the proceedings. The reason put forth by the petitioner that he went to Saudi Arabia in emergency and in this way he could not manage the proper representation in Pakistan for pursuance of his case is not a plausible explanation. His further explanation that from Saudi Arabia, he sent a special power of attorney to his brother on 25.02.2013 is also of no avail as the decree had already passed on 07.02.2013. It is the duty of the petitioner that before proceeding to Saudi-Arabia, appoint his attorney for pursuance of his case but he could not manage his representation at proper time. Nevertheless, it is his own decision as he was fully aware with the continuity of the proceedings in the trial Court and in such situation the non- representation could not be dispensed with. Therefore, the exparte proceedings initiated by the learned trial Court, which was later on culminated into exparte judgment and decree, is in accordance with law, hence, there is no illegality committed by the learned trial Court.

3. The contention raised by the learned counsel for the petitioner that limitation have been provided for filing of application under Order XXXVII Rule 4, C.P.C. is correct as laid down in the referred judgment “Naseer Ahmad versus Muhammad Mushtaq” (2006 MLD 1936 Lahore). But in the present case, when it is admitted by the petitioner that he was already allowed to defend the suit, therefore, the applicability of Order XXXVII Rule 4, C.P.C. is no more further required. However, the provisions of Order XXXVII Rule 7, C.P.C. are attracted. For ready reference the provision of Order XXXVII Rule 7, C.P.C. is reproduced as under:--

“Procedure in suits.--Save as provided by this Order, the procedure in suits hereunder shall be the same as the procedure in suits instituted in the ordinary manner.”

The above provision vividly clear that the procedure in suits instituted under the provision of Order XXXVII, C.P.C. shall be the same as the procedure in the suit instituted in ordinary manner. It is the case of willful disappearance of the petitioner during the pendency of the proceedings. When the petitioner was pursuing his case diligently, then it was his responsibility to take all necessary steps and measures for further pursuance. Meaning thereby, that the petitioner was in absolute knowledge, hence, he would face the consequence of his non-appearance. It is nowhere provided in the above referred provision under Order XXXVII Rule 4, C.P.C. that when the petitioner has already been granted leave to appear and defend the suit and was later on disappeared from the proceedings, then he can reapplied on the basis of supra Rule 4. The “special circumstances” as envisaged in the application have not been applicable in the instant matter, as the provision of Article 164 of the Limitation Act, 1908 in terms of Order IX Rule 13, C.P.C. is fully attracted in the case in hand. In this regard, respectful reliance can be placed on the enshrined judgment of Hon’ble Supreme Court titled “Shahid Pervaiz alias Shahid Hameed versus Muhammad Ahmad Ameen” (2006 SCMR 631) where almost similar circumstances have been addressed when defendant after filing his written statement disappeared from the trial Court and thus exparte decree was passed against him and the application for setting-aside judgment and decree was dismissed. In the case in hand the petitioner tried to rejoin the proceedings by filing an application on 22.9.2015 after the delay of more than 02 years and 05 months for which no plausible justification put forth by the petitioner. In addition to this negligent act the petitioner also failed to file his written statement and hence, he has more weaker stance then the situation discussed above in the supra Shahid Pervaiz’s case.

1. It is also not out of place to mention here that when the petitioner having conscious knowledge of delay of more than two years and five months then it is also obligatory for him to explain the delay of each and every day, but no application for condonation of delay was ever filed by the petitioner which manifestly shows that he wants to avoid the implementation of the decree. Therefore, in such circumstances the petitioner is not entitled for any discretionary relief against which also a valuable right accrued to the respondent. Learned counsel for the petitioner is unable to controvert the relevancy of supra “Shahid Pervaiz” case wherein it was held that:--

“Article 164 of the Limitation Act provides 30 days time to the petitioner/defendant to file application for setting aside exparte decree. These 30 days started from the date of the decree in the instant case because petitioner/defendant had participated in the proceedings before the trial Court. This Court has interpreted Order XXXVII, Rule 3 of C.P.C. in Abdul Karim Jaffarani’s case 1984 SCMR 568. The relevant observation is as follows:

“In view of the legislative history of these provisions, the overall object envisaged by the Legislature was to provide for expeditious disposal of litigation involving commercial transactions of a particular nature by a summary procedure so that the defendant does not have the means open to exploitation in the ordinary procedure for trial of suits to prolong the litigation and prevent the plaintiff from obtaining an earlier decision by raising untenable and frivolous defences.”

“The Order XXXVII is a special provision having special procedure prescribed under Order XXXVII, C.P.C. Order XXXVII, Rule 4, C.P.C. provides a remedy to the petitioner/ defendant to file an application for setting aside ex-parte decree. The Legislature in its wisdom used the word special circumstances in Order XXXVII, Rule 4, C.P.C. is higher in decree than the words ‘sufficient cause’ and ‘good cause’ shown under the various rules of Order IX, C.P.C. the excuse shown by the petitioner’s/defendant’s counsel in his affidavit that he was unable to appear before the Court in order to see his ailing relation could not be considered as a ‘special circumstance’ whereupon an application Order XXXVII, Rule 4, C.P.C. could be allowed. Term ‘special’ in Webster’s New International Dictionary (2nd Edition) is defined as distinguished by some unusual quality, uncommon, noteworthy, extraordinary, as a special occasion, especially distinguished by superior excellence, importance, power, or the like. In the shorter Oxford English Dictionary on historical principles term ‘special’ is defined as of such a kind as to exceed or excel in some way that which is usual or common, exceptional in character quality or decree. The Concise Oxford English Dictionary says that ‘special’ means of a particular kind, peculiar in general. Therefore, under Rule 4, C.P.C., the petitioner/defendant is obliged to explain the ‘special circumstances’ which prevented him from appearing in the Court to seek leave to appear and defend the suit within time or other ‘special circumstances’ which may authorize the Court to set aside the decree already passed by it. Rule 4, C.P.C. is intended to prevent in justice. In the present case, no special circumstances have been shown for entitling the petitioner/defendant to claim benefit of Rule 4, C.P.C. Facts in the case depict it as a clear case of sheer negligence in the conduct of the defence.”

The view also followed in “Abdul Waheed versus Riasat Ali” (2008 MLD 1684), and “Abdul Hameed versus Muhammad Giyas Sajid” (2012 MLD 1736).

1. Last but not least regarding the maintainability of this civil revision, it is held in “Muhammad Khalil Ahmad versus Shabbir Ahmad” (2013 CLC 1121) that under provision of Order XLIII, Rule 1(d), C.P.C. the proceedings culminated under the provisions of Order IX, Rule 13, C.P.C. are appealable. Any final verdict as have been given under Order XXXVII, Rule 4, C.P.C. primarily is to be considered an order passed within the purview of Order IX, Rule 13, C.P.C. and thus, the revisional jurisdiction against such order would not be available. On this score this revision petition is also lacking maintainability.

2. For what has been discussed above, I see no merit in this civil revision and the same is hereby dismissed.

(Y.A.) Revision dismissed

PLJ 2018 Lahore 8 [Multan Bench, Multan]

Present: Abdul Rahman Aurangzeb, J.

CHIRAGH DIN--Petitioner

versus

A.D.J., etc.--Respondents

Writ Petition No. 9483 of 2017, decided on 29.6.2017.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Suit for recovery of maintenance allowance and dowry articles--Decreed--Execution petition--Objection petition--Dismissed--Appeal against dismissal--Dismissed--Liability of surety--Challenge to--Petitioner stood surety for payment of decretal amount and not for only appearance and production of judgment debtor--It is also manifest from record that petitioner did not stand surety for appearance of judgment debtor rather he stood surety for payment of decretal amount, therefore, he cannot be absolved from his liability on account of mere arrest of judgment debtor--Petition dismissed in limine. [P. 10] A

Ch. Khawar Siddique Sahi, Advocate for Petitioner.

Date of hearing: 29.6.2017.

Order

Through this constitutional petition, the petitioner has challenged the validity of impugned orders dated 09.03.2017 and 10.04.2017 passed by learned Executing Court and order dated 14.06.2017 passed by learned Additional District Judge Chichawatni, District Sahiwal whereby the objection petition filed by the petitioner was concurrently dismissed.

1. The necessary facts are that Respondents No. 3 & 4 filed a suit for recovery of maintenance allowance and recovery of dowry articles against Respondent No. 5 Muhammad Riaz son of Chiragh Din, who is husband and father of said respondents respectively. The suit was decreed by the learned Judge Family Court, Chichawatni vide judgment and decree dated 11.11.2011. Thereafter Respondents No. 3 & 4 filed an execution petition for the recovery of decretal amount. During the pendency of the execution petition, the judgment debtor-Respondent No. 5 dis- appeared, hence, the learned Executing Court issued bailable warrant of arrest of the judgment debtor. The petitioner gave surety for the judgment debtor but later on filed an objection petition against the proceedings of the learned Executing Court which was dismissedvide order dated 10.04.2017, against which an appeal was filed which also met the same fate vide judgment dated 14.06.2017. Hence, this petition.

2. Learned counsel for the petitioner contends that when the judgment debtor is available and was also sent to imprisonment by the learned Executing Court, therefore, the liability of surety is relinquished and he cannot be held liable for satisfaction of the decree. He relied upon “Muhammad Ramzan vs. Ali Hamza and others” (PLD 2016 Lahore 622).

3. Arguments heard. Record perused.

4. Perusal of record reveals that the present petitioner appeared in the Court and filed his surety bond with regard to the payment of decretal amount. The learned trial Court also recorded his statement whereby he alongwith the judgment debtor stated that the surety bind himself for the satisfaction of the decree. On the statement of the surety of the judgment debtor the Court fixed the proceedings for 26.04.2014 when the parties agreed that if brother of surety namely Noor Mehnga stated on oath of Holy Quran that the dowry articles were delivered to the decree holder, the dispute between the parties would be resolved accordingly. At this stage, the learned Executing Court proceeded further for payment of remaining decretal amount and for the settlement of offer tendered by the decree holders. But thereafter on 05.05.2014 the judgment debtor as well as the surety have not put their appearance before the learned Executing Court when the learned Executing Court re-started the proceedings of the execution against the judgment debtor as well as against the surety. The Executing Court attached the property which was placed by the surety for the purpose of satisfaction of decree. The learned Executing Court further proceeded with the proceedings of attachment of property of surety by issuing Robkar to the concerned Tehsildar on 09.03.2017.

5. There is no denial that the petitioner stood surety in place of judgment debtor at his own option with his volunteer consent. At this stage, the words specified in the surety bond are relevant for the purpose of satisfaction of decree which are reproduced below:--

The above quoted reference reveals that the surety bond was not only submitted for the production of the judgment debtor but also the responsibility and liability of the judgment debtor was assumed and opted by the surety for the satisfaction of the decree, therefore, the supra citation did not attract to the facts of the case in hand. (emphasis provided)

1. It is also evident from the record of the learned Executing Court that the petitioner and the proforma Respondent No. 5/ judgment debtor have recorded their statements voluntarily before the learned Executing Court. The petitioner also tendered his surety bond with his free will and consent before the learned Executing Court. The petitioner who is also father of the judgment debtor, has given the undertaking before the learned Executing Court that he is fully responsible for the satisfaction of the decree. In this manner the surety have stepped into the shoe of the judgment debtor voluntarily.

2. Learned counsel for the petitioner has further argued that as the judgment debtor has been produced by the petitioner and on production before the Court, he was arrested and sent to imprisonment for one year, therefore, on his appearance, the surety is not liable to further satisfy the decree and under no compulsion he can be ordered to further proceed in the matter, hence, the order of attachment of his property dated 09.03.2017 is also illegal. The arguments advanced by the learned counsel for the petitioner is totally misconceived as it is evident from the order of the executing Court dated 19.04.2014 that the petitioner stood surety for the payment of decretal amount and not for only the appearance and production of the judgment debtor. It is also manifest from record that the petitioner did not stand surety for appearance of the judgment debtor rather he stood surety for the payment of the decretal amount, therefore, he cannot be absolved from his liability on account of mere arrest of the judgment debtor. The case law relied upon by the learned Courts below

“Bahadur Khan versus Kaneez Fatima and others” (2003 CLC 1620) and “Akbar versus Muhamamd Ikhtiar and 3 others” (2010 CLC 444) are rightly applicable to the case in hand. In addition to this the citation titled “Amanullah Khan versus District Judge and 3 others” (2012 CLC 679) has also discussed the supra situation which is as under:

“It is manifest from the perusal of above mentioned provisions of law that action for recovery of decretal amount can validly be taken against a surety of a defaulter. The petitioner stood as a surety. He was under no obligation to bind himself but he did bind himself to pay the decretal amount, therefore, no interference is required by this Court in the impugned order passed by the learned Civil Judge/Judge Family Court, as well as, in order dated 11.10.,2011 passed by the learned Additional District Judge, Sheikhupura.”

1. For the foregoing reasons, learned counsel for the petitioner has failed to point out any jurisdictional error and defect or any illegality in the impugned orders passed by learned lower Courts calling for any further interference by this Court through its constitutional jurisdiction, therefore, this petition is hereby dismissed in limine.

(Y.A.) Petition dismissed

PLJ 2018 Lahore 11 [Rawalpindi Bench, Rawalpindi]

Present:Mirza Viqas Rauf, J.

MUHAMMAD EJAZ and 18 others--Petitioners

versus

NOOR KHAN and 3 others--Respondents

Civil Revision No. 891 of 2012, heard on 19.5.2017.

Civil Procedure Code, 1908 (V of 1908)--

----O. III, R. 4--Appointment of pleader--O.III of CPC deals with matter of appearance by a person or his recognized agent or pleader in proceedings before Court and any such appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except when otherwise expressly provided by any law for time being in force, be made or done by party in person, or by his recognized agent or by a pleader on his behalf. [P. 16] A

Civil Procedure Code, 1908 (V of 1908)--

----O. III, R. 4--Authority of pleader, statement was recorded by counsel without any authority loses, validity, a party is always bound by statement of his counsel, unless there is anything contrary in power of attorney places restriction on authority of counsel to compromise or abandon claim on behalf of his client.

[P. 17] B

Civil Procedure Code, 1908 (V of 1908)--

----S. 96--Suit was decided with consent of parties on basis of statement, such a contesting order/decree was not appealable in terms of Section, 96 of CPC and appeal before learned Additional District Judge, Talagang was not competent in view thereof--After withdrawal of suit, petitioners mala fidely approached Court and their act of accusing their duly appointed counsel not only gives a bad taste to legal profession but also undermine sanctity attached to judicial proceedings. [Pp. 17 & 18] C & E

Presumption of Truth--

----Qanun-e-Shahadat Order, (10 of 1984), Art. 129(c)--Appointment of counsel--Bestowed an authority to act on their behalf before Court--Statement recorded on basis of bilateral compromise--Statement recorded of counsel was lacking any authority by his clients i.e. petitioners--Even otherwise presumption of truth is attached to judicial proceedings in terms of Article 129(c) of Qanun-e-Shahadat Order, 1984, which cannot be allowed to be altered or suayed at whims of parties--Petition was dismissed. [P. 18] D

Mr. Omer Farooq Malik, Advocate for Petitioners.

Mr. Ashiq Ali, Advocate for Respondents.

Dates of hearing: 19.5.2017

Judgment

This civil revision questions the vires of judgment and decree dated 18th of July, 2012, whereby the learned Additional District Judge, Talagang while dismissing the appeal preferred by the petitioners affirmed the order dated 15th of May, 2012 passed by the learned Civil Judge, Talagang, resulting into withdrawal of suit instituted by the petitioners.

1. Precisely the facts necessary for adjudication of instant petition are that the petitioners/plaintiffs instituted a suit for possession of Hevali measuring 01 Kanal 05 Marlas, averring therein that initially the said Hevali was in possession of predecessor-in- interest of petitioners namely Atta Muhammad but after his death the same came under the control of petitioners. As per contents of the plaint, the petitioners shifted to Bhakhar and handed over the possession of said Hevali on temporary basis to Yar Muhammad, predecessor-in-interest of respondents but now the respondents have refused to vacate the same. The respondents, being the defendants contested the suit by filing their written statement wherein the assertions contained in the plaint were controverted. The respondents also instituted a suit for permanent injunction seeking protection of their possession. As both the suits were relating to the same subject matter, so both were consolidated. The divergent stance of the parties resulted into framing of multiple consolidated issues to the following effect:

Consolidated Issues:

1. Whether the plaintiffs Hayat Muhammad etc. are entitled to the decree for possession as prayed for? OPP

2. Whether the suit of plaintiffs Hayat Muhammad etc. is not maintainable in its present form? OPD

3. Whether the plaintiffs Hayat Muhammad etc. have no cause of action or locus-standi to file the suit? OPD

4. Whether the Defendants Noor Khan etc. are entitled to the decree for permanent injunction as prayed for in their respective suit? OPD

5. Whether the suit of Defendants Noor Khan etc. is false, frivolous and is liable to be dismissed with costs? OPP

6. Whether the defendants have no cause of action or locus-standi to file the suit? OPP

7. Whether the description of suit property of Defendants Noor Khan etc. is not correct if so, its effect? OPP

8. Relief.

After framing of above referred issues the proceedings started in the suits and petitioners were treated as plaintiffs whereas respondents were treated as defendants. During pendency of suit learned counsel for the petitioners/plaintiffs got recorded his statement, as a result thereof, suit was dismissed as withdrawn vide order dated 15th of May, 2012. The petitioners feeling aggrieved from the said order preferred an appeal before the learned Additional District Judge, Talagang, however, same was dismissed vide judgment and decree dated 18th of July, 2012, hence this petition.

1. Learned counsel for the petitioners submitted that the petitioners had duly contested the case by producing their oral as well as documentary evidence. He added that learned counsel for the petitioners/plaintiffs without any authority and permission of the petitioners recorded his statement regarding withdrawal of suit on the basis of special oath. Learned counsel further maintained that none of the petitioners were present on the eventful day i.e. 15th of May, 2012 and tempering as well as overwriting is evident from the record. Learned counsel argued that learned lower Appellate Court has committed an illegality, while dismissing the appeal filed by the petitioners.

2. Conversely, learned counsel appearing on behalf of the respondents, while defending the impugned judgment as well as order under challenge, submitted that presumption of truth is attached to the judicial record. Learned counsel maintained that learned Additional District Judge has rightly exercised his appellate jurisdiction, while dismissing the appeal filed by the petitioners.

3. I have heard learned counsels for both the sides at some length and also perused the record.

4. Record is indicative of the fact that petitioners instituted a suit for possession by impleading the respondents as defendants in the same which was contested by them through filing their joint written statement. A separate suit for injunction was also instituted by the respondents, seeking protection of their possessory rights. After framing of above referred issues from the divergent stances of the parties, the learned trial Court proceeded to record evidence of both the sides. When the case was in progress, learned counsel representing the petitioners got recorded his statement on 15th of May, 2012 to the following effect:

"15-05-12 نور خان مدعا علیہ حاضر۔

کونسل فریقین حاضر۔ کونسل مدعی ملک فتح خان ایڈووکیٹ۔

یکے از مدعی حاضر۔

بیانی ہے کہ مدعا علیہ نے قسم نیاں دے دیا ہے۔ بیان قلمبند ہو۔

بیان ازاں ملک فتح خان ایڈووکیٹ ﴿بلا حلف﴾

بیان کیا کہ دعویٰ میں مزید پیروی مطلوب نہ ہے قسم بیان کے بعد ہم قبضہ نہ مانگتے ہیں دعویٰ بصیغہ واپسی خارج کیا جاوے۔

سن کر درست تسلیم کیا"

It is manifestly clear from the proceedings of the above referred date that at the time of recording of statement by the counsel of the petitioners, one of the petitioners/plaintiffs was also present. The fact regarding presence of one of the petitioners/plaintiffs is also admitted by the petitioners in their appeal before the learned Additional District Judge, Talagang in Para No. 2 to the following effect:

"یہ کہ یکہ از مدعیان محمد افضل مدعی نمبر 1B نے رسپانڈنٹس میں سے نور خان سے نیاں پر بلا اجازت دیگر ان تصفیہ کر لیا اور چونکہ مدعی نمبر 1B پیروی مقدمہ کر رہا تھانے کونسل مدعیان کو کہکر دعوی مدعیان بصیغہ واپسی خارج کرنے کا بیان دلوایا۔ جبکہ دیگر مدعیان نے کونسل مدعیان کو ایسی کوئی اجازت نہ دی تھی۔"

Order sheet of the learned trial Court further shows that on the eventful day i.e. 15th of May, 2012 learned counsel for the petitioners/plaintiffs (Malik Fateh Khan, Advocate) also appended his signature in token of correctness of his statement.

1. There is no denial on the part of petitioners that Malik Fateh Khan, Advocate was not their duly appointed counsel in the suit before the learned trial Court. The petitioners are rather resisting the consequences of said statement on the ground that statement was recorded by their counsel without any authority from all the petitioners. The power of attorney executed by the petitioners in the name of Malik Fateh Khan, Advocate clearly reflects that he was vested with the authority to do any act on behalf of petitioners in the following manner:--

"۔۔۔۔۔ مجھ کوکل ساختہ پر واخر صاحب موصوف مثل کردہ ذات منظور و مقبول ہو گا اور صاحب موصوف کو عرضی دعویٰ یا جواب دعویٰ درخواست اجرائے ڈگری و نظر ثانی اپیل نگرانی ہر قسم درخواست پر دستخط و تصدیق کرنیکا بھی اختیار ہو گا اور کسی حکم یا ڈگری کرانے اور ہر قسم کا روپیہ وصول کرنے اور رسید دینے اور داخل کرنے اور ہر قسم کے بیان دینے اس پر ثالثی وراضی نامہ و فیصلہ بر حلف کرنے اقبال دعویٰ دینے کا بھی اختیار ہو گا۔۔۔۔۔"

This leaves no ambiguity that Malik Fateh Khan Awan, Advocate was a duly appointed counsel and his statement was binding upon the petitioners.

1. Order III of The Code of Civil Procedure (V of 1908) (hereinafter referred as “CPC”) deals with the matter of appearance by a person or his recognized agent or pleader in the proceedings before the Court and any such appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent or by a pleader on his behalf. The appointment of pleader is governed by Rule 4 of Order III of “CPC” which reads as under:

“4. Appointment of pleader.--(1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorized by or under a power-of-attorney to make such appointment.

(2) Every such appointment shall be filed in Court and shall be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client.

(3) For the purposes of sub-rule (2) an application of review of judgment, an application under S. 144 or S. 152 of this Code, any appeal from any decree or order in the suit and any application or act, for the purpose of obtaining copies of documents or return of documents produced or filed in the suit or of obtaining refund of monies paid into the Court in connection with the suit shall be deemed to be proceedings in the suit.

(4) --------------------

(5) --------------------

(a) ---------------------

(b) ---------------------

(c) ---------------------”

It is manifestly clear from the above that authority of a pleader duly appointed by a person(s) to act on his/her behalf in a Court shall be deemed to be in force until determined with the leave of the Court by a writing signed by the client(s) or the pleader, as the case may be, and filed in Court or until the client(s) or the pleader dies, or until all proceedings in the suit are ended so far as regards the client(s).

1. In view of above, the stance of the petitioners that the statement was recorded by their counsel without any authority loses its efficacy and is highly ill-founded. The petitioners are precluded to wriggle out of statement recorded by their duly appointed counsel before the Court. A party is always bound by the statement of his counsel, unless there is anything contrary in the power of attorney places restriction on the authority of the counsel to compromise or abandon the claim on behalf of his client. In the case of “Hassan Akhtar and others versus Azhar Hameed and others” (PLD 2010 Supreme Court 657) the Hon’ble Supreme Court of Pakistan, while dealing with the issue akin to issue in hand held as under:

“13. It is by now well-settled that an Advocate has authority to make statement on behalf of his client, which is binding upon the client, unless there is any thing contrary in the Vakaltnma putting restriction on the authority of the Advocate to compromise or abandon claim on behalf of the client. The Advocate’s power in the conduct of a suit allows him to abandon the issue, which in his discretion, advisable in the general interest of his client.”

The above view was previously affirmed in the case of “Afzal and others versus Abdul Ghani” (2005 SCMR 946).

1. Record is indicative of the fact that suit was decided with consent of the parties on the basis of statement of learned counsel for the petitioners. Such a consenting order/decree was not appealable in terms of Section 96 of “CPC” and the appeal before the learned Additional District Judge, Talagang was not competent in view thereof.

2. This Court is cognizant of the fact that now a days such a tendency on the part of litigants is increasing day by day that after having appointed a counsel of their choice, bestowing an authority to act on their behalf before the Court, after settlement of the issue on the basis of bilateral compromise between the parties and recording of statements before the Courts to that effect, move applications on the false pretext in order to wriggle out of the consequences pursuant to such statements for achieving their illegal designs. This practice cannot be appreciated and if such a trend is allowed to flourish that will completely destroy the confidence and trust attached to the relationship of counsel and client on the one hand and on the other will diminish the sanctity attached to the judicial proceedings. It is thus high time to curb such tendency on the part of chronic litigants.

There is nothing on the record to suggest that statement recorded by the counsel was lacking any authority by his clients i.e. the petitioners. Even otherwise presumption of truth is attached to the judicial proceedings in terms of Article 129(e) of The Qanun-e- Shahadat Order, 1984, which cannot be allowed to be altered or swayed at the whims of the parties.

1. After having examined the record, I am of the considered opinion that after withdrawal of the suit, the petitioners mala fidely approached the Court and their act of accusing their duly appointed counsel not only gives a bad taste to the legal profession but also undermines the sanctity attached to the judicial proceedings. This was the reason that learned Additional District Judge has rightly dismissed the appeal filed by the petitioners. There is no illegality or material irregularity in the impugned judgment rather the petitioners by way of this petition have tried to thwart the process of law. Resultantly this petition is dismissed with costs of Rs. 50,000/- which shall be deposited by the petitioners with the Deputy Registrar (Judicial) of this Court within fortnight, failing which the same shall be recovered from them as arrears of land revenue in accordance with law.

(Y.A.) Petition dismissed

PLJ 2018 Lahore 18 [Multan Bench Multan]

Present:Abdul Rehman Aurangzeb, J.

ALI IRTAZA--Petitioner

versus

A.D.J. MULTAN & 2 others--Respondents

Writ Petition No. 8676 of 2015, heard on 16.8.2017.

Guardian & Wards Act, 1890 (VIII of 1890)--

----S. 25--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Suit for recovery of--Maintenance allowance, delivery expense and dowery articles--Decree--Execution petition--Application for custody of minor--Dismissed--Application for D.N.A. test of minor--Dismissed--Question of--Whether minor is not a legitimate child of petitioner--Whether petitioner has not accepted paternity of minor or otherwise--Disqualification for retaining custody of minor--Remarriage of parents--Challenge to--Guardian Judge merely reproduced evidence of parties and after reproduction of evidence, decided fate of this crucial issue on basis of an application, allegedly moved by petitioner for DNA test of minor girl--Admittedly, application was dismissed by learned Guardian Judge, but on basis of this application--It was held that petitioner, who has not of this heart accepted minor as his real daughter and for this reason, it presumed that petitioner is not entitlted for custody of minor--Similarly, learned appellate Court has also not viewed consideration of welfare of minor and merely re-endorsed only reason of trial Court--Opinion of trial Court without any admissibility of application is an act of surmises and conjectures, hence, both Courts below have not adverted to this fect judiciously--In addition to this, even if it is accepted that petitioner has willfully moved an application for DNA test of his minor daughter, which was negated by petitioner, he has no bearing effect on fate of custody of minor--Above referred para shows disqualification for retaining custody of minor in presence of marriage with a person, who is not related to child within prohibited degrees, loses right of custody of minor--Learned trial Court has not considered this aspect of case, and also failed ot discuss evidence produced by parties, on this ground, especially when it has been admitted by Respondent No. 3 that she married with a person, who does it belong to prohibited degree of minor girl, similarly, at same time other aspect and defect of marriage of parents was also not determined by Courts below--In interest of Justice to point out that relevant evidence with regard to custody of a child, especially when she is a girl, should be determined by learned trial Court in prime interest of justice especially when evidence on record is insufficient to decide question involved--Petition allowed.

[Pp. 21, 22 & 23] A, B, C & D

Mr. Ihsan Qadir Babar, Advocate for Petitioner.

Mr. Iftikhar Majid, Advocate for Respondent No. 3.

Date of hearing: 16.8.2017.

Judgment

Through this writ petition, the petitioner has challenged the validity of judgments dated 09.07.2014 and 13.03.2015, passed by the learned Guardian Judge, Multan, and learned Additional District Judge, Multan, whereby, the application moved by the petitioner under Section 25 of The Guardians & Wards Act, 1890, was concurrently dismissed.

1. Briefly, the facts necessary for the disposal of this writ petition are that the petitioner filed an application under Section 25 of The Guardians & Wards Act, 1890, for custody of the minor girl, namely Aleeza. The contention of the petitioner is that, after marriage with Respondent No. 3/Mst. Komal Zahoor, a baby girl Aleeza was born on 30.09.2005, but later on the relationship between the parties were not remained cordial, and ultimately the marriage of the spouses was dissolved through divorce on 31.08.2006. Thereafter, Respondent No. 3 filed a suit for recovery of maintenance allowance alongwith delivery expenses and dowry articles, which was decreed in her favour on 18.06.2009, and in continuation of further proceedings, Respondent No. 3 also filed an execution petition.

2. During the pendency of above-mentioned suit and execution petition, the petitioner filed an application for permanent custody of the minor, which was hotly contested by Respondent No. 3.

3. The learned Guardian Judge, after framing of issues and recording of evidence, dismissed the application of the petitioner on 09.07.2014, and the appeal also met the same fate, by the learned appellate Court on 13.03.2015. Hence, this writ petition.

4. Learned counsel for the petitioner contends that both the Courts below erred in law without adverting to the issues, in question, and decided the matter on flimsy ground of presumption of application for DNA (deoxyribonucleic acid) test of the minor, allegedly moved by the petitioner and, hence, on this ground, the petitioner was not held to be entitled for the permanent custody of his minor daughter. He further argued that Issues No. 1 and 6, pertaining to welfare of the minor and disqualification of custody, was not decided on the basis of material evidence available on the record. Thus, both the Courts below have committed grave illegality to exercise their vested jurisdiction; therefore, both the impugned judgments are liable to be set-aside.

5. On the contrary, learned counsel for Respondent No. 3 has vehemently opposed the contentions and stated that both the Courts below have validly examined the contentions and, after taking into consideration the material, has rightly turned down the application, on the basis of legal, as well as, factual aspects of the case.

6. I have heard learned counsel for the parties at length and have perused the record minutely.

7. The controversy between the parties requires that, while deciding the matter, in hand, the paramount consideration is the welfare of the minor girl. The evidence produced by both the parties was not properly analyzed by both the Courts below. In this regard, my keen observation relates to the findings of the learned Guardian Judge, where Issue No. 1 relating to the welfare of the minor girl was decided erroneously by the learned Guardian Judge. The learned Guardian Judge merely reproduced the evidence of the parties and after reproduction of the evidence, decided the fate of this crucial issue on the basis of an application, allegedly moved by the petitioner for DNA test of the minor girl. Admittedly, the application was dismissed by the learned Guardian Judge, but on the basis of this application, it was held that the petitioner, who has not by his heart accepted the minor as his real daughter and for this reason, it presumed that the petitioner is not entitled for the custody of the minor. Similarly, the learned appellate Court has also not viewed the consideration of the welfare of minor and merely re-endorsed the only reason of trial Court.

8. At this juncture, it is not out of place to mention that the evidence produced by the parties is totally deficient in nature, the stance of the parties based on the previous litigation, but the required evidence of parties was not made part of the record from where it could be ascertained that whether the petitioner has not accepted the paternity of minor or otherwise. Similarly, the application for DNA Test was also not available on record of the trial Court as per requirement of evidence. The opinion of trial Court without any admissibility of the application is an act of surmises and conjectures, hence, both the Courts below have not adverted to this fact judiciously. In addition to this, even if it is accepted that the petitioner has wilfully moved an application for DNA Test of his minor daughter, which was negated by the petitioner, has no bearing effect on the fate of the custody of minor. As the authenticity of DNA Test was not approved by the Apex Court as a conclusive opinion in dispute of paternity. In this regard, reliance can be placed upon Azeem Khan and another vs. Mujahid Khan and others (2016 SCMR 274) and Mst. Rubina Kausar vs. Additional Sessions Judge and others (PLD 2017 Lahore 604). It is essential for the Courts below to examine that whether the minor daughter, whose maintenance allowance has been asked by Respondent No. 3 is or is not a legitimate child of the petitioner, and secondly, the effect of the dismissal of the application for DNA Test. In view of this matter, the decision of application under Section 25 of The Guardians & Wards Act, 1890, for custody of the minor, could not merely based on the application for DNA Test and for this reason above, he could not be held disentitled. It is held in “Mrs. Seema Chaudhry and another versus Ahsan Ashraf Sheikh and others” (PLD 2003 Supreme Court 877) that:

“The primary consideration for determining the question of custody is always the welfare of the minor and there could not be an absolute rule and fixed criteria to determine the question of welfare in the same manner in each case rather it being a mixed question of law and fact is decided in the facts of each case and consequently the factors having only social importance or the desirability of the father or mother to retain the custody of minor, would not overwrite the consideration of welfare in determining the question of custody.”

1. The other important aspect of the case, in hand, is also contentious, which was decided by the learned trial Court in a cursory manner. Issue No. 6 framed by the learned trial Court reveals that the petitioner agitated the grounds of custody in view of provisions of Para-354 of Mahomedan Law by D.F. Mullah. But the learned trial Court without deciding the legal issue declared it redundant. At this stage for better appreciation of the subject in the referred Para is reproduced below:--

“354. Females when disqualified for custody.--A female, including the mother, who is otherwise entitled to the custody of a child, loses the right of custody:--

(1) if she marries a person not related to the child within the prohibited degrees (ss. 260-261) e.g., a stranger (n), but the right revives on the dissolution of marriage by death or divorce (o); or, (2) if she goes and resides, during the subsistence of the marriage, at a distance from the father’s place or residence; or, (3) if she is leading an immoral life, as where she is a prostitute (p); or

(4) if she neglects to take proper care of the child.”

The above-referred Para shows that the disqualification for retaining the custody of the minor in presence of marriage with a person, who is not related to the child within the prohibited degrees, loses the right of custody of the minor. The learned trial Court has not considered this aspect of the case, and also failed to discuss the evidence, produced by the parties, on this ground, especially when it has been admitted by the Respondent No. 3 that she married with a person, namely, Abdul Baqi, who does not belong to prohibited degree of minor girl. Similarly, at the same time the other aspect and effect of remarriage of parents was also not determined by the Courts below.

1. At this stage, I feel it proper without further expressing any opinion with regard to the deficient evidence, produced by the parties. However, it is in the interest of justice to point out that the relevant evidence with regard to the custody of a child, especially when she is a girl, should be determined by the learned trial Court in the prime interest of justice especially when the evidence on record is insufficient to decide the question involved.

In “Syed Sharif-ul-Hassan through L.Rs versus Hafiz Muhamamd Amin and others” (2012 SCMR 1258) it is held that:

“This Court has consistently held that if a lis involving a disputed question of fact is decided, it has to be decided on proper appraisal of evidence and that if a lis involving appreciation or interpretation of law is decided, it has to be decided in accordance with the well recognized principles laid down by this Court from time to time. Justice at no cost and at no stage be allowed to fall prey to the procedural technicalities. They be ignored if they tend to create hurdle in the way of justice. For law can survive as a living force only, when it dynamically assimilates and adapts to the changes around to further the cause of justice. This is how the law grows and this is how the jurisprudence advances.”

Furthermore, the impugned judgment in my view suffers from basic defect due to declaration of the Issue No. 6 as redundant, hence, it deems that no decision on this specific issue. Therefore, I have left with no other option, except to allow this constitutional petition. Thus, this petition is allowed and consequently the impugned judgments dated 09.07.2014 and 13.03.2015, passed by both the Courts below are set-aside. The matter is remanded back to the learned Guardian Judge, where the parties would be at liberty to bring on record the required additional evidence, and the learned Guardian Judge will decide the matter afresh in accordance with law.

1. Since the parties are being represented through their learned counsel today; therefore, they are directed to appear before the learned Guardian Judge, Multan, on 18.09.2017, who is further directed to expedite the proceedings of the matter and conclude the same positively by third week of December, 2017.

(Y.A.) Petition allowed

PLJ 2018 Lahore 24 [Multan Bench Multan]

Present: Shahid Jamil Khan, J.

MEHAR PERVAIZ AKHTAR--Petitioner

versus

DIRECTOR GENERAL EXCISE AND TAXATION LAHORE etc.--Respondents

W.P. No. 3851 of 2017, heard on 24.5.2017.

Punjab Urban Immoveable Property Tax Act, 1958 (VI of 1958)--

----S. 3(1)--Urban Area--Division--Power and scope--It empowers government to devised an urban area in two or more rating areas or to group several urban areas into one Urban Area. [P. 27] A

Constitution of Pakistan, 1973--

----Art. 10 A--Due process--Scope--Due process is an inviolable fundamental right of every citizen after introduction of Article 10-A in constitution which has a connotation wider than right of fair trial and to be dealt in accordance with law. [P. 28] B

Constitution of Pakistan, 1973--

----Art. 10 A--Due process--Object and purpose--Due process is , meant to protect citizen from arbitrary use of executive power, exercised without following exact course of law--An inviolable fundamental right of every citizen after introduction of Article 10-A in constitution which has a connotation wider than right of fair trial and to be dealt in accordance with law. It ensure rule of law and curb pursuit of executive to rule by arbitrary exercise of power under law. [P. 29] D & E

Punjab Urban Immoveable Property Tax Rules, 1958--

----R. 15(4)--Tax levied--Non proceedings--Non-association--Validity--Held:Nor Association of any citizen in assessment proceedings, for charging of a Tax levied under Act and mandatory Rules, not only meant to denial of fair trial and dealing him against law, but is a sheer violation of due process. [P. 29] C

2017 PTD 805, ref.

Punjab Urban Immoveable Property Tax Rules, 1958--

----R. 15(4)--Tax Demand--Non-payment--Assessment proceedings--Non-Association--Validity--Held: Raising tax Demand without associating tax payers in assessment proceedings amounts to condemn unheard. [P. 29] F

Due Process--

----Principle--Audi alteram partem--It is a necessary and fundamental requisite of due process--Order accordingly. [P. 29] G

M/s. Ch. Shafat Ali and Mughees Aslam Malik, Advocates for Petitioner.

M/s. Umar Farooq Khan and Malik Muhammad Bashir Lakhesir, Assistant Advocates General, Punjab for Respondents No. 1 to 4.

Mian Muhammad Ashfaq Hussain, Advocate for Respondent No. 5/Pakistan Railways.

Mr. Tariq Manzoor Sial, Advocate/Amicus Curiae.

Qurban Ali Shahid, Excise & Taxation Officer, Vehari, Bashir Ahmad Kharal, Assistant Excise & Taxation Officer, Vehari, Rana Sakhawat Ali, Excise & Taxation Officer (Property Tax) Multan, and Munawar, Inspector Legal, Excise & Taxation Department.

Date of hearing: 24.05.2017.

Judgment

Petitioner has assailed two notices for sealing (Tala Bandi) of his shops for non-payment of Tax levied under the Punjab Urban Immovable Property Tax Act, 1958 (“the Act”), known as “Property Tax”, along with a demand notice issued under Rule 15(4) of the Punjab Urban Immovable Property Tax Rules, 1958 (“the Rules”).

1. The petitioner is in possession of the shops as lessee of Pakistan Railways (Respondent No. 5) since November 2005, under a lease agreement, for 10 years extendable from time to time. Exemption from Property Tax is claimed, under Section 4(a) of the Act, as property, assertively, is owned by Federal Government through Pakistan Railways. An application to claim exemption was moved before Respondent No. 1, which has not been decided till filing of this petition.

2. Learned counsel for the petitioner; besides the claim of exemption, submitted that impugned demand was created without following due and mandatory process under the Act and Rules; petitioner was never associated in assessment proceedings, hence was deprived of the opportunity to raise claim of exemption at first instance. Without prejudice to the claim of exemption, he argued that the impugned demand is created arbitrarily without confronting the petitioner with proposed value of the property or calling for Return, hence the assessment and consequent demand is liable to be declared without lawful authority.

Learned counsel for Pakistan Railways did not deny the lease agreement between petitioner and Pakistan Railways, executed on behalf of President of Pakistan, however has referred to Clause (12) of the Lease Agreement to submit that all the taxes due on the properties are to be paid by the petitioner/taxpayer.

Malik Muhammad Bashir Lakhesir, Assistant Advocate General, Punjab, representing Respondents No. 1 to 4, has referred to the definition of “owner” as defined in Section 2(e) of the Act to submit that lessee is defined as owner, therefore, is liable to pay the tax. Replying to the arguments on due process, learned AAG has apprised that a survey was conducted in the year 2013-14 of the area and valuation of the shops was determined, after inviting objections, under the Act and Rules. He explained that the survey was completed after due notice to the petitioner, including other taxpayers of the area, through publication in newspaper and affixation of pamphlets. It is apprised that after completion of survey, Form P.T.1 was prepared and on the basis of Form P.T.1, the Tax at the rates notified by the Government of the Punjab (“Government”) were applied to raise the demand. He concluded that Form P.T.1 was prepared, after giving opportunity of filing objections within 30 days.

Qurban Ali Shahid, Excise and Taxation Officer, Vehari (“ETO”) was asked to show from the record that petitioner was associated in the proceedings. In response; Survey Register of the area was produced, which did not bear signatures of the petitioner. Confronted with this fact on record, the ETO could only explain that all the taxpayers were informed through press publication and affixation of notices. It could not be established from record that petitioner was associated, at any stage, in the process of survey or assessment. He admitted that no notice, calling for Return, as required under Section 8(1) of the Act, was issued. It is also an admitted position that assessment order, as recorded in Form P.T.1, was never communicated to the petitioner enabling him to challenge it under the Act or Rules.

1. Heard, record perused.

2. To understand the scheme of levying, charging and recovery of Property Tax, provisions of the Act and Rules are examined in backdrop of the facts, ibid.

The Tax, under this Act, is levied in an Urban Area, notified by the Government under sub-section (1) of Section 3. Proviso to the sub-section empowers the Government to divide an Urban Area into two or more Rating Areas or to group several Urban Areas into one Rating Area. The Rating Area is defined under Section 2 (g), which means, “urban area where tax is levied under the provisions of this Act”. Under sub-section (2) to Section 3; the Tax is levied, charged and paid on Annual Value of a building or land, or both, in a Rating Area at five percent of the Annual Value of the property. The Annual Value is defined in Explanation to this sub-section as “aggregate annual value of all buildings and lands owned by same person in the rating area”. Subsection (4) tells that the Tax shall be due (recoverable) from the owner of buildings and lands. The term Owner, defined in Section 2(e), includes “a lessee in perpetuity”. Section 4 deals with Exemptions and its clause (a) grants exemption to the buildings and lands owned by Federal Government, except those which are leased in perpetuity.

To claim of the exemption, petitioner has to establish that the shops are owned by Federal Government and are not leased to him in perpetuity. The claim of exemption needs to be examined and determined by the Authorities, under the Act and Rules. Admittedly, petitioner was not associated in the survey or assessment, therefore, was deprived of an opportunity to claim the exemption; nor the claim of exemption has been rejected by assessing authority through any formal or legal order. It can unescapably concluded, as appearing from the produced record, that the survey, assessment and impugned notices, are made/issued without following mandatory procedure under the Act and Rules.

1. Though power to impose Tax is predominant and paramount attribute of the State, under Article 7 of the Constitution of Islamic Republic of Pakistan, 1973 (“the Constitution”). Nevertheless; imposition and collection of Tax necessarily has an effect of depriving a citizen from his property, to which he is entitled under Article 23. Article 24 of the Constitution bestows a fundamental right that he shall not be deprived of his property which is saved under the law. August Supreme Court, in M/s. Mustafa Impex v. The Government of Pakistan (PLD 2016 SC 808), while laying down principles regarding mandatory characteristics of rules imposing Tax or financial burden on a citizen has enshrined:

“51. The argument is sometimes advanced, in order to defeat the language of subordinate legislation, that it is merely directory and not mandatory. It is necessary to emphasize the point that, in the normal course, there is no reason whatsoever why the language of rules should not be considered to be mandatory unless it is ex facie discretionary. The rules are framed to achieve a certain objective and to achieve this within the channels relating to the devolution and flow of statutory authority. In the absence of compelling reasons to the contrary all rules are, and should be considered to be mandatory and binding. The burden of proof lies on anyone asserting that the rules in question are directory and not mandatory. He must establish that there is a sound and powerful reason why they should not be considered mandatory and binding. This principle applies with redoubled force, for and in relation to two sets of rules; firstly, constitutionally mandated rules i.e. the Rules of Business, and secondly, rules framed under fiscal enactments. Constitutionally mandated rules are closely intertwined with the concept of good governance for and in the public interest. Allowing a departure therefrom would be detrimental to open and transparent forms of governance. If a government department admits that although it has violated explicit provisions of the rules, its violation should be condoned by treating the breach as non-actionable merely on the ground of its supposedly being directory, then surely serious questions arise in relation to the good faith of the department. In each and every case the presumption of law would be that the rules are mandatory and should be observed and followed. If, and only if, a compelling public interest is established as a reason for non-compliance with the rules i.e. other than inadvertence, or negligence, or incompetence then, and only then, can the Court consider whether or not to condone the breach in the observance of the rules. These considerations are fortified and amplified for, and in relation to, fiscal enactments. The reason is twofold; firstly Article 77 of the Constitution only enables the levy of tax under law and, secondly,the levy of a tax inevitably implies a restriction of a citizen’s right to property. Payments of tax amount to a corresponding deprivation of property and, since the right to property is a fundamental right, this can only be done by means of strict compliance with the law. It follows that the breach of Rule 16 is fatal to the case of the Government. Although this is sufficient to dispose of the case it is necessary that we should also clarify the constitutional position, for which it is necessary to revert to the concept of Federal Government.”

(emphasis supplied)

Due process is an inviolable fundamental right of every citizen after introduction of Article 10-A in the Constitution, which has a connotation wider than right of ‘fair trial’ and ‘to be dealt in accordance with law’, as guaranteed in the Article 4. Non association of any citizen in assessment proceedings, for charging of a Tax levied under the Act and mandatory Rules, not only amounts to denial of fair trial and dealing him against the law, but is a sheer violation of due process. Due process is meant to protect the citizen from arbitrary use of executive power; exercised without following exact course of law. Requisites of due process are required to be satisfied by the executive to respect the legal rights of a citizen. Due process is meant to ensure Rule of Law and curb the pursuit of executive to rule by arbitrary exercise of power given under the law.

Raising Tax Demand without associating the taxpayer in assessment proceedings amounts to condemn unheard. ‘Audi alteram partem’ is a necessary and fundamental requisite of due process, which has been guarded by superior Courts in various judgments, even before insertion of Article 10-A in the Constitution, to declare that it should be read in every statute.

Assessment of a Tax, levied under a valid statute, is meant to determine the Tax Liability subject to the condition stipulated in the law. The taxpayer, who falls within the mischief of charging provision, has a fundamental right to defend himself from the levy or it’s charging as per the conditions under the statute. Any doubt in the charging provision has to be resolved in favour of the taxpayer because it deprives the taxpayer from its property, therefore, falls within the exception under Article 24 of the Constitution. For providing the opportunity to defend, issuance of show-cause notice is mandatory, therefore, any assessment order without issuance and due service of the show-cause notice is nullity. If a statue does not provide specifically for issuance of show-cause notice, such procedure has to be prescribed by subordinate legislation under the statue. Conversely; obedience to the law is inviolable obligation of every citizen, hence it is his duty to pay the Tax imposed under the law. For payment of due Tax by the citizen, taxing statutes require the citizen to get himself registered with the tax departments and file Returns thereunder, declaring the information necessary for charging due Tax and determination of due Tax himself, followed by voluntary payment of Tax. In Federal taxing statute, such Returns are taken to be an assessment order, which can be called in question by the assessing officer, through show-cause notice, if in his opinion the declaration of information is incorrect or determination of Tax is not in accordance with the statute. On receipt of reply to show-cause notice, the assessing officer is bound to provide opportunity of being heard and pass a reasoned assessment order as required under Section 24A of the General Clauses Act, 1897. Communication or service of such assessment order, as per law, is again a necessary requisite of due process, absence of which denies the right of appeal or revision under the law. Any demand of Tax or coercive measures for its recovery is illegal, being violative of the Articles 10-A, 4 read with Articles 23 and 24 of the Constitution.

1. In the instant case mandatory procedure has not been followed for survey to determine value, assessment and consequent recovery notices.

The Property Tax is charged by the Excise and Taxation Department by appointing an assessing authority under Section 6 of the Act for a rating area. To tax a property in a rating area, annual value of the property is required to be ascertained under Section 5. Section 5-A also deals with ascertainment of annual value and gives power to the Government to notify valuation tables of the localities and fix the valuation for a rating area/locality, based on which Tax can be charged. Valuation list is required to be made under Section 7 as per the value ascertained under Section 5 or notified under Section 5-A. This list, under sub-section (1) of Section 7, is to be made for five years, which can be reduced or extended by the Government. Sub-section (1) of Section 8 requires the assessing authority to call for Returns from the taxpayers before preparing any valuation list and the draft valuation list has to be prepared after expiry of the period for calling the Returns. The information given in the Returns has to be incorporated in the draft valuation list. In case the Return is not filed by the taxpayer, the assessing authority can still make a draft list on the basis of ex-parte assessment before publishing the same in the manner as prescribed in the Rules. Before publishing draft valuation list, objections are to be called under sub-section (2) of Section 8 from the taxpayers.

Under Section 3, the assessing authority may divide the rating area into subdivisions or mohallahs and shall allot a unique number to each property in the subdivision, mohallah or street. After ascertaining the names of owners or occupiers, Returns are to be called on Form P.T.2. The assessing authority can also issue a public notice asking the taxpayer to make declaration on Form P.T.4. In addition to the information received through Returns, the assessing authority may also ascertain information regarding the property, under the remaining clauses, before preparing draft valuation list in Form P.T.5. After publication of the draft valuation list, as required under Rule 7, another opportunity is required to be given to the taxpayer for filing objections under Section 8(2) of the Act.

A detailed procedure for filing and disposing of the objections is provided under Rules, 8, 9 & 10. It is ensured under the Rules that objections, filed by the taxpayers, are not to be disposed of mechanically. An opportunity of being heard, at every stage of assessment, is provided under the Rules by prescribing a detailed procedure, to be followed by the assessing authority. If objections are found correct, then the valuation list can be amended under Section 9 of the Act, any time, after publication of the valuation list. Section 9 also deals with the situations of addition or decrease in value of the property between the period of publication of valuation list and creation of the new valuation list. The amendment or correction can also be made on the basis of clerical or arithmetical error in description of the property. After completing this procedure, the valuation so made is authenticated under Rule 11 which envisages preparation of Form P.T.1, which needs to be authenticated by the assessing authority before the first day of July or first day of January. The Form P.T.1, to be issued under Section 11, shall be revised upon any amendment under Section 9 in the valuation list by the assessing authority.

1. From examination of the procedure, noted above, it can easily be concluded that Form P.T.1 is the assessment order containing all the assessed information regarding property to be taxed and duly authenticated by the assessing authority. Rule 11 is silent about communication of P.T.1 Form to the taxpayer. If Section 10 is examined, it provides a right of appeal and revision to a taxpayer. A person aggrieved by an order of appropriate authority upon which objections made before that authority under Sections 8, 9, 14 or 15, may file appeal against such order within thirty days. However, procedure for communication of the reasons for rejection of the objections is not provided under the Rules. Sub-rule (4) of Rule 10 only envisages that the reasons for the disposed of objections shall be recorded in register in Form P.T.7. Though the register, as well as, P.T.1 is open to inspection, yet order in this regard is never communicated to the taxpayer.

2. For the reasons discussed, supra, such a practice or procedure cannot allowed to be continued. Government is bound to revise the Rules accordingly and till such revision the respondents shall communicate the reasons for rejection of the objections in writing to the taxpayer and shall also communicate a copy of Form P.T.1 to the taxpayer on his address, enabling him to seek his right of appeal or revision and the limitation shall commence from the date of the communication.

3. Impugned notices are examined in light of submissions and the law. Notice of sealing of property does not refer to any provision of law, whereas accompanied demand notice is on Form P.T.10 issued under Rule 15(4) of the Rules.

Sections 14, 15 & 16 deal with the recovery of Tax not paid voluntarily. Under Section 14 the tenant of property can directly be asked by the prescribed authority to pay rent to the authority or to proceed against the tenant of property. Section 15 deals with penalty for default in payment of Tax, besides imposing late payment surcharge under Section 12(3). Under sub-section (1) of Section 15, if taxpayer fails to pay Tax after being served for recovery of Tax, the prescribed authority may issue notice for imposition of penalty but not more than the amount so unpaid. Its sub-section (2) requires that the prescribed authority shall satisfy itself that non-payment of penalty was willful. Needless to say that willful default can be determined only after providing opportunity of being heard.

Section 16 deals with recovery of unpaid dues. The Tax/late payment surcharge and penalty can be recovered by Collector or a person authorized by him, by issuing a warrant in prescribed form or in a form signed by the Collector. The warrant is to be addressed to Excise and Taxation Officer for commencing recovery proceedings. Such recovery can be made by distress or sale of the movable property belonging to the defaulting taxpayer or by attachment and sale of the immovable property belonging to him. Under sub-section (2) such an amount can also be recovered as arrears of land revenue, for which a detailed procedure is provided under the Land Revenue Act, 1967. Subsection (3) of Section 16 imposes first charge upon the building to be taxed.

Under Rule 15, the assessing authority is required to maintain for each rating area, a Tax Demand and receipt register in Form P.T.8. The demand notice, as contemplated under Rule 15(1), is required to be prepared under Rule 15(2) in Form P.T.9. The demand notice, under sub-rule (4) is to be accompanied by a challan in Form P.T.10, which envisages its issuance if arrangements from door to door collection or payment, at the office of assessing authority, is not made. Such a Form is also required to be issued, if so demanded by the taxpayer. The mode of volunteer payment by the taxpayer is provided under sub-rule (5) of Rule 15.

Rule 16 deals with imposition and collection of penalty. A show-cause notice is required under sub-rule (1) in Form P.T.11 before imposition of penalty. After imposition of penalty a demand notice, in Form P.T.12, is required to be served on the taxpayer under Rule 16(3). Rule 17 deals with recovery from tenants and Rule 18 deals with recovery of Tax through tax collecting staff. However, it is apprised that no Notification for appointment of tax collecting staff is made, therefore, all taxes are recovered through banks.

Rule 19 deals with recovery of the Tax and penalty as arrears of land revenue. The assessing authority is required to issue a certificate in Form P.T.16 of the unpaid amount of Tax, surcharge and penalty, upon which proceedings are to be adopted under Land Revenue Act, 1967. For the purposes of Sections 14 and 15, the assessing authority is declared as prescribed authority under Rule 25. Rule 29 deals only for issuance of warrant under Section 16(1) in Form P.T.20. The Collector or authorized person shall issue a warrant in prescribed Form P.T.20 for recovery through distress or sale of movable property or attachment and sale of immovable property. Form P.T. 20 being relevant is reproduced hereunder:--

“To

……………

……………

Whereas …………… was served with a notice of demand under the West Pakistan Urban Immovable Property Tax Act, 1958, and whereas he has not paid the sum of Rs……………as property tax and Rs…………as penalty within the time specified in the said notice; these are to command you to attach the movable/immovable property of the said……………and unless the said……………pay to you the said sum of Rs……………together with Rs…………..as the cost of recovery within……………days of the attachment of said movable/immovable property you should put it to sale to recover the aforesaid amounts out of its sale proceeds.

You are further commanded to return this warrant on or before the……………day of…………..with an endorsement certifying the day on which and manner in which it has been executed, or why it has not been executed.

Given under the seal of the Collector (Deputy Director, Excise and Taxation), this day of……………19…..

Seal

Collector

(Deputy Director, Excise and Taxation).”

Admittedly, no such warrant by any authority was issued in this case. It is admitted by respondents’ side that for recovery of any tax, by adopting coercive measures, procedure is not followed.

1. This Court, after examining the procedure provided in the Act read with Rules, has reached to the conclusion that the rights of petitioner, as provided in above noted articles/provisions, have been violated. The respondent authorities are not adhering to any law or prescribed procedure, starting from valuation of properties till recovery of Tax. The ETO could not show that Returns are being called from the taxpayers, either in the instant or any other case. It was specifically asked, during proceeding, to show from record the notices for calling Returns before or during preparation of valuation list for 2013-14, the answer was in negative. It clearly shows that the valuation lists are being prepared arbitrarily without following due process. This Court is not satisfied with the reply of ETO that taxpayer has to collect Return forms from the office, whereas assessing authority is bound under the law to number each property before calling for Return. The taxpayer can also be provided with a copy of Return and notice along with Form P.T.4 prescribed for calling Returns.

During arguments, it is apprised by Inspector Legal, appearing from respondents’ side that data of the rating area has been computerized and now computer generated demand notices are being issued in six districts of the Province of Punjab. When asked to show that corresponding amendment is brought in the Rules, he was unable to reply satisfactorily. It is also noticed that the prescribed Return (Form P.T. 4) does not carry any specific column where the taxpayer can claim that his property is exempt from taxation. The Government is expected to bring necessary changes in the Rules to ensure conformity of the Rules with fundamental rights guaranteed under the Constitution. Therefore, the Secretary Law and Parliamentary Affairs, Punjab is directed to look into the matter and propose necessary amendments to the law makers or concerned authorities, not later than ninety (90) days from receipt of this judgment.

Till such amendments; concerned ETOs shall be bound to serve Form P.T.1, and other discussed Forms, on the taxpayer before raising demand, enabling him to file appeal or revision against the assessment. Learned Division Bench of this Court has given guidelines in Muhammad Khalid Qureshi v. Province of Punjab through Secretary, Excise and Taxation Department, Lahore and another (2017 PTD 805), relevant part of which is reproduced hereunder:--

“36. It is well settled that all statutory authorities or bodies derive their powers from statutes which created them and from the rules and regulations framed thereunder. Any action taken or exercise of powers by a statutory authority or body, which is in derogation of the statute/rules, can be assailed and declared as ultra vires….”

1. For the foregoing reasons, impugned notices for sealing of property, the valuation list and assessment completed without following mandatory provisions/procedure are declared without lawful authority and nullity in the eye of law.

However, the assessing authority is at liberty to call for Return from the petitioner and after following mandatory provisions of law amend the valuation list by invoking provisions of Section 9 of the Act of 1958 read with Rule 9 of the Rules of 1958. While amending valuation list, claim of exemption by the petitioner shall also be considered and decided in accordance with law.

This petition stands disposed of accordingly.

(W.I.B.) Order Accordingly

PLJ 2018 Lahore 35

Present: Mudassir Khalid Abbasi, J.

ALI HAMZA--Petitioner

versus

GOVT. OF PUNJAB, etc.--Respondents

W.P. No. 57381 of 2017, heard on 16.8.2017.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Appointment in disciplinary force--Concealment of facts and Acquittal from Criminal case--Distinction & Effect--Validity--A candidate making false undertaking is not entitled to get employment in a disciplinary force--Even acquittal in criminal cases cannot be made basis for exoneration in case of violation of departmental discipline or commission of any misconduct. [P. 41] A & B

Appointment--

----Departmental action and criminal proceedings--Distinction--Object & purpose--Law enforcing agency--Eligibility of candidate--In departmental proceedings desirability of a civil servant to continue in service is under examination, whereas the object of criminal proceedings is to determine and enforce the criminal liability of an accused--Involvement in criminal case has rightly been made one of the factors for not getting employment in law enforcing agency--There is mis-statement and concealment of facts on the part of petitioner before entering into service which obviously was shaken their credibility--Petition was dismissed. [P. 41] C & D

1993 SCMR 2177 & 2011 SCMR 534, ref.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Jurisdiction--Grant of Relief--Principle--Held: It is discretionary in nature--It is settled principle of law that petitioners must come with clean hands before the Court. [P. 41] E

2007 SCMR 1318, PLD 2012 Lahore 52, PLD 2009 SC 28, ref.

Syed Karamat Ali Naqvi, Advocate for Petitioner.

Mr. Muhammad Hammad Khan Rai, Assistant Advocate General for Respondents.

Date of hearing: 16.8.2017

Judgment

Through this single judgment, I intend to dispose of W.P. No. 50311/2017, W.P. No. 50325/2017, W.P. No. 50329/ 2017, W.P. No. 50315 of 2017 and W.P. No. 50466 of 2017 alongwith instant petition.

1. Petitioner, in W.P. No. 57381 of 2017 has called in question, circular No. SE-IV/7317-70/II dated 26.06.2014 and petitioners in other connected writ petitions have sought direction against respondents for issuance of appointment letters.

2. Precisely the facts of the case are that petitioners in all writ petitions applied for the post of head constables in response to an advertisement dated 05.12.2016. According to the stance taken by the petitioners they have qualified requisite tests and examinations, however, their appointments were withheld vide circular No. SE-IV/7317-70/II dated 26.06.2014 issued by Respondent No. 2 to all heads of Police in the Punjab, whereby candidates who were involved in the criminal cases (either under trial or acquitted on multiple grounds) were directed not to be appointed. Detail of criminal cases registered against the petitioners in all writ petitions and fate of those cases is given as under:--

| | | | | --- | --- | --- | | Writ Petition No. and title of the case | Detail of case | Status of case | | 57381/2017 Ali Hamza vs. Govt. of Punjab, etc. | FIR No. 125/13 dated 17.09.2013 under Sections 341/337-L2, 34, PPC in Police Station Rayya Khas, District Narowal. | Acquitted from the charge. | | 50325/2017 Awais Iqbal vs. Govt. of Punjab, etc. | FIR No. 425/15 dated 03.12.2015 under Sections 354/452/448/511/148/149, PPC in Police Station Satghera District Okara. | Petitioner found innocent videcase Diary No. 11. Challan of the case has been prepared and submitted to Court. Case is under trial and next date of hearing is 05.09.2017 | | 50466/2017 Muhammad Ahmad vs. Govt. of Punjab, etc. | FIR No. 908/16 dated 07.11.2016 under Sections 149, 302, 148, PPC in Police Station Havaili Lakha District Okara. | Found innocent. | | 50315/2017 Muhammad Ramzan vs. I.G. Punjab, etc. | FIR No. 212/12 dated 24.03.2012 under Sections 395/397/324/353/412, PPC read with 7-ATA, PPC & FIR No. 235/12 dated 29.06.2012, 13/20/65 AO both of PS City Renala District Okara. | Petitioner was found guilty. Challan submitted, however, he was acquitted from learned Trial Court on 03.02.2014. | | 50329/2017 Muhammad Aslam vs. I.G. Police, etc. | FIR No. 180/16 dated 28.05.2016 under Sections 440, PPC & FIR No. 189/16 dated 06.06.2016 under Sections 506-B, PPC both of PS Mandi Ahmed Abad District Okara. | Petitioner found guilty in FIR No. 189/16. Challan of the case was submitted. Case is under trial. Next date of hearing is 12.09.2017. FIR No. 180/16 was found false and cancellation report has been prepared and submitted in the Court and agreed by learned Trial Court on 27.07.2016. | | 50311/2017 Aftab Rana vs. I.G. Police, etc. | FIR No. 811/15 dated 18.11.2015 under Sections 452/354/448/511/337A 1/337-F1/148/ 149, PPC P.S. Haveli Lakha District Okara. FIR No. 908/16 under Sections 302/148/149, PPC PS Haveli Lakha | Petitioner found guilty in FIR No. 811/15. Interim bail is confirmed. Case is under trial. Next date of hearing is 12.09.2017. Petitioner found involved in case FIR No. 908/16 under Sections 302/148/149, PPC, PS Haveli Lakha. Case in under investigation. |

Petitioners being aggrieved by afore-referred circular have filed instant writ petitions.

1. Learned counsel for the petitioners has argued that circular dated 26.06.2014 has been issued in violation of constitutional provisions and is against the principles of natural justice. States that since some of the petitioners have been acquitted from the charge leveled against them in criminal cases whereas some of them are under trial, therefore, restriction on appointment could not be imposed. Further states that in terms of Articles 4 and 25 of the Constitution, petitioners are to be treated in accordance with law without any discrimination. In this regard, learned counsel for the petitioners have relied on “Muhammad Aslam v. Sabir Hussain and others” (2009 SCMR 985), “Ashgar Ali v. MAnsoor Muzaffar Ali and 3 others”(2012 PLC (C.S.) 502), “Iftaikhar Hussain and others v. The State” (2004 SCMR 1185), “Director General, Intelligence Bureau, Islamabad v. Muhammad Javed and others” (2012 SCMR 165), “Chairman Agricultural Development Bank of Pakistan and another v. Mumtaz Khan” (PLD 2010 Supreme Court 695), “Rahimullah Jan v. Kashif and another” (PLD 2008 Supreme Court 298), “Dr. Muhammad Islam v. Government of N.W.F.P. through Secretary, Food, Agriculture, Livestock and Cooperative Department, Peshawar and 2 others” (1998 SCMR 1993).

2. On the other hand, learned Assistant Advocate General while opposing the afore-referred contentions has argued that the petitioners have misstated and have sworn false affidavits concealing the fact that criminal cases were registered against them, irrespective of their acquittal or innocence. He has further argued that acquittal/innocence of the petitioners is distinguished from the fact that they have concealed the registration of cases. Moreover, the case law which has been relied by the other side relates to the acquittal of a person and do not address the question of concealment of facts.

3. Arguments heard. Record perused.

4. Primarily, thrust of the arguments advanced by the counsel for the petitioners is that mere involvement in a criminal case would not create any impediment upon the appointment of the petitioners as head constables particularly when they have been acquitted after facing trial or otherwise exonerated from the charge.

5. I have carefully gone through the case law referred above. No doubt, ratio of these judgments is that exoneration/acquittal of an employee shall be considered to have committed no offence because the competent Court had exonerated them from the acquisition of criminal charge. In other words double presumption of innocence is attached to a person acquitted and registration of case/facing the trial does not disentitle a contender to get employment in the Government department.

6. Proposition of law before this Court in this particular case is somewhat altogether distinguished. A policy decision was taken by the respondents regarding the exclusion of those candidates who were found involved in criminal cases either under trial or acquitted on multiple grounds. This has been challenged through the instant constitutional petitions. It is asserted by the official respondents that in fact, petitioners have concealed the fact of involvement in criminal cases, they have deposed falsely in an undertaking, incorporated in the application form that they were neither involved in any criminal case nor they were challenged. Before adverting to the merits of the case, it would be appropriate to reproduce the impugned notification which reads as under:--

“The competent authority has decided in principal that all those candidates who, during character verification, have been found involved in criminal cases (either under trial or acquitted on multiple grounds) shall not be appointed in Police Department as constable.

1. Please ensure compliance of this direction and any deviation thereof shall be viewed seriously.”

2. Admittedly, petitioners applied for the posts of constables and perusal of record shows that there is a specific column/undertaking in the application form signed by the petitioners which reads as under:--

حلف نامہ:

میں حلفاًبیان کرتا/کرتی ہوں کہ مندرجہ بالا کوائف درست ہیں اور میں کسی قسم کے جرم یا تخریبی کاروائی میں کبھی گرفتار، چالان/سزا یافتہ یا ملوث نہ رہا ہوں۔ سابقہ ملازمت میں سزا یافتہ نہ ہوں اور باعزت طور پر ریٹائرڈ ہوا ہوں۔ نیز میں کسی خطرناک بیماری میں مبتلا نہ ہوں۔

1. Relevant police rule with regard to the verification of character of fresh recruitment is also reproduced hereunder:--

12.18. Recruits – Verification of character of

(1) The character and suitability for enrolment of every recruit shall be ascertained by a reference to the lambardar of the village or ward member of the town of which the recruit is a resident. A search slip shall also be sent to the Finger Print Bureau in order to establish his freedom or otherwise from conviction. Such lambardar or ward member shall, if the recruit is of good character, furnish a certificate to that effect which shall be verified and attested by the Sub-Inspector in-charge of the local police station. The Sub-Inspector shall also complete the information required by form 12.18(1).

Admittedly, criminal cases were registered against the petitioners. Although most of them have been acquitted and some of them are still facing the trial. However, at this stage, it would be relevant to draw a distinction between acquittal from criminal case, concealment of facts and deposing falsely at the time of application for getting employment in disciplinary force.

1. Hon’ble apex Court was confronted with somewhat similar proposition in Civil Petition Nos. 1668-L and 1852-L of 2012 whereinvide order dated 18.02.2013 appeals were dismissed with the following observations:--

“Admittedly when the respondent/petitioner Jabir Ali gave his application to the department for recruitment into police service, three FIRs were pending against him and hence he falsely stated in such application that he was not involved in any criminal case. As police official should be honest and law abiding himself and subject to disciple. Where, at the inception of his career. Respondent/petitioner had made a false statement for the purpose of recruitment into the force, he cannot be expected to perform his duties honestly and diligently. Hence, he was correctly dismissed from service by the departmental authorities.”

1. In another case titled “Abdul Manan v. Provincial Police Officer and 2 others” (2017 PLC (C.S.) 862), same view has been taken in the following terms:

“Appointment of constable in police department--Petitioner candidate was declined selection on the ground that he was found involved in a criminal case--Candidate had not mentioned in the application form that he was involved in a criminal case, which was concealment of fact--Misstatement on the part of candidate before entering into service had shaken the credibility of his character and disentitled him from any relief--No illegality was pointed out in the impugned order--Intra-Court appeal was dismissed in limine in circumstances.”

1. Afore-referred notification under challenge is a policy decision taken by the Government for the purposes of recruitment of constables in the police. By now it is a settled principle of law that such decisions are not interfered by the Courts under the constitutional jurisdiction unless found arbitrary, unconstitutional and against the public policy. Reliance is placed on “Dossani Travels (Pvt.) Ltd and others v. Messrs Travels Shop (Pvt.) Ltd. and others” (PLD 2014 SC 1), “Messrs Al-Raham Travels and Tours (Pvt.) Ltd. and others v. Ministry of Religious Affairs, Hajj, Zakat and Ushr through Secretary and others” (2011 SCMR 1621) and “Muhammad Nadeem Arif and others v. Inspector-General of Police, Punjab, Lahore and others” (2010 PLC (CS) 924).

2. So far as this particular case is concerned, it is to be seen that what is the rationale behind the said policy. Obviously, the purpose is to select those persons who were not involved in any case of criminal nature. Besides that a candidate making false undertaking is not entitled to get employment in a disciplinary force. This is being substantiated by the fact that the conduct of an employee has direct bearing with the service discipline. Even acquittal in criminal cases cannot be made basis for exoneration in case of violation of departmental discipline or commission of any misconduct reason being that in number of judgments it has been laid down by the apex Court that criminal proceedings and departmental actions are distinguished because in departmental proceedings desirability of a civil servant to continue in service is under examination, whereas the object of criminal proceedings is to determine and enforce the criminal liability of any accused. Nature of evidence and the standards of proof are different in the two proceedings. The purpose of analyzing the criminal prosecution with departmental proceedings is to draw a line between the acquittal in criminal case and eligibility to get employment in a disciplinary force. Therefore, it becomes immaterial that some of the petitioners have been acquitted/ exonerated from criminal charges. In this particular case, involvement in a criminal case has rightly been made one of the factors for not getting employment in a law enforcing agency. Departments like police are fully equipped with the prerogative to lay down such criteria for recruitment. Reliance is placed on “Talib Hussain v. Anar Gul Khan and 4 others” (1993 SCMR 2177) and “Muhammad Iqbal v. District Police Officer, Sahiwal and another” (2011 SCMR 534).

3. Another important aspect of this case is that grant of relief under constitutional jurisdiction is discretionary in nature. It is settled principle of law that petitioners must come with clean hands before the Court whereas in the present case ex-facie there is mis-statement and concealment of facts on part of petitioners, before entering into service which obviously has shaken their credibility. Reliance is placed on “West Pakistan Tanks Terminal (Pvt.) Ltd. v. Collector (Appraisement)” (2007 SCMR 1318) relevant portion of which is reproduced herein below:--

“Furthermore in law, the petitioner seeking leave to appeal against the High Court order is not entitled to the discretionary and equitable relief from this Court in the exercise of constitutional jurisdiction as he has not approached this Court or the fora prescribed under the Constitution and the law with clean hands. One who seeks equity must have equities in his favour. In the present case we are firmly of the

opinion that the equities do not lean in favour of the petitioner therefore in our considered view the impugned judgment does not warrant any interference by this Court.”

Reliance is also placed on “Messrs Syed Bhais (Pvt.) Ltd. through Director v. Government of Punjab through Secretary Local Government and 3 others” (PLD 2012 Lahore 52) and “Muhammad Maqsood Sabir Ansari v. District Returning Officer Kasur and others” (PLD 2009 Supreme Court 28).

For the foregoing reasons, these petitions do not succeed and are dismissed. No order as to cost.

(W.I.B.) W.P. Dismissed

PLJ 2018 Lahore 42 (DB)

Present: Muhammad Ameer Bhatti and Ch. Muhammad Iqbal, JJ.

BINYAMEEN KHALIL--Appellant

versus

FEDERATION OF PAKISTAN etc.--Respondents

I.C.A. No. 475 of 2016, decided on 29.6.2017.

House Building Finance Corporation Act, 1952--

----S. 24(3)--House Building Finance Corporation Regulations, 1979, Regul. 14--Loan of H.B.F.C.--Anticipated average appreciation in value of house--Demand of anticipated appreciation--Agreement/ contract against statute is not permissible under law--Financial facilities for construction/reconstruction/repair and purchase of house on basis of interest--Conditions for investments--Question of--Determination--Question of claiming rent as well as anticipated appreciation in value of house came under consideration of F.S.C. which has declared unilateral assessment against injunctions of Islam--FSC had been declared provisions of HBFC Act, 1952 are against injunctions of Islam in respect of recovery of interest and directed respondent to bring same in conformity with injunctions of Islam. [Pp. 52 & 53] A & B

Interpretation of Statute--

----If a mandatory provision of statute is ignored, same tantamount to transgress express provision of law and is also against spirit of legislation. [P. 55] C

Agreement--

----No agreement/contract can be executed against statute, even if such agreement is willingly entered into by parties. [P. 56] D

House Building Finance Corporation Act, 1952--

----S. 24(13)--Charging of capital gain--Sale-Inception of agreement--It is settled law that when law does not permit to achieve a thing directly same could not be allowed to be achieved indirectly.

[P. 59] E

House Building Finance Corporation Act, 1952--

----S. 24(13)--House Building Finance Corporation Regulations, 1979, Regl. 14(5), 16, 18 & 37--Loan of H.B.F.C.--Inception of agreement--Conditions for investment--Unilateral imposition charging of anticipated average appreciation in value of house--Judgment of single judge in chamber is not sustainable--Validity--Neither any provision in HBFC Act, 1952 nor any direct regulations are available in respect of anticipated average appreciation in value of house and nor statute has prescribed any authority to corporation to recover such dues from appellant in its own whims and caprice, thus impugned unilaterally assessed recoverable amount from appellant in respect of anticipated appreciation in value is against law--Moreover, anticipated appreciation in value and its assessment is illusory and based on unfounded imagination of an investor and willful addition of a fix percentage in capital investment is not mandated by law--Resultantly Regulation 14(5) as well as clauses 16 and 18 and 37 of agreement to extent of charging of anticipated appreciation of value being against statute are declared as ultra vires. [P. 60] F, G & H

Ch. Muhammad Ali Binyameen, Advocate for Appellant.

Syed Fazal-ur-Rehman, Advocate for Respondents.

Date of hearing: 30.5.2017.

Judgment

Ch. Muhammad Iqbal, J.--Through this Intra Court Appeal, the appellant challenged the judgment dated 14.01.2016 passed by the learned Single Judge in Chambers through which the writ petition filed by the appellant challenging anticipated average appreciation in the value of the house charged by Respondent No. 2 was dismissed.

1. Brief facts of the case are that the appellant obtained loan of Rs. 2 million from the respondent House Building Finance Corporation and in this respect an agreement dated 30.07.2004 was executed between the parties. The appellant asserts that he has paid Rs. 2.8 Million as principal amount alongwith rent and requested the respondent to release the ownership documents of property along with clearance certificate, but the respondents claimed an amount of Rs. 31,10,871/-under the head of “anticipated average appreciation in the value of the house, which is over and above the original amount of loan. The appellant challenged the aforementioned charges through filing W.P.No. 32077 of 2014. Respondents filed reply to the writ petition raising preliminary objection of maintainability of the petition, non-availing of the alternate remedy provided under the statute and also contested the petition on factual controversy as well. The learned Single Judge in Chambers after hearing both the parties dismissed the petition vide judgment dated 14.01.2016, hence the present ICA.

2. The learned counsel for the appellant submits that the demand of anticipated appreciation in the value of the house as mentioned in clauses 16 and 18 and 37 of the contract/agreement is illegal and not in consonance with the House Building Finance Corporation Act, 1952 (hereinafter referred to as “HBFC Act, 1952”) as well as House Building Finance Corporation Investment Regulations, 1979. He further submits that any agreement/contract against the statute is not permissible under the law, which aspect of the matter has escaped from the consideration/appreciation of the learned Single Judge in Chambers who has illegally and unlawfully dismissed the writ petition of the petitioner, which (order) is not sustainable in the eye of law.

3. The learned counsel for the respondent submits that the appellant willfully executed the contract and is bound by the contractual obligations settled in the said contract/agreement, as such no illegality has been committed by the learned Single Judge in Chambers. That an amount of Rs. 31,10,871 uptil 10.06.2015 in respect of appreciation in the value of the house is due against the appellant and he has committed a willful default in payment of the same. He further submits that the appellant has not come to this Court with clean hands, therefore, he is not entitled to any discretionary relief and the Intra Court Appeal may kindly be dismissed.

4. Heard. Record perused.

5. The House Building Finance Corporation was established in 1952 for providing financial facilities for construction/re-construction/repair and purchase of house on the basis of interest. However, in 1978 the Council of Islamic Ideology recommended to abolish the term interest from some financial institutions including the Corporations. The Council suggested that instead of advance loans on the basis of interest, the Corporation should enter into investment of a joint ownership on the partnership basis with their clients and the client shall pay rent to the Corporation for utilization of share of the corporation. At the same time the partner will keep on purchasing different units share of the Corporation through purchase/ installments and thus the principal amount invested by the Corporation will be gradually restored back to the Corporation in the form of purchase price installment against the unit of investment made in the purchase of the house until the Corporation’s share is fully purchased by the partner and the above proposed procedure/mechanism in the Islamic banking terminology is named as “diminishing partnership”. Under the guidelines/ instructions of the Ideology Council HBFC Ordinance, 1979 was promulgated and the Corporation started financing under the provisions of the said Ordinance.

6. Admittedly, the appellant obtained loan of Rs. 2.0 million from the House Building Finance Corporation and executed an agreement dated 30.07.2004 and made re-payment in shape of installment amounting to Rs. 26,54,514/- upto 10.06.2015. In this case the pivotal issue before this Court is to consider whether the clauses 16, 18 and 37 regarding the charging of anticipated average appreciation in the value of the house mentioned in the agreement dated 30.07.2004 are in accordance with HBFC Act, 1952 or with House Building Finance Corporation Regulations, 1979 or otherwise. Clause 16, 18(i) to (iii) and 37 of the agreement are reproduced as under:--

“16. The anticipated average appreciation in the value of the house/flat and the investment units thereof, shall be Rs. 12.5 per year for each hundred rupee and shall be binding on the Corporation and the Partner.

…….

1. (i) the share of Corporation in the rental income on monthly basis during the moratorium period. The amount of monthly share of the Corporation in the rental income for the initial period shall be Rs. 8333/- (Rupees Eight Thousand Three Hundred Thirty Three).

(ii) 23 UNITS OF Rs. 86957/- (Rupees Eighty Six Thousands Nine Hundred Fifty Seven only) each with appreciation of Rs. 12.5 for each hundred rupee per year or part unit in the value of unit on yearly basis after completion of moratorium period of 24 months. Monthly payment or part payment towards purchase of unit shall be treated on account till the total purchase price (including the agreed appreciation in the value of the house/flat) has been received.

(iii) monthly installment for the initial period of one years commencing from the expiry of agreed and moratorium period shall be as under:--

(a) Rent: Rs. 8333

(b) Purchase price of investment unit (on-account):” Rs. 9963

(c) Monthly Group Life Insurance Premium: Rs. 1000

Total Rs. 19296.”

.........

1. The appreciation in the value of the house/investment units shall be finally assessed for adjustment of profit and loss at the time of full and final settlement of account of expiry of the period allowed for purchase of units or otherwise. However, the Corporation shall have the sole discretion to forego, at the time of final valuation, its share of profit in excess of agreed appreciation in the value of investment units.”

2. The main controversy between the litigating parties in this case is with regard to unilateral imposition/charging of anticipated average appreciation in the value of the house. It is appropriate to apply microscopic scanning of the plain provisions of the enactment on the subject relating to the issue of investment made by the Corporation. Section 24 of the HBFC Act, 1952 provides the salient features of the investment and permit the corporation to invest its funds in such securities or in such other manner as may be prescribed and may sell or mortgage such securities.

Further Section 24(3) of the HBFC Act, 1952 imposed restrictions on transfer, sale or charging the property without the prior written consent of the Corporation or subject to payment of corporation investment and other dues including shares in the capital gains. Section 24(5),(6) envisage the precaution and restriction over the corporation unless the amount invested is duly safeguarded or secured and no investment shall be made unless the partner agrees that the share of the Corporation in capital gains, in case the property is being sold or transferred during the currency of deed of assignment and partnership. For reference Section 24 of the HBFC Act, 1952 is reproduced below:--

1. Conditions for investments. (1) No investment shall be made unless it is fully secured by assignment of the land and the house constructed or to be constructed thereon or by such guarantee as may be prescribed:

Provided that where the land on which it is proposed to construct the house is held by the partner not as owner but as mortgages, lessee, sublicensee, or in any other capacity, then, notwithstanding anything contained in any other law for the time being in force, investment may be made against assignment of such land and the house to be constructed thereon.

(2) No property shall be accepted for assignment under sub-section (1) unless it is free from all encumbrances and charges:

Provided that the Corporation may, subject to the maximum limit provided in Section 25,__(

(a) make additional investment on the security of any property already assigned or mortgaged to the Corporation;

(b) make investment on the security of any property already assigned or mortgaged to the Federal Government, a Provincial Government, or a bank, a banking company or any other financial institution established by or under any law and controlled, directly or indirectly, by the Federal Government or Provincial Government or by a Corporation set up a controlled by any of them.

(3) No land or house in respect of which investment is made shall be transferred, sold or charged without the prior consent of the Corporation in writing and payment of the Corporation’s dues, including share in the capital appreciation ; and any such transfer, sale or charge made without such consent shall be void, and in the case of a sale, the Corporation shall have the option to buy out the partner’s share in the property at the price settled between the partner and the intending buyer.

No investment shall be made unless the Corporation is satisfied that the partner has clear title to the property and is in possession of the land, the area in which the house is to be situated has been adequately planned, and the permission of the lessor, lessee, licensor, licensee or other competent authority for participation of the Corporation as partner in the construction or purchase of the house has been obtained.

(5) No investment shall be made unless the partner agrees that:--

(a) the assessment of cost of land and cost of construction thereon;

(b) the assessment of gross and net rental income of the property;

(c) the share of the Corporation in the said income in consideration of its investment;

(d) the share of the Corporation in capital gains, if property is sold or transferred during the currency of the deed of assignment and partnership;

(e) demand charges in case of default in scheduled repayment; and

(f) date of completion of the house;

as fixed by the Corporation shall prevail and be binding upon him.

(6) No investment shall be made unless the Corporation is satisfied that--

(a) where the investment is for the construction of a house, the partner will be able to provide necessary funds which, added to the investment made by the Corporation, will cover the entire cost of construction of the house;

(b) the partner or his surety or both, as the case may be, and where the partner is more than one person, any one or more of such persons or their sureties will have sufficient means to repay the amount invested by the Corporation during the prescribed period in the prescribed manner; and

(c) the plan and the design of the house is approved by the competent authority and the specifications provide for a sound and durable construction.

(7) Before accepting any movable or immovable property as security, due allowance shall be made for depreciation and probable fall in value; and whenever such property is found to fall in value below the margin allowed, additional security shall be obtain.

(8) No investment shall be made with a partner for construction or purchase of more than one house on income sharing basis.

(9) The investment shall be adjusted through transfer of investment units in such manner and on such terms as provided in the deed of assignment and partnership.

(10) The total estimated cost of a house constructed or to be constructed and the investment to be made shall be determined by the Corporation.

(11) The net rental income shall be assessed by the Corporation for an initial period as provided in deed of assignment and partnership and thereafter shall be revised periodically notwithstanding anything to the contrary contained in any other law for the time being in force till the entire investment units of the Corporation are transferred to the partner.

(12) The share of the Corporation in the net rental income shall be fixed as the ratio between the investment of the Corporation and the total estimated cost of the house at the time of the execution of deed of assignment and partnership and shall be revised 1 [on each adjustment of the investment through transfer of investment units as provided in sub- section (9) and shall be payable on such periodical basis as provided in the deed of assignment and partnership.

(13) The share in the capital gains when the property is sold or transferred shall be determined in the prescribed manner.

(14) The income on the investment shall start accruing on completion of the agreed period.

(15) The Corporation shall share the losses which may be caused by natural calamities, war or civil commotion only.

(16) No investment shall be made for a period exceeding twentyfive years.

(17) Investment shall be made in suitable installments concomitant with the construction of the house.

(18) No information given by any person applying for financial assistance and communicated to any of the Directors or employees of the Corporation shall be disclosed or used by such Directors or employees except for lawful purposes of the Corporation without the written consent of such person.

(19) Investment may be made in collaboration with Cooperative Societies and such other authorities and housing corporations as may be prescribed.

(20) Loans made before the first day of July, 1979, shall become due and payable along with accruals as on the last day of June, 2000, and all borrowers shall within three months from the commencement of the House Building Finance Corporation (Amendment) Ordinance, 2001, pay their entire obligations and the investment made after the 30th of June, 1979, shall, unless the Federal Government otherwise directs, continue to be governed by the terms and conditions on which they were made:

Provided that

(a) the repayment of the principal amount shall be deemed to be the purchase of investment units as provided in sub-section (9);

(b) the share of the Corporation in the net rental income shall be revised on payment of the full value of each investment unit as provided in the deed of assignment and partnership or, as the case may be, on each repayment of the principal;

(c) service charges based on the amount of investment made by the Corporation shall not accrue nor shall be charged after the 30th of June, 2000; and

(d) demand charges accrued and recovered by the Corporation from the first day of July, 2000, shall be credited to a separate account to be spent on meeting actual out of pocket expenses on recovery of overdue investments and the balance shall be used only for charitable purposes and shall not be credited to the income account of the Corporation.

(21) The Corporation may, in compliance with any instruction issued by the Federal Government in that behalf, relax or modify any of the conditions provided under this Act for any class of investment.

1. The main controversial issue in this case is regarding the unilateral assessment of anticipated appreciation in the value of the house as envisages in clause 16 of partnership agreement which is fixed at the rate of 12.5% per year on the assessed amount of the appreciation of value whereas no such provision of fixing the ratio of increase in the value have been mentioned in the HBFC Act, 1952. Section 24(13) provides that share in the capital gain shall be determined when the property is being sold or transferred according to the prescribed manner. From the plain reading of sub-section it clearly envisages that this provision is only applicable in the eventuality when the partner intends to sell or transfer the said property, whereas no such regulations or clear procedure meant for determining the capital gains are available. Further as the term anticipated appreciation in the value is alien to statute and no such provision in this regard is available in the regulations of corporation as such unilateral fixing of 12.5% as appreciated value does not have any support of law.

Moreover Section 24(13) of the Act which deals with capital gain is made applicable in the eventuality when the property is being sold or transferred then the share of the partners in the capital gain is be determined and proportionately charged whereas in the instant case no such situation has yet been arisen to make assessment of capital gains as the appellant is not interested or intending to alienate the property in any manner whatsoever, as such the demand raised by the respondent Corporation regarding the assessed outstanding amount of Rs. 31,10,871/- against the appellant including the amount of anticipated appreciation of value assessed at the rate of 12.5% per year, is unilateral, exorbitant, arbitrary and having no backing of any law, rather it amounts to the financial exploitation which is not warranted by any law and is also against the Article 3 of the Constitution of Islamic Republic of Pakistan which provides safeguard against exploitation of the citizens.

1. For the functioning of transparent and smooth business, HBFC Investment Regulations were framed, approved and promulgated in 1979. Regulation No. 14 only deals with anticipated gross annual rental income of a house and with the anticipated average appreciation in the value of the house/flat which has no nexus with the capital gain. Regulation 14 of the HBFC Investment Regulations, 1979 is reproduced as under:--

“14. (1) The anticipated gross annual rental income of a house in which investment is made shall be the average of the rental income of similar house in the locality obtained through a sample survey conducted during the three months preceding the financial year in which the proposal for availing the investment is made.

Provided that the results of sample survey shall be reviewed by the Corporation before formal adoption in order to bring them in to conformity with other supporting indices or to remove discrepancies, if any

(2) The anticipated gross annual rental income in localities where a sample survey has not been conducted shall be determined by the Corporation in such manner as it may deem proper.

(3) The anticipated net annual rental income shall be determined after deduction of the following from the anticipated gross rent:--

(i) maintenance allowance at 1/12th of the gross rent; and

(ii) property tax payable to the Provincial Government of a local authority, as determined by the Corporation:

Provided that the net rental income of the house may be revised any time if so necessitated due to a revision in the property tax structure.

(4) The annual rental income shall be reviewed after every three financial years commencing from the financial year in which the proposal has been accepted till the entire investment.

(5) The anticipated net annual income calculated under this regulation shall be final and binding on the Corporation and the partner.

1. Further Sections 24(3) & (5)(d) of the HBFC Act, 1952 creates an embargo upon the petitioner to further transfer, sale of the house/and also prohibits to create any kind of charge on the property till the final realization of dues of the Corporation and if during the currency of the deed of assignment and subsistence of relationship of partnership, a partner wants to transfer, sale or charge the property, he has to obtain written consent of the Corporation after making payment of the Corporation’s dues including share in the capital gain. But in the aforesaid Act and Regulation, there is no such provision available regarding monthly or yearly assessment of anticipated appreciation in the value of the property and it has accumulative effect toward the increase in the capital investment so made by the Corporation. The respondent has imposed anticipated average appreciation in the value of the house/flat at Rs. 12.5 for each hundred rupee per year, which has no support of very statute and the regulation made thereunder. The amount assessed and claimed under the anticipated appreciation in the value of the property is levied in addition to the amount being charged under the head of rental Value of the House, which is much harsh/exploiting than the imposition or charging of compound interest whereas in the case in hand the Corporation is receiving the rental income, installment toward the invested amount and also adding 12.5% in shape of anticipated appreciation in the value of the property against the amount of its investments. This question of claiming rent as well as anticipated appreciation in value of house came under consideration of the Federal Shariat Court which has declared the unilateral assessment etc. against the injunctions of Islam in case reported as Muhammad Iqbal Chaudhary, Advocate High Court, Lahore and another vs. Federation of Pakistan through Secretary M/O. Justice and Parliamentary Affairs, Government of Pakistan Islamabad and others (PLD 1992 Federal Shariat Court 501) wherein it is held as under:--

“As stated above the Corporation, after the enactment of House Building Finance Corporation (Amendment) Ordinance, 1979, functions on partnership basis. The system of loaning by the Corporation which was previously based on interest has now been substituted by a system of joint ownership (Musharaka) and consequently the rental income is duly shared by the investors i.e. owner borrower and Corporation. The system devised by the Corporation for the assessment of the share of the Corporation in the gross and net rental income of the property and its capital gains (if property is sold or transferred during the currency of the deed of assignments and partnership) as given in paras 14(1), (2) and 15(1) and (2) of House Building Finance Corporation Investment Regulations, 1979 reads as under:-..........”

1. The Federal Shariat Court declared the said provisions of HBFC Act, 1952 are against the injunctions of Islam in respect of recovery of interest and directed the respondent to bring the same in conformity with injunctions of Islam, which decision has been endorsed by the Hon’ble Supreme Court as Shariat Appellate Bench in the case of House Building Finance Corporation through its Executive Director vs. Rana Muhammad Sharif and 4 others (PLD 2000 SC 760) and has directed that necessary deletions and amendments be made in Sections 4(2), 21(2) and 24(11), (12) and (20) by 30th June, 2000. Relevant para whereof is reproduced below:

“The objection of the Federal Shariat Court is that the process laid down for assessment of the rental income and fixation of the share of Corporation therein is arbitrary, and against the spirit of partnership. The need of the partner is, thus, exploited, while he is equally entitled to have a say in this matter. A proviso is, therefore, held to be necessary to the effect that the partner will have a right to place the matter before a higher authority nominated by the Corporation, so that the issue may be resolved on an equitable basis.

The proposal of the Federal Shariat Court seems apparently justified. However, it may also be kept in mind that it should not open the door for frivolous disputes and prolonged proceedings. The process provided by the ‘Investment Regulations, 1979’ is reasonable process, and the partner should enter into the agreement with open eyes. If the Corporation, or any one of its officers, has violated the procedure laid down for the fixation of rent, normal legal remedies will remain available for anyone who can prove the violation. To establish a separate forum for such disputes may bring a flood of complaints and may in turn defeat the system together.

However, there are certain points that were not attended to by the learned Federal Shariat Court while examining Section 24 and its subsidiary Regulations. These are summarized below:

“(a) Sub-sections (6) (b), (9) and (12) of Section 24 as well as Regulations 15(2) frequently refer to the ‘repayment of the investment by installments’. This terminology is not suitable for the concept of ‘ diminishing partnership’ on which Ordinance, 1979 was conceptually based. The original concept, as mentioned at the outset of this discussion; was that the partner will gradually keep on purchasing different units of the share of the Corporation. These installments are meant to purchase these units. For example, the share of the Corporation is 80% of the property. This share of 80% will be divided into 160 units as a simple example. The partner will purchase one unit out of these 80 on monthly basis. No doubt, the net result is that the Corporation will recover its principal through this process. But it should be remembered that this is not the ‘repayment of a loan’. It is a purchase. It will be more appropriate, therefore, that the installments are named ‘the purchase installments’.

(b) Subsection (11) of Section 24 provides that the net rental income shall be assessed by the Corporation for a period of three years. This period seems to be reasonable so far as the fixation of rent with regard to the locality is concerned. However, there is another aspect that has been overlooked in this respect. As mentioned above, the payment of installments by the partner is, in fact, purchase of a certain unit of the share of the Corporation. Therefore, as soon as the partner pays an installment, the share of the Corporation is reduced and share of the partner is increased to that extent. This aspect should be reflected in the rent payable by him. In other words, the rent payable by him should decrease to that extent. In the above example, if the share of the Corporation constituted 160 units and the partner has paid one installment, the share of the Corporation came down to 159 units. The rent payable by the partner, therefore, ought to be reduced by 1/160. This adjustment in the rent must take place after every installment. It does not require a new survey of the rental value as was feared by the representatives of H.B.F.C.; it is simply a matter of calculation which can easily be done. It is not only equitable and gives gradual relief to the partner, but it is a necessary requirement of the concept of ‘diminishing partnership’ according to Shariah and is being practiced by many Islamic financial institutions, even in Non-Muslim countries.

Mr. Zahid Hussain, the Executive Director of the Corporation admitted that this type of adjustment in the rent is not difficult in any way. This necessary requirement, therefore, must be reflected in the law, and in so far as sub-section (11) of Section 24 does not take care of it, it is repugnant to the Injunctions of Islam.”

In afore-quoted judgment the dispute was with regard to unilateral assessment and charging of the rent whereas in the instant case there is no dispute regarding the rental value of the property rather it is relating to unilateral assessment of the property and charging of 12.5% as anticipated appreciation in the value of the property. The appellant has never filed application for obtaining permission from the Corporation for sale, transfer or to encumber the property as such capital gain if any imposed by the respondent is totally against the law.

Section 24(13) deal with charging of capital gain and it also provide timing/occasion on which the same could be assessed. The applicability of the sub-section is subject to the circumstances when the partner intend to sell or transfer the house. It does not empower the respondent corporation to obtain any fixed amount under the garb of anticipated appreciation in value of the house exercising its powers under Regulation 14(5) as the term anticipated appreciation/increase in the value is explicitly alien to the basic provision of the parent statute. As the regulation 14(5) have no backing of the Act as such Clauses 16, 18 and 37 of the Contract Agreement also lacks any support of law.

It is well settled law that if a mandatory provision of statute is ignored, the same tantamount to transgress the express provision of law and is also against the spirit of legislation. Statute or a provision thereof is to be construed in the manner so as to make it workable and any construction which leads to defeat or creates any absurdity in the main scheme of law, is to be avoided. All rules, regulations, instructions so framed under the statute, if the same are not in consonance with the statute or contrary to law, the same would be treated as ultra vires to the statute. Similarly any agreement arrived at between the parties under such ultra vires rules and regulations that would also be considered as against the law. Therefore, no agreement/contract can be executed against the statute, even if such agreement is willingly entered into by the parties. Further under Section 23 of the Contract Act all the contracts which are in contravention of the statute are illegal and void and if permitted it would defeat the provisions of law. For reference aforesaid section is reproduced as under:-

“23. What consideration and objects are lawful and what not.--The consideration or objection of an agreement is lawful, unless--It is forbidden by law; or.

Is of such a nature that, if permitted, it would defeat the provisions of any law; or

Is fraudulent; or

Involves or imples injury to the person or property of another;

Or the Court regards it as immoral or opposed to public policy.

In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.”

Similarly in the instant matter clauses 16, 18 and 37 of the agreement are in contravention of the statute, thus the same are void and un-enforceable. The Hon’ble Supreme Court of Pakistan in a case reported as Hameedullah and 9 others vs. Headmistress, Government Girls School Chokara, District Karak and 5 others (1997 SCMR 855) held that:

“From the aforestated observations it is clear that the agreement between the Government and the appellant was in the nature of sale of a public office, consideration being the transfer of land. Sale of public office cannot be a legal transaction. It is completely illegal and against public policy. Therefore, such an agreement is hit by Section 23 of the Contract Act, which makes it void.”

The August Court in a case reported as Maulana Abdul Haque Baloch and others vs. Government of Balochistan through Secretary Industries and Mineral Development and others (PLD 2013 SC 641) has held as under:

“The competent authority also failed to determine the terms and conditions to be fixed in granting the relaxations sought for. In this view of the matter, in absence of the requirements of Rule 98 being fulfilled in the instant case, all relaxations were granted in excess of authority and were entirely beyond the scope of the provisions of law, and therefore, ultra vires the powers granted under Rule 98 of BMCR 1970 read with Section 5 of the Act of 1948, and thus void. Shorn of relaxations so grant, CHEJVA has no legal sanctity and consequently remains an agreement entered into against the provisions of law, hence not enforceable.

All the key provisions of CHEJVA were made subject to a reliance on relaxations that were illegal and void ab initio, the illegality of the agreement seeps to its root. As such, no operative part of the agreement survives to be independently enforceable and the principle of severability cannot be applied to save any part thereof. The agreement is, therefore, void and unenforceable in its entirety under the law.”

In another judgment reported as Tariq Ali Baqar vs. New Goodwill Computers and others (2011 SCMR 554) the Hon’ble Apex Court held that:

“To determine the fair rent, on an application filed by the landlord or tenant, is the exclusive jurisdiction of the Rent Controller and any agreement between the parties not to seek determination of fair rent cannot bar the jurisdiction of the Rent Controller, if that has not been already done. The Court would not permit one of the contracting parties to take advantage of an unusual or onerously terms consideration, as it would deprive the other party from his legitimate rights. This Court in the case of Muhammad Yousuf v. Abdullah (PLD 1978 Supreme Court 298), while dealing with to some extent an identical clause not to seek fixation of fair rent held that said clause being illegal because it is contrary to the provisions of the Ordinance. In the case of Atta Muhammad v. Muhammad Abdullah (PLD 1971 Lahore 210) after relying upon the case of E.A. Evans vs. Muhammad Ashraf (PLD 1964 Supreme Court 536) it was held that the Controller has power to determine fair rent under Section 4 of West Pakistan Rent Restrictions Ordinance, 1959 despite existence of agreement stipulating amount of rent payable.”

This Court in a case reported as Abdul Rashid vs. Water and Power Development Authority (WAPDA) Through Chairman, and 2 others (2003 CLC 471) held as under:

“There is still another aspect. There is nothing on the present record suggesting that at the time of purchase of the bonds, the petitioner ever learnt of or was made aware of the conditions of the transaction, particularly the so-called clause 8. It is not even clear whether this condition was given wide publicity in press or through electronic media or by conveniently making available the brochure and the booklet at all the sale points. This aspect is important as the Court will not permit one of the contracting party to take advantage of an unusual and onerous condition and thus deprive the other party from its legitimate right/property. Reference can be profitably made to the Pakistan General Insurance Company Ltd. v. Fazal Ahmad PLD 1960 (W.P) Lah. 135 and Hakim Ali v. Muhammad Salim and another 1992 SCMR 46.”

In another judgment reported as Muhammad Arshad Khakwani vs. I.U.B. and another (2011 MLD 322) this Court has held that:

“No doubt the Statutory bodies are governed under the Act, rules, regulations and statutes which are meant for the said purpose and no one is allowed to supersede the same. The University functionaries are presumed to act under the law and no one can exceed from its domain neither supersede nor deviate. If the provisions of the Act are not complied with then the Institutions cannot run smoothly as is required by the law and the guarantees provided by the Constitution of Islamic Republic of Pakistan, 1973.”

1. Further when law prescribes anything to be done in a particular manner, it is to be done as mandated by law, any transgression amounts to stepping over the authority rendering the act, without lawful authority. In this regard, reliance may respectfully be placed on the case of “Government of the Punjab, Food Department through Secretary Food & Another vs. Messrs United Sugar Mills Limited & Another” (2008 SCMR 1148). Similar view has been taken by Sindh High Court in the case of “Syed Muzahir Hussain Quadri vs. Province of Sindh & others” (PLD 2013 Sindh 285) (D.B). Sub-section (13) to Section 24 of the HBFC Act allows the charging of capital gain subject to existence of certain special circumstances of sale, alienation etc. of the property which are missing in this case whereas the corporation (HBFC) is continuously keep on charging 12.5% from the very inception of the agreement. It is settled law that when law does not permit to achieve a thing directly the same could not be allowed to be achieved indirectly. Reliance can be placed on Bank of Punjab and another vs. Haris Steel Industries (Pvt.) Ltd. and others (PLD 2010 SC 1109). The Hon’ble Apex Court in the said judgment held as under:--

“If the interpretation canvassed by Mr.Irfan Qadir, ASC was to be accepted then the same would not only defeat the clear object of the provision in question but would also lead to a blatant absurdity. It would be preposterous and irrational to declare that once an incumbent of the office of the Prosecutor General had completed his term of three years then no one had the competence to extend or enlarge the said term even by one day but the same competent authority could instead, grant him three years by appointing him afresh to the same office. In the recorded judicial history such a situation attracted judicial notice in the year 1889 in case of Madden v. Nelson (1889 AC 626) and it was Lord Helsbury who declared for the first time that what was not permitted by law to be achieved directly could not be allowed to be achieved indirectly. And the said principle has been repeatedly acknowledged and followed by the Courts ever since then and the Courts in Pakistan are no exception in the said connection. The cases of Mian Muhammad Nawaz Sharif and Haji Muhammad Boota (Supra) are evidence to the said effect.”

Reliance can also be placed on Haji Muhammad Boota and others vs. Member (Revenue) Board of Revenue Punjab and others (PLD 2003 SC 979) and a judgment of this Court reported as Muhammad Sajjad Husain vs. Government of Punjab through Secretary Establishment, Lahore and 19 others (2013 PLC (C.S) 1). Further in Messrs Campaigner Associates (Pvt.) Ltd. vs. Government of Balochistan and others (2001 YLR 1839), controversy has been resolved in the following manner:

“It may not be out of place to mention here that “Article 199 casts an obligation on the High Court to act in aid of law, protect the rights of the citizens within the framework of the Constitution by the executive authorities, strike a rational compromise and a fair balance between the rights of the citizens and the actions of the state functionaries, claimed to be in the large interest of society. This power is conferred on the High Court under the Constitution and is to be exercised subject to Constitutional limitations. (PLD 1988 Lah. 49 = KLR 1988 Cr.C 128 (FB), in the matter of entertainment of petitions and grant of relief in equitable and discretionary jurisdiction, it is necessary not to be guided wholly by the technicalities of the law but also by the substance of the controversy when the proceedings did not suffer from mala fides of fact. (1991 SCMR 654). Technicalities cannot prevent High Court from exercising its Constitutional jurisdiction and affording relief which otherwise petitioner is found entitled to receive. PLD 1990 Lah. 121. The petition in hand has been examined in the light of criterion as laid down and discussed hereinabove. In our considered view it is a fit case where Constitutional jurisdiction could be exercised.”

It is held by the Hon’ble Supreme Court of Pakistan in the judgment reported as Muhammad Afsar vs. Malik Muhammad Farooq (2012 SCMR 274) that the Courts are duty bound to uphold the constitutional mandate and to keep up the salutary principles of rule of law.

1. In view of the above, we are of the view that the learned Single Judge while passing the impugned judgment has not considered the vires of Regulation 14(5) and clauses 16,18 and 37 of the agreement which are against the Section 24(13) of the HBFC Act, 1952 as such the judgment of the learned Single Judge in Chamber is not sustainable as neither any provision in the HBFC Act, 1952 nor any direct regulations are available in respect of anticipated average appreciation in the value of the house and nor the statute has prescribed any authority to the corporation to recover such dues from the appellant in its own whims and caprice, thus the impugned unilaterally assessed recoverable amount from the appellant in respect of anticipated appreciation in value is against the law. Moreover, anticipated appreciation in the value and its assessment is illusory and based on unfounded imagination of an investor and willful addition of a fix percentage in the capital investment is not mandated by the law. The capital gains are to be assessed or determined at the time of conclusive sale or transfer of the property under the principal of diminishing partnership and there is considerable margin/difference between anticipated appreciation of the value and the capital gain as such continuous charging of 12.5% as appreciated average appreciation in value of property are also ultra vires.

2. For the reasons recorded above, this ICA is allowed and the judgment dated 14.01.2016 passed by the learned Single Judge in Chambers is set aside. Resultantly the regulation 14(5) as well as clauses 16 and 18 and 37 of the agreement to the extent of charging of anticipated appreciation of value being against the statute are declared

as ultra vires. Respondents No. 2 and 3 are directed to calculate the amount paid through the purchase installment under the principle of diminishing partnership excluding the amount assessed and added under anticipated appreciation of value of the house within a period of 2 months, thereafter a demand notice containing the elaborate detail of calculated amount payable( if any) be issued to the appellant who shall liquidate the entire assessed liability within a period of 3 months whereof the respondent shall release the relevant documents to the appellant.

(W.I.B.) I.C.A. allowed

PLJ 2018 Lahore 61

Present: Ahmad Raza Gilani, J.

ABDUL HAMEED--Petitioner

versus

EX-OFFICIO JUSTICE OF PEACE, etc.--Respondents

Writ Petition No. 53095 of 2017, decided on 20.7.2017.

Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 22-A(6), 154 & 157--Application for Registration of case--Dismissal--Prior investigation--Incharge of Police Station--Duty and power--Validity--Section 157, Cr.P.C. empowers officer incharge of a police station to investigate if from information received or otherwise he has reason to suspect commission of cognizable offence--Words or otherwise after from information received leave no confusion or ambiguity that legislation had left it to discretion of incharge to ensure credibility or authenticity of information received regarding commission of cognizable offence before registration of criminal case, of course to be exercise fairly and transparently. [P. 64] A

AIR 1915 Madras 312, PLD 2016 SC 581, ref.

Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 154 & 200--Distinction--Purpose & scope--Cognizable offence--Remedies--Two remedies placed on a parallel footing, have been provided, one by lodging a report with police in respect of commission of cognizable offence in term of Section 154, Cr.P.C. and other by filling complaint under Section 200 and in case if no private person coming forward with such information despite having in possession of such knowledge it is duty of police to move on its owne to eradicate crime. [P. 68] B & E

Criminal Procedure Code, 1898 (V of 1898)--

----S. 202--Scope--Under section Court has been conferred power to direct an inquiry or investigation to be made by learned justice of peace or by a policy officer or by such other person as it thinks fit for purpose of ascertaining truth falsehood of complainant. [P. 68] C

FIR--

----FIR is meant to move state machinery for purpose of collecting evidence when commission of cognizable offence is reported--Petition was dismissed. [P. 68] D

Mr. Tahir Mahmood Mughal, Advocate for Petitioner.

Date of hearing: 20.7.2017.

Order

Through this petition instituted under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner Abdul Hameed is seeking reversal of order dated 15.07.2017 passed by the learned Justice of Peace whereby learned Justice of Peace had declined to issue direction for registration of criminal case against proposed accused persons and dismissed application of the petitioner filed u/S. 22-A(6), Cr.P.C. Learned Justice of Peace while passing the said order relied on the report submitted by the DSP Circle, police station Factory Area Kot Abdul Malak, Sheikhupura, according to which the petitioner and proposed accused were close relatives; over stoppage of drainage system, dispute was going on between them and no cognizable offence was committed as was being agitated by the petitioner.

It has been argued that Officer Incharge of Police Station has no other choice except to discharge the statutory duty to register criminal case on receipt of information regarding commission of cognizable offence under Section 154, Cr.P.C. It has been further contended that there is no concept of carrying out investigation before the registration of criminal case, thus report submitted by the police officer in compliance of order of learned Justice of Peace carried no legal sanction and should not have been considered by the Justice of Peace while disposing of applications filed u/S. 22-A(6), Cr.P.C. for the registration of criminal cases.

To answer and remove the above confusion and ambiguity, it may be relevant to reproduce here the provisions of Section 157, Cr.P.C. which falls under the Chapter XIV that relates to the “Information to the police and their power to investigate”.

Section 157. Procedure where cognizable offence suspected.

(1) If, from information received or otherwise an officer incharge of a police-station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police-report, and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the Provincial Government may, by general or special order, prescribe in this behalf to proceed, to the sport, to investigate the facts and circumstances of the case, and, if necessary to take measures for the discovery and arrest of the offender: Provided as follows:

(a) Where local Investigation dispensed with. When any information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer incharge of a police-station need not proceed in person or depute a subordinate officer to make an investigation on the spot;

(b) Where police officer incharge sees no sufficient ground for investigation. if it appears to the officer incharge of a police- station that there is no sufficient ground for entering on an investigation, he shall not investigate the case.

(2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub-section (1). the officer incharge of the police-station shall state in his said report his reasons for not fully complying with the requirements of that sub-section, and, in the case mentioned in clause (b). such officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the Provincial Government, the fact that he will not investigate the case or cause it to be Investigated.

Before dilating upon the powers and limits of the police in the matter of investigation, the duties of the police officials under the Police Order, 2002 are being highlighted which are as under;--

(i) To protect life, property and liberty of citizens;

(ii) To preserve and promote public peace;

(iii) To prevent the commission of offences and public nuisance;

(iv) Tocollect and communicate intelligence affecting public peace and crime in general;

(v) To detect and bring offenders to justice;

(vi) To apprehend all persons whom he is legally authorized to apprehend and for whose apprehension, sufficient grounds exist;

(vii) To enter and inspect without a warrant on reliable information any public place, shop or gaming- house where alcoholic drinks or narcotics are sold or weapons are illegally stored and other public places of resort of loose and disorderly characters;

(viii) To aid and cooperate with other agencies for the prevention of destruction of public property by violence, fire, or natural calamities;

(ix) To prevent harassment of women and children in public places.

However, a police officer is equally responsible to ensure that fundamental rights of a citizen as to the life, liberty, dignity etc. guaranteed under the Constitution of Islamic Republic of Pakistan 1974 be protected.

Section 157, Cr.P.C. empowers officer incharge of a police station to investigate if “from information received or otherwise” he has reason to suspect the commission of a cognizable offence. The words “or otherwise” after “from information received” leave no confusion or ambiguity that the legislature had left it to the discretion of the Incharge Station House Officer, to ensure the credibility or authenticity of the information received regarding the commission of cognizable offence before registration of criminal case, of course to be exercised fairly and transparently. Powers of Officer Incharge of a Police Station to investigate “from information received” deals with the situation where F.I.R has already been registered and thereafter process of investigation is being carried out by him. In case reported as “Nan damuri Anandayya (A.I.R. 1915 Madras 312)” it was observed that:

“Most investigations are initiated on information recorded u/S. 154, Cr.P.C. But the police must frequently hear of alleged offences from less reliable sources, e.g. village gossip, or the receipt of telegram which, so far as authenticity goes, stands in no better position. In such cases it is discretionary with the officer to take action or not and, before deciding as to the course to adopt, he may frequently deem it well to make a few preliminary and informal inquires as to whether there is anything in what he has heard to render a formal investigation desirable. This is what, as it seems to us the Inspector has done in the present case and we have no hesitation in holding that his action did not amount to an investigation under S.157, Cr.P.C.

To illustrate, brief facts of the said case are being reproduced as under:

“A telegram Ex-A reached the Bezwada Police Inspector, PW-1 containing words, “Dacoity, Kalavapamula, property lost, Kindly come immediately. Nandamuri Anandayya.”

“What the Inspector, P.W. 1, actually did is clear from his own evidence and the endorsement on Ex-A. The day after receipt of the letter he went to Kalavapamula, questioned the village officers and others and ascertained that no one had heard of a dacoity and that no one named Nandamuri Anandayya was known in the village. He then sent the telegram to the Gudivada Inspector, Gudivada being the place from which it had been despatched with a request to have inquiries made “as to who is the sender of the message and if it is true.” The Gudivada Inspector referred the telegram for report to the station house officer of Gudivada, P.W. 4, and while it was pending with him, appellant pre-sented himself before him and gave the statement Ex-B. (First Information Report).”

In case reported as “Emperor v. Khwaja Nazir Ahmad (1945 AIR (PC) 18), it was held that:

“No doubt in the great majority of cases, criminal prosecutions are undertaken as a result of information received and recorded in this way but their Lordships see no reason why the police, if in possession through their own knowledge or by means of credible though informal intelligence which genuinely leads them to the belief that a cognizable offence has been committed, should not of their own motion undertake an investigation into the truth of the matters alleged. Section 157, Criminal PC, when directing that a police officer, who has reason to suspect from information or otherwise that an offence which he is empowered to investigate under Section 156 has been committed shall proceed to investigate the facts and circumstances, supports this view. In truth the provisions as to an information report (Commonly called a first information report) are enacted for other reasons. Its object is to obtain early information of alleged criminal activity, to record the circumstances before there is time for them to be forgotten or embellished, and it has to be remembered that the report can be put in evidence when the informant is examined if it is desired to do so.”

In view of the above, it is held that comments submitted by the police officials in compliance of the order of learned Justice of Peace come within the meaning of an informal inquiry preliminary to a formal investigation and provisions of Section 157, Cr.P.C. place no restriction in this regard.

The Hon’ble Supreme Court in case report as “Younas Abbas and others v. Additional Sessions Judge, Chakwal and others (PLD 2016 SC 581), laid down guidelines to be observed by the Ex-Officio Justice of Peace before issuance of a direction on complaint for non-registration of a criminal case and in this regard it was observed that;

(i) The ex-officio Justice of the Peace, before issuance of a direction on a complaint for the non-registration of a criminal case under sub-section (6)(i) of Section 22-A, Code of Criminal Procedure must satisfy himself that sufficient material is available on the record, such as application to the concerned SHO for registration of the criminal case and on his refusal or reluctance, complaint to the higher police officers i.e. DPO, RPO, etc., to show that the aggrieved person, before invoking the powers of ex-officio Justice of the Peace, had recourse to the high ups in the police hierarchy.

The Hon’ble Supreme Court noticed that though provisions of Section 22-A(6), Cr.P.C. had provided in some cases very prompt response from the police officials on the complaint for non-registration of criminal cases but also found frequent abuse and misuse of the said provision. The parties to humble and harass the opponents, present distorted and fabricated facts to succeed in obtaining direction from the Ex-Officio Justice of Peace for registration of a criminal case. In Section 22-A(6), Cr.P.C. the word “appropriate” is significant and has been used by the legislature to discourage the parties from abusing the said provision; thus requires Justice of Peace to pass order after appreciating all the material brought on record by the parties and concerned police officials, in accordance with settled norms of justice.

1. Article 199 (I) of the Constitution of Islamic Republic of Pakistan, 1973 contains three distinct Sub-Clauses a, b and c, conferring thereby specific powers on High Court to make orders of different kinds in different situations and it is not approved for the High Court to go into the complicated factual controversies while exercising such powers. To obstruct or divert the ordinary course provided under the law has never been recommended under the said provisions. Constitutional powers of High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 are also not meant to usurp the jurisdiction of other constitutional and statutory organs of the State. These all are principles laid down by the Hon’ble Supreme Court from time to time to be observed by the High Court while exercising its powers under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

To invoke the jurisdiction of the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, there is prerequisite prescribed by the said Article that the petitioner for the redress of his grievance has no other alternate or efficacious remedy. In this regard, it would be relevant to discuss the provisions of Section 190 of, Cr.P.C. which relate to the condition requisite for initiation of proceedings. In view of the said provision, all Magistrates of First Class or any other Magistrate specially empowered by the Provincial Government on the recommendation of the High Court may take cognizance of any offence;--

(a) Upon receiving a complaint of facts which constitute such offence.

(b) Upon report in writing of such facts made by any police officer.

(c) Upon information received from any person other than police officer or upon his own knowledge or suspicion.

that such offence has been committed which he may try or send to the Court of Sessions for trial.

The word “taking cognizance of offence” has not been defined in the Code of Criminal Procedure, however, it was discussed and defined in case report as “Muhammad Nawaz v. Noor Muhammad etc.” (PLD 1967 Lahore 176) which is as follows:

“The expression taking cognizance of an offence means the Court deciding to proceed against the offender with a view to determine his guilt.”

Reading the above provision makes it clear that under the scheme of Code of Criminal Procedure, two remedies, placed on a parallel footing, have been provided, one by lodging a report with police in respect of commission of cognizable offence in terms of Section 154, Cr.P.C. and other by filing a complaint under Section 200, Cr.P.C. Chapter XVI of Code of Criminal Procedure 1898, deals with taking cognizance of offence on complaint. Under Section 202, Cr.P.C., the Court has been conferred power to direct an inquiry or investigation to be made by the learned Justice of Peace or by a police officer or by such other person as it thinks fit for the purpose of ascertaining the truth or falsehood of the complaint. Provisions of Section 202 (3), Cr.P.C. further confer the Investigating Officer deputed in this regard by the Court, the same powers given to an officer Incharge of a police station except that he shall not have power to arrest without warrant. After analyzing the said provisions it can safely be concluded that even if one is not successful in getting a criminal case registered under Section 154, Cr.P.C., which though is mandatory on part of officer in-charge of a police station to register a case, if from the facts and circumstances of the case, a cognizable offence is made out, even then, aggrieved person is not left remediless and equally efficacious remedy in form of filing compliant in terms of Section 200, Cr.P.C. has been provided. FIR is meant to move the State machinery for the purpose of collecting evidence when commission of a cognizable offence is reported and in case no private person coming forward with such information despite having in possession such knowledge, it is the duty of the police to move on its own to eradicate the crime. Under the constitution, it is obligation of State to protect life and liberty of a person and individuals are required to be loyal to the State. Of course delinquent police official additionally can be proceeded against for failing to discharge statutory duty in terms of Section 154, Cr.P.C.

1. For what has been noted and discussed above in particular the guidelines provided by the Hon’ble Supreme Court in above referred case titled as “Younas Abbas and others v. Additional Sessions Judge, Chakwal and others (PLD 2016 SC 581), order of the learned Justice of the Peace dated 15.07.2017 being challenged now, is found “appropriate direction” as envisaged u/S. 22(6)(i), Cr.P.C. in view of the material brought on record, thus, does not call for interference. The petitioner has been provided equally efficacious remedy under the law. It is also not approved for the High Court to go into the disputed and contested matters between the parties when it is exercising constitutional powers under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Therefore, this petition devoid of any force is dismissed.

(W.I.B.) Petition dismissed

PLJ 2018 Lahore 69 [Bahawalpur Bench, Bahawalpur]

Present:Ch. Muhammad Iqbal, J.

SayyedMOHAMMAD AREEB ABDUL KHAFID SHAH BUKHARI--Petitioner

versus

GOVERNMENT OF THE PUNJAB etc.--Respondents

Writ Petition No. 4645 of 2015, decided on 9.5.2017.

Punjab Rented premises Act, 2009--

----Object and purpose--Protection of relationship between landlord and tenant--Significance of--Punjab rented premises act 2009 was promulgated in province of Punjab with object to remove or minimize existence flaws and also to bring it conformity with need of time and also to introduce a comprehensive mechanism covering entire aspects relating to issue of tenancy and expeditious resolutions--Act regulates relationship between landlord and tenant and to provide accelerated mechanism for disputes, inter se parties in an expeditious and effective manner. [P. 71] A & B

Rent Agreement--

----Registration Act, 1908, S. 17(1)--Rent Agreement--Registration of--Rent Tribunal--Jurisdiction and power-administrative function of rent Registrar--Scope--Rent tribunal besides its judicial function was also competent to exercise and perform functions as Rent Registrar till appointment of a permanent Rent Registrar for district--With issuance of afore quoted notification and establishment office as well as appointment of rent Registrar all delegated power to rent tribunal who was function as Rent Registrar stood withdrawn, where after they are not vested with any jurisdiction or power to register any rent agreement.

[Pp. 73 & 74] C & D

Landlord--

----Punjab Rented Premises Act, 2009, Ss. 2(D), 5, 6 & 35(D)--Rent agreement--Requirement of proof of ownership--Significance of--Rent Registrar--Power & scope--It is mandatory for a person claiming to be landlord to provide any prima facie proof of ownership or any authorization from owner in recognition of his being ostensible landlord qua rented premises to rent registrar for registration of rent agreement and rent registrar is also competent to ask landlord for production of any proof regarding ownership or title document of demised premises. [P. 75] E

Constitution of Pakistan, 1973--

----Article 10(A)--Right of fair trial--Fundamental right--Constitution has awarded an unalienable right of fair trail and due process to tenant. [P. 76] F

Punjab Rented premises Act, 2009--

----Ss. 2(j)(k), 16(2)(3)(5) & 19(2)--Jurisdiction of senior civil Judge--Entrustment and allocation to civil judge cum judicial Magistrate--Validity--Learned civil judge rent tribunal who has jurisdiction to hear case either himself or allocate same for hearing to other designated special judge rent functioning as rent tribunal. [P. 77] G

Petitioner in person.

Mr. Muhammad Tahir Saeed Ramay, A.A.G. for Respondents.

Date of hearing: 9.5.2017

Order

Through this writ petition, the petitioner has challenged the order dated 06.01.2015 whereby his application for registration of rent agreement was turned down by the Rent Registrar with the direction to the petitioner to produce any document of ownership of the property.

1. Brief facts of the case are that M/s. Mohammad Ahmad Rehmani etc. being owners of the properties (Nos.411, 411/A, 411/B, 411/1, 490 to 498 and 500/Block-I) upon which shops/Chowbaras (total 85) are constructed to be known as Muhammadia Market in Mohallah Kuhna Kutchery near Jamia Masjid Al-Sadiq, Bahawalpur statedly appointed the petitioner as their special attorney to be specifically authorized, entitled and empowered him for letting out the shops and chowbaras on rent and also to obtain afresh rent agreements from the new or existing tenants over all the shops and if need be also to institute suit for the ejectment as well as recovery of the rents etc. That Respondents No. 5, to 8 hired the shops on rent from the petitioner as landlord and have executed tenancy agreements respectively. The petitioner moved separate applications to the Rent Registrar, Bahawalpur for registration/incorporating the particulars of the tenancy agreements in the relevant register as required under Section 5 of the Punjab Rent Premises Act, 2009 and also requested for the return of the original tenancy agreements to the petitioner after affixing the official seal on the tenancy agreements by retaining a copy thereof accordingly but learned Rent Tribunal/Ex. Officio Rent Registrar, Bahawalpur for the time being turned down the request and directed the petitioner to produce any sort of proof of ownership qua the property on the next date of hearing. Hence, this writ petition.

2. Petitioner (in person) submits that learned Civil Judge/Rent Tribunal has no jurisdiction to perform/function as Rent Registrar; further submits that Rent Registrar cannot ask for proof regarding the ownership of rented premises in the registration proceeding of the rent agreement, as such, impugned order may be declared as illegal and same may kindly be set aside.

3. Heard. Record perused.

4. In this case, the following questions required to be answered:--

(a) Whether Rent Controller/Rent Tribunal established u/S. 35(d) of the Rented Premises Act, 2009 has any jurisdiction to function as a Rent Registrar?

(b) Whether the Rent Registrar has the power to require the title document before registration of the rent agreements.

(c) Whether the Sr. Civil Judge/Special Judge Rent has the authority/power to entrust the application to any other Special Judge Rent for adjudication/decision?.

Firstly, I perused the Enactments on the subject i.e. the West Pakistan Urban Rent Restriction Ordinance, 1959 was in field before promulgation of the Punjab Urban Rent Registration Ordinance, 2007. Later on, in the year 2009 said Ordinance, 2007 was also repealed and the Punjab Rented Premises Act, 2009 was promulgated in the Province of Punjab with the object to remove or minimize the existent flaws in the legislation of Ordinance, 1959 and also to bring it in conformity with the need of time and also to introduce a comprehensive mechanism covering entire aspects relating to the issue of tenancy and the expeditious resolutions.

1. It is most appropriate to elucidate the law on the subject. The Punjab Rented Premises Act, 2009 (to be referred hereinafter as “the Act”) was promulgated on 17.11.2009 to regulate the relationship of landlord and tenant in respect of rented premises and to provide an accelerated mechanism for settlement of disputes, interse the parties in an expeditious and effective manner as well as also to resolve all the ancillary matters such like relationship of landlord and tenant, period of tenancy, particulars of tenancy, rate of rent, mode of Pagri and payment of rent, registration of rent agreement, rights and obligations of both the landlord and the tenant, forum of resolution of the dispute and procedure before the said forum through proper and obligatory documentation for the benefit of the parties to the agreement of tenancy with clarity of the existence of relationship of landlord and tenant between the parties whereas the West Pakistan Urban Rent Restriction Ordinance, 1959 (repealed) was also aimed at to restrict the exorbitant increase in the rent of rented premises within the limit of urban area and the eviction of tenant therefrom and also to maintain relaxed controls over the other ancillary issue relating to rights and obligations of the parties under the tenancy agreement. The mechanism provided in the Act, 2009 is wider and more comprehension than the repealed Ordinance, 1959 where Act, 2009 also covers the field of creation of tenancy and has made it obligatory upon the parties to get the rent agreement/deed registered with the Rent Registrar. The Legislators by promulgating of this Act on one hand has permitted the ejectment of tenant only on the specified ground and on the other hand, it has also kept in view the interests of the parties. The Act, 2009 provides protection to the landlord as well as tenant for sustainable tenancy and expeditious resolution of the disputes relating to the rented premises and it entail the entire mechanism of the tenancy. Status of landlord and tenant, demised premises, registration of rent agreement, rate of rent, mode of payment of rent, right and obligation of parties, mechanism for adjudication of controversy and forum provided for resolution of the dispute, i.e. relationship of the parties to rent agreement, particular of properties and Pagri or rate of rent, mode of payment of rent etc., object and purpose of tenancy as well as the rights and obligations of the tenant and landlord, determination of default, ejectment of tenant etc. at an exclusively established separate forum. Aimed the above Section 5 of the Act is introduced to maintain the record and also minimize the un-necessary rent related litigation. Further, Section 5 of the Act provides mechanism for the registration of the rent agreement in order to streamline the rights and obligations arising out of rent agreement. Further, in the Ordinance of 2007, the power of registration of rent agreement was made available with the Rent Controller which remained temporarily continues with Rent Tribunal established under the Act, 2009. It is worth-mentioning here that the Ordinance of 1959 has neither any such provision for registration of rent agreement nor any office of the Rent Registrar was available. All registerable document including the rent deed were got registered at the forum of Registrar established under the Registration Act, 1908. For the first time, with promulgation of Ordinance, 2007 the power of mandatory registration of rent agreement was devolved upon the Rent Tribunal who was performing duties as presiding officer of a judicial forum/Rent Tribunal as well as administrative function of being Rent Registrar. The above set up of registration of rent agreement remained continue under Act, 2009 with regard to registration of the rent agreement temporarily with the Rent Tribunal till the establishment or appointment of permanent incumbent to the office of Rent Registrar.

2. Under Section 17 (1) of the Act, 2009, the Government is competent to appoint a Rent Registrar in a district or an area as it may deem necessary. However, under Section 35(d) of the Act, the Rent Controller appointed under the repealed Ordinance (Ordinance, 2007) was renamed or re-designated as Rent Tribunal and all the pending matter relating to rent stood transferred to the newly established forum for adjudication. Rent Tribunal besides its judicial function, was also competent to exercise and perform the functions as Rent Registrar till the appointment of a permanent Rent Registrar for the district or the specified area. Later on, the Governor of the Punjabvide Notification No. SO (JUDL-III) 4-24/2004 dated 26.01.2012 appointed Deputy District Officer(s) (Registration) in the Punjab as Rent Registrar(s) in their respective area of jurisdiction in terms of Section 17 (1) of the Act. Notification dated 26.01.2012 is as under:--

“NOTIFICATION

No. SO (JUDL-III) 4-24/2004. The Governor of the Punjab is pleased to empower Deputy District Officer (s) (Registration) in the Punjab as Rent Registrar (s) in their respective area of jurisdiction in addition to their own duties in terms of Section-17(1) of the Punjab Rented Premises Act, 2009.

The Rent Registrars, shall perform the following functions:--

i. The Rent Registrar shall maintain a Register to enter particulars of tenancy agreement, agreement to sell or any other agreement in respect of rented premises.

ii. Rent Registrar shall ensure adherence to provisions of Punjab Rented Premises Act, 2009.”

With issuance of afore-quoted notification and the establishment the office as well as appointment of the Rent Registrar all the delegated power to the Rent Tribunal who was function as Rent Registrar stood withdrawn whereafter they are not vested with any jurisdiction or power to register any rent agreement.

1. Now coming to the next point as to whether the Rent Registrar has the power to require the title document from the landlord. It is appropriate to understand the legal meaning of word ‘landlord’ before entering into the field of registration of rent agreement. The word “Landlord” is defined in Section 2 (d) in the Act, 2009 which is reproduced as under:

“Landlord” means the owner of premises and includes a person for the time being entitled or authorized to receive rent in respect of the premises”

From the plain reading of the language of the afore- quoted provision of law, three significant expression of a landlord has been described firstly, a landlord should be the owner of the property, secondly a person who has been declared entitle through a legal adjudication and thirdly an agent duly authorized person by the owner as entitled to receive the rent shall be considered as landlord.

1. Now adverting to the point of modus operandi of registration of a rent agreement in this regard Section 5 of the Act describes the parameters for the registration of agreement between the landlord and tenant whereas the particulars of tenancy agreement are prescribed in Section 6 of the Act. For ready reference, Sections 5 and 6 of the Act are reproduced as under:--

“5. Agreement between landlord and tenant.--(1) A landlord shall not let out a premises to a tenant except by a tenancy agreement.

(2) A landlord shall present the tenancy agreement before the Rent Registrar.

(3) The Rent Registrar shall enter the particulars of the tenancy in a register, affix his official seal on the tenancy agreement, retain a copy thereof and return the original tenancy agreement to the landlord.

(4) The entry of particulars of the tenancy shall not absolve the landlord or the tenant of their liability to register the tenancy agreement under the law relating to registration of documents.

(5) A tenancy agreement entered in the office of a Rent Registrar or a certified copy thereof shall be a proof of the relationship of landlord and tenant.

(6) Any agreement which may be executed between the landlord and the tenant in respect of the premises shall be presented before the Rent Registrar in the same manner as provided in sub-section (2).

1. Contents of tenancy agreement.–(1) A tenancy agreement shall contain, as far as possible, the following:--

(a) particulars of the landlord and the tenant;

(b) description of the premises;

(c) period of the tenancy;

(d) rate of rent, rate of enhancement, due date and mode of payment of rent;

(e) particulars of the bank account of the landlord, if the rent is to be paid through a bank;

(f) the purpose for which the premises is let out; and

(g) amount of advance rent, security or pagri, if any.

(2) If the tenure of the tenancy is fixed but a rent is fixed only for a part of the tenure, in the absence of any stipulation to the contrary in the tenancy agreement, the rent shall be deemed to remain the same for the whole of the tenure.”

From the perusal of Sections 5, 6 coupled with Section 2(d) of the Act, the landlord means the owner of premises and includes a person for the time being entitled or authorized to receive rent in respect of the premises, as such, it is mandatory for a person claiming to be the landlord to provide any prima facie proof of ownership or any authorization from the owner in recognition of his being ostensible landlord qua the rented premises to the Rent Registrar for registration of the rent agreement and the Rent Registrar is also competent to ask the landlord for production of any proof regarding the ownership or title document of the demised premises. Even a person who files application under Section 5 of the Act for registration of rent agreement on behalf of the landlord is also under obligation to provide a reasonable proof of ownership of the landlord for the purpose of registration of rent agreement which is not tantamount to decision of the title rather it is only satisfaction of the Rent Registrar for the purpose of the registration of the document of rent agreement.

1. In this case, the petitioner filed application under Section 5 of the Act for registration of rent agreement before learned Rent Tribunal, Ex-Officio Rent Registrar working under Section 35(d) of the Act. On the presentation of the rent agreement, the learned Rent Tribunal/Rent Registrar required document of title from the landlord before its (rent agreement) registration. The petitioner being disagreement with the order of Rent Registrar challenged the said order through this constitutional petition. Much emphasis has been placed on this point that Rent Registrar is debarred to require the title document before registration of a rent agreement as requiring the said document is amounts to decide the question of the title of the rented premises, suffice it to say that though the applicability of the registration has not stricto senso been excluded and all registerable documents including rent deed can be got registered under the Registration Act yet for expeditious registration of a document is made convenient and an expeditious forum for registration of rent agreement has been made available. Further, a registered document undeniably get sanctity of an official document creating certain rights and obligations in favour of the parties. The intention of the Legislator is to bring ultimate transparency and genuineness in the relationship and to make maximum precaution to eradicate or minimize even a little possibility of misrepresentation, personification and element of fraud with regard to relationship, mode of payment etc. in registration process as well as the parties to the rent. To achieve the said object, the Registrar is under obligation to carry out preliminary prima facie, tentative probe qua status of the parties and title of landlord. The Punjab Rented Premises Act, 2009 provides elaborate mechanism for registration of rent agreement and gives power to the Rent Registrar that before registration of the rent agreement should satisfy himself regarding the prima facie ownership of the landlord and thereafter register the same after notice to the tenant as glorified provisions of Article 10 (A) of the Constitution of Islamic Republic of Pakistan, 1973 has awarded an unalienable right of fair trial and due process to the tenant, as such, the argument of the petitioner that the Rent Registrar lacks authority to require the title document from the landlord qua the rented premises is misconceived and same is repelled accordingly.

Furthermore, as discussed above, after issuance of the Notification No. SO (JUDL-III) 4-24/2004 dated 26.01.2012 whereunder the appointment of a Rent Registrar has been made and the power of compulsory registration of rent agreement stood vested to notified Registrar and no other authority is competent to register any rent agreement, as such, the Rent Tribunal established under Section 35(d) of the Act has no jurisdiction even to entertain application and pass an order on the application under Section 5 of the Act for registration of rent agreement after issuance of the above said notification dated 26.01.2012 whereas learned Tribunal functioning as Rent Registrar has illegally assumed the jurisdiction and passed the impugned order dated 06.01.2015 which is patently illegal void ab-initio and same is hereby set aside. The application under Section 5 of the Act filed by the petitioner may be returned to the petitioner to file before the notified Rent Registrar for registration of rent agreement.

1. Now coming to the next argument of the petitioner that learned Senior Civil Judge is vested with no jurisdiction to allocate case pertaining to rent matter to other Civil Judges cum Rent Tribunal for the adjudication as the rent law is special law which only provide jurisdiction to the learned Senior Civil Judge/Special Judge Rent to adjudicate the matter whereas learned Civil Senior Civil Judge/Rent Tribunal lacks any authority to entrust/allocate the case to the other Judges for adjudication and decision on merit. Suffice it to say that in this regard under Sections 16 and 19 (2) of the Act has described the elaborate procedure for establishment of the Rent Tribunal and entrustment of the application filed in respect of rented premises before the Rent Tribunal of the area or district. The learned Senior Civil Judge/Rent Tribunal who has the jurisdiction to hear the case either himself or allocate the same for hearing to the other designated Special Judge Rent functioning as Rent Tribunal as defined under Section 2(j) and 2(k) of the Act, 2009. Section 16 of the Act deals with the establishment of Rent Tribunal whereas Section 19 (2) manifestly deal with the entrustment of the cases to Special Judge Rent functioning as Rent Tribunal. Moreover, it is function of the Government to establish a Rent Tribunal in a district or an area as it may deem necessary under Section 16 of the Act which is reproduced as under:

“16. Establishment of Rent Tribunal.–(1) The Government shall establish a Rent Tribunal in a district or an area as it may deem necessary.

(2) A Rent Tribunal shall consist of one or more Special Judges (Rent) to be appointed by the Government in consultation with the Lahore High Court.

(3) Subject to this Act, the Lahore High Court may empower a Civil Judge or a Judicial Magistrate to act as Rent Tribunal for a district or an area.

(4) The Rent Tribunal shall exercise exclusive jurisdiction over a case under this Act.

(5) If there are more than one Special Judges (Rent) in a district or an area, a Special Judge (Rent) designated by the Lahore High Court shall act as an Administrative Special Judge (Rent) in the district or the area.

Further, with the institution of application before the Tribunal for resolution of a dispute relating to tenancy agreement, it exclusively falls within the domains of the learned Senior Civil Judge/Rent Tribunal or the designated Special Judge Rent under Section 19(2) of the Act to hear the application either himself or entrust the same to other learned Rent Tribunal. Section 19(2) is reproduced as under:--

1. Filing of application.–(2) If an application is filed under sub-section (1), the Administrative Special Judge (Rent) of the area or the district may take cognizance of the case or entrust the same to any other Special Judge (Rent).”

From the perusal of Section 16 (2) of the Act, a Rent Tribunal shall consist of one or more Special Judges (Rent) to be appointed by the Government in consultation with the Lahore High Court and under Section 16 (3) of the Act, 2009 the Lahore High Court may empower a Civil Judge or a Judicial Magistrate to act as Rent Tribunal for a district or an area and while exercising the power conferred under Sections 16 (3) of the Act, 2009. All Civil Judges-cum-Judicial Magistrates in the Punjab have been empowered by the High Court to act as Special Judges (Rent) in the area falling under their jurisdiction vide this Court Notification No. 261 JOB-II(I)/XXI.C.35. dated 27.08.2015, as such, the Senior Civil Judges at the District Headquarters and Senior Most Civil Judges at the Tehsil Headquarters are empowered to act as Administrative Special Judges (Rent) in terms of Section 16 (5) of the Act within the areas falling under their jurisdiction and are also empower under Section 19(2) of the Act as well as afore-referred notification of the High Court to entrust the said applications to the other Special Judges Rent functioning as Rent Tribunals, as such, the arguments of the petitioner that learned Senior Civil Judge/Special Judge Rent lacks authority to entrust the application to other Rent Tribunal is misconceived and same are hereby repelled.

1. For what has been discussed above, this writ petition is disposed of accordingly.

(W.I.B.) Order Accordingly

PLJ 2018 Lahore 79

Present: Mudassir Khalid Abbasi, J.

AWAIS SAEED, etc.--Petitioners

versus

GOVERNMENT OF PUNJAB, etc.--Respondents

W.P. No. 58973 of 2017, heard on 18.8.2017.

Interpretation of Statute--

----Principle of harmonization is to be follow, while interpreting a statute--Law should saved rather than to be destroyed and Courts must lean in favour of upholding constitutionality of law keeping in view rule of interpretation of statute. [P. 83] A

PLD 2010 SC 983, PLD 2010 FSC 1, 2006 SCMR 1005, ref.

Constitution of Pakistan, 1973--

----Art. 199--Policy matters--Constitutional jurisdiction--Scope--It is a settled principle of law that Policy decisions are not interfered by Courts under constitutional jurisdiction unless found arbitrary, unconstitutional and against public interest. [P. 86] B

PLD 2014 SC 1, 2011 SCMR 1621, ref.

Promotion--

----Punjab Public Service Commission Regulations, 2016--Reglns. 33 & 34--Police Order, 2002, Arts. 7 & 3(C)(a)--Appointment of Sub-inspector through promotional Quota--Examination--Restriction to three Chances--Significance and purpose--Held: The rationale and legislative intent behind a restriction of availing not more than three chances amongst ASI and Head constables was to give an opportunity to another employees who are performing their duties in department and also to avoid an endless exercise on part of unsuccessful candidates--Petition was dismissed. [P. 87] C

Mr. Abbas Ali, Advocate for Petitioners.

Mr. Muhammad Hammad Khan Rai, Assistant Advocate General for Respondents.

Date of hearing: 18.8.2017

Judgment

Through the instant constitutional petition, challenge has been thrown to Regulations No. 33 and 34 of the Punjab Public Service Commission Regulations, 2016 with reference to appointment through promotional quota for Sub-Inspector of Police Department amongst Head Constables and Assistant Sub-Inspectors.

1. Precisely the facts of the case are that the petitioners are serving as Assistant Sub-Inspectors in the Police Department since 2009, 2010 and 2011. In the year 2013 an amendment was brought in Police Order, 2002 whereby in terms of Section 7 Sub Clause 3(c)(a), 25% quota was reserved for Departmental Promotion through selection on merits for Sub-Inspector by Punjab Public Service Commission amongst Head constables and Assistant Sub-Inspectors holding Bechlor’s Degrees. Respondent department had been advertising the said posts of Sub-Inspectors in Police to be filled up through competitive examination in promotional quota from time to time whereas the petitioners, earlier had participated thrice in the process. On 28.07.2017, Respondent No. 2 again advertised and invited applications for departmental promotion in all regions of Punjab. This time petitioners have also tried to participate in the process, however, it could not be materialized because they had already availed three chances and in terms of Regulations 33 and 34 of Punjab Public Service Commission Regulations, 2016, a candidate could not avail more than three chances. Petitioners have sought a declaration to the effect that the afore-referred regulations are ultra vires to the fundamental rights enshrined in Constitution being illegal, unjust, unfair and against the principles of natural justice.

2. Learned counsel for the petitioners argued that Section 7 (3c)(a) of the Police Order, 2002 has laid down the procedure for promotion through 25% quota amongst the serving Assistant Sub-Inspectors/ constables and no such restriction with regard to the availing of number of chances is provided in the said clause. This, according to the counsel for the petitioners, clearly indicates the intention of the legislation that the employees could avail more than three chances. Further contends that promotion is a vested and fundamental right of an employee to avail the opportunities for promotion whereas, the respondents have imposed the said restriction which is against the mandate of rights envisaged in the Constitution. Moreover, Punjab Public Service Commission Regulations, 2016 do not prevail upon the Police Order, 2002 which have been validly enacted by the legislation. Learned counsel for the petitioners also argued that Rule 3 of Punjab Public Service Commission Functions Rules, 1978 empowers the Commission to regulate/conduct the appointments for BS-16 and above. Whereas, the examination, the subject matter of this petition relates to promotion from BS-11 to 14 as Sub-Inspector. Finally that most of the Head Constables and ASIs have been deprived from the departmental promotion examination which itself is arbitrary and unreasonable.

3. On the other hand, in response to notice under Order 27-A of CPC to the Advocate General Punjab, learned Assistant Advocate General vehemently opposed the arguments of petitioners on the grounds that all the examinations are conducted by the Punjab Public Service Commission under the rules and regulations, which have validly been enacted. All the examinations are held in line with the said regulations. Contends that the petitioners have failed to point out that their fundamental rights have been infringed through the said legislation. Moreover, petitioners cannot claim their promotion as vested right and it has to be governed through some legislation. Furthermore; that the intention of the legislature was to give an opportunity to other employees who are working in the department. Finally, it has been prayed that the petition being not maintainable is liable to be dismissed.

4. Arguments heard. Record perused.

5. Critically important features which are required to be addressed by this Court while examining the vires of regulations No. 33 and 34 of Punjab Public Service Commission Regulations, 2016 (herein called as “regulation”) are as under:--

(1) As to whether the said regulations have been enacted at the strength of some statutory backing.

(2) As to whether Article 7(3c)(a) of Police Order, 2002 is in conflict with the regulations having overriding effect.

(3) As to whether the restriction of availing of more than three chances is violative of fundamentals rights of the petitioners envisaged in the Constitution at the touch stone of principles laid down by the superior Courts for the purposes of declaring any law as ultra vires.

(4) Whether the petitioners could claim their promotion as a vested right through promotional quota.

1. Before adverting to the afore-referred propositions of law, it would be appropriate to reproduce the regulations which have been brought under challenge:--

2. All candidates appearing in “Written Examination” to be held by the Commission shall be allowed to avail three chances only for each particular Written Examination irrespective of the type or categories of posts grouped in that Examination, unless otherwise prescribed by the Government.

3. For all other posts to be filled through written test followed by interview, or interview alone for which no formal Written Test has been prescribed, the number of chances shall also be restricted to three with the exception for the post of Lecturers in Education Department a candidate who is applicant for more than one subject, he/she shall have three chances in each subject for which he/she is a candidate.

4. So far as the enactment of regulations at the strength of some statutory backing is concerned, for the facility of reference Section 10 of the Punjab Public Service Commission Ordinance, 1978 is reproduced as under:--

5. Rules and Regulations.–(1) The Government may, by notification in the official Gazette, make rules for carrying out the purpose of this Ordinance.

(2) Subject to the provisions of this Ordinance and the rules the Commission may make regulations for carrying out the purposes of this Ordinance and the rules.

1. Plain reading of the afore-cited provision makes it abundantly clear that the regulations have been framed at the statutory strength of Section 10 of the Punjab Public Service Commission Ordinance, 1978 which clearly empowers the Government to make such regulations. Much emphasis has been laid down by the learned counsel for the petitioners that regulations are in conflict with Article 7(3c)(a) of Police Order, 2002 and the said Order has overriding effect over the regulations. Article 7 (3c)(a) of Police Order, 2002 reads as under:--

“(3c) Subject to the rules–

(a) twenty-five percent of the quota reserved for departmental promotion to the rank of Sub- Inspector shall be filled through selection-on-merit by Punjab Public Service Commission from amongst police officers holding bachelor’s degree in the rank of Head Constable and Assistant Sub- Inspector; and

(b) twenty-five percent departmental promotions to the rank of Assistant Sub-Inspector shall be made through selection- on-merit by Punjab Public Service Commission from amongst police officers holding bachelor’s degree in the rank of Constable and Head Constable.”

1. Afore-referred provisions cannot be read in isolation and in order to resolve the controversy, functions of the Punjab Public Service Commission are also to be kept in mind which have been envisaged in Section-7 of the Punjab Public Service Commission Ordinance, 1978, which is reproduced as under:--

2. Functions of Commission.–The functions of the Commission shall be–

(a) to conduct tests and examination for recruitment to–

(i) such Provincial services and posts connected with the affairs of the Province, as may be prescribed; and

(ii) such posts in or under a Corporation or other body or organization set up by Government under any law, as may be prescribed;

(b) to advise the Government on such matters as may be prescribed, relating to the terms and conditions of service of persons who are members of a Provincial service or hold posts in connection with the affairs of the Province; and

(c) such other functions as may be prescribed.

1. Controversy, subject matter of this constitutional petition relates to the examination relating to the promotional quota of the petitioners, therefore, at the first instance, it would be convenient to comprehend that in terms of Appointment and Conditions Service Rules, 1974, there are three modes of appointment/recruitment which are by promotion, transfer and through initial recruitment, therefore, 25% promotional quota amongst head constables and Assistant Sub-Inspectors for all intents and purposes is an appointment through examination.

2. By now, it is well settled law that principle of harmonization is to be followed while interpreting a statute. The law should be saved rather than to be destroyed and the Courts must lean in favour of upholding the constitutionality of law keeping in view the rule of interpretation of statute that there is a presumption in favour of harmony and constitutionality of the legislative enactment, unless ex-facie, it is violative of the constitutional provision. Reliance is placed on “Syed Aizad Hussain and others v. Motor Registration Authority and others” (PLD 2010 Supreme Court 983), “Dr. Muhammad Aslam Khakhi v. The State and others” (PLD 2010 Federal Shariat Court 1), “Mian Asif Islam v. Mian Muhammad Asif and others” (PLD 2001 Supreme Court 499), “Arif Ghafoor v. Managing Director, H.M.C., Texila” (PLD 2002 Supreme Court 13), “Superintendent of Police, D.I. Khan and others v. Ihsanullah” (2007 SCMR 562), “Muhammad Iqbal v. District Officer, Sahiwal and another” (2011 SCMR 534) and “Government of Pakistan through Secretary M/o Finance and others v. Asif Ali and others” (2006 SCMR 1005).

3. While examining the vires of law, principle of “reading in” or “reading down” have been elaborated in the case, cited as “Province of Sindh through Chief Secretary and others v. M.Q.M. through Deputy Convener and others” (PLD 2014 Supreme Court 531) wherein the principle of “reading in” or “reading down” has been elaborated in the following terms:

“Reading in” or “reading down” of a statute---Object and principles---At the time of “reading down” of a statute two principles had to be kept in view; first that the object of ‘reading down’ was primarily to save the statute and in doing so the paramount question would be whether in the event of reading down, could the statute remain functional; second, would the legislature have enacted the law, if that issue had been brought to its notice which was being agitated before the Court.

1. Keeping in view the language and the object of these two enactments, I find the regulations, under challenge in addition and not in derogation to the Article 7(3c)(a) of Police Order, 2002. It is being substantiated by the language of 7(3c)(a) wherein it has been explicitly provided that 25% departmental promotion to the rank of Sub-Inspector shall be filled through selection on merit by Punjab Public Service Commission.

2. Another argument advanced by the learned counsel for the petitioner is that in terms of Punjab Public Service Commission Functions Rules, 1978, the Commission shall conduct test and examination falling in Grades 16 to 22 whereas the case of the petitioners pertains to Grades 11 to 14, therefore, it falls out of purview of the Punjab Public Service Commission. This argument is nullified because petitioners themselves have relied on Article 7(3c)(a) of the Police Order, 2002 whereas said Article explicitly provides that the test for the promotional examination quota shall be conducted by the Punjab Public Service Commission and no one can be allowed to aprobate and reprobate in the same breath. Reliance is placed on “M/s. Home Comforts v. Mirza Rashid Baig and others” (1992SCMR 1290).

3. Moreover, notification issued by Secretary (Regulations) S&GAD, Government of Punjab, bearing No. SOR-III(S&GAD)2-41/2009 dated 01.05.2016, reads as under:--

“In supersession of this department’s Notification Bearing No. SOR-III(S&GAD)2-8/2009 dated 26.01.2010 and under the provisions of Rule-16 of the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974 read with Rule-3 of the Punjab Public Service Commission (Functions) Rules, 1978, the Governor of the Punjab is pleased to direct that the initial recruitment to posts in BS-11 to BS-15 of the following departments/attached departments shall be made on the recommendations of the Punjab Public Service Commission.

(1) Services & General Administration

(2) Revenue

(3) Finance

(4) Police”

1. Yardstick which is predominant while examining the vires of a statute is that it must be in conformity with the constitutional provision with reference to the fundamental rights of a citizen. Reliance is placed on the case reported “Dr. Mobashir Hassan and others v. Federation of Pakistan and others” (PLD 2010 Supreme Court 265). In case of “Younas Abbas and others v. Additional Sessions Judge, Chakwal and others” (PLD 2016 Supreme Court 581), the afore-referred principle was affirmed by the Larger Bench of the Apex Court wherein it has been reiterated that provision of law could be declared ultra vires if it was violative of the provisions of the Constitution.

2. Another aspect of the case is that according to Policy Decision No. 16.6 of Punjab Public Service Commission Policy Decisions-2016, number of chances for written test/examination are as under:--

“16.6 Number of Chances for written examinations.

Unless otherwise prescribed by the Government, a candidate appearing in Written Test/Examination/Interview shall be allowed to avail three chances only for each particular written test/examination/interview irrespective of the type or categories of posts grouped in the Examination.”

1. This policy decision has been taken at the strength of Punjab Public Service Commission Regulation No. 3 which read as under:--

“The Commission may make policy decisions to specify detailed procedures for activities of the selection process and matters consequential, incidental and ancillary. Such decisions shall be incorporated in the Manual of Policy decisions.”

1. It is a settled principle of law that policy decisions are not interfered by the Courts under the constitutional jurisdiction unless found arbitrary, unconstitutional and against the public interest. Reliance is placed on “Dossani Travels (Pvt.) Ltd and others v. Messrs Travels Shop (Pvt.) Ltd. and others” (PLD 2014 SC 1), “Messrs Al-Raham Travels and Tours (Pvt.) Ltd. and others v. Ministry of Religious Affairs, Hajj, Zakat and Ushr through Secretary and others” (2011 SCMR 1621) and “Muhammad Nadeem Arif and others v. Inspector-General of Police, Punjab, Lahore and others” (2010 PLC (CS) 924).

2. Nutshell of afore-referred dictums of the Superior Courts is that a law could be struck down as ultra vires, if it is repugnant to Constitutional provisions or some other statute, if it is in conflict with the parent act itself and if it is not reasonable and opposed to the public policy. Even otherwise, every legislation is subject to judicial review under the constitutional jurisdiction and can be struck down on the ground that the statutory procedure prescribed has not been followed. Petitioner has failed to point-out any of the afore-referred grounds on the basis of which the regulations under challenge could be declared as ultra vires.

3. Since the petitioners have thrown challenge to the regulations with particular reference to the promotional quota, therefore, at this stage it has to be examined that as to whether the petitioners could claim promotion as vested right, particularly, when they have already been allowed to avail three chances. The answer is in negative. Reliance is placed on the case of “Government of Khyber Pakhtunkhwa through Chief Secretary and others v. Muhammad Javed and others” (2015 SCMR 269) and “Finance Secretary, Government of Pakistan, Islamabad and 2 others v. Shahid Hussain and others” (1992 SCMR 77) wherein it has categorically been laid down that promotion cannot be claimed as a vested right. To be more precise, no candidate has a vested right to be governed by any particular set of rules. Reliance is placed on “Mumtaz Ali Bohio and 24 others v. Federal Public Service Commission through Chairman at Islamabad and another” (2002 SCMR 772).

4. The rationale and the legislative intent behind a restriction of availing not more than three chances amongst the serving Assistant Sub-Inspectors and Head Constables was to give an opportunity to other employees who are performing their duties in the department and also to avoid an endless exercises on the part of unsuccessful candidates.

In view of what has been discussed above, this Court is not persuaded to hold that the impugned regulations No. 33 and 34 of Punjab Public Service Commission Regulations 2016 are ultra-vires to the Constitution or any other law. Therefore, instant petition does not succeed and is dismissed. No order as to costs.

(W.I.B) Petition dismissed

PLJ 2018 Lahore 87

Present: Abid Aziz Sheikh, J.

LESCO through Chief Executive, Lahore etc.--Petitioners

versus

M/s. TAJ INTERNATIONAL (PVT.) LTD. Through Director and 2 others--Respondents

W.P. No. 38130 of 2015, decided on 17.10.2016.

Electricity Act, 1910 (IX of 1910)--

----S. 26(6)--Regulation of Generation transmission and distribution of Electric Power Act, 1997, S. 38--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Detection Bill--Illegal abstraction of energy--Meter tampering--Detection bill--Petition accepted--Appeal dismissed--Limitation--Challenge to--After analyzing consumption data came to conclusion that technically there was nothing wrong with impugned meter during disputed period till its damage by some employee of company on 30.1.1997--Respondents were also advanced to charge revised bill for period from 30.1.1997 to date of replacement of impugned changed meter--No misreading and non reading on record has been showns in findings of fact recorded by Respondent No. 2 which was also upheld by Respondent No. 3--Impugned order by Respondent No. 2 was passed after 90 days prescribed in Section 26(6) of Electricity Act, admittedly said objection was never raised before authorities below--Even in this constitutional petition this ground has not been raised--Aforesaid ground was never raised by petitioners before appellate authority or even in this constitutional petition, therefore, this ground cannot be raised verbally at time of arguments--It also not specified in petition that when petition was entertained and when 90 days were expired, hence ground being mixed question of law and facts cannot be allowed to raised verbally unless specifically agitated before forabelow and also in this constitutional petition--Petition dismissed. [P. 89] A, B & C

Ch. Khalil-ur-Rehman,Advocate for Petitioners.

Mr. Muhammad Younas, Advocate for Respondents.

Date of hearing: 17.10.2016.

Order

This constitutional petition has been filed against order dated 30.12.2014 passed by Respondent No. 2 and order dated 28.05.2015 passed by Respondent No. 3.

1. Brief facts are that Respondent No. 1 was charged with detection bill of Rs. 6983689/- for period from March, 1996 to January, 1997. Respondent No. 1 challenged detection bill before Respondent No. 2 under Section 26(6) of the Electricity Act, 1910 (Electricity Act) and Section 38 of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (NEPRA Act). Respondent No. 2 accepted petition on 30.12.2014 in capacity of Provincial Office of Inspection (POI). The appeal filed by petitioners was also dismissed by Respondent No. 3 on 28.07.2015 hence this petition.

2. Learned counsel for petitioners argued that according to inspection report, the meter of Respondent No. 1 was found broken therefore, it was clear case of theft of energy. Submits that aforesaid aspect of the matter was not considered by Respondents No. 2&3. Further argued that order passed by Respondent No. 2 was beyond period of 90 days therefore, same was not sustainable under Section 26(6) of the Electricity Act.

3. Learned counsel for respondents supported the impugned orders being well reasoned and based on record. Submits that objection that order by Respondent No. 2 was passed after 90 days in violation of Section 26(6) of the Electricity Act was never raised before any forum including in grounds of this constitutional petition therefore, this argument cannot be entertained verbally. Adds that in any case order was passed by Respondent No. 2 in capacity of Provincial Office of Inspection under Section 38 of NEPRA Act therefore, limitation prescribed in Section 26(6) of the Electricity Act was not applicable

4. I have heard the learned counsel for parties and perused the record.

5. The perusal of record shows that detection bill was issued on allegation of illegal abstraction of energy by tempering/burning the billing meter. Admittedly billing meter was neither preserved nor made available before Respondent No. 2 to check its status/accuracy. In the circumstances, Respondent No. 2 perused available record and after analyzing consumption data came to conclusion that technically there was nothing wrong with impugned meter during the disputed period till its damage by some employee of company on 30.01.1997. Respondents were also allowed to charge revised bill for the period from 30.01.1997 to the date of replacement of impugned damaged meter. No mis-reading and non-reading on record has been shows in the findings of fact recorded by Respondent No. 2 which was also upheld by Respondent No. 3.

6. So far as argument of petitioners that impugned; order by Respondent No. 2 was passed after 90 days prescribed in Section 26(6) of the Electricity Act, admittedly said objection was never raised before the authorities below. Even in this constitutional petition this ground has not been raised. The respondent counsel also controverted this argument by stating that impugned order by Respondent No. 2 was in capacity of POI under Section 38 of the NEPRA Act, in which no limitation of 90 days has been prescribed and further as per provision of Section 45 of NEPRA Act the said Act overrides the provision of Electricity Act. He also contends that being subsequent law NEPRA Act will prevail. I have considered the arguments of learned counsel for parties and of the view that as aforesaid ground was never raised by petitioners before Appellate Authority or even in this constitutional petition, therefore, this ground cannot be raised verbally at the time of argument. It is also not specified in petition that when application was entertained and when 90 days were expired, hence ground being mixed question of law and facts cannot be allowed to be raised verbally unless specifically agitated before forabelow and also in this constitutional petition.

7. In view of above discussion, this petition has no merit which is accordingly dismissed.

(Y.A.) Petition dismissed

PLJ 2018 Lahore 90 [Rawalpindi Bench, Rawalpindi]

Present: Ibad-ur-Rehman Lodhi, J.

MalikZAHEER ARSHAD--Petitioner

versus

FEDERATION OF PAKISTAN and others--Respondents

Writ Petition No. 1080 of 2013, heard on 29.8.2017.

Cantonment Rent Restriction Act, 1963 (XI of 1963)--

----S. 6(1)--Constitution of Pakistan, 1973, Art. 175(3)--Independence of judiciary--Appointment of executive as rent controller--Validity--Held: Representative from executive are performing judicial functions in Courts of rent controller constituted under provisions of Act, which is in negation of Article 175(3) of Constitution--The Constitution of Pakistan provided completer separation of judiciary from executive? Enabling provisions of appointment of controller of rents i.e. Section 6 of Act, thus is declared as violative of Article 175(3) and concept of independence of judiciary from executive.

[P. 97] A

M/s. Amjad Afsar Ghakhar and Malik Shaukat Hayyat, Advocates with petitioner.

M/s. Muhammad Ilyas Sheikh and Muhammad Taimoor Malik, Advocates as Amicus Curiae appointed by Court.

Malik Amjad Jalil, Assistant Attorney-General for Federation.

Mr. Rashid Hafeez, Additional Advocate-General Punjab for Province.

Date of hearing: 29.8.2017

Judgment

With the consent of learned counsel for the parties, the hearing of this petition is being treated as pacca one.

1. On 27.04.1963, Act No. XI of 1963 namely The Cantonments Rent Restriction Act, 1963 (hereinafter to be referred as Act) was promulgated making provision for the control of rents of certain class of buildings within the limits of the cantonment areas and for the eviction of tenants therefrom and for matters connected therewith. For the purposes of the said Act, the Federal Government was authorized by virtue of Section 6 thereof to appoint a person to be the Controller of rents for one or more cantonments.

The “Controller” is defined in Section 2(d) of the Act in the manner, which means a Controller of rents appointed by the Federal Government under sub-section (1) of Section 6 and includes an Additional Controller.

In all the cantonment areas, the Executive Officers in the cantonments were given additional powers to act as Controller for the purposes of the Act.

To make appointments of the cantonment servants from BPS-1 to above, the authorities nominated in Rule 7(1) of The Pakistan Cantonment Servants Rules, 1954 were made competent. In view of Serial No. 4 of the table provided under Rule 7(1) of the referred Rules for appointment of cantonment servants from BPS-16 and above, the Director General has been nominated as Appointing Authority. The Executive Officers in cantonments fall in the said category.

“Director General” is defined in Rule 2(eee) of The Pakistan Cantonment Servants Rules, 1954 in the following manner:

“Director-General” means the Director-General, Military Lands and Cantonments Department, and includes such other officer as the Government may appoint to exercise all or any of the powers of the Director-General under these rules.”

In view of Rule 7(4) of the Rules, the appointing authorities under sub-rule (1) were required only to appoint fit and proper persons and to comply with the executive instructions issued by Government, from time to time, on the subject of recruitment of Government servants of the class and status concerned.

1. On 12th of April, 1973, the people of Pakistan through their representatives in National Assembly adopted, enacted and gave to themselves the “Constitution”.

Part VII of the Constitution deals with the judicature and Article 175(3) of The Constitution of the Islamic Republic of Pakistan, 1973 provides that the Judiciary shall be separated progressively from the Executive and originally a period of three years was fixed from the commencing day to achieve such goal, which was subsequently extended to 14-years by Presidential Order No. 14 of 1985. This period of 14-years even elapsed in 1987.

The Tribunals or Quasi Judicial Courts constituted, before the Constitution was promulgated, continued working in the same manner and with the same Presiding Officers, who were mainly appointed from executive side, to act as head of such Courts or Tribunals. In some cases, the appointment of the Presiding Officers of such forums was made subject to the supervision of Public Service Commission. The matters of violation of the mandate of Article 175 of the Constitution after elapse of the provided period were started bringing in the notice of the Superior Courts of the country and consistently the concept of independence of Judiciary and its complete separation from the executive was being safeguarded by the Superior Courts.

In case titled “Accountant-General, Sindh and others versus Ahmed Ali U. Qureshi and others” (PLD 2008 Supreme Court 522), the Apex Court has authoritatively held in the following manner:

“24. In the broader sense, the concept of independence of judiciary is not confined to the extent of disposal of cases by the Judges and discharging of the judicial functions rather in the extended meaning, the concept of independence of judiciary is complete separation from executive authorities of the State in all matters including pay and pension which is an essential component of independence of judiciary but unfortunately as is evident from judicial history of Pakistan Executive Authorities instead of acting in aid of judicial independence and taking remedial steps for judicial reforms have always behaved with step- motherly attitude towards judiciary and its independence of obvious reasons of maintaining their will and supremacy through administrative devices even at the cost of damaging the judicial system. This may be pointed out that all financial matters concerning with the judiciary including the pay and pension as well as other privileges of Judges are under the direct control of the Executive Authorities and it has been observed that the Executive Authorities, without recognizing the independent status of judiciary as an important Organ of State, treat it as their subordinate department in such matters…..In nutshell, the Executive is not supposed to interfere in the affairs of judiciary in any manner.”

In case titled “Province of Sindh through Chief Secretary and another versus Rasheed A. Rizvi and others” (PLD 2012 Supreme Court 649), the Hon’ble Supreme Court of Pakistan has held as under:

“9. Our constitutional Courts have consistently held that the process of appointments to the judiciary must be carefully scrutinized through the lens of constitutional principles such as the principle of separation of powers. In the Al-Jehad Trust case, this Court stated with reference to appointment of judges of the superior judiciary “…that the independence of the judiciary is inextricably linked and connected with the process of appointment of judges and the security of their tenure and other terms and conditions. “(PLD 1996 SC 324, 429) Although this was said in the context of appointment of the High Court, the principle applies with equal force to all judicial appointments, including those in the District Judiciary. Accordingly, the dictum laid down in the Al-Jehad case was soon reaffirmed by this Court in the case of Mehram Ali and others v. Federation of Pakistan (PLD 1998 SC 1445, 1474) and Sh. Liaquat Hussain v. Federation of Pakistan (PLD 1999 SC 504, 658), both cases which concerned the District Judiciary. The aforesaid dictum has also been recently reiterated in Sindh High Court Bar Association v. Federation of Pakistan (PLD 2010 SC 879, 1182) and Munir Hussain Bhatti v. Federation of Pakistan (PLD 2011 SC 407). In the latter case, the Court, after examining the case-law, concluded that “it is an undisputed tenet of our Constitutional scheme that in matters of appointment, security of tenure and removal of Judges the independence of the Judiciary should remain fully secured.” (PLD 2011 SC 407, 467).

1. The SPSC, to which certain functions of the Provincial Government of Sindh have by law been delegated under Article 138 of the Constitution, has correctly been deemed by the High Court as an executive authority. It is clearly performing an executive function and for this very reason, it cannot be given the task of making appointments to the Judicature. It may, however, be noted that while it remains a part of the Executive branch, for the effective discharge of its duties, it has been provided a certain degree of autonomy from the political executive. Where such autonomy is unlawfully impinged upon by the Executive in a given situation, the remedy lies in rectifying the specific situation under Article 199 of the Constitution, rather than declaring an Executive body to be incompetent or to be acting mala fide.”

In case titled “Muhammad Ali Satakzai and others versus Appointing Authority of the Additional District and Sessions Judges through Registrar Balochistan High Court and others” (2012 PLC (C.S.) 1216), the Hon’ble Supreme Court of Pakistan has held that introduction of Public Service Commission in process of selection of such Judicial Officers was offensive of concept of independence of judiciary and separation of judiciary from executive.

In case titled “Sh. Riaz-ul-Haq and another versus Federation of Pakistan through Ministry of Law and others” (PLD 2013 Supreme Court 501), the Apex Court has held as under:

“41. It is pertinent to mention here that as the service Tribunals are not only deemed to be a civil Court but also exercise judicial powers, therefore, they are included in the term, Court mentioned in Article 175 of the Constitution. As such, these Tribunals are to be manned, controlled and regulated in accordance with the law relating to management, regulation and control of Courts in Pakistan.

1. It is to be noted that independence of judiciary has been recognized as a universal human right. In terms of Article 10 of the Universal Declaration of Human Rights, G.A, 1948, everyone is entitled to full equality to a fair and public hearing by an independent and impartial Tribunal. In Pakistan, the independence of judiciary is a basic principle of the constitutional system of governance. The Preamble and Article 2A state that “the independence of judiciary shall be fully secured”. This Court while interpreting Article 175 has further strengthened the principle of the independence of judiciary, by emphasizing the separation of Judiciary from the Executive. The Constitution makes it the exclusive power/responsibility of the Judiciary to ensure the sustenance of the system of “separation of powers” based on checks and balances. This is a legal obligation assigned to the Judiciary. It is called upon to enforce the Constitution and safeguard the Fundamental Rights and freedom of individuals. To do so, the Judiciary has to be properly organized and effective and efficient enough to quickly address and resolve public claims and grievances; and also has to be strong and independent enough to dispense justice fairly and impartially….

45. The Principle of separation and independence of judiciary as envisaged in Article 175 of the Constitution is also applicable to the lower judiciary as it is the part of the judicial hierarchy. Thus, its separation and independence has to be secured and preserved as that of superior judiciary. In terms of Article 175 read with Article 203 of the Constitution, the lower judiciary should be separated from the Executive and the High Court shall supervise and control all Courts subordinate to it….As it has been held that Service Tribunal discharges judicial functions, thus falls within the definition of a “Court” in view of the above discussion, therefore, the Tribunals have to be separated from Executive following the principle of independence of judiciary in view of Article 175(3) of the Constitution.”

In case titled “Younas Abbas and others versus Additional Sessions Judge, Chakwal and others” (PLD 2016 Supreme Court 581), the Apex Court has held that a provision of law can be declared ultra vires if it is violative of the provisions of the Constitution which guarantee fundamental rights, independence of judiciary or its separation from the executive.

In case titled “Amanullah Khan Yousufzai and others versus Federation of Pakistan through Law Secretary and others” (PLD 2011 Karachi 451), the Division Bench of Karachi High Court has held that judicial service is essentially and structurally distinct and separate service from the civil, executive and administrative services of Pakistan and Judicial service cannot be treated at parity with such services on any account nor can judicial service be combined, abolished, replaced, mixed up and or tied together with the civil executive and or administrative services. Judiciary as a whole is a separate and distinct class in itself. Further that supervision and control over the subordinate judiciary vested in the High Court under Art.203 of the Constitution, keeping in view Art.175 of the Constitution, is exclusive in nature, comprehensive in extent and effective in operation and such supervision comprehends the administrative power as to the working of the subordinate Courts and disciplinary jurisdiction over the subordinate judicial officers and any provision in an Act or any rule or a notification empowering any executive functionary to have administrative supervision and control over the subordinate judiciary will be violative of Art.203 of the Constitution and militates against the concept of separation and independence of judiciary as envisaged by Art. 175 of the Constitution and the Objectives Resolution. The Division Bench has further held that High Court is quite competent to direct the concerned quarters to implement Art. 175(3) of the Constitution in its true sense by eliminating the intervention of executive into the affairs of judiciary from each and every angle, so that Pakistan as nation ranks and stands out amongst comity of nations having independent, impartial and competent judiciary for all times to come.

In another case titled “Yousaf Ayub Khan versus Government through Chief Secretary, Peshawar and 2 others” (PLD 2016 Peshawar 57), the Division Bench of Peshawar High Court has held as under:

“33. It is settled that the mandate and commencement of Article 175 must be obeyed and implemented; any laxity in this regard will amount to violation of Constitutional provisions. It is also admitted principle of law that a fair trial is deemed to be vitiated if judicial functions are given to the executive and its officer and the independence of the judiciary cannot be secured if the executive is made a part of judiciary.”

1. Challenging the vires of Section 6 of the Act on the touchstone of Article 175(3) of The Constitution of Islamic Republic of Pakistan, 1973 and the subsequent examination of the said subject by the Superior Courts as highlighted above, the petitioner has prayed for issuance of a writ declaring the said provision of law as being violative to Article 175(3) of The Constitution of Islamic Republic of Pakistan, 1973, which provides complete separation of judiciary from executive.

This Court, while hearing F.A.O. No. 123 of 2016, titled “Sohail Ahmed Qureshi and others versus Muhammad Rashid Farooqi” has taken notice of the novel way adopted by the Additional Rent Controller, Chaklala Cantonment, Rawalpindi, who has dealt with ejectment matter in the manner, which has no legal sanction at all and reading of the said order constitutes an impression that the Officer passed such order has no knowledge even of the basics of judicature. The said incumbent of Chaklala Cantonment/Controller of Rents was directed by this Court to furnish report and give proposals to improve the working in the Courts of Controller of Rents in cantonment areas. The report received on 04.04.2017 inter alia provides the following proposals:--

“2. As far as functions performed by the Controller of Rent/Additional Controller of Rent, are the same as performed by the civil judges. The only difference is that the Federal Government while appointing the Controller of Rent, preferred the Executive Officers/Additional Executive Officers as Controllers of Rent. The wisdom of legislature cannot be challenged because no qualification/experience has been prescribed for holding the post of Controller of Rent/Additional Rent Controller for Cantonments. As the Executive Officers have not much experience of writing judgments as such occasionally some judgments may be well worded.

1. To overcome this factor, it is suggested that the Executive Officers/Additional Executive Officers be given 3 months training in judicial Academy to get training in understanding the statutes and writing judgments in a logical and systematic manner.

2. The second suggestion is that the Federal Government may appoint independent Controllers of Rent from Executive Officers who must be law graduate and must have been practicing law for at-least 5 years.

3. The last but not the least suggestion is counseling of the Controllers of Rent by the Honourable Judges of the High Court. This practice can improve a lot the functions and process of Judicial work under the Cantonment Rent Restriction Act, 1963.”

The Hon’ble Supreme Court of Pakistan in case titled “Ghulam Mustafa Bughio versus Additional Controller of Rents, Clifton and others” (2006 SCMR 145), while dealing with a matter relating to The Cantonments Rent Restriction Act, 1963 has concluded in the following manner:

“It is high time that the Government should take steps for amendment in the provisions of Act, 1963 providing for appointment of Judicial Officers as Controller and Additional Controller of Rent under Section 6 of the Act, 1963, instead of conferring quasi-judicial powers on Executive Officer of the Cantonment, who is generally not fully well versed with the complexities of law but otherwise invested with the power to deal with very valuable property rights of the citizens owning properties in Cantonment areas throughout the country.”

Almost a decade has gone, when the Hon’ble Supreme Court of Pakistan felt it appropriate to advise the Government to take steps for amendment in the provisions of Act, 1963, but it seems that the concerned quarters in the Government have not moved inspite of such clear directions of the Apex Court.

1. In view of what has been discussed above, it is clear that representatives from executive are performing judicial functions in the Courts of Controller of Rents constituted under the provisions of the Act, which is in negation of Article 175(3) of The Constitution of Islamic Republic of Pakistan, 1973 providing complete separation of judiciary from executive. The enabling provision of appointment of Controller of Rents i.e. Section 6 of the Act, thus, is declared as violative to Article 175(3) of The Constitution of Islamic Republic of Pakistan, 1973 and the concept of independence of judiciary from executive.

2. The Federal Government is directed to take appropriate measures to bring the provisions of the Act in conformity with the Constitution and the findings already arrived at by the Superior Courts within a period of next six months and either the appointment as Controller of Rents in view of Section 6 of the Act be made from amongst the persons having legal knowledge and skill with the consultation of the concerned Chief Justices of the Provincial High Courts or such judicial powers within the meaning of Section 6 of the

Act be directed to be performed by the Civil Judges already performing their duties as Special Judges Rent (in Punjab) and Rent Controllers in other Provinces under Urban Rent Laws.

1. With these observations, this Constitutional petition stands allowed.

2. Copy of this judgment be transmitted to the Secretaries, Government of Pakistan in Ministry of Law, Justice and Parliamentary Affairs and of National Assembly of Pakistan for information and necessary action at their end.

(W.I.B.) C.P. Allowed

PLJ 2018 Lahore 98

Present: Abdul Sattar, J.

MUHAMMAD YAQOOB BUTT--Petitioner

versus

DEPUTY COMMISSIONER, etc.--Respondents

W.P. No. 58466 of 2017, decided on 21.8.2017.

West Pakistan Maintenance of Public Order Ordinance, 1960 (XXXI of 1960)--

----S. 3--Constitution of Pakistan, 1973, Arts. 199, 10-A & 13--Constitutional petition--Control of Narcotics Substances Act, 1997, S. 9(c)--Detention order--Double jeopardy--Misuse of power--Alternate remedy--Jurisdiction--Challenge to--Availability of alternate remedy of making representation to Provincial Government against impugned order does not oust and eclipse jurisdiction of this Court in exercise of writ jurisdiction if detention order is found to be violative of principles of fair trial as enshrined in Article 10-A of Constitution of Islamic Republic of Pakistan, 1973--Impugned detention order dated 26.7.2017 passed by Respondent No. 1 Deputy Commissioner, Hafizabad being found to be patently illegal, void-ab-initio and contrary to guarantees provided to citizens in Constitution of Islamic Republic of Pakistan, 1973, same is set aside and declared ineffective upon rights of detenue--Petition was allowed. [P. 101] A & B

Mr. Muhammad Jawad Joiya, Advocate for Petitioner.

Malik Abdul Aziz Awan, Addl.A.G. with Ijaz Ahmad Bhutta, Asstt. Commissioner (Coordination), Hafizabad for Respondents.

Date of hearing: 21.8.2017.

Order

Through this writ petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, petitioner Muhammad Yaqoob Butt seeks to challenge the impugned order dated 26.7.2017 passed by Respondent No. 1 Deputy Commissioner, Hafizabad, whereby the son of the petitioner namely Aamir Shahzad has been detained for a period of 30-days under Section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, on a report furnished by Respondent No. 2 District Police Officer, Hafizabad, which stipulated that said son of the petitioner has been found involved directly or indirectly in narcotics cases. Grounds cited for the above purpose are that the impugned order of the Deputy Commissioner, Hafizabad is illegal, void-ab-initio and passed in clear violation of constitutional guarantees, presumptive, discriminatory, manifest example of double jeopardy and against golden principles of equity and fair play.

1. During arguments, learned counsel for the petitioner reiterating the above grounds has also canvassed a plea that in view of the patently illegal, perverse and arbitrary nature of the impugned order, it is not necessary to file representation before Home Secretary, Government of the Punjab, Lahore as declared by this Court in several judgments reported in the cases “Mst. Sana Jamil vs. Government of the Punjab through Secretary and 5 others” (2016 P.Cr.L.J 424 Lahore), “Syed Mubbashar Raza vs. Government of Punjab through Secretary Home Department and 2 others” (PLD 2015 Lahore 20), and “Abdul Rasheed Bhatti vs. Government of Punjab through Chief Secretary and 6 others” (PLD 2010 Lahore 468). It has been, thus, ultimately prayed that by allowing the writ petition, the impugned order of Deputy Commissioner, Hafizabad dated 26.7.2017 may be declared as illegal, unlawful, void-ab-initio and the detenue Aamer Shahzad be set free immediately.

2. Issuing authority of the detention order under challenge the Respondent No. 1 Deputy Commissioner, Hafizabad in his report and parawise comments narrating the background of passing such order on the basis of District Police Officer, Hafizabad report has tried to justify his order, which according to him is legally sustainable and the detenue possesses alternate remedy to file representation before the Home Secretary, Government of the Punjab, Lahore. The learned Additional Advocate General relying upon the report and parawise comments furnished by the Respondent No. 1 Deputy Commissioner, Hafizabad has opposed the writ petition.

3. Arguments heard. Record perused.

4. After careful appraisal of above argued facts in the light of available record of the issue before this Court, it is manifest that while passing the impugned detention order under the preventive law known as West Pakistan Maintenance of Public Order Ordinance, 1960, the respondent Deputy Commissioner was mainly influenced by a report furnished by the District Police Officer, Hafizabad to the effect that detenue Aamer Shahzad, son of the petitioner, was involved in a criminal case FIR No. 134/2016 dated 18.4.2016 under Section 9(c) of the Control of Narcotics Substance Act, 1997, Police Station Sadder Hafizabad and he was a habitual offender and also involved in other evil activities. It was also reported that there was a sneering resentment against his activities, which may boil into unmanageable public protest leading to public disorder. Citing of such reasons is quite strange and repelling to reason for more than one reason, as mere involvement of someone in one criminal case cannot become a basis to be dubbed as habitual offender. Additionally hundreds of people involved in narcotics or other crimes, either on bails or otherwise, are roaming on the streets but not all of them have been thrown into jails by the Executive Officers under the Preventive Detention Laws. There can be great possibility of misuse or arbitrary use of such power by the Executive Authorities. Similarly exercise of such power also breeds discrimination. The learned counsel for the petitioner has also rightly raised the plea of causing the hardship of double jeopardy to the detenue, which is prohibited under Article 13 of the Constitution of the Islamic Republic of Pakistan, 1973 because if in the ultimate the detenue is acquitted from the above noted criminal case how he will be compensated in the end.

5. As regards the issuance of preventive detention order against the detenue Aamer Shahzad on the excuse of ensuring public safety, breach of peace and threat to peace and harmony or to maintain public order, the Hon'ble Supreme Court of Pakistan has clearly laid down guideline in the case titled “Mrs. Arshad Ali Khan VS Government of the Punjab through Secretary Home (1994 SCMR 1532) in the following unequivocal terms:--

“The word 'public order' is accordingly referable to public order of local significance as distinguished from national upheavals such as revolution, civil strife and war. Equally it is distinguishable from the popular concept of law and order and of security of State. Law and order represents the largest circle, within which is the next circle representing public order and the smallest circle represents security of the State. Hence an activity which affects law and order may not necessarily affect public order and an activity which may be prejudicial to public order may not necessarily affect security of the State.

From the above-stated legal position, it is quite clear that before an act is held to be prejudicial to public order, it may be shown that the act or activity is likely to affect the public-at-large. As a corollary, therefore, it follows that an act which concerns only to an individual and does not amount to an activity prejudicial to the public peace and tranquility cannot fall within the ambit of Section 3 of the Ordinance “.

1. About a plea raised from the respondents side to avail alternate remedy in the shape of filing of representation before the Home Secretary, Government of the Punjab, Lahore, this Court has, time and again, declared in many cases that availability of alternate remedy of making representation to the Provincial Government against the impugned order does not oust and eclipse the jurisdiction of this Court in exercise of writ jurisdiction if the detention order is found to be violative of the principles of fair trial as enshrined in Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973. Reliance is placed on “Abdul Latif Shamshad Ahmad vs. District Magistrate, Kasur (1999 P.Cr.L.J 2014) “Mst. Sana Jamil vs. Government of the Punjab through Secretary and 5 others” (2016 P.Cr.L.J 424 Lahore) and “Syed Mubbashar Raza vs. Government of Punjab through Secretary Home Department and 2 others” (PLD 2015 Lahore 20).

2. In view of what has been discussed and held above, the impugned detention order dated 26.7.2017 passed by Respondent No. 1 Deputy Commissioner, Hafizabad being found to be patently illegal, void-ab-initio and contrary to the guarantees provided to the citizens in the Constitution of Islamic Republic of Pakistan, 1973, the same is set aside and declared ineffective upon the rights of the detenue. Resultantly, instant writ petition is allowed and the detenue Aamer Shahzad is ordered to be released forthwith, if not required in any other case.

(M.M.R.) Petition allowed

PLJ 2018 Lahore 102

Present: Mrs. Ayesha A. Malik, J.

M/s. MAQBOOL ASSOCIATES (PVT.) LIMITED through Duly Authorized Attorney and 2 others--Petitioners

versus

LAHORE DEVELOPMENT AUTHORITY (LDA) through Chief Engineer and 3 others--Respondents

W.P. No. 39099 of 2016, heard on 7.9.2017.

Punjab Procurement Rules, 2014--

----R. 21--Constitution of Pakistan, 1973, Art. 199--Issuance of letter regarding blacklisting--Show-cause notice--Written reply order of blacklisting--Contractual obligations--Termination of contract--Question of--Weather Petitioner No. 3 failed to perform its contractual obligations or weather respondent LDA was at fault and illegality terminated contract--Determination--Challenge to--There is absolutely no provision of law that allows Respondent LDA to pass any such direction to Respondent PPRA nor can they through “CC” of impugned order direct PPRA to take action against petitioners--Not only is this a glaring violation of due process but is absolutely contrary to requirements of Punjab Procurement Regulatory Authority Act and Rules--It is also noted that Respondent LDA in “CC” at No. 1 directed Pakistan Engineering Council not to renew enlistment of three petitioners--There is no legal basis for making such a direction--Impugned order does not explain how public safety and security was compromised nor does it explain that how lesser length impacted entire project and resulted in a safety or security hazard--It appears that blacklisting order was issued simply to deny petitioners right to participate in public tenders--Therefore, impugned order of blacklisting is not sustainable under law--Petition was allowed.

[Pp. 107, 108 & 109] A & B

Mr. Tafazzul Haider Rizvi, Mr. Haider Ali Khan and Mr. Muhammad Usman,Advocates for Petitioners.

Mr. Faisal M. Buttar, AAG for Respondents.

Mr. Faisal Mehmood Khan, Advocate for Respondent No. 1.

Date of hearing: 7.9.2017.

Judgment

Through this Writ Petition, the Petitioner has impugned letter dated 30.11.2016 issued by Respondent No. 1 whereby the Petitioners have been blacklisted by the Lahore Development Authority (“LDA”) for five years, such that they will not be able to participate in any tender of the LDA.

1. The Petitioners are engaged in the business of construction and development and are three separate legal entities, each of whom have executed and completed different projects including projects of the Respondent LDA. Petitioner No. 3 which is joint venture company of Petitioners No. 1 and 2, after a competitive bidding process was awarded the contract for works on the Orange Line Metro Train Project, Package-II (“Project”) which works had commenced. However, a dispute arose between the parties which is now pending before an Arbitrator.

2. Counsel for the Petitioners argued that the Respondent LDA issued the impugned order of blacklisting without following due process. A show-cause notice was issued on 3.11.2016 to Petitioner No. 3, to which reply was filed on 10.11.2016. However, the impugned order of blacklisting was issued to all three Petitioners on 30.11.2016. Hence no due process was followed with respect to Petitioners No. 1 and 2 and they were simply blacklisted. In this regard, learned counsel has relied upon the case titled Messrs Habib Rafiq (Pvt.) Ltd. through Authorized Representative v. Government of Punjab through Chief Secretary and another (2015 CLD 72). Counsel for the Petitioners further argued that the subject matter of the blacklisting is pending before the Arbitrator which arbitration was referred with the consent of the parties. Therefore, he argued that the Respondents cannot impose any liability on the Petitioners given that the Arbitrator still has to decide on whether Petitioner No. 3 is liable for the alleged faulty works on Grids No. 358 and 359 of the Project. Learned counsel further stated that the reasons provided in the impugned order for blacklisting the Petitioners are not available to the Respondents as there is no proof whatsoever that Petitioner No. 3 failed to perform the contract or attempted to undermine the safety, security and stability of the structure of the project by constructing 22 piles of lesser length at Grids No. 358 and 359. He explained that so far as the dispute of 22 piles in Grids No. 358 and 359 is concerned, the deficiency pointed out by the Respondent LDA was corrected and by May 2016 the sixth bill with reference to the stated Grids was paid and cleared by the stated Respondents. Thereafter simply to harass the Petitioners, the Respondents took up the issue of Grids No. 358 and 359 in order to justify terminating the contract and to initiate a campaign of maligning the Petitioners by registering an FIR against them and initiating inquiries against them.

3. On behalf of the Respondent LDA, learned counsel explained that the Petitioners did not fulfill their contractual obligation with reference to the Project and that the Petitioners compromised in the quality of works which is evident from the construction of Grids No. 358 and 359, hence the contract was terminated. Therefore he explained that show cause notice was issued on 3.11.2016 to which reply was filed on 10.11.2016 and ultimately the blacklisting order was issued on 30.11.2016. Learned counsel argued that due process was followed and no illegality is made out against the impugned order. Learned counsel further stated that the dispute is pending before the Arbitrator, however the pendency of that dispute does not affect the blacklisting order as the blacklisting order is a penal consequence for non-compliance of the contract with the Respondent LDA which cannot be stopped on account of pendency of the civil dispute.

4. Heard and record perused.

5. The impugned blacklisting order has been issued under Rule 21 of the Punjab Procurement Rules, 2014 (“Rules”) which provides that:

Subject to sub-rule (3), if a procuring agency is satisfied that a contractor has acted in a manner detrimental to the public interest or good practices or has consistently failed to perform his obligation under the contract or his performance has not been up to mark or he is found indulging in corrupt or fraudulent practice, the procuring agency may, after affording him an opportunity of hearing and through a notification, debar him from participating in any public procurement process of the procuring agency for such period as the procuring agency may determine in the light of the circumstances of the case.

In terms of the Rules, a mechanism for blacklisting is provided in the schedule appended with the Rules which provides that:

1. The procuring agency may, on information received from any resource, issue show cause notice to a bidder or contractor.

2. The show-cause notice shall contain:

(a) precise allegation, against the bidder or contractor;

(b) the maximum period for which the procuring agency proposes to debar the bidder or contractor from participating in any public procurement of the procuring agency; and

(c) the statement, if needed, about the intention of the procuring agency to make a request to the Authority for debarring the bidder or contractor from participating in public procurements of all the procuring agencies.

1. The procuring agency shall give minimum of seven days to the bidder or contractor for submission of written reply of the show cause notice.

2. In case, the bidder or contractor fails to submit written reply within the requisite time, the procuring agency may issue notice for personal hearing to the bidder or contractor/authorize representative of the bidder or contractor and the procuring agency shall decide the matter on the basis of available record and personal hearing, if availed.

3. In case the bidder or contractor submits written reply of the show-cause notice, the procuring agency may decide to file the matter or direct issuance of a notice to the bidder or contractor for personal hearing.

4. The procuring agency shall give minimum of seven days to the bidder or contractor for appearance before the specified officer of the procuring agency for personal hearing.

5. The procuring agency shall decide the matter on the basis of the available record and personal hearing of the bidder or contractor, if availed.

6. The procuring agency shall decide the matter within fifteen days from the date of personal hearing unless the personal hearing is adjourned to a next date and in such an eventuality, the period of personal hearing shall be reckoned from the last date of personal hearing.

7. The procuring agency shall communicate to the bidder or contractor the order of debarring the bidder or contractor from participating in any public procurement with a statement that the bidder or contractor may, within thirty days, prefer a representation against the order before the Managing Director of the Authority.

8. The procuring agency shall, as soon as possible, communicate the order of blacklisting to the Authority with the request to upload the information on its website.

9. If the procuring agency wants the Authority to debar the bidder or contractor from participating in any public procurement of all procuring agencies, the procuring agency shall specify reasons for such dispensation.

10. The Authority shall immediately publish the information and decision of blacklisting on its website.

11. In case of request of a procuring agency under para 11 or representation of any aggrieved person under Rule 21, the Managing Director shall issue a notice for personal hearing to the parties and call for record of proceedings of blacklisting. The parties may file written statements and documents in support of their contentions.

12. In case of representation of any aggrieved person or procuring agency under Rule 21, the Chairperson shall issue a notice for personal hearing to the parties and may call for the record of the proceedings. The parties may file written statements and documents in support of their contentions.

13. In every order of blacklisting under Rule 21, the procuring agency shall record reasons of blacklisting and also reasons for short, long or medium period of blacklisting.

14. The Authority shall upload all the decisions under Rule 21, available with it, on its website. But the name of a bidder or contractor shall immediately be removed from the list of blacklisted persons on expiry of period of blacklisting or order of the competent authority to that effect, whichever is earlier.

15. An effort shall be made for electronic communication of all the notices and other documents pursuant to this mechanism or process.

In terms of the record show cause notice was issued to Petitioner No. 3 on 3.11.2016, to which reply was filed on 10.11.2016. Thereafter personal hearing was given to Petitioner No. 3 after which the impugned order for blacklisting was issued on 30.11.2016. No show cause notice was issued to Petitioners No. 1 and 2, no hearing was given to them nor has any order been passed against them. The impugned order under “Copy for information to” states as follows:

i. The Director General, LDA.

ii. Managing Director, PPRA, S&GAD, GoP with a request to upload the information on the website. It is further requested to debar both the contractors from participating in any public procurement of all procuring agencies in Punjab for the reasons specified in Para 2 above.

ii. The Project Coordinator, PMU, LDA.

iv. The Engineer/Project Director, LOLMTP (Package-Il), LDA.

v. The Registrar, M/s Pakistan Engineering Council (PEC), Ataturk Avenue (East) G-5/2, Islamabad with a request not to renew the enlistment of contractors M/s Ch. A. Latif & Sons (Pvt.) Ltd ad M/s Maqbool Associates (Pvt) Ltd.

vi. The Project Manager, NESPAK-CEC(JV), LOLMTP.

vii. Office Copy.

1. Interestingly it is through the ‘CC’ that the Respondent LDA directed the Respondent Punjab Procurement Regulatory Authority (“PPRA”) to debar all three Petitioners from participating in public procurement of any procuring agency in Punjab. In this regard, there is absolutely no provision of law that allows Respondent LDA to pass any such direction to Respondent PPRA nor can they through the “CC” of the impugned order direct PPRA to take action against the Petitioners. Not only is this a glaring violation of due process but is absolutely contrary to the requirements of the Punjab Procurement Regulatory Authority Act and the Rules. It is also noted that the Respondent LDA in the “CC” at No. 1 directed the Pakistan Engineering Council not to renew the enlistment of the three Petitioners. Again there is no legal basis for making such a direction. Learned counsel for Respondent LDA when confronted with the basis for directing Respondent PPRA as well as Pakistan Engineering Council was unable to explain under what provision of law, LDA draws the authority to make such a request. Therefore to the extent of Petitioners No. 1 and 2, there is no blacklisting order. The 'CC Note' at the end of the impugned order cannot be considered as a blacklisting order against Petitioners No. 1 and 2 as due process was not followed for blacklisting the stated Petitioners. Hence implementation of the impugned order against Petitioners No. 1 and 2 is illegal and therefore set aside. Furthermore the directions given to Respondent No. 2, PPRA and Respondent No. 3, Pakistan Engineering Council are also without any legal basis and the Respondent No. 1, LDA is cautioned from resorting to such practices as it cannot direct Respondent PPRA or the Pakistan Engineering Council from not fulfilling their statutory obligations.

2. So far as Petitioner No. 3 is concerned, the grounds mentioned in the impugned order dated 30.11.2016 for blacklisting are as follows:--

(a) There is no doubt that the contractor failed to perform his contractual obligation under various clauses of the contract document.

(b) The contractor has not raised the issue of Black listing in any Court of law.

(c) As per “Schedule” (sub-section (6) of Rule 21) para 1 to 8, all actions, such as issuance of show-cause notice, personal hearing and decision, are to be taken by the “procuring agency.”

(d) The Contractor' attempt to undermine the safety, security and stability of the structure of the project by constructing lesser length of 22 piles at two grids (358 & 359) is a solid ground to black list him besides other reasons.

The issue of Ground (a) is admittedly in dispute before the Arbitrator, hence it cannot be used as a basis to blacklist Petitioner No. 3 as the Arbitrator has yet to determine whether the Petitioner No. 3 failed to perform its contractual obligations or whether Respondent LDA was at fault and illegally terminated the contract. Ground (b) is astonishingly a novel concept which finds no basis in the law as Petitioner No. 3 is not required to raise the issue of blacklisting in any Court of law prior to the issuance of any notice or order of blacklisting. Hence there is no legal basis for this ground. The main ground relied upon by the Respondent LDA is Ground (d) which holds Petitioner No. 3 liable for the safety, security and stability of the structure of the project with reference to Grid Nos. 358 and 359. This matter is also in dispute before the Arbitrator and at this stage it is premature for the Respondents to levy this allegation because so far as Grids No. 358 and 359 are concerned, admittedly the lesser length issue was corrected and improved upon and thereafter certified by the Engineer as required under the contract. The allegation, if any, against Petitioner No. 3 is that it intended to compromise on public safety and security in collusion with the staff of LDA as well as that of NESPAK. This issue was also considered in WP No. 40127/2016 titled Maqbool Associates (Pvt.) Limited etc. v. Anti-Corruption Establishment Lahore through its Director General etc wherein the same Petitioners challenged an inquiry initiated by the Federal Investigation Agency with reference to the same Grids No. 358 and 359. It was mentioned in that case that during the pendency of the writ petition, FIR No. 2/2017 dated 27.1.2017 was registered against the petitioners which was also with malafide intent to harass the petitioners. The issue in the FIR is of whether the lesser lengths were made with malafide intent in collusion with LDA and NESPAK employees which issue is under investigation. Therefore at this stage it cannot form a ground for blacklisting Petitioner No. 3. Furthermore the impugned order does not explain how public safety and security was compromised nor does it explain that how the lesser length impacted the entire project and resulted in a safety or security hazard. It appears that the blacklisting order was issued simply to deny the petitioners the right to participate in public tenders. Therefore, the impugned order of blacklisting is not sustainable under the law.

1. In view of the aforesaid, the instant Writ Petition is allowed and impugned order of blacklisting dated 30.11.2016 issued by Respondent LDA to the Petitioners is set aside. The Respondents are directed to immediately remove the blacklisting order against the Petitioners from the LDA and PPRA website.

(Y.A.) Petition allowed

PLJ 2018 Lahore 110

Present: Abdul Rehman Aurangzeb, J.

MUHAMMAD IQBAL--Petitioner

versus

WAPDA through Chief Executive, LESCO, Lahore and 3 others--Respondents

C.R. No. 1157 of 2013, decided on 23.2.2017.

Civil Procedure Code, 1908 (V of 1908)--

----O. XXXIX, R. 12--Slowness of meter--Detection bill--Direction of--Deposit of disputed amount--Bank guarantee regarding detection bill--Validity--Challenge to--Condition of cash amount and condition of bank guarantee, relates to same nature, therefore, bifurcation of 50% with regard to cash and remaining 50% as bank guarantee does not seems to be difference in nature--It is also pertinent to mention here that, when stay application of petitioner was accepted by respondents, therefore, with proposed offer of changing of bank guarantee with surety bond did not effect rights of respondents--Petition is allowed and petitioner is directed to submit surety bond to tune of 50% amount of disputed bill before trial Court before further proceedings in case--It is made clear that if petitioner fails to abide above modification upto 11.3.17, then impugned order of appellate Court dated 30.3.13 shall stand revived--Petition allowed.

[P. 111] A & B

Mr. Rustam Khan Padhiar, Advocate for Petitioner.

Mr. Mohammad Saeed Alvi, Advocate for Respondents.

Date of hearing: 23.2.2017.

Order

Through this civil revision, the petitioner/plaintiff (hereinafter to be referred as “the petitioner”) seeks the validity of impugned judgment dated 30.03.2013, passed by the learned Additional District Judge, Sheikhupura, whereby, the learned appellate Court, while allowing application under Order XXXIX, Rules 1 and 2 CPC, imposed the condition by directing the petitioner to deposit 50% of the disputed amount, in cash, and 50% amount through bank guarantee, regarding the detection bill within a period of one month.

1. Learned counsel for the petitioner contends that the business of CNG has been suffered a huge loss, and the dispute regarding slowness of meter, can be ascertained only through trill of the case, therefore, half of the disputed amount, which has already been deposited before the trial Court, and now the condition of deposit of remaining amount through bank guarantee is also in the nature of cash, which is harsh in nature. However, the petitioner is ready to furnish the surety bond to the extent of said amount.

2. Conversely, learned counsel for the respondents/defendants opposed the contentions and defended the impugned judgment by stating that the reasons rendered by the learned appellate Court are justified, which do not require any further interference therein.

3. I have heard learned counsel for the parties and have perused the record.

4. At the very outset, it is not out of place to mention here that the condition of cash amount and the condition of bank guarantee, relates to the same nature, therefore, bifurcation of 50% with regard to cash and the remaining 50% as bank guarantee, does not seem to be difference in nature. It is also pertinent to mention here that, when the stay application of the petitioner was accepted by the appellate Court, the order was not assailed or impugned by the respondents; therefore, with the proposed offer of changing of amount of bank guarantee with surety bond did not affect the rights of the respondents.

5. Without adverting to the merits of the case, the offer made by the petitioner that he is ready to furnish the surety bond in the like amount to the remaining 50% seems to be reasonable, which is hereby allowed. The petitioner is directed to deposit the surety bond of the remaining 50% of disputed bill.

6. With the above modification, this petition is allowed, and the petitioner is directed to submit surety bond to the tune of 50% amount of the disputed bill before the trial Court before further proceedings in the case. It is made clear that if the petitioner fails to abide the above modification up-to 11.03.2017, then the impugned order of appellate Court dated 30.03.2013 shall stand revived. It is further directed that the above suit be decided on merits within two months from the receipt of this order.

(M.M.R.) Petition allowed

PLJ 2018 Lahore 112 [Multan Bench Multan]

Present: Ali Akbar Qureshi, J.

MUHAMMAD ZIA-UL-HAQ--Petitioner

versus

HOME SECRETARY, GOVERNMENT OF PUNJAB and 3 others--Respondents

W.P. No. 5435 of 2015, decided on 24.4.2015.

West Pakistan Maintenance of Public Order Ordinance, 1960 (XXXI of 1960)--

----S. 3--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Detention order--Quashment--Alternate remedy--Maintainability--Respondent-government despite availing time could not produce any material against the detenue and the only argument, which was advanced by the respondent-government, that the petitioner had an alternate remedy of representation--Conduct of government is not satisfactory and liberty of a citizen should be jealously safeguarded and government action in curtailing liberty of a citizen is not immune to this scrutiny of this Court, under article of 199 of Constitution of Islamic Republic of Pakistan, 1973--In view of above, this petition is allowed the impugned order of detention dated 07.04.2015, passed by the Secretary Govt. of Punjab Home Department in continuation of the request District coordination Officer and District police officer, Dera Ghazi khan is declared illegal, without lawfull authority and the same is set aside. [Pp. 115 & 116] A & B

Mr. Muhammad Umar Qureshi, Advocate for Petitioner.

Mr. Mobasher Latif Gill, Asstt. A.G. for Respondents.

Date of hearing: 24.4.2015.

Order

The petitioner, who is son of the detenue, is seeking the quashment of the detention order of his father namely Haji Yar Muhammad s/o Allah Bakhash, under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, on the ground, that his father has been detained illegally and unlawfully as there is no material before the detaining authority neither mentioned in the detention order. The detention order is reproduced as under:--

“No. SO(IS-I) 3-3/2015 (D.G. Khan). WHEREAS, Haji Yar Muhammad s/o Allah Bakhsh was detained for a period of 30-days vide District Coordination Officer, Dera Ghazi Khan Order No. DCO/CSA/1478-82, dated 11.02.2015. On the request of District Coordination Officer & District Police Officer, D.G. Khan, Home Department issued extension Order No. SO(IS-I)3-3/2015 (D.G. Khan), dated 09.03.2015 for a period of 30-days w.e.f. 10.03.2015. The District Coordination Officer & District Police Officer, D.G. Khan have further requested for extension of their detention for another period of 30 days.

1. WHEREAS, evidence placed on record corroborates that activities of aforesaid person are prejudicial to Public Safety & Maintenance of Public Order.

2. AND WHEREAS, grounds of detention of the District Coordination Officer, Dera Ghazi Khan are justified and continue to exist.

3. NOW THEREFORE, in exercise of powers conferred under sub-section (1) of Section 3 of the Punjab Maintenance of Public Order Ordinance, I960, detention period of aforesaid persons are extended for a period of 30-days with effect from 08.04.2015. His custody shall continue to rest with Superintendent, Central Jail, D.G. Khan.

4. Detenue is at liberty to make a representation against the order to the Government of Punjab. “

5. The father of the petitioner namely Haji Yar Muhammad, was detained by the District Coordination Officer, Dera Ghazi Khan, while exercising his powers under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, firstly on 11.02.2015 for a period of 30 days, then on 09.03.2015 for another 30 days and presently by the order dated 07.04.2015 for further thirty days.

The petitioner earlier to this, filed a Constitutional petition against the detention of his father i.e. W.P. No. 3960 of 2015, the same was disposed of on 08.04.2015 in the following manners:

“1. Learned Assistant Advocate General, under instructions submits, that the detention order, impugned herein is going to be elapsed by tomorrow i.e. 09.04.2015 and the government for the time being have no intention to issue any further detention order.

1. Despite availing time, respondent-Government could not place any material against the detenue, before this Court. If the respondent-government issue any further detention order the petitioner would be at liberty to challenge the same.”

Although in the previous proceedings of the Constitutional petition, the government stated at the bar, that the government had no intention to further issue any detention order of the detenue but again another order from 07.04.2015 to 07.05.2015 has been issued.

1. In response of the notice learned Assistant Advocate-General appeared before the Court after obtaining instructions and stated, that there is no material against the petitioner, which could be placed on file or to submit before this Court.

2. As regards the preventive detention under section 3(1) of the Ordinance ibid, the Hon'ble Supreme Court of Pakistan, has laid the following principles in a judgment cited as “Federation of Pakistan through Secretary Ministry of Interior, Islamabad v. Mrs. Amatul Jalil Khawaja and others” (PLD 2003 SC 442):--

“An order of preventive detention has to satisfy the requirements laid down by their Lordships of the Supreme Court that is to say, (i) the Court must be satisfied that the material before the detaining authority was such that a reasonable person would be satisfied as to the necessity for making the order of preventive detention; (ii) that satisfaction should be established with regard to each of the grounds of detention, and, if one of the grounds is shown to be bad, non-existent or irrelevant, the whole order of detention would be rendered invalid; (iii) that initial burden lies on the detaining authority to show the legality of the preventive detention, and (iv) that the detaining authority must place the whole material, upon which the order of detention is based, before the Court notwithstanding its claim of privilege with respect to any document, the validity of which claim shall be within the competence of the Court to decide. In addition to these requirements, the Court has further to be satisfied, in cases of preventive detention, that the order of detention was made by the authority prescribed in the law relating to preventive detention; that each of the requirements of the law relating to preventive detention should be strictly complied with; that 'satisfaction' in fact existed with regard to the necessity of preventive detention of the detenue; that the grounds of detention had been furnished within the period prescribed by law, and if no such period is prescribed, then 'as soon as may be’; that the grounds of detention should not be vague and indefinite and should be comprehensive enough to enable the detenue to make representation against his detention to the authority prescribed by law; that the grounds of detention, that is, they are not irrelevant to the aim and object of this law and that the detention should not be for extraneous considerations or for purposes which may be attacked on the ground of malice” (Liaqat Ali v. Government of Sindh through Secretary, Home, PLD 1973 Karachi 78).”

The Hon'ble Supreme Court of Pakistan has further observed, that the right of a person to a petition for habeas carpus is a high prerogative right and is a Constitutional remedy for all matters of illegal confinement and the Court can see whether the satisfaction about the existence of requite of satisfaction really and truly existing in the mind of the detaining authority or one merely professed by the detaining authority.

1. The learned Assistant Advocate-General repeatedly argued, that the petitioner has an alternate remedy of representation before the higher authority, therefore, in the presence of the alternate remedy available by in the law this Constitutional petition is otherwise not maintainable.

2. This proposition has already been dealt with by the learned Division Bench of this Court in the judgment titled “Syed Mubbashar Raza v. Govt. of Punjab through Secretary Home Department and 2 others” (PLD 2015 Lahore 20), wherein it is observed, that remedy of representation had always been considered an illusion, particularly in the circumstances, where the order passed against detenue was coram non judice and nullity in the eye of law.

3. In this case admittedly, the respondent-government despite availing time could not produce any material against the detenue and the only argument, which was advanced by the respondent-government, that the petitioner had an alternate remedy of representation. The conduct of the government is not satisfactory and the liberty of a citizen should be jealously safeguarded and the government action in curtailing the liberty of a citizen is not immune to this scrutiny of this Court, under article of 199 of the Constitution of the Islamic Republic of Pakistan, 1973.

4. In view of above, this petition is allowed the impugned order of detention dated 07.04.2015, passed by the Secretary Govt. of Punjab Home Department in continuation of the request District

coordination Officer and District police officer, Dera Ghazi khan is declared illegal, without lawful authority and the same is set aside and in result thereof the detenue mentioned in the aforementioned detention order is ordered to be released forthwith.

(Y.A.) Petition allowed

PLJ 2018 Lahore 116 [Multan Bench Multan]

Present: Ali Baqar Najafi, J.

MUHAMMAD TAUFIQ KHAN--Petitioner

versus

DEPUTY COMMISSIONER, MULTAN/CHAIRMAN OVERSEAS PAKISTANI COMMISSION CELL, DISTRICT, MULTAN and 3 others--Respondents

W.P. No. 11515 of 2017, decided on 25.8.2017.

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 406--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Direction to--Misuse of Authority--Recovery of possession--Lodging of FIR--Pendency of--Petitioner shall bring in notice of Respondent No. 1 of facts brought before this Court supported by documents and thereafter he shall pass appropriate order in accordance with law by ensuring that any proceedings pending before Court of law are not frustrated--Writ Petition Dispose of.

[P. 117] A

Mr. Muhammad Bilal Butt, Advocate for Petitioner.

Mr. Muhammad Javed Saeed Pirzada, AAG on Court’s call for Respondents.

Date of hearing: 25.8.2017.

Order

Through this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner has sought a direction to Respondents No. 1 to 3 not to misuse their authorities for the recovery of possession of property No. 888/9-E measuring 11 Marlas situated near Telephone Exchange, Bosan Road, Multan and the property measuring 7 Marlas situated in Gulgasht Colony, Multan. Further submits that FIR No. 381/2016 dated 18.08.2016 under Section 406, PPC at Police Station, B.Z, Multan

lodged by Mst. Hina Hassan wife of Shahid Pervaiz (Respondent No. 4) regarding the said property which is subject matter of FIR, has been recommended for discharge. Also submits that prior to the registration of the said FIR a civil suit titled, “Muhammad Taufiq Khan vs. Shahid Pervaiz” in connection with property measuring 11 Marlas has been filed by the petitioner which is pending in the Court of Mr. Ibrar Ali Khan, learned Civil Judge, Multan and is fixed for hearing on 21.09.2017 whereas another suit of the same titled regarding the property measuring 7 Marlas has also been filed on the ground that the said property was rented out by Respondent No. 4 which is pending in the Court of Mr.Umar Bashir Sipra, learned Civil Judge, Multan and is fixed for hearing on 28.09.2017 and that during the pendency of the civil suits Respondent No. 1 could not order for dispossession of the petitioner from the said property.

1. The learned Law Officer who has enters appearance on Court’s call submits that the file does not reveal that the petitioner ever appeared before Respondent No. 1 so as to bring into his notice the fact of pendency of the litigation and if these facts are brought into his notice he shall act strictly in accordance with law.

2. Be that as it may, I dispose of this writ petition with an observation that the petitioner shall bring in to the notice of Respondent No. 1 of the facts brought before this Court supported by the documents and thereafter he shall pass appropriate order in accordance with law by ensuring that any proceedings pending before the Court of law are not frustrated.

(M.M.R.) Petition disposed of

PLJ 2018 Lahore 117 [Multan Bench Multan]

Present: Ch. Mushtaq Ahmad, J.

ABDUL MAJEED AWAN, PRINCIPAL GOVERNMENT COLLEGE OF COMMERCE, BUREWALA DISTRICT, VEHARI--Petitioner

versus

DISTRICT COORDINATION OFFICER, VEHARI and 6 others--Respondents

W.P. No. 13854 of 2013, decided on 7.4.2015.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Allegation of--Embezzlement of Funds--Preliminary inquiry--Question of--Whether any embezzlement has been committed or not--Commencement of such an inquiry cannot be termed as an adverse action against petitioner--Contention of petitioner that he being an officer in BPS-19 could not be proceeded against without prior permission of Chief Secretary as provided under Punjab anti Corruption Establishment Rules 1974 is also not applicable to rules have already been repealed and were not applicable to subject--Resultantly, petition in hand is dismissed. [Pp. 118 & 119] A

Syed Jaffar Tayyar Bukhari, Advocate for Petitioner.

Mian Adil Mushtaq, AAG with Zafar Abbas C.O, ACE and Ms. Asma Khan, Advocate for Respondents.

Date of hearing: 7.4.2015.

Order

This petition is directed to call in question the validity of letter dated 7.11.2013 issued by Respondent No. 2 and letter dated 25.10.2013 issued by Respondent No. 4 whereby the petitioner was required to join an inquiry before Anti Corruption Establishment in respect of embezzlement of funds pertaining to Government College of Commerce, Burewala where petitioner was posted as Principal.

1. It is case of the petitioner that the complaint was based on malafide; that departmental proceedings were in progress regarding the same issue when the impugned letters were issued by the Anti Corruption authorities which are against law on the subject and liable to be struck down.

2. Petition has been opposed on the ground that in preliminary inquiry only notices were issued to the petitioner to submit his explanation and till now no adverse action was taken against the petitioner. Hence, the petition was not maintainable.

3. Heard. Perused.

4. Record reveals that letter dated 07.11.2013 issued by Respondent No. 2 was a notice only to appear in person or through attorney in connection with a complaint lodged regarding embezzlement of funds. Similarly, letter dated 25.10.2013 is to the effect that the petitioner may appear before Circle Officer Anti Corruption Establishment District Vehari to explain his position. The preliminary inquiry has been initiated in order to see whether any embezzlement has been committed or not. Commencement of such an inquiry cannot be termed as an adverse action against the petitioner. Contention of petitioner that he being an officer in BPS-19 could not be proceeded against without prior permission of the Chief Secretary

as provided under Punjab Anti-Corruption Establishment Rules, 1974 is also not correct as the above mentioned rules have already been repealed and were not applicable to the subject. Resultantly, the petition in hand is dismissed.

(Y.A.) Petition dismissed

PLJ 2018 Lahore 119 [Multan Bench Multan]

Present: Amin-ud-Din Khan, J.

MUHAMMAD SHARIF--Petitioner

versus

MEMBER (JUDL.II) BOR, PUNJAB, LAHORE and 4 others--Respondents

W.P. No. 5424 of 2005, decided on 7.4.2015.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Appointment of Lambardar--District officer Revenue appointed respondent as permanent Lambardar on death of previous Lambardar, who was father of respondent--Petitioner was also contestant--He filed appeal which was dismissed--Basic thrust of arguments of counsel for petitioner was that ownership of land of respondent is very small, therefore, his appointment is not correct as in case of any embezzlement in land revenue collected by Lumbardar if he does not deposit same in government treasury; for recovery of any such arrears his ownership is inefficient--When questioned to counsel that when respondent was appointed as Lumbardar, whether there is any complaint about fulfillment of duty against him, answer is in negative--In above circumstances, when it is prerogative of revenue hierarchy to appoint any one as a Lumbardar as Lumbardar has to act in aid of revenue officials--There are orders of three forums in favour of respondent, for last twelve years he is working as Lumbardar and there is no complaint against him--AAG also supports decisions of forums below--In above circumstances and attitude of counsel appearing on behalf of petitioner, noted supra, no case for interference under Article 199 of Constitution of Islamic Republic of Pakistan, 1973, in orders passed by revenue authorities has been made out, therefore, petition was dismissed.

[Pp. 121 & 122] A

Rao Riyasat Ali Khan, Advocate for Petitioner.

c, AAG for Respondent.

Mr. Muhammad Jaffar Tayyar, Advocate for Respondent No. 4.

Date of hearing: 7.4.2015.

Order

Through this writ petition, the petitioner has challenged the order dated 1.2.2005, passed by the Member (Judicial-II), Board of Revenue, Punjab, order dated 14.04.2004, passed by the Executive District Officer (Revenue), Vehari, as well as order dated 26.08.2003, passed by the District Officer (Revenue), Vehari. The District Officer (Revenue) Vehari, appointed Respondent No. 4 as permanent Lumbardar on the death of previous Lumbardar, who was father of Respondent No. 4. Petitioner was also contestant. He filed an appeal before the Executive District Officer (Revenue), Vehari, which was dismissed on 14.04.2004. The matter was agitated before the Board of Revenue through ROR No. 1039 of 2004, which was also dismissed on 01.02.2005, hence, the instant writ petition.

1. Record shows that after filing of the instant writ petition which was fixed for hearing five times before today’s date of hearing on every date of hearing either the learned counsel for the petitioner was not available, if available, requested for adjournment to prepare the brief. Today learned counsel for the petitioner has advanced arguments. Basic thrust of the arguments of the learned counsel for the petitioner was that the ownership of land of Respondent No. 4 is very small, therefore, his appointment is not correct as in case of any embezzlement in the land revenue collected by the Lumbardar if he does not deposit the same in the government treasury; for recovery of any such arrears, his ownership is inefficient. When questioned to the learned counsel that when Respondent No. 4 was appointed as Lumbardar vide order dated 26.08.2003, whether there is any complaint about fulfillment of duty against him, the answer is in negative. In the above circumstances, when it is prerogative of the revenue hierarchy to appoint any one as a Lumbardar as the Lumbardar has to act in aid of the revenue officials. There are orders of three forums in favour of Respondent No. 4, for the last twelve years he is working as Lumbardar and there is no complaint against him. Learned AAG also supports the decisions of the forums below. In the above circumstances and the attitude of the counsel appearing on behalf of the petitioner, noted supra, no case for interference under

Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, in the orders passed by the revenue authorities has been made out, therefore, this writ petition stands dismissed.

(A.A.K.) Petition dismissed

PLJ 2018 Lahore 121

Present: Ali Akbar Qureshi, J.

ABDUR REHMAN KALYAR--Petitioner

versus

DISTRICT COORDINATION OFFICER, CHINIOT and 3 others--Respondents

W.P. No. 39939 of 2016, decided on 4.1.2017.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Allotment of membership of District Press Club--Contempt proceedings--Show-cause notice--If petitioner is member of district press club, chiniot, he is allowed to enter in said premises and to avail facilities like other members, extended by District Coordination Officer, if till to day he is not a member of District Press Club, he may take membership in accordance with law and may avail facilities--Show-cause notice to initiate contempt proceedings was given, seek forgiveness, therefore, show-cause notice is recalled--Petition was disposed of accordingly. [P. 122] A & B

Sardar Yousaf Nadeem, Advocate for Petitioner.

Mr. Naveed Saeed Khan, Additional Advocate General alongwith Abdul Waheed, Chief Officer, Municipal Committee, Chiniot.

Date of hearing: 4.1.2017.

Order

In response of the notice, Abdul Waheed, Chief Officer, Municipal Committee, Chiniot has appeared alongwith the record and submits, that one room consisted of 01 Marla and 01 Sq. Ft. was allotted to the members of the District Press Club, Chiniot by the District Coordination Officer, Chiniot on the application filed for this purpose. Further submits, that neither the room has been allotted permanently nor given on rent to the said club.

1. In response thereof, learned counsel for the petitioner submits, that the petitioner is also the member of the District Press Club, Chiniot and therefore, he be allowed to enter in the premises and to avail the facilities extended by the District Coordination Officer to the other members of the press club.

2. Learned Additional Advocate General, under instructions, has no objection to it.

3. In view of above, if the petitioner is the member of the District Press Club, Chiniot, he is allowed to enter in the said premises and to avail the facilities like other members, extended by the District Coordination Officer. If till today he is not a member of the District Press Club, he may take the membership in accordance with law and may avail the facilities.

4. Abdul Waheed, Chief Officer, Municipal Committee, Chiniot, to whom the show-cause notice to initiate the contempt proceedings was given, seeks forgiveness, therefore, the show-cause notice is recalled.

5. This petition is disposed of accordingly.

(Y.A.) Petition disposed of

PLJ 2018 Lahore 122 (DB) [Multan Bench Multan]

Present: Muhammad Qasim Khan and Asjad Javaid Ghural, JJ.

GHULAM QADIR--Petitioner

versus

STATE and 2 others--Respondents

W.P. No. 3871-ATA of 2017, decided on 27.2.2017.

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 295-A--Anti-Terrorism Act, 1997, Ss. 9, 19(2B) & 32--Criminal Procedure Code, (V of 1898), S. 265-K--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Face book account--Photograph--Edited--Detestable act--Religious feelings were outraged--Over riding effect of ATA Act--Technical Jurisdiction of special Court--Application for acquittal--Dismissed--Challenge to--Case was registered under Anti-Terrorism Act, 1997--Where no such provision under Section 196, Cr.P.C. was applicable--Anti-Terrorism Act, 1997 is a special law and have overriding effect on all other laws as envisaged under Section 32 of Anti-Terrorism Act, 1997--Provision of Code of Criminal procedure, 1898 are inapplicable to proceedings arising out of Special Law by virtue of sub-section (a) of Section 1 of the Criminal Procedure Code, 1898 and Section 32 of Act ibid having overriding effect--Petition was dismissed. [Pp. 124 & 125] A & B

Syed Jafar Tayyar Bukhari, Advocate for Petitioner.

Date of hearing: 27.2.2017.

Order

Through this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 Ghulam Qadir, the petitioner has challenged the vires of order dated 01.03.2017 passed by learned Judge Anti-Terrorism Court, Sahiwal in case FIR No. 713, dated 24.12.2015 in respect of offences under Section 295-A, PPC alongwith Section 9 of the Anti-Terrorism Act, 1997 registered at Police Station Yousaf-Wala, District Sahiwal.

1. Briefly, the allegation against the petitioner was that on 22.12.2015, the petitioner edited a photograph from his Facebook account wherein a green turban was placed on the heads of the dogs and by this detestable act of the petitioner religious feelings of Hanfi-Brelvi Sect were outraged. Allegedly the petitioner to provoke the abhorrence further shared this photograph which was seen by Muhammad Asif, Sajjad Bashir, Sajid Mukhtar, Qari Muhammad Akmal, Safdar Ali Shad and Javed Mukhtar etc. and spread the anarchy in the society. After trial the petitioner has moved an application seeking his acquittal under Section 265-k, Cr.P.C., which was dismissedvide impugned order dated 01.03.2017. Hence. Hence, this petition.

2. Learned counsel for the petitioner submits that primarily the registration of case was illegal as sanction for prosecution had not been obtained which amounts to clear violation of Section 196, Cr.P.C. where a complaint could be made by an order of the Central Government or the Provincial Government concerned, or some officer empowered in this behalf, but in the instant case no such sanction was procured to proceed further with the alleged offence; that the petitioner is liable to be acquitted as subsequent proceedings after registration of the case are without any foundation and ultimately there is no probability of his conviction at all.

3. Heard. Record perused.

4. Admittedly, no sanction for prosecuting the petitioner is available with the file, but it is important to mention here that the case was registered under Anti-Terrorism Act, 1997 where no such provision under Section 196, Cr.P.C. was applicable. The Anti-Terrorism Act, 1997 is a special law and have overriding effect on all the other laws as envisaged under Section 32 of the Anti-Terrorism Act, 1997, the same is reproduced here:--

“32. Overriding effect of Act.--(1). The provisions of this Act shall have effect notwithstanding anything contained in the Code or any other law but, save as expressly provided in this Act, the provisions of the Code shall, insofar as they are not inconsistent with the provisions of this Act, apply to the proceedings before (An Anti-Terrorism Court), and for the purpose of the said provisions of the Code, (Anti-Terrorism Court) shall be deemed to be a Court of Session.

(2) In particular and without prejudice to the generality of the Provisions contained in sub-section (1), the provisions of Section 350 of the Code shall, as far as may be, apply to the proceedings before (Anti-Terrorism Court), and for this purpose any reference in those provisions to a Magistrate shall be construed as a reference to (Anti-Terrorism Court):”

1. According to Section 19(2-b) of the Act ibid, in Anti-Terrorism Act, amendment has been made with regard to sanction for prosecution and Section 19(2-b) has been insulted. That if sanction for prosecution is not received within thirty days, the same shall be deemed to have been given the same is reproduced here:

“(8-b)--Notwithstanding anything contained in Section 7 of the Explosive Substances Act, 1908 (VI of 1908), or any other law for the time being in force, if the consent or sanction of the appropriate authority, where required, is not received within thirty days of the submission of challan in the Court, the same shall be deemed to have been given or accorded and the Court shall proceed with the trial of the case.”

Bare reading of aforesaid section shows that the sanction for prosecution in cases relating to Anti-Terrorism Act is not to be required and it shall be deemed to have been granted after expiry of thirty days of the submission of challan. Learned counsel for the petitioner submits that the proceedings are illegal and for the said reason the petitioner deserves acquittal. The petitioner was alleged to have committed a scheduled offence under the provision of Section 12 of the Act ibid which shall be triable only by the Special Court exercising territorial jurisdiction in relation to such area. In cases

where Special Law attracts the provision of Code of Criminal procedure, 1898 are inapplicable to the proceedings arising out of the Special Law by virtue of sub-section (a) of Section 1 of the Code of Criminal Procedure, 1898 and Section 32 of the Act ibid having overriding effect. In this regard, we seek guidance from the case reported as “Mian Nawaz Sharif and others vs. The State” (2000 MLD 946).

1. In view of above, without going into the merits of the case, the submissions made by learned counsel for the petitioner as he has confined himself to the extent that there was no sanction for prosecution to proceed with the matter is without any substance, hence, the same stands dismissed in limini.

(Y.A.) Petition dismissed

PLJ 2018 Lahore 125 (DB) [Multan Bench Multan]

Present: Ch. Mushtaq Ahmed and Mujahid Mustaqeem Ahmed, JJ.

MUHAMMAD AFZAL--Petitioner

versus

STATE and 3 others--Respondents

W.P. No. 16950 of 2016, decided on 17.10.2017.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 397--Scope--Concurrent running of sentence--Power of Court--Validity--It contemplates that sentence awarded to a person in a subsequent trial would commence at expiration of imprisonment for which he had been previously sentenced, however discretion has been left with Court to direct concurrent running of sentence awarded in a subsequent trial. [P. 127] A

Criminal Procedure Code, 1898 (V of 1898)--

----S. 397--Scope--Concurrent sentence--Discretionary powers of Court--Duty of Court--Validity--It ought to be made at time of deciding case or appeal and if for any reason or due to some inadvertent omission, direction could not be issued at time, there is no embargo that same could not be passed after ward--The Court can exercise discretionary power any time to direct that sentences in two different trials would run concurrently--Petition was accepted.

[Pp. 127 & 128] B

2016 SCMR 467, ref.

Prince Rehan Iftikhar Sheikh, Advocate for Petitioner.

Mehr Nazar Abbass Chawan, A.A.G. for State.

Mr. Muhammad Siddique Moghal, Advocate for Respondents No. 3 & 4.

Date of hearing: 17.10.2017.

Order

As a result of trial in private complaint case titled “Riaz ul Haq v. Muhammad Akram etc. “ as well as State case F.I.R. No. 643 dated 30.11.2004 of Police Station Farid Town, Sahiwal Muhammad Afzal, petitioner was convicted under Section 302(b), P.P.C. by the learned Sessions Judge, Sahiwalvide judgment dated 15.1.2010 and sentenced to death and also to pay compensation Rs.50,000/- to legal heirs of Muhammad Ashraf, deceased. The petitioner was also convicted by the learned Sessions Judge, Sahiwal under Section 302(b), P.P.C. vide judgment dated 15.1.2010 in another private complaint titled “Muhammad Ali v. The State etc. “ as well as State case bearing F.I.R. No. 644 dated 30.11.2004 of same police station and sentenced to death with a direction to pay compensation of Rs.50,000/- to legal heirs of Mst. Nasreen, deceased. Appeals filed by the petitioner bearing Cr. Appeal Nos. 133 of 2010 and 290-J of 2011 (against conviction in private complaint and State case F.I.R. No. 643/2004) and Cr. Appeal No. 86 of 2010 (against conviction in private complaint and State case F.I.R. No. 644 of 2004) were dismissed by this Court vide separate judgments dated 1.12.2015, however, with modification in the sentences from death to imprisonment for life in each case. As stated at Bar neither the petitioner nor the complainant or the State assailed said judgments of this Court before Apex Court.

1. By filing this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner prays for concurrence of both the sentences awarded to him in above said two cases.

2. Relying on the provisions of Section 397 read with Section 35, Cr.P.C. learned counsel for the petitioner has contended that mandates of law required that the Court while awarding sentences of imprisonment ought to have passed appropriate orders for concurrent running of the sentences but the same has not been done as a result of which the petitioner is bound to undergo a sentence of about 50 years which is not intent of the legislature and consequently prays that sentences of imprisonment for life in both the cases be directed to run concurrently.

3. On the other hand learned counsel for the respondents have vehemently opposed the petition on the ground that under Section 397, Cr.P.C. relief sought by the petitioner could be granted only by the trial/appellate Court at the time of passing judgments of conviction and this constitutional petition cannot be substituted for the said forums. Learned counsel for the complainant submits that the petitioner was convicted and sentenced in trials/appeals for the commission of two different offences and as such the sentences awarded to the petitioner should run consecutively.

4. We have given our anxious consideration to the arguments advanced by both sides and relevant law on the subject.

5. Though the sentences of imprisonment for life were awarded on conviction in two different trials/appeals, yet they pertain to one and the same person i.e. the petitioner. Section 397, Cr.P.C. contemplates that sentences awarded to a person in a subsequent trial would commence at the expiration of imprisonment for which he had been previously sentenced, however, discretion has been left with the Court to direct concurrent running of sentence awarded in a subsequent trial. It would be advantageous to reproduce relevant portion of said provision which runs as under:

“397. Sentence on offender already sentenced for another offence. When a person already undergoing a sentence of imprisonment or imprisonment for life, is sentenced to imprisonment, or imprisonment for life, such imprisonment, or imprisonment for life shall commence at the expiration of the imprisonment, or imprisonment for life to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence.”

It is manifest from above quoted provision of law that command of law for consecutive sentences is general rule while direction for concurrent sentences is discretionary power of the Court. Although appropriate order within the meaning of Section 397, Cr.P.C. ought to be made at the time of deciding the case or appeal but if, for any reason or due to some inadvertent omission, direction could not be issued at that time there is no embargo that the same cannot be passed afterward. In the safe administration of criminal justice, the Court can exercise discretionary power any time to direct that sentences in two different trials would run concurrently. While expounding this provision of law in the case titled Sajjad Ikram and others v. Sikandar Hayat and others (2016 SCMR 467) the Hon’ble Supreme Court held as under:

“12. The aggregate of punishment of imprisonment for several offences at one trial were deemed to be a single sentence. However, the position of an accused person is different who while already undergoing a sentence of imprisonment for life, is subsequently convicted and sentenced in another trial. Such subsequent sentence in view of Section 397, Cr.P.C. would commence at the expiration of imprisonment for life for which he had been previously sentenced but even then in such cases, the said provision expressly enables the Court to direct that the subsequent sentence would run concurrently with the previous sentence. It is clear from Section 397, Cr.P.C. that the Court, while analyzing the facts and circumstances of every case, is competent to direct that sentences in two different trials would run concurrently. In that eventuality, the Court has wide power to direct that sentences in one trial would run concurrently. The provision of Section 397, Cr.P.C. confers wide discretion on the Court to extend such benefit to the accused in a case of peculiar nature, like the present one. Thus extending the beneficial provision in favour of the appellant, would clearly meet the ends of justice.”

In the present case the petitioner was convicted and sentenced simultaneously and even his appeals were decided at the same time. It appears that while converting sentences of death into imprisonment for life passing appropriate orders for concurrent running of sentences escaped notice of this Court. Thus, to our mind, it would be in the fitness of things that benefit of this provision should be extended in favour of the petitioner in order to meet the ends of justice.

1. Resultantly, this petition is accepted and it is directed that sentence of imprisonment for life awarded to the petitioner by this Courtvide judgment dated 1.12.2015 passed in Cr. Appeal No. 86 of 2010 shall run concurrently with the sentence of imprisonment for life awarded to the petitioner vide judgment dated 1.12.2015 passed in Cr. Appeals No. 133 of 2010 and 290-J of 2011.

(W.I.B) Order accordingly

PLJ 2018 Lahore 129 [Rawalpindi Bench Rawalpindi]

Present: Shahid Waheed, J.

Mst. GHULAM ZAINAB--Petitioner

versus

GULASTAR HUSSAIN through LRs etc.--Respondents

C.R. No. 1217-D of 2010, heard on 24.4.2017.

Gift--

----Ingredients of oral gift--Transaction of gift was got recorded on the basis of power-of-attorney--Validity--Under Islamic law, a gift in order to be valid and binding upon the parties must full fill three conditions: (a) a declaration of the gift by donor (b) Acceptance of gift by the donee: (C) delivery of possession of corpus. [P. 132] A

Onus of proof--

----Gifted by Pardanashin Lady--Validity--Onus of proof of transaction of gift recorded in revenue record in form of mutation was essentially upon its beneficiary to establish that same was result of conscious application of mind of donor and not under influence or fraud--Petition was accepted. [P. 132] B

2002 SCMR 1291, 2010 SCMR 1370, 2008 SCMR 1384, ref.

Mr. Mujeeb-ur-Rehman Kiani, Adocate for Petitioner.

Mr. Iftikhar Ahmad Zaki, Advocate for Respondents No. 1 & 2.

Nemo (Ex-Parte Vide Order dated 22.2.2011) for Respondent No. 3.

Date of hearing: 24.4.2017.

Judgment

Shahid Waheed, J.--The plaintiff has filed this petition to seek revision of the decree dated 05.10.2010 of the learned first Appellate Court whereby appeal of Respondents No. 1 and 2 against the decree dated 29.05.2009 of the learned Trial Court was accepted and her suit was dismissed.

1. Dispute in this case initially related to land measuring 23 Kanals 16 Marlas situated within the revenue estate of Munday, Tehsil and District Chakwal which was owned by the present petitioner (Mst. Ghulam Zainab) and her sister, Hameeda Begum. The said property stood transferred in the name of their nephew, Mudassar Hussain (Respondent No. 2), who is son of Gulastar Hussain (brother of the present petitioner) on the basis of oral gift. The transaction of gift was got recorded in the revenue record by Gulastar Hussain on the basis of power of attorney dated 04.04.1981 (Ex.D-7) vide Mutation No. 5644 dated 20.07.1998 (Ex.P-15). The petitioner alongwith her sister Hameeda Begum on 18.04.2003 instituted a suit against the respondents and sought a decree for declaration to the effect that Mutation No. 5644 dated 20.07.1998 was illegal and ineffective upon their rights. A prayer was also made that respondents be restrained from interfering in their possession over the suit land. The allegations of the plaint were that the predecessor of Respondent No. 1, that is, Gulastar Hussain was the real brother of the petitioner; that consequent upon the death of the petitioner’s father, Gulastar Hussain, brought the petitioner to Chakwal for the purpose of transfer of license of .12-bore gun; that for the said purpose the thumb impressions of the petitioner were obtained on certain blank papers; that Gulastar Hussain taking advantage of illiteracy and Parda of the petitioner fraudulently got executed general power of attorney dated 04.04.1981 in his favour; that subsequently on the basis of said power of attorney Gulastar Hussain got sanctioned gift Mutation No. 5644 dated 20.07.1998 in favour of his son i.e. Mudassar Hussain (Respondent No. 2); and, that the petitioner had not gifted the suit land in favour of Respondent No. 2 and, therefore, Mutation No. 5644 dated 20.07.1998 was illegal being result of fraud and misrepresentation.

2. The allegations of the plaint were contested by Respondents No. 1 and 2 whereas Respondent No. 3 (brother of the petitioner) filed a conceding written statement. During trial, the sister of the petitioner i.e., Mst. Hameeda Begum (Plaintiff No. 1) made a request that she be allowed to withdraw the suit to her extent. This request was allowed and consequently the suit to the extent of Mst. Hameeda Begum was dismissed as withdrawn vide order dated 07.10.2005. Subsequently the present petitioner filed an amended plaint seeking declaration to the effect that Mutation No. 5644 dated 20.07.1998 (Ex.P-15) to the extent of her land measuring 11 Kanals 18 Marlas was void.

3. On pleadings, issues were framed and evidence was led. After appraising evidence the learned Trial Court relying upon the case of Muhammad Jalil and 4 others vs. Muhammad Sami and 8 others (PLD 2007 Lahore 467) held that the brother of the petitioner, Gulastar Hussain, on the basis of general power of attorney dated 04.04.1981 (Ex.D-7) could not make a gift and transfer the suit land in favour of his real son, as it was the sole prerogative of the petitioner to decide as to whom the gift was to be made. Upon the above stated findings the claim of the petitioner was allowed vide judgment dated 29.05.2009 and consequently Mutation No. 5644 dated 20.07.1998 was declared illegal and void. The decree was accordingly drawn on 29.05.2009.

4. The Respondents No. 1 and 2 assailed the decree of the learned Trial Court through an appeal under Section 96, CPC before the learned Addl. District Judge, Chakwal. On appeal, the learned Addl. District Judge held that power of attorney dated 04.04.1981 (Ex.D-7) fully authorized Gulastar Hussain to make a gift of the suit land and thus Mutation No. 5644 dated 20.07.1998 (Ex.P-15) was valid.

5. This is a case of variant findings of the learned Courts below in respect of transaction whereby the suit land stood transferred in the name of Respondent No. 2 through gift which was made by Gulastar Hussain on the basis of power of attorney dated 04.4.1981 (Ex.D-7). The petitioner through this petition seeks revision of the findings of the learned first Appellate Court on the basis of principle settled in the cases of Haji Faqir Muhammad and others vs. Pir Muhammad and another (1997 SCMR 1811) and Mst Naila Kausar and another vs. Sardar Muhammad Bakhsh and others (2016 SCMR 1781). It is contended on behalf of the petitioner: (i) that in the said cases the Hon’ble Supreme Court of Pakistan settled two principles: firstly, that an attorney cannot utilize the power conferred upon him to transfer the property to himself or to his kith and kin without special and specific consent and permission of the principal; and, secondly, that power of attorney cannot be utilized for effecting a gift by the attorney without intentions and direction of the principal to gift the property; (ii) that in the light of afore-stated principle of law Gulastar Hussain, predecessor of Respondent No. 1, on the basis of power of attorney dated 04.04.1981 (Ex.D-7) could not transfer the suit land through gift in favour of his real sent i.e. Respondent No. 2 as neither the specific consent and permission of the petitioner was obtained nor the same was proved by producing convincing evidence; and, (iii) that this aspect of the matter was not taken into consideration by the learned first Appellate Court and thus it fell into error while reversing the findings of the learned Trial Court. On being confronted with the afore-noted arguments learned counsel appearing on behalf of Respondents No. 1 and 2 by referring to the statement made by Gulastar Hussain before the learned Trial Court as DW-1 submitted that the petitioner of her own free will made gift at her house; and, that Gulastar Hussain on the basis of power of attorney dated 04.04.1981 (Ex.D-7), only got recorded the transaction of gift in the revenue record vide Mutation No. 5644 dated 20.07.1988 (Ex.P-15) and thus in these circumstances the principle settled in the afore-cited precedents does not attract to the present case. The arguments canvassed by respondents’ counsel appeared to be convincing at first blush but after reading the contents of the written statement the same were found of no substance. Respondents No. 1 and 2 in their joint written statement did not state that the petitioner had herself made the gift at her house; and, that Gulastar Hussain was asked to get the said transaction recorded in the revenue record on the basis of alleged power of attorney dated 04.04.1981 (Ex.D-7). The statement made by Gulastar Hussain (DW-1), before the learned Trial Court was beyond the pleadings and, therefore, could not be relied upon. The afore-stated facts and circumstances lead to the conclusion that Gulastar Hussain without getting express and specific permission of the petitioner transferred the suit land in favour of his real son on the basis of power of attorney dated 04.04.1981 (Ex.D-7) and, therefore, the same could not be held valid; and, that the findings of the learned Trial Court being valid were erroneously reversed by the learned first Appellate Court.

6. There is another aspect of the matter. Under the Islamic Law, a gift, in order to be valid and binding upon the parties, must fulfill three conditions: (a) a declaration of the gift by the donor; (b) acceptance of gift by the donee; and, (c) delivery of possession of corpus. On the fulfillment of above three conditions a valid gift comes into existence. The onus of proof of transaction of gift recorded in the revenue record in the form of mutation was essentially upon its beneficiary to establish that same was result of conscious application of mind of donor and not under influence of fraud played with her. Since it was a case of transaction of oral gift, the Respondents No. 1 and 2 being beneficiary, were required to first state in the pleadings the date, time, place and persons in whose presence the gift was made and thereafter to prove the essential ingredients of gift by producing convincing evidence. In this regard reference may be made to the cases of Bashir Ahmad and another vs. Muhammad Rafiq (2002 SCMR 1291) and Khaliqdad Khan and others vs. Mst. Zeenat Khatoon and others (2010 SCMR 1370). In the present case, the Respondents No. 1 and 2 in their written-statement had not disclosed the date, time, place and name of persons before whom the transaction of gift took place. This omission was fatal. Even otherwise the statement of Gulastar Hussain which he made before the learned Trial Court as DW-1 was also silent about the date and time on which the petitioner made a declaration of gift of the suit land in favour of her nephew and its acceptance. Same is the status of the statements of other witnesses who appeared on behalf of respondents. The failure to clearly establish the twin requirements of making and acceptance of gift was fatal to the claim of the respondents-defendants. Consequently, it could not be said that a valid gift was made by the petitioner in favour of her nephew, i.e. Respondent No. 2.

7. Another facet of the case which, was ignored by the first appellate Court is that the petitioner is a Pardanashin illiterate lady. The Hon’ble Supreme Court of Pakistan in the case of Mst. Rasheeda Bibi and others vs. Mukhtar Ahmad and others (2008 SCMR 1384) has settled the following points which should be taken into consideration by the Courts with regard to gift deed or transaction of gift made by a Pardanashin lady:--

(i) Whether the plaintiff (donor) had any friendly advice before executing the deed and by a person whom the Court considers as being genuinely interested in her welfare?

(ii) Whether the document was explained to her and whether she really had the capacity to understand its consequences?

(iii) Whether it was a mental act, that is, whether the mind accompanied the hand that executed it?

(iv) Whether the entire transaction was free from circumstances throwing any shadow of doubt or suspicion on the inception, execution and application of the deed?

In the present case, there is no evidence on the file by the respondents that the petitioner (donor) had any friendly advice before making gift; that transaction of gift was explained to her; and that transaction was result of conscious application of petitioner’s mind. This aspect of the matter suggests that the Mutation No. 5644 dated 20.07.1998 was not valid; and, that the claim of the petitioner as set out in the plaint was justified.

1. Since the judgment and decree of the learned first Appellate Court are not in consonance with the principle settled by the Hon’ble Supreme Court of Pakistan, as discussed above, the same cannot be held valid. This petition is, therefore, accepted. The judgment and decree dated 05.10.2010 passed by the learned Addl. District Judge, Chakwal are hereby set aside and consequently the judgment and decree dated 29.05.2009 of the learned Trial Court are restored with no order as to costs.

(W.I.B.) C.R. Accepted

PLJ 2018 Lahore 134

Present: Masud Abid Naqvi, J.

MUHAMMAD AKRAM etc.--Petitioners

versus

SCRUTINY COMMITTEE, DISTRICT SARGODHA, PAKISTAN CRICKET BOARD etc.--Respondents

W.P. No. 39416 of 2016, decided on 19.10.2017.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional jurisdiction--Scope--Validity--It should not be invoked where alternative forum under a special law, duly empowered to decide controversy is available and functioning. Where a special law provides legal remedy for the resolution of a dispute, the intention of legislature in creating such remedy is that disputes falling within ambit of such forum be taken only before it for resolution--Petition was dismissed. [P. 136] A

2016 SCMR 842, ref.

Mr. Abdul Razzaq Rajab, Advocate for Petitioners.

Mr. Taffazal H. Rizvi, Advocate for PCB.

Date of hearing: 19.1.2017.

Order

Aggrieved by the letter dated 25.08.2016, findings of the scrutiny committee wherein petitioners’ cricket clubs were declared “inactive” due to the cricket clubs’ failure to adopt the model Constitution of Pakistan Cricket Board (“PCB”), the petitioners filed appeals before the Election Commission of PCB which were dismissedvide order dated 02.11.2016. Thereafter, the petitioners filed appeals before the Board of Governor of PCB under Para 37(2) of the PCB Constitution and impugned the letter dated 25.08.2016 as well as order dated 02.11.2016 but the same were returned with the objection to annex/attach demand draft amounting to Rs. 100,000/- with each of the appeal vide order dated 16.11.2016. Through this petition, the petitioners have not only challenged the orders dated 25.08.2016, 02.11.2016 and 16.11.2016 being illegal, unlawful but also Para 37 of the PCB Constitution and clause 3 of conduct proceedings as against their fundamental rights.

1. Learned counsel for the petitioners states that the scrutiny committee miserably failed to properly conduct the scrutiny and findings of scrutiny committee are based on mala fide intention/ulterior motives as the petitioners’ cricket clubs adopted the model Constitution in letter and spirit. The petitioners stance has not been properly taken into consideration/evaluated by the Election Commission of PCB while passing the order dated 02.11.2016. Further adds that Para 37 of the PCB Constitution and clause 3 of conduct proceedings with the condition to enclose demand draft amounting to Rs. 100,000/- with each of the appeal is against their fundamental rights as this condition defeats the concept of easy access to justice. Conversely, learned counsel for respondent PCB submits that petitioners adopted the proper legal procedure by filing appeals but were returned due to their failure to annex/attach the demand draft amounting to Rs. 100,000/- with each of the appeal. Instead of properly availing that remedy, the petitioners invoked the jurisdiction of this Court under Article 199(1) of the Constitution of Pakistan. Further submits that the provisions of the Constitution of the PCB have already been upheld by the Hon’ble Supreme Court of Pakistan in a case reported as M/o IPC through Secretary and others v. Arbab Altaf Hussain and others (2014 SCMR 1573) and by the Islamabad High Court, Islamabad in W.P.No. 3644-2014. Therefore, instant petition is liable to be dismissed.

2. I have heard the learned counsel for the parties and perused the available record.

3. Perusal of record reveals that scrutiny committee conducted the scrutiny of the petitioners’ cricket clubs from 18th to 21st August, 2016 and declared petitioners’ cricket clubs as “inactive” vide letters dated 25.08.2016 due to their failure to adopt the model Constitution. Their appeals were also dismissed by the Election Commission of PCB vide order dated 02.11.2016. Thereafter, by adopting the proper legal procedure, the petitioners filed appeals before the Board of Governor of PCB under Para 37(2) of the PCB Constitution and the same were returned with the objection to annex/attach a demand draft amounting to Rs. 100,000/-vide order dated 16.11.2016. Instead of fulfilling the requirements for filing appeals, the petitioners have filed instant petition. The petitioners adopted the proper legal procedure by filing appeals but were returned due to their failure to attach/annex the demand draft amounting to Rs. 100,000/- with each of the appeal. It is important to mention here that each party is responsible to pay the cost of proceedings and petitioners’ share of cost is Rs. 100,000/- which is liable to be refunded, in case the appeal is allowed by the independent adjudicator. Instead of properly availing that remedy, the petitioners invoked the jurisdiction of this Court under Article 199(1) of the Constitution of Pakistan.

It is well settled proposition of law that the jurisdiction under Article 199 of the Constitution should not be invoked where alternative forum under a special law, duly empowered to decide the controversy is available and functioning. Where a special law provides legal remedy for the resolution of a dispute, the intention of the legislature in creating such remedy is that the disputes falling within the ambit of such forum be taken only before it for resolution. Such circumvent of the proper forum is contrary to the intention of the provisions of Article 199(1) of the Constitution which confers jurisdiction on the High Court only when there is no adequate remedy available under any law. Efficacious remedy is available to the petitioners for adjudication of the controversy involving disputed questions of facts by initiating proceedings against any act(s), if any, of the respondents by filing appeal before the adjudicators. In this regard, an extract of citation reported as Indus Trading and Contracting. Company v. Collector of Customs (Preventive) Karachi and others (2016 SCMR 842) provides the guidance which is reproduced hereunder:

“The very purpose of creating a special forum is that disputes should reach expeditious resolution headed by quasi-judicial or judicial officers who with their specific knowledge, expertise and experience are well equipped to decide controversies relating to a particular subject in a shortest possible time. Therefore, in spite of such remedy being made available under the law, resorting to the provisions of Article 199(1) of the Constitution, as a matter of course, would not only demonstrate mistrust on the functioning of the special forum but it is painful to know that High Courts have been over-burdened with a very large number of such cases. This in turn results in delays in the resolution of the dispute as a large number of cases get decided after several years. These cases ought to be taken to forum provided under the Special Law instead of the High Courts. Such bypass of the proper forum is contrary to the intention of the provisions of Article 199(1) of the Constitution which confers jurisdiction on the High Court only and only when there is no adequate remedy is available under any law. Where adequate forum is fully functional, the High Courts must deprecate such tendency at the very initial stage and relegate the parties to seek remedy before the special forum created under the special law to which the controversy relates.”

Insofar as second segment of the prayer clause is concerned, the petitioners have challenged the provisions of the Constitution of the PCB which have already been upheld by the Hon’ble Supreme Court of Pakistan in a case reported as M/o IPC through Secretary and others v. Arbab Altaf Hussain and others (2014 SCMR 1573) and by the Islamabad High Court, Islamabad in W.P. No. 3644-2014. Therefore, this matter cannot be reopened before this Court.

1. In view of above detailed discussion, this petition is dismissed.

(W.I.B.) W.P. Dismissed

PLJ 2018 Lahore 137

Present: Shams Mehmood Mirza, J.

MUNICIPAL CORPORATION SHEIKHUPURA through Chief Officer--Petitioner

versus

PRESIDING OFFICER PUNJAB LABOUR COURT NO. III and 31 others--Respondents

W.P. No. 49944 of 2017, decided on 6.10.2017.

Constitution of Pakistan 1973--

----Art. 199--Constitutional petition--Judgment of Labour Court regularizing services was upheld by labour appellate tribunal in favor of respondents--Challenge to--Perusal of earlier order passed by High Court revealed that petitioners have all along asserted that respondents were not their employees, which fact was not found to be correct by labour Court, labour appellate tribunal and finally by High Court--In circumstances, petition filed by petitioners containing similar objections was rightly dismissed by labour Court--Objection petition filed by petitioner was in any case not maintainable before labour Court as said Court was merely implementing its own orders--Petition dismissed. [P. 138] A

Mr. Shabir Hussain Qurashi, Advocate for Petitioner.

Mr. Ghazanfar Ali Bhatti, Advocate for Respondents.

Date of hearing: 6.10.2017.

Order

This writ petition is directed against order dated 22.06.2017 passed by the Labour Court whereby the objection petition filed by the petitioners was dismissed.

1. Facts of the case briefly stated are that the respondents filed a grievance petition before the Labour Court for regularization of their service, which petition was contested by the petitioners. Following the trial, the Labour Court allowed the grievance petition of the respondents, which order was challenged before the Labour Appellate Tribunal. The Labour Appellate Tribunal dismissed the said appeal by modifying the order of the Labour Court to the extent of the grant of back benefits. The petitioners filed an objection application with the Labour Court in the execution proceedings claiming that TMA Sheikhupura became defunct on 31.12.2016 and in its place the Deputy Commissioner introduced the Schedule of Establishment under the Punjab Local Government Act, 2013 whereunder the names of the respondents were not mentioned as employees. It was furthermore stated that the petitioners were suffering from financial crunch and, therefore, cannot make the salaries of the respondents. The said petition was dismissed by the Labour Court, hence this writ petition.

2. It has been apprised to this Court that the order of the Labour Appellate Tribunal was challenged by the petitioners by filing Writ Petition No. 2399 of 2017, which has since been dismissed. Certified copy of order dated 11.09.2017 passed in the writ petition has also been placed on the record. The perusal of the said order shows that the petitioners have all along asserted that the respondents were not their employees, which fact was not found to be correct by the Labour Court, Labour Appellate Tribunal and finally by this Court. In the circumstances, the petition filed by the petitioners containing similar objections was rightly dismissed by the Labour Court. Be that as it may, the objection petition filed by the petitioners was in any case not maintainable before the Labour Court as the said Court was merely implementing its own orders.

3. The petitioners have failed to make out any case for interference in the impugned order of the Labour Court. This writ petition fails and is accordingly dismissed.

(Z.I.S.) Petition dismissed

PLJ 2018 Lahore 139

Present: Muhammad Qasim Khan, J.

MUHAMMAD NAWAZ--Petitioner

versus

EX-OFFICIO JUSTICE OF PEACE & others--Respondents

W.P. No. 91310 of 2017, decided on 19.10.2017.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 22-A(b)--Factual controversy--Jurisdiction--I find no illegality or material irregularity or jurisdictional defect in order impugned--Furthermore, stance taken by petitioner in this petition based on factual controversy, which needs recording of evidence and this exercise cannot be made by high Court in writ jurisdiction--However, if impugned order has been implemented, then investigating officer of said case shall first carry out investigation, join petitioner with investigation, record his oral/documentary version and during investigation, if he comes to conclusion that sufficient incriminating material is available on file to connect petitioner and others with commission of offence, he will obtain opinion from concerned legal cell and only then he will proceed to arrest accused--Disposed of. [Pp. 139 & 140] A

Sardar Yousaf Naseem Chandio, Advocate for Petitioner.

Date of hearing: 19.10.2017.

Order

Submits that Respondent No. 2 has moved application under Section 22-A(6), Cr.P.C. by concocting false story and has obtained impugned order dated 16-10-2017 with mala fide intention; therefore, the same is liable to be set aside.

1. After hearing the learned counsel and going through the available record, I find no illegality or material irregularity or jurisdictional defect in the order impugned herein. Furthermore, the stance taken by the petitioner in this petition based on factual controversy, which needs recording of evidence and this exercise cannot be made by this Court in writ jurisdiction. However, if the impugned order has been implemented, then Investigating Officer of the said case shall first carry out the investigation; join the petitioner with investigation; record his oral/documentary version and during investigation, if he comes to the conclusion that sufficient incriminating material is available on the file to connect the petitioner

and others with the commission of offence; he will obtain opinion from the concerned legal cell and only then he will proceed for the arrest of accused.

1. With the above direction this petition stands disposed of.

(Z.I.S.) Petition disposed of

PLJ 2018 Lahore 140 (DB)

Present: Shams Mehmood Mirza and Muzamil Akhtar Shabir, JJ.

BOARD OF INTERMEDIATE & SECONDARY EDUCATION--Appellant

versus

AYESHA and 3 others--Respondents

I.C.A. No. 96 of 2016, decided on 14.9.2017.

Constitution of Pakistan, 1973--

----Arts. 25 & 25-A--Board of Intermediate & Secondary Education Act 1976, Ss. 10, 21 Rule 1-A & Art 29 of Chapter 19 of Calander of BISE--Non statutory rules--Role of Punjab Education Commission--Law Reforms Ordinance 1971 S. 3 conflicting judgments of high Court--Right of Education--Rule fixing age for admission in Class IX whether discriminatory and unreasonable--Board of Intermediate & Secondary Education framed rules whereby age restriction had been fixed for a student for getting admission in Class IX--Challenge to--Contentions of students were that board had no jurisdiction or authority under Act to frame rules restricting admission to students on basis of their age--Validity--Rule 1-A in Chapter 19 of Calendar was added on basis of decision of Punjab Boards Committee of Chairmen constituted under Section 18 of Act--Board has power to organise, regulate, develop and control Intermediate Education & Secondary Education to lay down conditions for admission to its examination, to determine eligibility of candidates and to admit them to such examinations in terms of Section 10--Board has power to make rules, to lay down conditions of admission of candidates to examinations held by it and their eligibility of diplomas, certificates and titles--PEC, however, does not appear to have any statutory underpinning--Constitutional provision only deals with compulsory duty of state for furnishing or providing children of 5 to 16 years with free education--Article does not clearly specify or lay down that only children of 5 years of age shall be admitted to Class-I--Article 25-A provides that manner of providing education may be determined by law, it does not call for restricting right of child to receive education by imposing age restrictions--Article 25-A clearly brings out matter of providing education to children of five years--It does not provide anywhere that a child having less than five years of age cannot be admitted to Class I--Imposing age restrictions on right receive education would be negation of right to life and to receive education as provided in Articles 9 and 25-A of constitution--Contentions repelled, action held discriminatory. [Pp. 145, 148, 149 & 150] A, B, C, D & E

Board of Intermediate & Secondary Education Act, 1976--

----Ss. 18 & 21--Framing of rules by BISE--Conflict of laws--Offensive provisions--Supremacy of constitution--Board may prescribe by rules conditions of admission of candidates to examinations but restrictions being placed by Board on student’s right to education by fixing their age is not made out by reading of Section 21 of Act--Act or regulations framed by board with Government’s approval don’t provide for any restriction on age of students which may tantamount to preventing a student from seeking admission in Class IX--Such a restriction even it can be located in statute or regulations framed would be in violation of fundamental right of education guaranteed by constitution--Article 25-A is framed in positive language which does not provide any lawful basis for Board to restrict right of education to aspiring students of Class-IX, who have not yet attained age of 12 years--Exercise of power by Chairmen of Boards Committee does not have any sanction in law--There is nothing in Act or in rules that authorizes boards committee to make a decision fixing age of students for purposes of admission to Class IX--Section 20 stipulates that board may provide for regulations with approval of government to carry out purpose of Act and sub rule (2)(d) provides that said regulations may provide for a general scheme of studies, including total no of subjects to be taught and duration of courses--This provision don’t authorize boards committee to frame any rules by placing restriction upon age of students for purpose of their enrolment/registration in Class IX--Rule I-A in Chapter 19 of calendar has no legal basis and is liable to be struck down--Further held that committee has been constituted under Section 18 of Act in order to maintain uniformity in working of boards but scope of working of committee is restricted to powers vested vide Act and not beyond same--Decision of committee may be used to regulate working of boards but its decisions cannot be implemented beyond scope of its jurisdiction provided by law--Students have shown that even though they were admitted to schools earlier than 5 years, they adequately adjusted to new physical and social experiences and coped well with academic challenges--It would be a mockery to not allow them to seek education when their skills have shown them to be fully equipped to get admission in Class IX--Regulation declared ultra vires to constitution--Appeals filed by BISE dismissed.

[Pp. 151 & 154] F, G & H

M/s. Mehboob Azhar Sheikh and Ali Masood Hayat, Advocates for Appellants.

M/s. Mian Shakil Ahmad, Sheraz Zaka, Ch. Majid Hussain, Muhammad Shahid Siddique Chaudhry, Aftab Manzoor Majoka, Qazi Muhammad Arshad Bhatti, Asif-ur-Rehman, Mian Muhammad Saeed, Abdul Sattar Junaid, Sultan Ali Dogar, Muhammad Yousaf, Abid Hussain Khichi, Javed Abbas Mirza, Mian Shakil Ahmad, Mian Muhammad Ali, Malik Muhammad Riaz Awan, Ch. Javed Amed Goraya, Muhammad Jahanzaib, Malik Tariq Ali Jadran, Ehsan Ullah Ranjha, Ch. Majid Hussain, Ghulam Nabi Shaheen, Muhammad Amin Gill, Asghar Mehmood Sheikh, Shehzad Ahmad Bhatti, Atif Ali Bukhari, Syed Habib Ullah, Abdullah Malik, Osama Memon, Naik Muhammad Chaudhry, Waqar Ahmad Khan, Ch. Sadaqat Ali, Advocate for Appellants.

M/s. Sh. Usman Karim-ud-Din, Ch. Masood Ahmad Zafar and Ghulam Nabi Shaheen, Advocates for Respondents.

Date of hearing: 24.5.2017.

Judgment

Muzamil Akhtar Shabir, J.--This consolidated judgment shall decide the present appeal along with other cases referred to in the Schedules A & B attached with this judgment. The issue in all these cases relates to the age limit as to when a student can get admission in Class-IX as per the applicable rules and regulations of the Boards of Intermediate and Secondary Education functioning in the Province of Punjab.

1. This Intra Court Appeal filed under Section 3(2) of the Law Reforms Ordinance, 1972 is directed against order dated 17.12.2015 passed in Writ Petition No. 15590 of 2015 whereby the learned Single Bench of this Court allowed the constitutional petition filed by Respondents Nos. 1 and 2 along with connected petitions by suspending the examination rules of the Boards framed for regulating the age limit of a student for appearing in examination of Secondary School Certificate. We may add that the main order was passed in connected Writ Petition No. 14240/2014.

2. The minimum age of 12 years was fixed for enrolment/registration of student in Class IX in terms of Rule 1-A of Chapter 19 of the Calendar (the Calendar) of Board of Intermediate and Secondary Education, Lahore. A similar provision also exists in the Rules framed by the Board of Intermediate and Secondary Education, Gujranwala. Both the Boards shall henceforth be mentioned as “Boards”. Accordingly, the registration of the students, who did not meet with the criteria fixed by the afore-mentioned rule, was refused even though they had successfully passed 8th Class examination. This resulted into filing of constitutional petitions on behalf of such students. Initially, a learned Single Judge of this Court dismissed Writ Petition No. 17732 of 2012 on 19.03.2013. However, another learned Single Judge subsequently took a contrary view while deciding Writ Petition No. 14240 of 2012 on 17.12.2015 (against which order the present appeal is filed) and the students who had passed 8th class examination but had not yet attained the age of 12 years were allowed to be registered for Class IX examination. In view of the conflicting decisions on the issue, a learned Single Judge of this Court on 06.05.2016 passed the following order in Writ Petition No. 14832/2016:

“In the first judgment passed in WP No. 17732/12, the relief has been refused on the touchstone of the amendment referred to above. In the second judgment passed by this Court in WP No. 14240/14, the relief has been granted to the petitioner by directing that the petitioner’s son be enrolled in the 9th grade. This gives rise to a conflict of opinion between two Benches of this Court for which it is deemed expedient that the matter be referred to the Hon’ble Chief Justice for Constitution of Larger Bench for the determination of the issue involved viz. Whether minimum age requirement set down by the Board offends the fundamental right of education enshrined in the Constitutional of Islamic Republic of Pakistan, 1973.”

1. Vide order dated 26.05.2016 passed in WP No. 16363/2016, another learned Single Bench of this Court referred the matter to the Hon’ble Chief Justice by observing as under:

“At the outset the learned counsel for the petitioner submits that due to conflicting judgments of two learned Single Benches on the question of law involved in the instant petition the matter has been referred for an authoritative determination to a learned Division Bench. Further submits that the said matter (WP No. 14832/2016) is now fixed for 02.06.2016 before the learned Division Bench headed by my learned brother Abid Aziz Sheikh, J. prays that the instant petition may also be directed to be heard by the said learned Division Bench.

The learned counsel for the respondent-Board submits that the respondent-Board has challenged one of the afore-referred judgments through ICAs No. 96 to 107 of 2016 which are pending before a learned Division Bench headed by my learned brother Shahid Jamil Khan, J. and were last fixed for 09.03.2016. The learned counsel, therefore, opposes the prayer.

In view of the fact, however, that the matter in issue appears to be pending before two different learned Division Benches, the office is directed to place this petition before the Hon ‘ble Chief Justice for obtaining appropriate orders thereon. “

All similar matters were thus ordered to be consolidated before this Bench. Before us other petitions were also filed in the meantime, which have all been taken up for hearing.

1. It is stated by the learned counsels for the appellants that the powers of Boards are regulated under the Board of Intermediate & Secondary Education Act, 1976 (“Act”). Section 10 of the Act specifies the powers of the Board whereas Section 21 provides for framing of rules for achieving the purpose and statutory objects assigned to the Board including the conditions for admission/registration of candidates and their eligibility for diplomas, certificates and title. Under the said power, the Boards have framed the necessary rules to regulate the eligibility criteria for admission to Class-IX. Under the rules, a student seeking admission in Class-IX must be of 12 years of age at the time of his registration with the Board. The Board registers the students on 1st August of every year. The relevant rule (Rule 1-A) was framed on 28.05.2013 and was introduced in the Calendar by the Boards on 10.10.2013. In addition to above, it was submitted that Article 25-A of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”) provides that State shall provide free and compulsory education to all children of the age of five to sixteen years in such manner as may be determined by law. It was stated that the Punjab Education Code (“PEC”) framed by the Government of Punjab ordains that the age of every child for initial admission in school for Class 1 shall be five years and the maximum age for admission to Classes XI and XIII in a college shall be 20 years and 25 years respectively (Article 29). It was thus argued before us that a student who is to be admitted in Class 1 at the age of five years cannot possibly be registered in Class IX without crossing the barrier of 13 years of age. However, taking into account the possibility that a one-time double promotion can be achieved by a student, the age of 12 years has been fixed for registration/admission of a student in Class IX as per Rule 1-A of Chapter 19 of the Calendar. According to the said provision of the Calendar, any student not having attained the age of 12 years on 1st of August is ineligible for registration in Class-IX. It was also contended before us that the learned Single Judge (in Writ Petition No. 14240 of 2012) ought to have followed the earlier judgment rendered in Writ Petition No. 17732 of 2012 instead of reaching a different conclusion on the issue. It was stated that Rule 1-A of Chapter-19 of the Calendar was applicable uniformly to all the students without any exception and thus any deviation therefrom through judicial order would result in discrimination amongst students and would result in interference in policy matters, which is not permissible.

2. The learned counsel for the respondents have argued that although Rule 1-A of Chapter-19 of the Calendar provides that a student getting admission in Class IX shall be 12 years of age on 1st of August at the time of his/her enrolment/registration with the Board but there is no criteria fixed in the statute for fixing the educational qualification required for admission to the said class. It was further submitted that the criteria laid down in PEC is not a statutory criteria as it does not have the backing of any law and, therefore, any instruction contained therein should not bind the Boards. It was also the case of the respondents that the Board has got no authority under the Act to frame rules restricting admission to students on the basis of their age. It was furthermore contended that the afore-referred rule has been made without independent application of mind as it was subject to dictation and recommendation of Chairmen of the Board Committee. The rule fixing the age for admission in Class-IX, it was stated, was against the fundamental rights of the students to receive education. Regarding the maintainability of the appeal, it was stated that the Chairman of the Board filed the appeal without seeking prior approval of the Board and, therefore, the same is liable to be dismissed.

3. We have heard the arguments of learned counsel for both the parties in detail and gone through the record with their assistance.

4. Rule 1-A in Chapter 19 of the Calendar was added on the basis of the decision of the Punjab Boards Committee of Chairmen (the Boards Committee), which is a committee constituted under Section 18 of the Act, taken in the meeting held on 28.05.2013. Item No. 14 of the Agenda of the meeting relating to addition of Section 1-A in Chapter 19 of the Calendar is reproduced below:

“It is submitted that PBCC vide its meeting dated 29.06.2012 fixed age limit of a student as 12 years for enrolment in Class IX by 30th June for the year of registration. The decision of PBCC has been implemented in all Boards of Punjab as a policy matter. Further, PBCC has fixed age limit for a candidate who is to appear in Class-IX Examination, either regular or private, as 13 years on the 1st August of the year of examination.

It would be more appropriate if age limit of a student for registration in Class-IX may be fixed in accordance with age of appearance in the Class-IX examination. For that matter, we need to frame a rule in this regard. Therefore, Rule 1-A has been prepared as under:

“A student getting admission in an institution in Class-IX shall be of 12 years of age by 1st August of the year of enrolment/registration with the Board. “

Decision

The House unanimously approved the following addition of Section 1-A in Chapter 19 of the Board Calendar:

“A student getting admission in an institution in Class IX shall be of 12 years of age by 1st August of the year of enrolment/registration with the Board.”

As a result of the decision taken in the meeting of the Boards Committee, the proposed amendment was introduced in the Calendar of the Board.

1. Article 29 of PEC provides that the age for admission to Class-I shall be five years. The said Rule is reproduced below:

“29. The minimum age for admission to Class I shall be 5 years and the maximum age for admission to Classes XI and XIII in a college shall be 20 years and 25 years respectively.”

1. The decision in Writ Petition No. 17732 of 2012 was made on the basis of Article 29 of PEC by holding that the minimum age for admission to Class 1 is 5 years which would require a student to attain the age of 13 years to get admission in Class IX. The relevant portion of the judgment is reproduced hereunder:

2. The main issue in this case is with respect to the age requirement for registration for taking Class IX Examination as the same is a Board Examination. In this case the relevant Board is the Faisalabad Board of Intermediate and Secondary Education. In terms of the Rules the minimum age for appearing in Class IX Examination is 13 years. Admittedly, neither of the petitioners are 13 years. Both the petitioners are under age. The question that has arisen in these petitions is whether this Court should allow the petitioners to take the examination despite the clear Rule which set out the age criteria. The thrust of the petitioners’ case relies on the order passed in Writ Petition No. 3352 of 2012 on 16.03.2012. I have reviewed the order. Since it does not record its reasons, the reliance on the said order does not advance the case of the petitioners. Admittedly, the minimum age for admission to Class 1 is fixed at 5 years. In terms of the minimum age requirement, a student should be 13 years old in Class IX. The Rules are to regulate the age requirement for Classes IX and X. Therefore, I find that the respondents have not committed any illegality by refusing registration to the petitioners for Class IX Examination, as they are bound by the Rules. The petitioners have tried to plead a case of discrimination, however, there is nothing on the record to show that the petitioners are being discriminated against by the respondents. To the contrary an effort was made by the respondents to consider the cases of the petitioners, however, their age does not fulfill the age required for registration in Class IX. Since both the petitioners are under age, no right is being prejudiced as they will take the Class IX Examination in the next session when they fulfill the age requirement. No case for interference is made out.

3. While deciding Writ Petition No. 14240 of 2014, another learned Single Judge of this Court, however, held that there is no statutory age requirement for a student to enroll in the school in primary and elementary classes. The portion which is relevant is reproduced as under:

4. The above officers frankly concede that there is a disconnect between the primary, elementary and secondary educational systems prevalent in Punjab, as far as, age and qualification of the students is concerned. The disconnect clearly manifests itself in the present case, where the petitioner was enrolled as a student in the primary school at an age of less than five years and has passed the examination of 8th class at the age of 10 and has applied to be enrolled in 9th class, however, his age is less than 12 years and under the impugned section he cannot be admitted to the 9th class.

5. In view of above submission, it is clear that the primary elementary and secondary school systems lack integration and continuity. There is no requirement of age to enter the primary or elementary education system while the secondary education system for the first time introduces the age of 12 years for the 9th class and is silent regarding the educational qualification. It is the responsibility of the Education Department, Government of the Punjab to come up with policy which harmonizes this disconnect and protects the interests of the students of primary and elementary school system, who are enrolled at an early age. The Chief Secretary, Punjab, is directed to deliberate on this matter at the earliest so that a holistic and overarching education policy is evolved that ensures that primary, elementary and secondary education is a seamless, continuous process, protecting the most valuable and formative years of the young students.

6. As far as the instant case is concerned, the son of the petitioner (student) is less than 12 years of age and has already passed 8th grade, he cannot be left in a lurch and out of school for two years till he attains the age of 12 years, as that would not only waste the prime years of his life, but being out of education might also dampen his interest in pursuing future education, which can be fatal for a civilized society. Right to education is now a fundamental right, besides it is an integral part of right to life under Article 9. The disconnect between educational systems is a serious lapse on the part of the Provincial Government for which the students could not be allowed to suffer. The inchoate and incomplete education system is impairing the fundamental rights of the young student, who has approached this Court through his mother. In order to safeguard his fundamental right to education, which includes right to continuous education, the respondents Board is, directed to enroll the son of the petitioner in 9th grade subject to verification that the young man has duly passed his 8th Grade Examination in accordance with law but shall disregard the age of the student. Consequently this petition is allowed.

7. There is no doubt that the Board has the power to organise, regulate, develop and control Intermediate Education and Secondary Education and to lay down conditions for admission to its examinations, to determine the eligibility of candidates and to admit them to such examinations in terms of Section 10 of the Act. Similarly, the Board has the power to make rules, inter alia, to lay down the conditions of admission of candidates to the examinations held by it and their eligibility for diplomas, certificates and titles (see Section 21 of the Act). It is the case of the Boards that in determining the age limit for admission to Class 9, they took into account Article 29 of PEC providing the age of 5 years for admission to class 1. PEC, however, does not appear to have any statutory underpinning. The learned counsels for the Boards nonetheless insisted that age limit for admission to Class-1 is also reinforced by Article 25-A of the Constitution, which presupposes the admission to Class-1 by a child of 5 years.

8. Article 25-A of the Constitution provides for the right to education. It is reproduced as under:

“The Slate shall provide free and compulsory education to all children of the age of five to sixteen years in such manner as may be determined by law.” (emphasis supplied)

This Constitutional provision only deals with the compulsory duty of the State for furnishing or providing children of 5 to 16 years with free education. On its own, this Article does not clearly specify or lay down that only children of 5 years of age shall be admitted to Class-1. Although this Article provides that the manner of providing education may be determined by law, it does not call for restricting the right of child to receive education by imposing age restrictions. The words “in such manner as may be determined by law” mean the way in which a thing is required to be done or is to be achieved through promulgation of a law.

1. The Government of Punjab has framed the Punjab Free and Compulsory Education Act, 2014 pursuant to Article 25-A of the Constitution which provides for the manner for providing free education to children from five years to sixteen years. Section 5 of the said Act is the relevant provision, which reads as under:

“5. Special provisions for education.--If a child above five years of age has not been admitted in any school or after admission, could not complete education, the local government shall, in the prescribed manner, develop a mechanism to ensure admission of the child in a school according to age, previous class and other circumstances.”

This provision clearly brings out the manner of providing education to children of five years of age as mandated by Article 25-A of the Constitution. A careful perusal of the said Act shows that it does not provide anywhere that a child having less than five years of age cannot be admitted to Class-1. The circumstances in which this law would place a child in school are materially different from the one with which we are dealing with in these appeals. The students in these appeals have successfully qualified their academic career up to Class-8 and are seeking admission in Class-IX, which is being denied to them by the Boards on account of Rule 1-A in Chapter 19 of the Calendar. Article 25-A of the Constitution is, therefore, of no help to, the appellant Boards.

1. Imposing age restrictions on right to receive education would be negation of the right to life and to receive education as provided in Articles 9 and 25-A of the Constitution as right to life includes the right to receive education. Reliance in this behalf may be placed on Abdul Rahim Ziaratwal and another vs. Federation of Pakistan and others (2014 SCMR 873) wherein the Honourable Supreme Court of Pakistan treated the basis amenities of life including the right to receive education, health cover and infrastructure, etc. as fundamental rights of citizens. It is also wrong to contend, in our opinion, that the Act, the Calendar and the PEC draw their strength on the basis of the afore-referred Article. PEC is simply a code being followed by the Boards but it is not made under the authority of any statute or the Act. At the most, PEC can be treated as Code containing directions for regulating the education sector. Therefore, neither the Board nor any other person or authority could be declared to be bound to follow the same to the exclusion of other powers vested in the Board or in violation of rights of the parties.

2. The Act relates to the constitution and functioning of the Board. Section 21 provides for the powers of the Board to make rules as follows:

“21. Power of a Board to make rules.--A Board may make rules consistent with this Act and the regulations to provide for:--

(i) The inspection of the institutions and reports, returns and other information to be furnished by them.

(ii) The conditions of admission of candidates to the examinations held by it and their eligibility for diplomas, certificates and titles;

(iii) The manner and form in which accounts of Board shall be maintained;

(iv) Such other matters as may be required under the regulations to be provided in the rules.”

The afore-referred section provides that a Board may make rules consistent with the Act and regulations and restricts the right of the Board to make rules to the matters listed therein. Although under Section 21(ii), the Board may prescribe by rules conditions of admission of candidates to examinations but the restriction being placed by the Board on the students’ right to education by fixing their age is not made out by the reading of Section 21 of the Act. The Act or the regulations framed by the Board with the Government’s approval do not provide for any restriction on the age of the students which may tantamount to preventing a student from seeking admission in Class IX. Moreover, such a restriction even it can be located in the statute or the regulations framed thereunder would be in violation of the fundamental right of education guaranteed by the Constitution. Besides Article 25-A relates to free and compulsory education and binds the State to determine by law the manner in which free and compulsory education is to be provided to children. This Article is framed in positive language which does not provide any lawful basis for the Board to restrict the right of education to aspiring students of Class-IX who have not yet attained the age of 12 years.

1. The age at which children can start going to school can vary from country to country and there is no universal standard. There are divergent opinions as to what is the optimum time to begin school. There is, however, near unanimous opinion that there is no universally best age to start learning to read. Kay Margetts, a professor of early childhood studies at the University of Melbourne in Australia, says that how well young children settle in their first “real” schools can have long-term implications on their education. To base a child’s readiness for school on age seems reckless and irresponsible, particularly when that readiness will vary enormously according to cultural background, personality and temperament, family structure, economics, and gender. Professor Robin Alexander of Cambridge University’s Faculty of Education states that “getting right the quality of early years provision, wherever it takes place, is more important than an endless debate about the school starting age” (When is the best age to send your child to school? by Anthea Rowan published in the Telegraph Weekly World Edition).

2. It was argued before us that the Boards have determined the minimum age of 12 years for Class-IX keeping in view various studies conducted at international levels whereby educational level of students of various age groups has been determined. The Boards Committee laid down the criteria keeping in view the average ability of a child at a particular age. This exercise of power by the Chairmen of Boards Committee, in our opinion, does not have any sanction in law. There is nothing in the Act or in the Rules that authorizes the Boards Committee to make a decision fixing the age of the students for the purposes of admission to Class-IX. Section 18 of the Act deals with the Committees of Board, which reads as under:--

“18. Committees of Board.--(1) The Board shall have a Joint Academic Committee which shall serve all the Boards constituted or re-constituted under this Act.

(2) A Board shall have the following committees, namely:--

(i) the Finance Committee;

(ii) the Appointments Committee;

(iii) Committee for appointment of paper-setters and head-examiners; and

(iv) Committee of courses.

(3) In addition to the committees mentioned in sub-section (2) of this section, a Board may appoint such committees or sub-committees as it may deem necessary.

(4) A committee may appoint such sub-committees as it may consider necessary.”

Section 19 of the Act stipulates that the constitution, functions and duties of committees shall be such as may be prescribed by regulations. Section 20 of the Act grants the power to make regulations to the Board, it reads as under:--

“20. Power of a Board to make regulations.--(1) A Board may, subject to the approval of the Government, frame regulations, not inconsistent with the provisions of this Act, to carry out the purposes of this Act; provided that--

(i) a Board shall not propose draft of regulations effecting the Constitution or power of any authority of the Board until such authority has been given an opportunity of expressing an opinion in writing upon the proposals;

(ii) the draft of regulations shall be forwarded to the Controlling Authority and shall not be effective until it has been approved by the Controlling Authority; and

(iii) A Board shall not have the power to make any regulation or adopt any rules or regulations concerning efficiency and discipline of the officers/officials and other employees which is not in conformity with rules made by the Government.

(2) In particular and without prejudice to the generality of the foregoing powers, such regulations may provide for:--

(a) the terms and conditions of service of the employees of a Board, including matters relating to grant of leave to, and retirement of such employees;

(b) the Constitution of pension or provident fund or both for the benefit of the officers and other employees of a Board;

(c) the admission of institutions to the privilege of recognition and the withdrawal of recognition;

Explanation--The terms and conditions should be in conformity with rules applicable to Government servants carrying equivalent pay scales and other benefits.

(d) a general scheme of studies, including the total number of subjects to be taught and the duration of courses; and

(e) all other matters required under any of the provisions of this Act to be prescribed by regulations.”

Section 20 stipulates that the Board may provide for regulations with the approval of the Government to carry out the purpose of the Act and its sub-rule (2)(d) provides that the said regulations may provide for a general scheme of studies, including total number of subjects to be taught and the duration of courses. The afore-mentioned provisions of the Act do not authorize or empower the Boards Committee to frame any rules by placing restriction upon the age of the students for the purposes of their enrolment/registration in Class-IX. As mentioned earlier, Rule 1-A in Chapter 19 of the Calendar was introduced on the basis of the decision of the Boards Committee taken in its meeting held on 28.05.2013. The afore-mentioned provision in the Calendar, therefore, has no legal basis and is liable to be struck down. Be that as it may, it appears that the Boards Committee in a backhanded way is in fact fixing the age for entry of the students in Class-1, which it is otherwise not authorized to do under the Act.

1. The Honourable Supreme Court in Judgment reported as Fiaqat Hussain and others versus Federation of Pakistan through Secretary Planning and Development Division, Islamabad and others (PLD 2012 SC 224) has held as under:

“4. In the successful life of an individual, the education plays an important role. Generally, it is considered to be foundation of society which brings economic wealth, social prosperity, political stability and maintaining health population. In case of deficit of educated people, the further progress of society is stopped. Educated individuals enjoy respect among their colleagues and can effectively contribute to the development of their country and society by inventing new devices and discoveries.

1. Main purpose of education is to educate individuals so that they get prepared to form the next generation of leaders. It will yield strong families and strong communities. Education plays important role to promote knowledge and understanding of rural communities. In almost all societies receiving education and attending school is necessary to achieve success. It is the key to move forward and ultimately succeed in life. For preparing children and young people to effectively participate in the development of the society, the schools play a vital role. The knowledge and wisdom can only be gained through the experience of learning. “

2. Keeping in view the observations of the Supreme Court in the afore-referred judgment and considering the facts of the case, we are not impressed by the argument that abilities of children of particular age are to be taken into consideration for applying age restrictions as this would tantamount to restricting the right of an individual to receive education which is his fundamental right and is included in the right to life provided in the Articles 9 and 25-A of the Constitution. Besides the Boards Committee is not empowered to impose restriction on education that is neither provided by the Constitution or the Act and its decisions to impose age restriction on education by restricting admission to Class IX do not have support or backing of any law. The Committee has been constituted under Section 18 of the Act in order to maintain uniformity in working of the Boards but the scope of working of this committee is restricted to the powers vested vide the Act and not beyond the same. The decisions of the committee may be used to regulate the working of the Boards but its decisions cannot be implemented beyond the scope of its jurisdiction provided by the law. Even otherwise, the manner of providing education is to be determined by the State and not by the Boards or the Committees constituted under the Act. The reliance by the appellant on Clause 29 of PEC or amendment made to the Calendar is without any legal justification. In any event, the students that have been denied registration by the Boards have already shown their ability to entry in Class-IX by successfully undergoing the rigors of school for eight grades. These students have shown that even though they were admitted to schools earlier than five years, they adequately adjusted to new physical and social experiences and coped well with academic challenges. It would be a mockery to not allow them to seek

education when their skills have shown them to be fully equipped to get admission in Class-IX.

1. We are in agreement with the observations made by the learned Single Judge in Chamber that there is no connection between education at primary, elementary and secondary levels of education in the educational system prevalent in Punjab. The Act cannot regulate the primary and elementary educational system and cannot prevent a student from receiving such education at any age. In such situations students who have passed 8th class cannot be deprived from receiving further education on the ground that they are underage as per the criteria fixed by the Board for admission to Class-IX.

2. For what has been discussed above, we dismiss this appeal filed by the Board along with other connected appeals (mentioned in Schedule A) and uphold the decision of the learned Single Judge passed in Writ Petition No. 14240/2014 and connected Constitutional petitions including Writ Petition No. 15590/2015 out of which this appeal has arisen and hold that the placing of age restriction through Rule 1-A of Chapter 19 of the Calendar for seeking admission to Class-IX is ultra vires the Constitution and the Act and is accordingly set aside. The writ petitions filed by the students and their parents, the details of which are provided in the Schedule B, for seeking registration and admission are allowed and the Boards are directed to register students who seek admission in Class-IX without age restriction. We further order that the other directions given by the learned Single Judge in Writ Petition No. 14240/2014 shall also be followed in letter and spirit.

(Z.I.S.) Order accordingly

PLJ 2018 Lahore 155

Present: Abid Aziz Sheikh, J.

MIAN ASIA--Petitioner

versus

FEDERATION OF PAKISTAN etc.--Respondents

W.P. No. 31581 of 2016, heard on 25.9.2017.

Constitution of Pakistan, 1973--

----Arts. 25 & 199--Constitutional Petition--New Computerized CNIC--Expiry of previous CNIC--Transgender--Renewal of CNIC--Renewal declined--Name of Guru is not acceptable--Declaration of Gender identity--Deprived of fundamental rights--Irreparable damage--Discrimination--Direction to--Transgender/Eunuchs being citizens of Pakistan were also entitled for same respect, dignity and fundamental rights as are available to other segments of society--High Court also apprised policy makers that in case any transgender/eunuchs is not able to provide name of his father, being abandoned by his family, it cannot be a sole ground not to issue him CNIC and to deprive him from his fundamental right of being a citizen of Pakistan--A person of diverse gender identity shall also enjoy legal capacity in all aspects of life--Transgender eunuchs are as respectable and dignified citizens of Pakistan as any other person and they are also entitled for all fundamental rights including right of education, property and right of life with include quality of life and livelihood--They cannot be deprived of their rights including right to obtain CNIC or citizenship for mere reason that they are transgender/eunuchs and do not know whereabouts of their parents, without any fault of their own--Petition allowed.

[Pp. 158 & 160] A & B

Mr. Muhammad Mahtab Chughtai, Advocate for Petitioner.

Mr. Hamid Rafique, Advocate for Respondent NADRA.

Mian Muhammad Javaid, AAG-Pk for Respondents.

Date of hearing: 25.9.2017.

Judgment

This constitutional petition has been filed for issuing direction to the respondents to issue new computerized national identity card (CNIC) to the petitioner on account of expiry of previous CNIC.

1. Relevant facts are that petitioner being transgender, was previously issued CNIC with father name as Muhammad Yousaf who was “GURU” of the petitioner. Said Muhammad Yousaf passed away on 14.01.2005. Petitioner applied for renewal of the CNIC, however, the said renewal was declined by the respondents on the ground that petitioner could not provide the name of his father and name of his “GURU” in parent column is not acceptable.

2. Learned counsel for the petitioner submits that petitioner and many other transgenders have been abandoned by their families are not aware about their parentage, therefore, on this ground alone, they cannot be deprived of their fundamental rights to be citizen of Pakistan and issuance of their CNICs. Learned counsel further submits that petitioner and many other transgenders were brought up by their “GURUS”, therefore, their names instead of unknown parents should be included in CNIC. On the other hand, initially the stance taken by the respondents was that because petitioner and many other transgenders/eunuchs cannot provide name of their parents, therefore, they cannot be issued CNIC.

3. The grievances of the member of Transgenders Community is for seeking declaration of their gender identity. Seldom Society realize or cares to realize the trauma, agony and pain which the members of the Transgender Community undergo, nor appreciates the innate feelings of the Transgender Community, especially of those whose mind and body disown their biological sex. It is known fact that society often ridicules and side lines transgender community in all walks of life.

4. This unwilling mind set of society has historical back ground. At the time of British Colonial rule, the Criminal Tribes Act, 1871 (Act) was introduced to declare eunuchs (transgenders), a criminal tribe. The preamble of the Act read as under:

“Whereas it is expedient to provide for the registration, surveillance and control of certain criminal tribes and eunuchs; it is hereby enacted as follows:--

1. This Act may be called The Criminal Tribes Act, 1871, and it shall come into force on the passing thereof.”

The Act provided for the registration, surveillance and control of certain criminal tribes and eunuchs and had penalized eunuchs, who were registered, and appeared to be dressed or ornamented like a woman, in a public street or place, as well as those who danced or played music in a public place. Such persons also could be arrested without warrant and sentenced to imprisonment up to two years or fine or both. Under the Act, the local Government had to register the names and residence of all eunuchs residing in that area as well as their properties, who were reasonably suspected of kidnapping or castrating children, or of committing offences under Section 377 of the Indian Penal Code (IPC), or of abetting the commission of any of the said offences. Under the Act, the act of keeping any body under 16 years in the charge of a registered eunuch was an offence punishable with imprisonment up to two years or fine and the Act also denuded the registered eunuchs of their civil rights by prohibiting them from acting as guardians to minors, from making a gift deed or a will, or from adopting a son.

1. The Act was not only to attack the dignity of transgenders community, degrading them in social echelons but also to eventually force them to adopt begging and other questionable professions. After British Colonial rule, the Act was repealed in August, 1949, however, the damage done to transgenders remained irreparable. The transgenders lost social respect and various stereo types have been built to humiliate and discount the transgenders community.

2. Finally in Year 2009, the august Supreme Court of Pakistan took up the matter in its original jurisdiction in Civil Petition No. 43 of 2009 and directions were passed from time to time to recognize the dignity of transgenders and declaring them third gender entitled for equal protection under Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution). The apex Court noted that transgenders have been neglected on account of gender disorders in their bodies. They have been denied the right of inheritance as they were neither sons nor daughters who could inherit under Islamic Law and sometime even families intentionally disinherit transgender children. To eliminate this gender based ill-treated discrimination against transgenders, the august Supreme Court in Dr. Muhammad Aslam Khaki and another vs. Senior Superintendent of Police (Operation), Rawalpindi and others (2013 SCMR 187) directed Provincial and Federal Governments to protect transgenders identification, right to inherit property, right to education and right to life which include employment and quality of life.

3. The matter again brought to the notice of honourable Supreme Court of Pakistan in Dr. Muhammad Aslam Khaki and others vs. SSP (Operations) Rawalpindi and others (PLD 2013 SC 188), when the transgenders were not issued National Identify Cards by NADRA. In compliance of directions issued by apex Court, the NADRA made arrangements to issue CNIC to transgenders and honourable Supreme Court in said judgment reiterated that transgenders be treated equally as other citizens.

4. With above background of the matter, this Court during these proceedings apprised NADRA authorities that transgenders/eunuchs being citizens of this country are also entitled for same respect, dignity and fundamental rights as are available to the other segments of the society. This Court also apprised the policy makers that in case any transgender/eunuch is not able to provide name of his father, being abandoned by his family, it cannot be a sole ground not to issue him CNIC and to deprive him from his fundamental right of being a citizen of this country. In consequence of these proceedings, the concerned policy makers (NADRA) finally framed policy dated 21.08.2017 (Policy) to issue CNIC to the transgenders/eunuchs with unknown parentage. The said policy is reproduced hereunder:--

“To: All RHOs

ID: Media & Communication

IOD

Info: Chairman Sectt

Legal Dte

Vigilance Dte

Subject: ISSUANCE OF CNIC TO EUNUCHS.

1. In compliance of Lahore High Court Order in Writ Petition No. 31581/2016, following procedure for issuance of CNICs to Eunuchs has been approved by Competent Authority:--

a. Eunuchs with known Parents: Cases may be dealt as per Registration Policy as it covers processing of CNICs of Eunuchs with known Biological Parentage.

b. Eunuchs with Unknown Parentage:

i. As a first step, already registered Eunuchs whosever are willing shall get themselves registered as “Guru” in NADRA database.

ii. Guru registration will be carried out at HQ NADRA through a module already being used for registration of Orphanages.

iii. Procedure for Guru Registration:

(a) Copy of CNIC alongwith an affidavit of Rs.20/- attested by Magistrate Class I shall be submitted by the individual (Format attached).

(b) After scrutiny, RHO will forward said documents to HQ NADRA by registration of GURU.

iv. Just like orphans with unknown parentage, CNIC of Eunuchs with unknown parentage will be processed by selecting random parents name from database. Registered Guru will be the head of applicant (Eunuch) and will give Biometric verification. Biometric witness of another person (any valid CNIC holder) also be obtained.

v. Vigilance Deptt will conduct post- verification.

vi. Post Verification data analysis will be carried out after every six month. Final decision shall be made after one year experience and result revealed by post verification and data analysis.

1. For Media & Communication Department Only: Please launch awareness campaign for GURU registration through media.

2. Forwarded for information/compliance, please.

Director (Ops) (Sohail Mehmood)”

1. Under the aforesaid policy, the transgenders/eunuchs with unknown parentage will be provided CNIC after fulfilling the procedure prescribed under the policy. The learned counsel for the petitioner submits that under the policy, the grievance of the petitioner has been redressed and he has already been issued CNIC. This Court appreciates the efforts of the policy makers to address this issue and redress the problem and grievance of the petitioner and many other transgenders/eunuchs. However because contents of the policy are not under challenge, therefore, any observation in this judgment will not immune the policy from future judicial review.

2. Gender identity is one of the most fundamental aspect of life which refer to a person intrinsic sense of being male, female or transgender. Everyone is entitled to enjoy all human rights without discrimination on the basis of gender identity. Everyone has the right to recognition everywhere as a person before the law. This is high time to change mindset of the society and to realize that a person of diverse gender identity shall also enjoy legal capacity in all aspects of life. The transgenders/eunuchs are as respectable and dignified citizens of this country as any other person and they are also entitled for all fundamental rights including right of education, property and right of life which include quality of life and livelihood. They cannot be deprived of their rights including right to obtain CNIC or citizenship for mere reason that they are transgenders/eunuchs and do not know the whereabouts of their parents, without any fault of their own. The public functionaries and policy makers are expected to be more sensitive toward restoring dignity of transgender community rather adding to their existing plight.

3. In view of above discussion, this writ petition is allowed in terms stipulated above.

4. Before parting with the judgment, needless to say that copy of this judgment alongwith copy of policy be forwarded to all

concerned including the Federal as well as Provincial Secretary Law, to circulate it widely within the entire country so as to ensure that maximum members of transgenders community be benefited. Chairman PEMPRA shall also ensure that clause 2 of the policy for launching awareness campaign be implemented through all modes of communication.

(Y.A.) Petition allowed

PLJ 2018 Lahore 161

Present: Amin-ud-Din Khan, J.

MUHAMMAD MAJEED--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, PASRUR DISTRICT SIALKOT etc.--Respondents

W.P. No. 15404 of 2010, heard on 26.9.2017.

Specific Relief Act, 1877 (I of 1877)--

----S. 42--Civil Procedure Code, (V of 1908), Ss. 152, 153 & O. XII, R. 2--Suit for specific performance--Application for correction of record filed by Respondent No. 3--Accepted--Revision petition of petitioner--Dismissed--Objection petition of the respondents against the execution of degree--Dismissed--Delay--Jurisdiction--Maintainability--Limitation cannot be a hurdle in way of dispensation of justice when a wrong has been done by Court, therefore, view taken by both Courts below is in accordance with law--In civil matters jurisdiction conferred upon this Court under Article 199 of Constitution of Islamic Republic of Pakistan, 1973 can be exercised rarely in exceptional circumstances when petitioner is able to show some jurisdictional defect committed by Courts below while passing impugned order but no such defect has been highlighted--Petition was dismissed. [Pp. 163 & 164] A & B

Malik Ghulam Hussain Awan, Advocate for Petitioner.

Mr. Tariq Mehmood Bhalli, Advocate for Respondent.

Dates of hearing: 25.09.2017 and 26.09.2017.

Judgment

Through this writ petition petitioner who is decree-holder of part of the suit property, on the basis of compromise in a suit for specific performance, has challenged the order passed by the learned trial Court dated 11.12.2009 whereby an application filed by one of the judgment-debtors/Respondent No. 3 under Sections 152 and 153 of the, CPC was accepted whereby it was ordered to the concerned revenue officials to correct the record after deleting Khasra Nos. 648 and 649 and the order of learned revisional Court dated 4.7.2010 has been challenged whereby revision petition filed by the petitioner was dismissed.

1. I have heard learned counsels for the parties at length on 25.9.2017 and 26.9.2017 and gone through the record appended with this writ petition.

2. Learned counsel for the petitioner argues that the judgment and decree dated 08.11.2000 attained finality when no appeal against the said judgment and decree was filed and further the respondent and others filed objection petition against the execution of decree, they also filed an application under Section 12(2) of the, CPC, a review petition, a suit, a complaint under Section 420 of PPC and when all the abovesaid proceedings ended in dismissal, they filed an application under Sections 152 and 153 of the, CPC, which is subject matter of this writ petition, with a delay of about 8 years, therefore, states that the application was not competent. Prays for acceptance of the instant writ petition.

3. On the other hand, learned counsel for the respondent while relying upon “Baqar versus Muhammad Rafique and others” (2003 SCMR 1401) and “Ministry of Inter Provincial Coordination versus Major (R) Ahmad Nadeem Sadal and others” (2014 CLC 600) states that the application was competent when the applicant one of the judgment debtors wanted that from the sale-deed executed through the representative of the Court for execution of the decree for specific performance, the Khasra numbers as well as specification of the property have been deleted on the ground that same have been dishonestly mentioned against the judgment and decree. Learned counsel for the respondent further states that the earlier proceedings initiated in the shape of review, suits, application under Section 12(2) of the, CPC were not competent, therefore, they have no adverse effect against their rights. Argues that there are concurrent findings of fact by the two Courts below and further the learned revisional Court has dismissed the revision petition filed by the petitioner, therefore, in the civil matters there is no scope of interference by this Court while exercising jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. While relying upon “Syed Saadi Jafri Zainabi versus Land Acquisition Collector and Assistant Commissioner” (PLD 1992 Supreme Court 472) further argues that in the Sale-deed khasra numbers and specification of property has been mentioned without the permission of the Court, this specification was even not the part of the judgment and decree, therefore, the application moved by the respondent-applicant was absolutely in accordance with law as the registration of sale-deed is outcome of order of the Court and said order is to be corrected under the powers available with the Court under Sections 152 and 153 of the, CPC. Further that for correction of the order limitation is not a bar. Moreover while relying upon “Muhammad Yousaf versus Manzoor Ahmad and another” (PLD 2006 Lahore 738) argues that writ petition is not competent against the revisional Court’s order and also while referring “Mst. Sakko and others versus Mst. Sharifan” (2011 YLR 2815) states that application was competently filed and rightly accepted. While relying upon “Avari Hotels Limited through Chairman and Chief Executive versus Investment Corporation of Pakistan through Managing Director/Principal Officer and 6 others” (2002 CLC 1889) and “Muhammad Anwar and 8 others versus Muhammad Ashraf” (PLD 2001 SC 209) argues that limitation was not a hurdle in the case in hand, therefore, the view taken by the two Courts below is in accordance with law. Prays for dismissal of the instant writ petition.

4. I have heard learned counsel for the parties at length and gone through the record as well as case law.

5. Admittedly with regard to four shops owned by Respondent No. 3, his brother and three sisters a suit for specific performance was filed by the writ petitioner and on the basis of compromise the suit was decreed to the extent of Respondent No. 3, his brother Frances Hayat was directed to return the money received by him whereas to the extent of Defendants Nos. 3, 4 and 5 the suit was dismissed. Admittedly in the agreement or in the plaint no khasra number of suit land as well as specification decreed in favour of plaintiff-petitioner was mentioned. Actually the agreement was for four shops, admittedly, jointly owned by all the defendants and a decree for specific performance of part of the suit property was passed against one of the defendants without specification of the boundaries of the shop decreed as well as mentioning the area of the said shop, therefore, the application moved by Respondent No. 3/judgment-debtor under Sections 152 and 153 of the, CPC was competent to correct the error in the sale-deed which was registered under the order passed by the learned executing Court without scrutinizing the said document ensuring that it is in accordance with the judgment passed by the learned trial Court while decreeing the suit, therefore, in the light of the judgment of the august Supreme Court of Pakistan limitation cannot be a hurdle in the way of dispensation of justice when a wrong has been done by the Court, therefore, the view taken by both the

Courts below is in accordance with law. I am clear in my mind that while invoking jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 petitioner was bound to show some jurisdictional defect committed by the Courts below but no such defect has been pointed out in the orders passed by the learned Courts below. In this eventuality, against an order of the revisional Court in civil matters the jurisdiction conferred upon this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 can be exercised rarely in exceptional circumstances when the petitioner is able to show some jurisdictional defect committed by the Courts below while passing the impugned order but no such defect has been highlighted. In this view of the matter, I see no force in the instant writ petition, therefore, same stands dismissed.

(Y.A.) Petition dismissed

PLJ 2018 Lahore 164

Present: Mrs. Ayesha A. Malik, J.

VORTEX INTERNATIONAL--Petitioner

versus

FEDERATION OF PAKISTAN, etc.--Respondents

W.P. No. 55114 of 2017, heard on 25.9.2017.

Customs Act, 1969 (IV of 1969)--

----Ss. 18, 25, 30 &181--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Issuance of SRO 30.6.17--Goods were reached at Karachi on 29.6.2017--Applicability of S.R.O. Invoice packing--Determination amount of Custom Duty--Question of--Whether impugned SRO is applicable to goods of petitioner--Whether goods of petitioner can be released under SRO dated 30.6.17--Validity--Challenge to--Goods were imported into Pakistan prior to issuance of Impugned SRO on 01.07.2017 which is evident from date of IGM which is not disputed by Respondents and shows that goods of Petitioner entered into territorial waters of Pakistan at allocated port in Karachi on 29.06.2017--As per record goods were shipped for Karachi in May 2017 from Japan and packing list and invoice was issued on 30.05.2017--Therefore, when goods were shipped for Karachi applicable SRO was SRO 499(I)/2009 dated 13.06.2009--Goods entered into territorial waters of Pakistan on 29.06.2017 on which date import was still permissible as per SRO 499(I)/2009 dated 13.06.2009--For purposes of determining which SRO is applicable, relevant date will be date of import that is date when goods enter into territorial waters of Pakistan and not date of Goods Declaration--Section 43 of Act provides that Import Manifest is issued to signify that vessel has arrived at designated port which signifies entering into territory of Pakistan--Furthermore, Bill of Lading was issued on 23.05.2017 being prior to issuance of Impugned SRO--Therefore, Respondents are bound to treat goods of petitioner under SRO 499(I)/2009 dated 13.06.2009--Petition was allowed. [Pp. 167 & 168] A & B

Mian Abdul Bari Rashid, Advocate for Petitioner.

Mr. Muhammad Anwar Khan, Advocate for Respondents.

Date of hearing: 25.9.2017.

Judgment

Through this petition, the Petitioner seeks a declaration that SRO 563(I)/2017 dated 01.07.2017 (“Impugned SRO”) whereby the SRO 499(I)/2009 dated 30.06.2009 was amended cannot be made applicable on the goods of the Petitioner, which were imported prior to the issuance of Impugned SRO.

1. The relevant facts of the case are that the Petitioner imported goods of old and used auto parts from Japan for which invoice packing list was prepared on 30.05.2017. The goods were shipped for Pakistan vide bill of lading dated 23.05.2017 and reached Karachi Seaport on 29.06.2017 in terms of the Import General Manifest (“IGM”). The goods were then transshipped to Lahore Dry Port, Thokar Niaz Baig Lahore on 01.07.2017. The Petitioner requested for examination of the goods, which was done on 05.07.2017 and subsequently the Goods Declaration (“GD”) was filed on 08.07.2017 for clearance of the goods. The Petitioner was informed that the entire consignment cannot be released in terms of SRO 499(I)/2009 dated 30.06.2009 on account of amendment made in the Impugned SRO. Hence this Petition.

2. The grievance of the Petitioner is that Impugned SRO is not applicable to the Petitioner as the goods were imported into Pakistan prior to 1.7.2017. Learned counsel argued that the import of goods will be taken from the time when the goods enter the territorial waters of Pakistan. Learned counsel further argued that the IGM clearly shows that the goods were imported into Pakistan on 29.06.2017 whereas the Impugned SRO was issued on 1.7.2017. Learned counsel argued that the GD is made for the purposes of determining the amount of duty payable under the Customs Act, 1969 (“Act”) and the rate at which the duty is payable. Therefore, the Impugned SRO cannot be made applicable on the goods imported by the Petitioner.

3. Report and parawise comments have been filed by the Respondents. It is their case that the relevant date for determining the applicability of the Impugned SRO is the date when the GD was filed being 8.7.2017. Learned counsel explained that used goods were imported by the Petitioner. After confiscation of the goods under Section 181 of the Act it was found that eight used front/half cut show fitted with engines, dash boards and other accessories could not be redeemed on payment of redemption fine in lieu of confiscation under Section 181 of the Act on account of their exclusion from clause (e) of Serial No. 2 of the table in SRO 499(I)/2009 dated 13.06.2009, which was amended by the Impugned SRO on 01.07.2017. Learned counsel further argued that since the Federal Government has prohibited the import of chassis of used automotive vehicles cut into minimum of two pieces, eight goods of the Petitioner cannot be released.

4. Heard and record perused.

5. The basic issue before the Court is whether the goods of the Petitioner being eight used front/half cut show fitted with engines, dash boards and other accessories can be released under SRO 499(I)/2009 dated 13.06.2009. Or whether the Impugned SRO is applicable on the stated goods imported by the Petitioner. The record shows that the Petitioner imported old and used auto parts having a total US $ 3,904.00. The goods were imported from Yokohama Japan to Karachi through one container by sea. The goods arrived at Seaport Karachi on 29.06.2017 as per the IGM, which is evident from GD filed by the Petitioner. It is noted that the date of IGM is not disputed by the Respondents. As per the Act an IGM is issued to the carrier when the ship is anchored at an allocated port. The IGM provides details of the goods aboard the vessel containing information relevant for the custom authority such as name of the sender, name of the receiver and the description of the shipped goods. Therefore, once the goods arrive within the territorial waters of Pakistan, they become chargeable to custom duty and thereafter, the importer has to declare the goods for the purposes of levy of custom duty. Section 18 of the Act provides that custom’s duty shall be levied at such rate as prescribed in the First Schedule on goods imported into Pakistan. The dispute between the parties is with respect to the application of SRO 499(I)/2009 dated 13.06.2009 in its original form and not through its amended form vide the Impugned SRO. SRO 499(I)/2009 dated 13.06.2009 provides that in terms of Section 181 of the Act, Federal Board of Revenue (“FBR”) can require the importer to pay a fine in lieu of confiscated goods named within the SRO. Accordingly in Clause 2(e) of the SRO auto parts imported in used or second hand condition can be released on payment of redemption fine of 20% on custom value. This SRO was amended through Impugned SRO in which the Clause 2(e) was amended such that it excluded front cabin/half cut HTV/LTV/Cars, with or without chassis number such that these parts could not be redeemed on payment of redemption fine. Hence the dispute is about the chargeability of the goods imported. The record shows that the Petitioner on the import of the goods, invoked Section 181 of the Act which prescribes for the option to pay fine in lieu of confiscated goods. The imported goods were redeemed by the Petitioner on payment of redemption fine at the rate of 20% of the customs value along with payment of duty and taxes applicable under the law. A penalty of Rs. 10,000/- was also imposed on the Petitioner which was duly paid. The dispute before this Court is limited to the import of eight used parts which were not redeemed on payment of redemption fine in lieu of confiscation, on account of their exclusion from SRO 499(I)/2009 dated 13.06.2009 vide the Impugned SRO.

6. The question before the Court is whether the Impugned SRO is applicable to the goods of the Petitioner? The relevant Section of the Act is Section 18 which provides that customs duty shall be levied at the prescribed rates on goods being imported into Pakistan. In terms of this provision the liability to pay customs duty shall accrue the moment the goods enter into the territory of Pakistan. This means that the taxable event is the import of the goods which has nothing to do with ascertaining the value of the imported goods under Section 25 of the Act or determination of the rate of import duty under Section 30 of the Act. Admittedly, in this case the goods were imported into Pakistan prior to the issuance of the Impugned SRO on 01.07.2017 which is evident from the date of IGM which is not disputed by the Respondents and shows that the goods of the Petitioner entered into the territorial waters of Pakistan at the allocated port in Karachi on 29.06.2017. As per the record the goods were shipped for Karachi in May 2017 from Japan and the packing list and invoice was issued on 30.05.2017. Therefore, when the goods were shipped for Karachi the applicable SRO was SRO 499(I)/2009 dated 13.06.2009. The goods entered into the territorial waters of Pakistan on 29.06.2017 on which date the import was still permissible as per SRO 499(I)/2009 dated 13.06.2009. For the purposes of determining which SRO is applicable, the relevant date will be the date of import that is the date when the goods enter into the territorial waters of Pakistan and not the date of the Goods Declaration. In “East and West Steamship Co. v. The Collector of Customs and others” (PLD 1976 SC 618), the august Supreme Court of Pakistan held that the word “import” carried the meaning of “bringing in” or “to bear or carry into” and an imported

articles was one which was brought or carried into a country form abroad and it did not necessarily entail the entire process of filing bill of entry, discharging the goods from the vessel at a wharf, the assessment of the value of the goods and the duty payable on them. No sooner, therefore, the vessel touches a Pakistan Port, the goods can be stated to have been imported. Section 43 of the Act provides that the Import Manifest is issued to signify that the vessel has arrived at the designated port which signifies entering into the territory of Pakistan. Furthermore, the Bill of Lading was issued on 23.05.2017 being prior to the issuance of the Impugned SRO. Therefore, the Respondents are bound to treat the goods of the Petitioner under SRO 499(I)/2009 dated 13.06.2009.

1. Under the circumstances, this petition is allowed and the Respondents are directed to release the goods of the Petitioner in terms of SRO 499(I)/2009 dated 13.06.2009.

(Y.A.) Petition allowed

PLJ 2018 Lahore 168

Present: Ibad-ur-Rehman Lodhi, J.

ZUBAIDA YAQOOB CHAUDHRY--Petitioner

versus

MILITARY ESTATES OFFICER and others--Respondents

W.P. No. 4926 of 2013, heard on 10.10.2017.

The Works of Defence Act, 1903 (VII of 1903)--

----Ss. 3 & 7--Constitution of Pakistan 1973, Art. 24(1)(2)--Constitutional petition--Issuance of Notification--Imposing of restrictions--Altering nature of land in any manner without approval of station commander concerned--Shifting of ammunition depot--Alternate suitable place--Equality of status--Fundamental guarantee--Challenge to--Validity--Article 23 thereof provides a fundamental guarantee to every citizen to have right to acquire, hold and dispose of property in any part of Pakistan, subject to Constitution and any reasonable restriction imposed by law in public interest--In same manner, Article 24(1) of Constitution of Islamic Republic of Pakistan, 1973 provides a guarantee that no person shall be compulsorily deprived of his property save in accordance with law, whereas Article 24(2) provides that no property shall be compulsorily acquired or taken possession of save for a public purpose, and save by authority of law which provides for compensation therefor--Very presence of such Ammunition Depots in inhabited areas would be a constant threat to human lives both on account of an accident or an intentional step of criminal nature, which could not be ruled out in view of accident of Ojhri Camp--It would be beneficial to refer that veteran politician Kalsoom Saifullah in her book published in September, 2011 in Pakistan has notified the Pakistani nation that it was none other than the ruler of that time himself, who ordered the explosion to be carried out in Ojhri Camp, so that the threat of American checking of stringer missiles could be avoided--In view of such horrifying chapter of our national life, till time, such Ammunition Depots are functioning in inhabited localities, possibility cannot be ruled out that such havoc can be played at any time in order to achieve designs of any stakeholders of adventurous nature--Simple answer to such big question of our national calamity is that our inhabited localities must be saved from such dangerous dumps, which are situated within residential areas and such Depots, stores must be established outside inhabited localities--Although Constitutional guarantees with reference to properties are made subject to law, but where restrictions are imposed for unlimited period, same cannot be considered as “reasonable restrictions” as enshrined in Articles 23 and 24 of Constitution of Islamic Republic of Pakistan, 1973 and as such, restrictions imposed through impugned notification for an indefinite period are not “reasonable restrictions”--This Court, while exercising its Constitutional jurisdiction under Article 199 of Constitution of Islamic Republic of Pakistan, 1973 is not supposed to leave people of Pakistan, who were subject to Constitution as helpless against atrocities of public functionaries and rights and guarantees promised with people of Pakistan must practically be given effect beneficially to them and such rights must jealously be guarded--Respondents are provided a period of one year from today to arrange complete shifting of present Ammunition Depot from village Niaz Baig, Multan Road, Lahore to any other suitable place and if at all, land of petitioner is required by respondents for purposes of Ammunition Depot in question, same be acquired strictly in accordance with provisions of Land Acquisition Act, 1894 by payment of compensation at present market value--Respondents are also directed to work out as to what is due in favour of petitioner towards rent of land, which remained under restrictions for period from when such payment was stopped to petitioner till time, actual possession of land in question is handed over to her and restrictions imposed through impugned notification are withdrawn or land in question is acquired strictly under law--Petition was allowed. [Pp. 172, 173 & 174] A, B, C, D & E

Mr. Asad Ali Bajwa, Advocate for Petitioner.

Mr. Muhammad Javed Kasuri, Deputy Attorney-General for Pakistan for Respondents.

Date of hearing : 10.10.2017

Judgment

With the consent of learned counsel for the parties, the hearing of this petition is being treated as pacca one.

1. Vide notification issued under Section 3 of The Works of Defence Act, 1903 (VII of 1903) read with Section 7 thereof published on 16.10.1979, the Federal Government was pleased to declare the restrictions detailed below to the land situated in the vicinity of the works mentioned in the schedule attached with such notification:--

“1. Within a radius of 1143 meters from the perimeter of the works of defence, no variation shall be made in the ground level and no building, wall, bank or other construction above the ground shall be maintained, erected, added to or altered otherwise than with the written approval of the Station Commander at the Station concerned and on such conditions as he may prescribe.

1. The sketch plan of the land may be inspected in the office of the Deputy Commissioner of the District in which the said work is situated.”

The petitioner having holding in the said land to the extent of 2- Kanals, 2-Marlas situated in Khasra No. 8739, village Niaz Baig, Multan Road, Lahore, has been forbidden from undertaking any practical steps in her titled and owned land by not erecting any building, wall, bank etc. and also from altering nature of the said land in any manner without written approval of the Station Commander concerned. Such restrictions were imposed in 1979 without giving any timeframe, as to how long such restrictions would continue to have effect upon the landed property of the petitioner.

During the hearing of this petition, the respondents were called to think over the possibility of shifting of Ammunition Depot in question from its present location, to which, on 11.04.2017, Additional Military Estate Officer, Lahore Circle, Lahore Cantt. stated before the Court that removal of Ammunition Depot from Niaz Baig has been ordered and alternate suitable place has been arranged for such purpose, but for reasons best known to authorities in Ministry of Defence, Government of Pakistan, the shifting was not started. After having recorded such statement of Additional Military Estate Officer, the Secretary, Ministry of Defence, Government of Pakistan was directed to appear in person to clarify such position on 27.04.2017. However, a Senior Joint Secretary, Ministry of Defence, Government of Pakistan attended the proceedings on 10.05.2017, but was not in a position to give any definite timeframe in which Ammunition Depot from Niaz Baig, Multan Road, Lahore could have been shifted and therefore, the learned Federal Law Officer was directed to address arguments on merits on this Constitutional petition. At this stage, it is pertinent to mention that on 23.05.2017, it was committed on behalf of Ministry of Defence, Government of Pakistan in writing that it will take approximately six years to shift the Ammunition Depot of Niaz Baig, Multan Road, Lahore from its present location to proposed location at Pattoki. However, today i.e. 10.10.2017 on final hearing, learned Deputy Attorney-General for Pakistan has even withdrawn from such proposal on the ground that the land, which was acquired at Pattoki for the said purpose has not been found suitable for the required standards as a result of Geo-Technical Survey of the acquired land and as such, with certainty no period can be committed in which possibly the Ammunition Depot can be shifted.

1. Earlier other affected land owners of the same notification whose lands also fall with the radius of 1143 meters from the perimeters of the works of defence preferred Writ Petitions No. 3327 of 2003 and 8433 of 2005, which were finally decided on 13.09.2011 by this Court. Such petitions were for limited purposes of getting compensation of the lands in question after 30.06.1994 from when admittedly the authorities stopped to pay the land owners the amount of compensation, which was being paid earlier, but in view of letter dated 10.03.1995 by the Military Estate Officer, Lahore Circle Lahore Cantt, such payment was stopped for the reason that the lands were never acquired and ownership of the same still vest with the writ petitioners and petitioners were not held entitled to receive any compensation by the Military Estate Officer. This Court, however, accepted the writ petitions and directed the respondents to start payment of the compensation after 30.06.1994 till time the restrictions imposed through notification of 1979 remain in field.

In the present case, the respondents have not shown any payment of any amount of compensation to the petitioner as against the restrictions imposed by means of impugned notification.

1. All what has been done by the respondents was under the jurisdiction vested in the said respondents/Federal Government within the meaning of a piece of legislation enacted during the era of slavery and the Masters, who were ruling this subcontinent enacted such law for the lands of their slaves.

Once Islamic Republic of Pakistan emerged on the globe in 1947 as an independent State, the people of free Pakistan in 1973 through their representatives in the National Assembly, adopt, enact and give to themselves, the Constitution, which reflects the will of the people of Pakistan to establish an order, which inter alia guaranteed the fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality.

Article 23 thereof provides a fundamental guarantee to every citizen to have the right to acquire, hold and dispose of property in any part of Pakistan, subject to the Constitution and any reasonable restriction imposed by law in the public interest. In the same manner, Article 24(1) of The Constitution of the Islamic Republic of Pakistan, 1973 provides a guarantee that no person shall be compulsorily deprived of his property save in accordance with law, whereas Article 24(2) provides that no property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation therefor.

The schedule annexed with the impugned notification provides 10 stations, where restrictions were imposed under Section 3 of The Works of the Defence Act, 1903 (VII of 1903), which include Abbotabad, Peshawar, Sargodha, Multan, Karachi, Lahore, Gujranwala, Sahiwal, Jhelum and Quetta. The list, where Ammunition Depots are functioning, does not end here, as even other citizens of Pakistan are catering for such services.

It reminded the day of 10th April, 1988, which in fact was a day of great calamity before doomsday for Rawalpindi city, when all of a sudden a hell broke loose in Ojhri Camp at Murree Road, Rawalpindi, which is almost the central point of twin cities i.e. Rawalpindi and Islamabad, as missiles were flying across the inhabited localities of Rawalpindi and Islamabad. Although there has been no accepted statistical data available to date, but a careful account put the figure of deaths close to 4000 in the said accident. No concrete inquiry was ever conducted regarding said incident and if conducted, it never made public and it is still a mystery, as to whether it was an accident or an intentional attempt to put cover on what was received in the said Ammunition Depot meant for storage of ammunition of every nature received from United States of America and its other allies meant for Afghan Mujahideen fighting against Soviet forces in Afghanistan and twin cities were littered with missiles, artillery shells and projectiles on a day, when American Team was arriving to take account of the vast amount of military hardware meant to be stored in such Ammunition Depot.

The very presence of such Ammunition Depots in the inhabited areas would be a constant threat to the human lives both on account of an accident or an intentional step of criminal nature, which could not be ruled out in view of accident of Ojhri Camp. It would be beneficial to refer that veteran politician Kalsoom Saifullah in her book published in September, 2011 in Pakistan has notified the Pakistani nation that it was none other than the ruler of that time himself, who ordered the explosion to be carried out in Ojhri Camp, so that the threat of American checking of stringer missiles could be avoided.

In view of such horrifying chapter of our national life, till the time, such Ammunition Depots are functioning in inhabited localities, the possibility cannot be ruled out that such havoc can be played at any time in order to achieve the designs of any stakeholders of adventurous nature. Simple answer to such big question of our national calamity is that our inhabited localities must be saved from such dangerous dumps, which are situated within the residential areas and such Depots, stores must be established outside the inhabited localities.

Till the time, such alternate arrangements are made, the authorities concerned instead of imposing such unreasonable restrictions with reference to the areas outside the boundary walls of Ammunition Depots must be bound down to acquire the land, which possibly would be affected from the effects of the stocks stored in such Ammunition Depot and such required land would be subject to the land acquisition under the law against which the land owners are supposed to be compensated adequately as against the price of their land.

The provisions of Sections 3 read with Section 7 of The Works of Defence Act, 1903 are in fact in complete negation of the Constitutional guarantees provided under Articles 23 and 24 of The Constitution of Islamic Republic of Pakistan, 1973. The Constitution, which the people of Pakistan through their parliamentarians adopt and enact, must be respected and given preference to the law promulgated by the Masters in the days of our slavery. Practically when the provisions of The Works of Defence Act, 1903 are acted upon and given preference, it would remind the independent nation of Pakistan the days of slavery and the owners of the land, whose lands situate in the vicinity of such Ammunition Depots, for which restrictions have been imposed under Sections 3 and 7 of The Works of Defence Act, 1903, can only look towards their landed property wistfully.

1. Although the Constitutional guarantees with reference to the properties are made subject to law, but where restrictions are imposed for unlimited period, the same cannot be considered as “reasonable restrictions” as enshrined in Articles 23 and 24 of The Constitution of Islamic Republic of Pakistan, 1973 and as such, the restrictions imposed through the impugned notification for an indefinite period are not “reasonable restrictions”. This Court, while exercising its Constitutional jurisdiction under Article 199 of The Constitution of Islamic Republic of Pakistan, 1973 is not supposed to leave the people of Pakistan, who were subject to Constitution as helpless against the atrocities of the public functionaries and the rights and guarantees promised with the people of Pakistan must practically be given effect beneficially to them and such rights must jealously be guarded.

2. In view of above discussion, there is no other option with this Court but to allow this Constitutional petition as prayed for.

3. The respondents are provided a period of one year from today to arrange complete shifting of the present Ammunition Depot from village Niaz Baig, Multan Road, Lahore to any other suitable place and if at all, the land of the petitioner is required by the respondents for the purposes of Ammunition Depot in question, the same be acquired strictly in accordance with the provisions of The Land Acquisition Act, 1894 by payment of compensation at the present market value. The respondents are also directed to work out as to what is due in favour of the petitioner towards rent of the land, which remained under restrictions for the period from when such payment was stopped to the petitioner till time, the actual possession of the land in question is handed over to her and restrictions imposed through impugned notification are withdrawn or the land in question is acquired strictly under the law.

(Y.A.) Petition allowed

PLJ 2018 Lahore 175

Present: Shahid Karim, J.

USMAN HASSAN & another--Petitioners

versus

FEDERATION OF PAKISTAN & others--Respondents

W.P. No. 32241 of 2015, decided on 10.10.2017.

Income Tax Ordinance, 2001 (XLIX of 2001)--

----Ss. 37, 47-B, 53, 159, 236-P--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Judicial Review--Circular/clarification issued by Federal Board of Revenue--Legislative competence--Challenge to--Petitioners are trustees of approved recognized Provident Fund, Approved gratuity Funds or Provident Pension Funds--Income of each of these Funds is exempt from tax under Section 53(1)(a) read with clause 57, Part I of Second Schedule of Income Tax Ordinance, 2001--Application under Section 159(1)(a) of Ordinance to relevant Commissioner Inland Revenue for issuance of an exemption certificate--This is mandate of law and is not merely applicable to Funds but across Board to all classes of income of classes of persons who claim an exemption from tax in terms of Section 53(1)(a) read with Clause 57 of Part I of Second Schedule of Ordinance, 2011--Question in these petitions and which engages that High Court is not relating to exemption covered by Section 53(1)(a) of Ordinance but one in clause 47-B of Part IV of Second Schedule (“Clause 47-B”) which relates to a different kinds of all cases covered under clause 47-B of Par IV of Second Schedule, they are not obliged to apply for and take out an exemption certificate--Provisions of Section 53(1)(d) will come into play as Part IV of Second Schedule is relatable to Section 53(1)(d) of Ordinance, 2001--Funds do not apply for and not granted exemption certificate by Commissioner Inland Revenue--However, impugned circular has put a different construction on relevant provisions of Ordinance, 2001 and FBR has directed Commissioners of Inland Revenue to require production of exemption certificate in order to entitle withholding to claim an exemption under provisions covered by clause 47-B--Question in these petitions and it falls upon High Court to determine as to what is proper and true construction in respect of issuance or otherwise of an exemption certificate in cases covered by clause 47-B--Held: that power to grant exemptions and tax concessions are provided in Section 53 of Ordinance, 2001 read with Second Schedule, Clause 47-B says that provisions of Sections 150, 151 and 233 and Part I, Division VII of First Schedule shall not apply to any person making payment of inter alia Funds--Clause 47-B is not directed toward Funds in its application but addresses persons who have been required to deduct tax as withholding agents--Clause 47-B intends is that provisions mentioned in said clause shall not apply to withholding agents who are persons making payment to Funds--It is as If provisions do not exist and are erased from statute book in respect of persons who are making payments to Funds--There is a distinction; exemption from tax of an amount is different from an exemption of operation of provision--In case of first exemption, benefit Is being derived by a person who says that his income is exempt from tax but latter kind of exemptions is directed towards a person who is making payment to that person and acts as a withholding agent--In fact, what Section 53(1)(d) provides is that in case of any person who makes payment to certain entities, operation of provisions of Ordinance mentioned in Second Schedule Shall cease to have effect--This is by legislative command and so there is an important distinction in nature of exemption granted and persons to whom it is directed--Petition Allowed. [Pp. 186 & 188] A, B & C

Income Tax Ordinance, 2001 (XLIX of 2001)--

----Ss. 37, 47-B, 53, 159 & 236-P--Constitution of Pakistan, 1973, Art. 199--Judicial Review--Circular/clarification--Exemption for consumption of person making payment--Eligibility for exemption under law, whether self executopy--Clause 47-B is a matter between withholding agent and legislature and so withholding agent is supposed to know law--For withholding agent, provisions mentioned in clause 47-B do not exist and consequently any liability arising thereunder, does not arise--It does not chime with scheme of law to demand petitions to seek an exemption certificate over and above exemption visualized by clause 47-B--That exemption certificate has already been conferred by clause 47-B and is a statutory exemption certificate in presence of which no further certificate is required to be issued--This would be tantamount to saying that legislative will was not enough and FBR seeks to upend that will by superimposing its opinion upon will of legislature--It is a fallacy to say that petitioners are obliged to apply for exemption certificate under Section 159 of Ordinance for exemption mentioned in Section 159 is already covered by clause 47-B and exempts withholding agent from its duty under those provisions--Duties spelt out in Section 150 are duties cast on persons making payment as withholding agent and but for mandate of these provisions, persons will not have withheld or deducted tax on those payments--Had clause 47-B not been enacted, petitioners would certainly have been driven to comply with terms of Section 159--But now, from standpoint of withholding agent, an exemption certificate is not required to be produced as for him, these provisions do not operate--Exemption contemplated by Section 53(1)(a) and (d) operate within their own spheres--Section 159 has a direct relation with clause (a) of sub-section (1) of Section 53 and is triggered when a person claims exemption from tax on an amount--This will ordinarily be resorted to by all such persons including petitioners--Petitioners held entitled to exemption.

[Pp. 189 & 190] D & E

Income Tax Ordinance, 2001 (XLIX of 2001)--

----Ss. 37, 47-B, 53(1)(d), 159(1) & (2), 236-P--Question of redundancy--Whether exemption certificate is sine qua non--Reference to Sixth Schedule of Ordinance Restarted to--It cannot be said that legislature intended this to be result and FBR cannot be permitted to place a construction on whole scheme of law which runs counter to that of intent of law, expressed clearly and without equivocation--Circular under challenge merely takes a pedantic and narrow view of issue sought to be dealt with in that circular--It seems that while issuing letter, only sub-Section (2) of Section 159 was considered and raison detre of clause 47-B and Section 53(1)(d) was entirely ignored--At first blush, provisions of Section 159(1) & (2) and clause 47-B seem to overlap but, on contrary, they operate in different spheres and upon a holistic reading, each must be given full effect that it deserves--For, one may envisage a situation where clause 47-B grants exemption in respect of provisions of Ordinance not covered by Section 159--Legislature does not intend provisions of law to alternate between sleep and live modes--Nor is it case of FBR that Section 159 impliedly repeals clause 47-B--Certain rights and duties flow out of recognition and approval granted by Commissioner in accordance with Sixth Schedule of Ordinance, 2001--Part I of Sixth Schedule deals with recognition of provident funds--Commissioner may accord recognition to any provident fund which complies with requirement of rule 2 and may at any time withdraw such recognition if in his opinion circumstances of fund cease to warrant continuance of recognition--Commissioner may not refuse or withdraw recognition of any provident fund unless he has given to trustees of fund a reasonable opportunity of being heard--Rule 2 of Part I of Sixth Schedule prescribes condition for approval which need to be specified by provident fund seeking recognition--By rule 8, recognized provident fund is obliged to maintain accounts by trustees of fund and accounts shall be open to inspection by income tax authorities at all reasonable times--Also Rule 10 requires particulars to be furnished in respect of recognized provident fund within such period of service of a notice as may be specified in that within power of Commissioner as also that elaborate conditions have been laid down for recognition of a provident fund--Further, accounts of recognized provident fund are open to inspection by Commissioner at all times--Rules regarding approved superannuation funds and gratuity funds are also similar in nature and prescribe conditions of a like nature which give power to Commissioner to approve funds as also to withdraw that approval--There is thus a complete oversight of affairs of funds by income tax authorities and recognition of approval shall remain in place unless it is withdrawn by Commissioner In accordance with law--Therefore, if there is a withdrawal by Commissioner, necessary information can be conveyed to all concerned including withholding agents so that withholding agents will know that fund in question is not a recognized fund and, therefore, is not entitled to an exemption--Clearly, if approval or recognition of funds has not been withdrawn, there is no reason for withholding agent not to comply with statutory provisions which entitle funds to an exemption from tax on their income--Petition was allowed.

[Pp. 190, 191 & 192] F & G

M/s. Mansoor Usman Awan, Shahzeen Abdullah, Hussain Ibrahim and Muhammad Abubakar, Advocates for Petitioners.

M/s. Syed Naveed A. Andrabi, Ashiq Hussain Hanjra, Barrister Saad Ehsan Warraich, Muhammad Azam Zia, Abbas Haider Hashmi, Sarfraz Ahmad Cheema and Dr. Ishtiaq Ahmad Khan, Director Law, FBR for Respondents.

Date of hearing: 2.9.2017

Judgment

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 seeks the following prayer:--

I. Declare that Impugned Circulars/Clarifications issued by the Respondent Nos.2 & 3 are ultra vires the Ordinance and the Constitution, mala fide and have been issued without lawful authority and are of no legal effect.

II. Declare that the Funds in the title of this Petition do not require an Exemption Certificate under Section 159 of the Ordinance to enjoy the exemption granted under Clause 47-B of the Ordinance.

III. Declare that the Funds in the title of the Petition are not liable to collection/deduction of tax by the Respondent No. 10 under Section 37A of the Ordinance.

IV. Declare that Section 236P, Section 2(23A) and 2(35C) of the Ordinance insofar as they treat the Funds listed in the title of the Petition that are exempt from payment of income tax under the Ordinance in the same manner as persons who are liable to pay income tax but do not file returns and/or pay tax as irrational, illogical, unreasonable, disproportionate and consequently ultra vires the Constitution. In the alternative; Declare that Section 236P of the Ordinance does not apply to the Funds listed in the title of the Petition as they are exempt from payment of income tax and it is not the purpose of the said section to collect advance income tax from such Funds.

V. Direct the Respondent Nos.4 to 12 not to withhold/deduct advance income tax under Section 37A, 150, 151, 233 and 236P of the Ordinance from the Funds in the title of this Petition.

VI. Any other relief to which the Petitioner is found entitled under the circumstances may also very kindly be granted.”

1. This judgment will also decide constitutional petitions W.P. No. 22545 of 2016, W.P. No. 5505 of 2016, W.P. No. 20056 of 2016, W.P. No. 5507 of 2016, W.P. No. 20057 of 2016, W.P. No. 20055 of 2016, W.P. No. 5506 of 2016, W.P. No. 7358 of 2017 and W.P. No. 39003 of 2015 (the petitions), which give rise to common questions of law.

2. The petitions involve a vexed question of law and it is common ground between the parties that at least three High Courts i.e. Sindh High Court, Islamabad High Court and Peshawar High Court have rendered judgments which upheld the validating and competence of the circular/clarification dated 12.05.2015 (“the circular”) issued by the Federal Board of Revenue (FBR). It is in this background that the learned counsel for the petitioners invited this Court to take a different view and diverge from the opinions rendered by the three High Courts in their judgments.

Relevant Facts:

1. The facts are refreshingly simple and the parties are on common ground with regard to the most of these facts. The petitioners in these cases are trustees of approved recognized Provident Fund, Approved Gratuity Funds or Provident Pension Funds ((“the Funds”). The income of each of these Funds is exempt from tax under Section 53(1)(a) read with clause 57, Part I of the Second Schedule of the Income Tax Ordinance, 2001 (“the Ordinance, 2001”). It is not in dispute that to avail exemption from advance tax by virtue of clause 57 of the Part I of the Second Schedule, a fund would ordinarily be required to submit an application under Section 159(1)(a) of the Ordinance to the relevant Commissioner Inland Revenue for issuance of an exemption certificate. This is the mandate of law and is not merely applicable to the Funds but across the board to all classes of income or classes of persons who claim an exemption from tax in terms of Section 53(1)(a) read with clause 57 of Part I of the Second Schedule of the Ordinance, 2001. The question in these petitions and which engages this Court is not relating to the exemption covered by Section 53(1)(a) of the Ordinance but the one in clause 47-B of Part IV of the Second Schedule (“clause 47-B”) which relates to a different kind of exemption. It is the case of the petitioners that in all cases covered under clause 47-B of Part IV of the Second Schedule, they are not obliged to apply for and take out an exemption certificate. The provisions of Section 53(1)(d) will come into play as Part IV of the Second Schedule is relatable to Section 53(1)(d) of the Ordinance, 2001. The Funds do not apply for and are not granted exemption certificate by the Commissioner Inland Revenue. However, the impugned circular has put a different construction on the relevant provisions of the Ordinance, 2001 and the FBR has directed the Commissioners of Inland Revenue to require the production of the exemption certificate in order to entitle the withholding to claim an exemption under the provisions covered by clause 47-B. The construction on these provisions of law by the petitioners runs counter to the clarification in the circular, which has been called in question in these petitions and it falls upon this Court to determine as to what is the proper and true construction in respect of the issuance or otherwise of an exemption certificate in cases covered by clause 47-B.

ISSUE:

1. As explicated, the question which begs an answer is as to whether the petitioners are constrained to apply for the issuance of an exemption certificate in terms of Section 159 of the Ordinance, 2001 in cases covered by the clause 47-B.

Relevant Law:

1. The provisions which will require an interpretation in order to resolve the controversy in hand will be Sections 53, 159, clause 57 of Part I of the Second Schedule and clause 47-B. They are reproduced for facility as under:--

2. Exemptions and tax concessions in the Second Schedule.--(1) The income or classes of income, or persons or classes of persons specified in the Second Schedule shall be --

(a) exempt from tax under this Ordinance, subject to any conditions and to the extent specified therein;

(b) subject to tax under this Ordinance at such rates, which are less than the rates specified in the First Schedule, as are specified therein;

(c) allowed a reduction in tax liability under this Ordinance, subject to any conditions and to the extent specified therein; or

(d) exempted from the operation of any provision of this Ordinance, subject to any conditions and to the extent specified therein.

(2) The Board with the approval of Federal Minister-in-charge may, from time to time pursuant to the approval of the Economic Coordination Committee of Cabinet, whenever circumstances exist to take immediate action for the purposes of national security, natural disaster, national food security in emergency situations, protection of national economic interests in situations arising out of abnormal fluctuation in international commodity prices, removal of anomalies in taxes, development of backward areas implementation of bilateral and multilateral agreements or granting an exemption from any tax imposed under this Ordinance including a reduction in the rate of tax imposed under this Ordinance or a reduction in tax liability under this Ordinance or an exemption from the operation of any provision of this Ordinance to any international financial institution or foreign Government owned financial institution operating under an agreement, memorandum of understanding or any other arrangement with the Government of Pakistan, by notification in the official Gazette, make such amendment in the Second Schedule by--

(a) adding any clause or condition therein

(b) omitting any clause or condition therein; or

(c) making any change in any clause or condition therein;

as the Government may think fit, and all such amendments shall have effect in respect of any tax year beginning on any date before or after the commencement of the financial year in which the notification is issued.

3) The Federal Government shall place before the National Assembly all amendments made by it to the Second Schedule in a financial year.

(4) Any notification issued under sub-section (2) after the commencement of the Finance Act, 2015, shall, if not earlier rescinded, stand rescinded on the expiry of the financial year in which it was issued:

Provided that all such notifications, except those earlier rescinded, shall be deemed to have been in force with effect from the first day of July, 2016 and shall continue to be in force till the thirtieth day of June, 2018, if not earlier rescinded:

Provided further that all notifications issued on or after the first day of July, 2016 and placed before the National Assembly as required under sub-section (3) shall continue to remain in force till the thirtieth day of June, 2018, if not earlier rescinded by the Federal Government or the National Assembly.”

“159. Exemption or lower rate certificate.--(1) Where the Commissioner is satisfied that an amount to which Division II or III of this Part or Chapter XII applies is:--

(a) exempt from tax under this Ordinance; or

(b) subject to tax at a rate lower than that specified in the First Schedule; or

(c) is subject to hundred percent tax credit under Section 100C, the Commissioner shall, upon application in writing by the person, issue the person with an exemption or lower rate certificate.

[(1A) The Commissioner shall, upon application from a person whose income is not likely to be chargeable to tax under this Ordinance, issue exemption certificate for the profit on debt referred to in clause (c) of sub-section (1) of Section 151.

(2) A person required to collect advance tax under Division II of this Part or deduct tax from a payment under Division III of this Part or deduct or collect tax under Chapter XII] shall collect or deduct the full amount of tax specified in Division II or III 7 or Chapter XII, as the case may be, unless there is in force a certificate issued under sub-section (1) relating to the collection or deduction of such tax, in which case the person shall comply with the certificate.

(3) \\

(4) \\

(5) \\

(6) Notwithstanding omission of sub-Sections (3), (4) and (5), any notification issued under the said sub-Sections and for the time being in force, shall continue to remain in force, unless rescinded by the Board through notification in the official Gazette.”

“Clause 57(3) Any income of the following funds and institution, namely:--

(i) a provident fund to which the Provident Funds Act, 1925 (XIX of 1925), applies;

(ii) trustees on behalf of a recognized provident fund or an approved superannuation fund or an approved gratuity fund;

(iii) a benevolent fund or group insurance scheme approved by the Board for the purposes of this clause;

(iv) Service Fund;

(v) Employees Old Age Benefits Institution established under the Employees Old Age Benefit Act, 1976 (XIV of 1976);

(vi) any Unit, Station or Regimental Institute; and

(vii) any recognized Regimental Thrift and Savings Fund, the assets of which consist solely of deposits made by members and profits earned by investment thereof;

(viii) a Pension Fund approved by the Securities and Exchange Commission of Pakistan under the Voluntary Pension System Rules, 2005;

(ix) any profit or gain or benefit derived by a pension fund manager from a pension Fund approved under the Voluntary Pension System Rules, 2005, on redemption of the seed capital invested in pension fund as specified in the Voluntary Pension System Rules, 2005;

[]

(xi) International Irrigation Management Institute;

(xii) Punjab Pension Fund established under the Punjab Pension Fund Act, 2007 (I of 2007) and the trust established thereunder;

(xiii) Sindh Province Pension Fund established under the Sindh Province Pension Fund Ordinance, 2002;

(xiv) Punjab General Provident Investment Fund established under the Punjab General Provident Investment Fund Act, 2009 (V of 2009) and the trust established thereunder.

Explanation.--For the purpose of this clause, “Service Fund” means a fund which is established under the authority, or with the approval of the Federal Government for the purpose of --

(a) securing deferred annuities to the subscribers of payment to them in the event of their leaving the service in which they are employed; or

(b) making provision for their wives or children after their death; or

(c) making payment to their estate or their nominees upon their death.”

Clause (47-B) The provisions of Sections 150, 151, 233 and Part I, Division VII of the First Schedule] shall not apply to any person making payment to National Investment Unit Trust or a collective investment scheme or a modaraba or Approved Pension Fund or an Approved Income Payment Plan or a REIT Scheme or a Private Equity and Venture Capital Fund or a recognized provident fund or an approved superannuation fund or an approved gratuity fund.”

1. It can be seen that by virtue of Section 53(1)(d) read with clause 47-B, the Funds are exempt from deduction of tax at source on their dividends under Section 150, profit of debt under Section 151, brokerage and commission under Section 233 and capital gain tax under Section 37A and this is because of the unique species of exemptions granted by the legislature by Section 53(1)(d) and by which persons acting as withholding agents are exempt from the operation of the provisions of the Ordinance and those provisions have been spelt out in clause 47-B. Thus, the legislature may exempt any persons specified in the Second Schedule from the operation of any provision of the Ordinance, 2001. In this case, the exemption from the operation in respect of Sections 150, 151, 233 and Part 1, Division VII of the First Schedule of the Ordinance has been made which directly impacts the petitioners and they seek the benefit accruing from the exemption granted by clause 47-B. The learned counsel for the petitioners do not quarrel with the proposition that generally in all other matters the petitioners are required to apply for the issuance of an exemption certificate in terms of Section 159. However, in cases covered by clause 47-B on the other hand, the case of the petitioners is that since the legislature itself exempts the operation of certain provisions of the Ordinance, there is no further requirement for seeking the issuance of an exemption certificate and not only that it will be a duplication but also a negation of the legislative intent.

Parties’ contentions and determination:

1. It is clear by now that the parties are at variance on the issue whether the petitioners are under a bounden duty to comply with the provisions of Section 159 even in the cases to which clause 47-B applies. The arguments addressed by the learned counsels for the parties shall be referred to and dealt with in the course of the opinion that follows. Suffice to say that the learned counsel for the petitioners takes an exception to the application of Section 159 in the peculiar case of the petitioners and the misreading of these provisions by the FBR has reflected itself in the impugned circular and contends that the legislative intent will be frustrated if the petitioners were required to apply for an exemption certificate as also that the provisions of Section 53(1)(d) will be rendered nugatory and without any purpose. According to the learned counsel, the recognition granted by the Commissioner Inland Revenue to these Funds is regulated by the procedure prescribed in the Sixth Schedule and it is sufficient to exercise overriding regulatory powers without any further regulation by compelling the petitioners to apply for an exemption certificate.

2. Dr. Ishtiaq Ahmad Khan, Director Law led the arguments on behalf of FBR and the respondents and alluded to the practical efficacy of applying for an exemption. The main plank of his arguments was that it would be well nigh impossible for a withholder of advance tax etc to conclude in a given case whether the petitioners are in fact entitled to exemption and it is precisely to unburden the withholder of taxes from resolving the said controversy that the FBR has deemed it necessary that an exemption certificate be issued in these cases. According to him, the Commissioner Inland Revenue has the necessary expertise to determine these questions and will necessarily issue an exemption certificate if a person applying for it is entitled to it. He contends that it is only in those cases where withholding agents are involved that the requirement of an exemption certificate has been made and which prevents the process from falling into chaos and uncertainty. The exemption certificate issued by the Commissioner Inland Revenue is a conclusive and determinative factor and so the withholding agent is relieved of his duty to determine whether an exemption ought to be granted or not. Lastly, Dr. Ishtiaq Ahmad Khan argued that an exemption certificate was being issued in all similar cases and heavily relied on the judgments passed by the three High Courts in their adjudication of a similar controversy.

Opinion:

1. I have given my scrupulous attention to the able arguments addressed by the learned counsels for the parties. The power to grant exemptions and tax concessions are provided in Section 53 of the Ordinance, 2001 read with the Second Schedule. It can be seen from a reading of Section 53 that the said provision delineates different categories of exemptions that can be granted and have been divided into four parts:--

I. Exemptions from tax;

II. Reduced rate of tax;

III. Reduction in tax liability; and

IV. Exemptions from operation of provisions of the Ordinance.

1. We are here concerned with the exemption at I and IV above and these cases involve an interplay of these two kind of exemptions. The question is: Whether the provisions of Section 159 applies to both kinds of exemptions i.e. exemptions from tax and exemptions from operation of provisions of the Ordinance? The petitioners’ case is that it applies to the former and not to the latter exemptions. The Second Schedule is to be read in tandem with Section 53 and is accordingly divided into four parts, each dealing with the four categories of exemptions mentioned in Section 53. In short, there are four parts of Second Schedule and each part co-relates with the corresponding part of Section 53. The circular which has been issued by the FBR and which has triggered the controversy is to the following effect:--

“Subject: REQUIREMENT OF VALID TAX EXEMPTION CERTIFICATE FOR CLAIM OF EXEMPTION U/Ss. 150, 151 AND 233 OF THE INCOME TAX ORDINANCE, 2001 IN THE CASES WHETHER STATUTORY EXEMPTION UNDER CLAUSE 47-B OF PART – IV OF SECOND SCHEDULE IS AVAILABLE.

Please refer to the subject.

1. It has been learnt by this office that some of the field offices are not issuing specific exemptions in the cases falling within the ambit of subject mentioned provisions on the pretext that statutory exemption under clause (47-B) of Part IV of the second schedule is already available to them. Legal position in this case is that any person required to withhold Income Tax may only allow exemption if a valid exemption certificate under Section 159(1) of the Income Tax Ordinance, 2001 issued by the concerned Commissioner of Inland Revenue is produced before him by the withholdee.

2. The matter has already been clarified by the Board also vide C.No. 1(29) WHT/2006 dated 30.06.2010 upon the request of Central Directorate of National Savings (CDNS) (copy enclosed).

3. In view thereof, it is re-iterated that exemption certificate in such cases may be issued in the light of Board’s above clarification.”

4. From the contents, reproduced above, it can be seen that FBR felt it necessary to issue a clarification, for it came to its knowledge that field offices were not issuing specific exemptions in the cases falling within the ambit of the provisions mentioned in the title of the circular and covered by clause 47-B. The circular then went on to provide that the legal position was that any person required to withhold income tax may only allow exemption if a valid exemption certificate under Section 159 of the Ordinance, 2001 was issued by the concerned Commissioner of Inland Revenue. No further elaboration was made for the basis of this opinion formed by the FBR.

5. Clause 47-B was inserted vide Finance Act, 2008 to specifically provide exemptions from deductions under Sections 150, 151 and 233 of the Ordinance, 2001 to inter alia recognize Provident Funds, Approved Gratuity Funds and Provident Pension Funds (petitioners in these cases). There is, therefore, a purpose to the enactment of Section 53(1)(d) of the Ordinance read with 47-B.

6. It can be seen from a cumulative reading of the provisions of the Ordinance which necessarily impact the outcome of the question involved in these petitions that there is undoubtedly a purpose to the various exemptions which has been granted by the legislature and their categorization into different forms. The legislature could well have merely provided in Section 53 that the income or classes of income or persons or classes of persons specified in the Second Schedule shall be exempted from tax under this Ordinance. Why did the need arise for the legislature to further provide three other exemptions including the one in clause (d) of sub- section (1) of Section 53 which provides for exemption from the operation of any provision of the Ordinance. To put it differently, what is the distinction between an exemption from tax under the Ordinance and an exemption from the operation of any provision of the Ordinance. Truly, they are not used interchangeably and are particular species of the genus of exemptions. Therefore, it would be unreasonable and incredulous to treat the two exemptions as of the same kind and subject to the same limitations. Part IV of Second Schedule gives effect to the exemption covered by Section 53(1)(d) of the Ordinance, 2001. Once again, there is a purpose as to why the legislature specified different parts of the Second Schedule to give effect to each of the exemption provided by Section 53.

7. Clause 47-B says that the provisions of Sections 150, 151 and 233 and Part I, Division VII of the First Schedule shall not apply to any person making payment of inter alia the Funds. For instance, Section 150 obliges every such person paying a dividend to deduct tax from the gross amount of the dividend paid. Clause 47-B is not directed towards the Funds in its application but addresses the persons who have been required to deduct tax as withholding agents. Therefore, in fact, what clause 47-B intends is that the provisions mentioned in the said clause shall not apply to the withholding agents who are the persons making the payment to the Funds. It is as if the provisions do not exist and are erased from the statute book in respect of the persons who are making the payments to the Funds. Therefore, clearly there is a distinction; exemption from tax of an amount is different from an exemption of the operation of the provision. In case of the first exemption, the benefit is being derived by a person who says that his income is exempt from tax but the latter kind of exemptions is directed towards a person who is making the payment to that person and acts as a withholding agent. In fact, what Section 53(1)(d) provides is that in case of any person who makes the payment to certain entities, the operation of the provisions of the Ordinance mentioned in the Second Schedule shall cease to have effect. This is by legislative command and so there is an important distinction in the nature of the exemption granted and the persons to whom it is directed. This is of the essence of the controversy in these petitions.

8. The exemption is for the consumption of the person making the payment and is addressed to him. As if saying “the provisions of Section 150 etc. do not apply to you if you are making payment, inter alia, to a recognized provident fund or an approved superannuation fund or an approved gratuity fund” and this takes care of the argument of Dr. Ishtiaq Ahmad Khan that there is no manner of knowing for a withholding agent if a person is exempt or not. Clause 47-B is a matter between the withholding agent and the legislature and so the withholding agent is supposed to know the law. For the withholding agent, the provisions mentioned in clause 47-B do not exist and consequently any liability arising thereunder, does not arise. It does not chime with the scheme of the law to demand the petitions to seek an exemption certificate over and above the exemption visualized by clause 47-B. That exemption certificate has already been conferred by clause 47-B and is a statutory exemption certificate in the presence of which no further certificate is required to be issued. This would be tantamount to saying that the legislative will was not enough and the FBR seeks to upend that will by superimposing its opinion upon the will of the legislature.

9. It is a fallacy to say that the petitioners are obliged to apply for the exemption certificate under Section 159 of the Ordinance for the exemption mentioned in Section 159 is already covered by clause 47-B and exempts the withholding agent from its duty under those provisions. It must be borne in mind that the duties spelt out in Section 150 etc. are duties cast on the persons making the payment as withholding agent and but for the mandate of these provisions, the persons will not have withheld or deducted tax on those payments. Had clause 47-B not been enacted, the petitioners would certainly have been driven to comply with the terms of Section 159. But now, from the standpoint of the withholding agent, an exemption certificate is not required to be produced as for him, these provisions do not operate.

10. In my opinion, the petitioners have the better reading of the provisions at the centre of the controversy. The exemption contemplated by Section 53(1)(a) and (d) operate within their own spheres. Section 159 has a direct relation with clause (a) of sub-section (1) of Section 53 and is triggered when a person claims exemption from tax on an amount. This will ordinarily be resorted to by all such persons including the petitioners. Let us now turn our attention to the essential features of Section 159. Before we do that, it will bear repetition that the petitioners claim an exemption from tax but do not feel the necessity for applying for exemption certificate in view of the exemption granted by clause 47-B.

11. The first of the features of Section 159 which engages the reader are the words “upon application in writing by the person”. When such an application is made, the Commissioner shall issue an exemption certificate if the pre-conditions are fulfilled. Thus the Commissioner will not be called upon to exercise his discretion unless an application is made by the taxpayer. In my opinion, the Commissioner or any other officer need not be overly bothered by the failure to file an application since the withholding agent is under a bounden duty to withhold tax and will essentially do so without fail. Therefore, it taxes the credulity of the credulous as to why FBR took pains to issue a circular which is irrational to say the least. No one can compel the petitioners to make an application if they chose not to. Let the consequences follow and action be set in motion under the Ordinance. But action against whom? Surely the withholding agents have an exemption from operation of these provisions by clause 47-B and the petitioners also have an exemption from tax, not by virtue of Section 159 but by Section 53(1)(a) read with the Second Schedule. It follows ineluctably that neither the person making the payment nor the persons claiming exemption are liable for any violation under the Ordinance.

12. The question that arises is; what is the consequence of not applying by an assessee? Obviously he will not be able to seek an exemption he is entitled to because a withholding agent will not extend an exemption from advance tax unless an exemption certificate is produced. But, quite interestingly, in this peculiar case, the person shall get an exemption from deduction of tax in any case and despite the fact that he chose not to apply because on the other end of the spectrum, the withholding agent himself has been exempted from application of certain provisions also included in Division II or III of Part V and Chapter XII (mentioned in Section 159). Thus it is otiose to compel a person to apply for an exemption certificate.

13. This brings us to the question of redundancy and quite clearly if the exemption certificate is held as a sine quo non, not only clause 47-B but also Section 53(1) (d) will be rendered non-existent and superfluous. It cannot be said that the legislature intended this to be the result and the FBR cannot be permitted to place a construction on the whole scheme of law which runs counter to that of the intent of law, expressed clearly and without equivocation. The circular under challenge merely takes a pedantic and narrow view of the issue sought to be dealt with in that circular. It seems that while issuing the letter, only sub-section (2) of Section 159 was considered and the raison d’être of clause 47-B and Section 53(1)(d) was entirely ignored. At first blush, the provisions of Section 159(1) & (2) and clause 47-B seem to overlap but, on the contrary, they operate in different spheres and upon a holistic reading, each must be given the full effect that it deserves. For, one may envisage a situation where clause 47-B grants exemption in respect of provisions of the Ordinance not covered by Section 159. Can it be said that the intent of legislature will suddenly come alive then while it remains dormant at present? The legislature does not intend the provisions of law to alternate between sleep and live modes. Nor is it the case of the FBR that Section 159 impliedly repeals the clause 47-B.

14. Dr. Ishtiaq Ahmad Khan, Director Law, FBR, contended that there is a purpose and a background to the circular. According to him, the withholding agents and their officers could not be trusted to determine whether a person was entitled to an exemption or not. The short and simple answer to this query is that if the legislature trusted the withholding agent by granting the exemption it does not lie within the power of FBR to undo that trust.

15. A reference to the Sixth Schedule of the Ordinance 2001 may also be made in order to bring home the fact that the legislature has provided Regulations for dealing with the recognition of provident funds and approval of superannuation funds as well as gratuity funds. Certain rights and duties flow out of the recognition and approval granted by the Commissioner in accordance with the Sixth Schedule of the Ordinance, 2001. Part I of the Sixth Schedule deals with the recognition of provident funds. The Commissioner may accord recognition to any provident fund which complies with the requirement of Rule 2 and may at any time withdraw such recognition if in his opinion the circumstances of the fund cease to warrant the continuance of the recognition. The Commissioner may not refuse or withdraw recognition of any provident fund unless he has given to the trustees of the fund a reasonable opportunity of being heard. Rule 2 of Part I of Sixth Schedule prescribes the condition for approval which need to be specified by the provident fund seeking recognition. By rule 8, the recognized provident fund is obliged to maintain accounts by the trustees of the fund and the accounts shall be open to inspection by income tax authorities at all reasonable times. Also Rule 10 requires particulars to be furnished in respect of recognized provident fund within such period of the service of a notice as may be specified in that notice. It is clear thus that the grant of recognition or its withdrawal is within the power of the Commissioner as also that elaborate conditions have been laid down for the recognition of a provident fund. Further, the accounts of the recognized provident fund are open to inspection by the Commissioner at all times. The rules regarding the approved superannuation funds and gratuity funds are also similar in nature and prescribe conditions of a like nature which give power to the Commissioner to approve the funds as also to withdraw that approval. There is thus a complete oversight of the affairs of the funds by the income tax authorities and the recognition of the approval shall remain in place unless it is withdrawn by the Commissioner in accordance with law. Therefore, if there is a withdrawal by the Commissioner, the necessary information can be conveyed to all concerned including the withholding agents so that the withholding agents will know that the fund in question is not a recognized fund and, therefore, is not entitled to an exemption. Clearly, if the approval or recognition of the funds has not been withdrawn, there is no reason for the withholding agent not to comply with the statutory provisions which entitle the funds to an exemption from tax on their income.

Case Law:

1. As adumbrated, the entire reliance of the respondents was on the judgments of the three High Courts whose mention has been made above. The Sindh High Court in Meezan Islamic Fund and others v. D.G. (WHT) FBR and others (2016 PTD 1204) dealt with the issue in the following terms:--

“6. From the above, it is evident that in view of the provisions of Section 159(2), it is not left to the withholder to decide not to make advance tax deductions even when a person to whom he has to make payment claims that he is entitled to the exemption under Clause 47-B of Part IV to the second Schedule of the Income Tax Ordinance, 2001. The withholder is not to form his own opinion that a person’s case falls within the ambit of Clause 47-B unless a valid exemption certificate issued under Section 159(1) is presented. Even the person whose payments are otherwise liable for advance tax deduction under Sections 150, 151 & 233 cannot insist that he be extended the benefit of Clause 47-B in absence of, exemption certificate in the face of the provisions of Section 159(2). The entitlement of, concession under Section 47-B can therefore be availed only when exemption certificate is presented to the withholder and upon such presentation the obligation of the withholder to deduct advance tax as provided under Section 159(2) stand discharged. This was exactly the reason for issuing the impugned Circular dated 12.5.2015 which slates “Legal position in this case is that any person required to withhold Income Tax may only allow exemption if a valid exemption certificate under Section 159(1) of the Income Tax Ordinance, 2001 issued by the concerned Commissioner of Inland Revenue is produced before him by the withholdee. Thus the impugned circular refers to the provisions of Section 159 of the Income Tax Ordinance which creates statutory obligation upon withholder to deduct advance tax from the payments falling under Sections 150, 151 and 233 unless the requisite exemption certificate is presented to it. It is only upon such presentation, the mandate of the certificate is to be complied with.

1. From the above discussion, it is evident that the concession granted under Clause 47-B of Part IV to the second Schedule of the Income Tax Ordinance, 2001 cannot be out-rightly availed by the withholdee from the withholder on account of the bar contained in Section 159(2) unless the withholdee presents a valid exemption certificate issued to him under Section 159(1) of Income Tax Ordinance, 2001. There appears to be a sound logic behind this procedural requirement as the person who want to seek benefit under Clause 47-B may be such person who is not entitled to the benefit or in the past may have been so entitled but for some reason had lost his entitlement. Therefore, it has been made mandatory for him under Section 159(2) to first demonstrate to the withholder that he holds a valid exemption certificate. In Clause 47-B of Part IV to the second Schedule of the Income Tax Ordinance, 2001 mere mention that the provisions of Sections 150, 151 and 233 shall not apply to certain category of persons does not mean that to avail such concession the provisions of Section 159 have been made inapplicable. On the contrary requirement of obtaining exemption certificate has been made mandatory under Section 159(2) for all payments that fall within the ambit of Division III of Part V of Chapter X or under Chapter XII of the Income Tax Ordinance and Sections 150, 151 and 233 are pact of said Chapters. In the circumstances, the challenge to the impugned Circular dated 12.05.2015 tails. All these 280 petitions are dismissed.”

2. It can be seen that the learned Judges of the Sindh High Court proceeded on the premise that it would not be possible for a withholding agent to form an opinion whether a person’s case falls within the ambit of the clause 47-B or not unless a valid exemption certificate is issued. However, the entire reliance was on the provisions of Section 159(2) of the Ordinance, 2001 whereas the position of clause 47-B in juxtaposition to Section 159(2) was not considered by the learned Judges as also it was not considered as to what would be the approach of a withholding agent if a case was not covered by Section 159. Secondly, the learned Judges based their decision “on the sound

logic” behind the procedural requirement as according to them the persons claiming the exemption may have lost his entitlement and this was the reason why it was mandatory for him under Section 159(2) to demonstrate to the withholder that he holds a valid exemption certificate. A reference to the Sixth Schedule has been made precisely to counter this argument and in case the approval or the recognition of the funds has been withdrawn, no further steps are required to be taken and the Sixth Schedule provides a complete mechanism by which approval and recognition are granted and are sustained. In my opinion, no further proof is required to be furnished by the fund which claims an exemption.

1. The judgments of the Islamabad High Court as well as Peshawar High Court follow the judgment of the Sindh High Court. Since the Islamabad High Court and the Peshawar High Court have proceeded on the same basis as the Sindh High Court, it is not necessary to discuss those judgments separately.

2. In view of the above, these petitions are allowed. The impugned circular issued by the Respondent No. 2 and 3 is held ultra vires the provisions of the Ordinance, 2001 and has been issued without lawful authority and is of no legal effect. Consequently, it is held that the funds/petitioners are not required to apply for an exemption certificate under Section 159 of the Ordinance, 2001 if the other requirements of the Ordinance are fulfilled and as long as they continue to be exempted from tax.

(Z.I.S.) Petition allowed

PLJ 2018 Lahore 194 (DB)

Present: Shahid Jamil Khan and Mudassir Khalid Abbasi, JJ.

M/s. TANDLIANWALA SUGAR MILLS LTD.--Appellant

versus

PROVINCE OF PUNJAB, etc.--Respondents

I.C.A. No. 1219 of 2016, decided on 10.10.2017.

Punjab Excise Act 1914--

----Ss. 21 & 131--Constitution of Pakistan, 1973, Art. 151--Constitutional petition--Law Reforms Ordinance, 1971, Ss. 2, 3(2) & 4--Manufacture & Sale of Sugar---License to operate as Distilleries--Imposition of Duty by Government through Notification---Show Cause Notice--Appellants challenged notification imposing duty, contending that same is violative of Article 151 of Constitution of Pakistan, which were dismissed--Challenge to--Respondents objected to maintainability of appeals on ground Section 14 of Act 1914 provides an appeal from original and appellate order of an excise officer, whereas, Section 15 empowers Board of revenue to exercise revisional powers against any order passed by any subordinate officer--Validity--There are two critically important features of this case, pertaining to maintainability of these appeals--Firstly, that as to whether demand/show-cause notices issued by respondents fall within purview of proceedings in which law provides for an appeal, revision or review against original order as envisaged in proviso to Section 3(2) of Law Reforms Ordinance and secondly, that in case where demand of requisite duty has been challenged along with vires of statute and competence of Province to enact law was challenged and declared as intra-vires by Single Bench of High Court under its constitutional jurisdiction, as to whether Intra Court Appeal in terms of Land Reforms Ordinance, 1972 is maintainable--There are two fundamental qualifications to bring a case within mischief of proviso to Sub Section 2 of Section 3 of Land Reform Ordinance regarding non-maintainability of an Intra Court Appeal--Firstly, that action impugned in writ petition should be a step in proceedings leading to an original and secondly, at least one appeal, revision or review should be available against he original order, irrespective of fact whether such remedy was availed or not--Present case qualifies both these tests as demand/ show-cause notices, impugned in writ petitions, are original orders in case of demand and in case of show-cause notice is a step in proceedings--Undeniably, appeal under Sections 14 or revision under Section 15 of Punjab Excise Act 1914 is available--Appeals held not maintainable and accordingly dismissed. [Pp. 198 & 201] A & B

Punjab Excise Act, 1914--

----Ss. 21 & 131--Constitution of Pakistan, 1973, Art. 151--Law Reforms Ordinance, 1971, Ss. 2, 3(2) & 4--Judicial review of subordinate legislation--Question of legislative competence--Appellants challenged vires of law and legislative competence of province--Held that this argument might have some weight in case any provision of Punjab Excise Act, 1914 had been declared as ultra vires by Single Judge of High Court while exercising its constitutional jurisdiction--If such argument is accepted it would become a tool to avoid jurisdictional objection on maintainability of writ petition and intra Court appeal as a consequence--Provisions of Punjab Excise Act, 1914 and notification have been declared intra vires, meaning thereby that law is intact, therefore, remedy of appeal against demand of impugned duty is available under law--Hence, appellants are left with only option to invoke provisions of Article 185(3) of Constitution against impugned judgment--It is settled principle of law that appeal is creation of statute, which cannot be taken away or made available except in accordance with law providing it--Petition dismissed. [P. 202] C

Mr. Ali Sibtain Fazli, Advocate for Appellant.

M/s. Shazib Masud, Umer Tariq Gill, Hasham Ahmad Khan and Abad-ur-Rehman, Advocates for Appellant in connected matters.

Mrs. Asma Hamid, Addl: Advocate General Punjab; Mr. Imran Aziz Khan, Deputy Attorney General for Pakistan, Ch. Imtiaz Elahi, Assistant Attorney General for Pakistan; Mian Abid Zia, Law Officer, Excise and Taxation Department for Respondents.

Date of hearing: 10.10.2017.

Judgment

Mudassir Khalid Abbasi, J.--Through this single judgment we intend to decide the instant appeal alongwith I.C.As. No. 1220/16, 1224/16, 1225/16, 1221/16, 1223/16, 1227/16, 1222/16, 1226/16 and 1228/16 as common questions of law and facts are involved in all these appeals.

1. These Intra Court Appeals under Section 3(2) of Land Reforms Ordinance, 1972 have been filed against judgment dated 15.07.2016 passed by learned Single Bench of this Court in W.P. Nos. 18345/2012, 18347/2012, W.P. No. 18348/2012, 18349/2012, 18350/2012, 18351/2012, 18378, 3913/2014 and 25447/2015.

2. Precisely, the facts are that appellants, being engaged in manufacturing and sale of sugar, are licensed to operate as distilleries under Section 21 of the Punjab Excise Act, 1914 (“Act, 1914”), for extracting Ethanol (commonly known as spirit) from Molasses (a byproduct of sugar manufacturing). A notification S.O. TAX(E&T)3-4/2012 dated 03.07.2012 was issued, under Section 31 of the Act, 1914, whereby a duty of Rs.2/- per liter was imposed on manufacture of spirit in any distillery or brewery established or licensed under Section 21, with effect from 1st July 2012. Demand/show-cause notices were issued to the appellant by the Excise and Taxation Officer for deposit of the afore-noted excise duty, these notices also state that in case of failure, recovery shall be made alongwith penalty under the law.

3. Appellants filed constitutional petitions to challenge the notification dated 03.07.2012 contending that same is violative of Article 151 of the Constitution of the Islamic Republic of Pakistan, 1973 (“Constitution”). Vires of Section 131 along with the notification were also challenged by seeking amendments in the plaint. These writ petitions were dismissed in the following words:

“Keeping in view the above discussion, this Court finds no arbitrariness, unreasonableness, irrationality and unconstitutionality in Section 31 read with Sections 3(6) and 3(14) of the Act, 1914, and feels no hesitation to hold that it is a valid piece of legislation. This Court is also of the opinion that Notification dated 03.07.2012 levying duty on the product i.e. spirit being manufactured by petitioners and others, was validly issued on the strength of Section 31 ibid.

1. In view of above discussion, instant petition along with connected petitions, being devoid of merit, are hereby dismissed with no order as to costs.”

2. At the outset, learned Addl. Advocate General representing the respondents has raised an objection regarding the maintainability of these appeals in terms of proviso of sub-section (2) of Section 3 of Law Reforms Ordinance, 1972, it has been argued that Section 14 of Punjab Excise Act, 1914 provides an appeal from an original and appellate order of an Excise Officer, whereas, Section-15 empowers the Board of Revenue to exercise revisional powers against any order passed by the any subordinate Excise Officer. Likewise a Commissioner or Collector may call for the record of any case pending before, or disposed of by any Excise officer subordinate to him. Whereas in terms of the afore-referred provision of Law Reforms Ordinance, no appeal shall lie, if the application brought to High Court under Article 199 arises out of “Any Proceedings” in which the law applicable provided at least one appeal or one revision or one review to any Court Tribunal or authority against the “Original Order”. Therefore, these appeals are hit by the afore-referred provision of Law Reforms Ordinance. Reliance is placed on “Deputy Commissioner/ Administrator, District Council Attock and another v. Lawrencepur Woolen Textile Mills Ltd “ (1999 SCMR 1357), “Iqan Ahmed Khurram v. Government of Pakistan and others” (PLD 1980 SC 153), “Mst. Karim Bibi and others v. Hussain Bakhsh and another “ (PLD 1984 Supreme Court 344), “Muhammad Abdullah v. Deputy Settlement Commissioner, Centre-I, Lahore” (PLD 1985 Supreme Court 107). Finally argued that these appeals are liable to be dismissed, being not maintainable.

3. On the other hand, learned counsel for the appellant has argued that Intra Court Appeals are maintainable on the grounds that demand/show-cause notices whereby, appellants have been asked by the respondents to deposit the requisite duty at the rate of Rs.2/- per liter on manufacturing of spirit in distilleries, in pursuance to a notification dated 30.07.2012, in terms of Section 31 of Punjab Excise Act, 1914, do not fall within the purview of “original order” arising out of proceedings as contemplated in the ordinance. Besides demand notices, mainly legislative competence of the respondents coupled with the vires of Section 31 of the Act ibid read with Section 3(6), 3(14) and the vires of the afore-noted notification with reference to Article-151 of the Constitution have been challenged, therefore, it is out of the purview of any departmental authorities to determine the constitutionality of these laws/notification. Further contends that since the High Court has dismissed the petitions, therefore, this Court is fully equipped with the powers to determine the constitutionality of the Act in view of Article 151 and other enabling provisions of the Constitution. Reliance is placed on “Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, NWFP and another “ (PLD 1995 SC 66), “Pakistan International Airlines Corporation through Chairman and others v. Samina Masood and others “ (PLD 2005 SC 831), “Town Committee, Kot Abdul Malik District Sheikhpura through Administrator v. Province of Punjab through the Secretary, Local Government and Rural Development Department Punjab Lahore and another” (2001 YLR 1032), “Pakistan Telecommunication Company Ltd. v. Federation of Pakistan” (2016 PTD 1484) and “Pakistan Oilfields Limited, Rawalpindi v. Province of Punjab, through Secretary Finance Department, Lahore and others “ (2010 SCMR 328). Finally, prayed for setting aside the impugned judgment.

4. Arguments heard. Record perused

5. Primarily, there are two critically important features of this case, pertaining to maintainability of these appeals. Firstly, that as to whether the demand/show-cause notices issued by the respondents fall within the purview of proceedings in which law provides for an appeal, revision or review against the original order as envisaged in proviso to Section 3(2) of Law Reforms Ordinance and secondly, that in case where the demand of requisite duty has been challenged along with the vires of statute and competence of Province to enact the law was challenged and declared as intra-vires by the Learned Single Bench of this Court under its constitutional jurisdiction, as to whether Intra Court Appeal in terms of Land Reforms Ordinance, 1972 is maintainable.

6. In order to address the afore-referred proposition of law, for facility of reference, it would be appropriate to reproduce Section 3 of Law Reforms Ordinance, 1972:--

“3. Appeal to High Courts in certain cases:

1. An appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a single Judge of that Court in the exercise of its original civil jurisdiction.

2. An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under [clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan] not being an Order made under sub-paragraph (i) of paragraph (b) of that clause:

Provided that the appeal referred to in this sub-section shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceedings in which the law applicable provided for at least one appeal or one revision or one review to any Court, Tribunal or authority against the original order.

1. No appeal shall lie under sub-section (1) or sub-section (2) from an interlocutory order or an order which does not dispose of the entire case before the Court.”

Sections 14 and 15 of the Punjab Excise Act 1914 read as under:--

“14. Appeal.--An appeal shall lie from an original or appellate order of an excise officer in such cases or classes of cases and to such authority as the Provincial Government shall by notification declare:

Provided that no order under this section shall be passed unless the appellant is afforded an opportunity of being heard].

1. Revision.--(a) The Board of Revenue may at any time revise any order passed by any excise officer subordinate to it.

(b) A Commissioner or Collector may call for the record of any case pending before, or disposed of by, any excise officer subordinate to him, and if he is of opinion that the proceedings taken or order made should be modified or reversed, he shall report the case with his opinion thereon for the orders of the Board of Revenue:

Provided that the Board of Revenue shall not under this section pass an order revising or modifying any proceeding or order of a subordinate excise officer and affecting any person without giving such person an opportunity of being heard.”

1. With regard to the first proposition as referred above, in respect of words “original order” and “proceedings” contemplated in law Reforms Ordinance, with reference to the maintainability of Intra Court Appeal, it has been settled in case of “Mst. Karim Bibi and others v. Hussain Bakhsh and another” (PLD 1984 Supreme Court 344) that word proceeding would include every step taken towards further progress by which the machinery of law is put to motion and original order may be the order passed by the lowest officer or authority in the hierarchy. Therefore, the test is that as to whether the original order passed in proceedings is subject to an appeal under the relevant law, irrespective of fact whether the remedy of appeal so provided was availed or not. It has been further held that original order is an order with which the proceedings under regular statute had commenced. Relevant paragraphs of the afore-cited judgment are reproduced as under:

“The test laid down by the Legislature in the proviso is that if the law applicable to the proceedings from which the Constitutional Petition arises provides for at least one appeal against the original order, then no appeal would be competent from the order of a Single Judge in the constitutional jurisdiction to a Bench of two or more Judges of the High Court. The crucial words are the “Original Order”. It is clear from the wording of the proviso that the requirement of the availability of an appeal in the law applicable is not in relation to the impugned order in the constitutional petition, which may be the order passed by the lowest officer or authority in the hierarchy or an order passed by higher authorities in appeal, revision or review, if any, provided in the relevant statute. Therefore, the relevant order may not necessarily be the one which is under challenge but the test is whether the original order passed in the proceedings is subject to an appeal under the relevant law, irrespective of the fact whether the remedy of appeal so provided was availed of or not. Apparently the meaning of the expression “original order” is the order with which the proceedings under the relevant statute commenced. The word “proceedings” has been used in different enactments and has been subject to judicial interpretation in a number of cases wherein it has received either restricted or wide meaning according to the text and subject-matter of the particular statute.

The term `proceedings’ is a very comprehensive term, and, generally speaking, means a prescribed course of action for enforcing a legal right, and hence it necessarily embraces the requisite steps by which judicial action is invoked. A ‘proceeding’ would include every step taken towards the further progress of a cause in Court or before a Tribunal, where it may be pending. It is the step towards the objective to be achieved, say for instance the judgment in a pending suit. The proceeding commences with the first step by which the machinery of the law is put into motion in order to take cognizance of the case. It is indeed comprehensive expression and includes all possible steps in the action under the law, from its commencement to the execution of the judgment.”

(emphasis supplied)

In another pronouncement by the Hon’ble apex Court cited as “Muhammad Abdullah v. Deputy Settlement Commissioner, Centre-I, Lahore” (PLD 1985 Supreme Court 107), afore-referred view was affirmed in the following words:

“5. The above contention, however, can no longer be accepted, because a similar question has been elaborately examined by this Court recently in a settlement case, namely Mst. Karim Bibi v. Hussain Bakhsh and others (PLD 1984 S C 344), and it was held that the meaning of the expression `original order’ is the order with which the proceedings under the relevant statute commenced.”

1. In view of afore-noted judgments, we can draw a definite conclusion that there are two fundamental qualifications to bring a case within the mischief of proviso to sub-section (2) of Section 3 of Land Reforms Ordinance regarding non-maintainability of an Intra Court Appeal. Firstly, that the action impugned in writ petition should be a step in proceedings leading to an original and secondly, at least one appeal, revision or review should be available against the he original order, irrespective of the fact whether such remedy was availed or not. In the light of afore-referred pronouncement made by the Hon’ble Apex Court, present case qualifies both these tests as the demand/show-cause notices, impugned in the writ petitions, are original orders in case of demand and in case of show-cause notice is a step in proceedings. Undeniably, appeal under Sections 14 or revision under Section 15 of the Punjab Excise Act 1914 is available.

2. So far as the second aspect of this case is concerned, much emphasis has been laid by learned counsel for the appellants that where the vires of law and legislative competence of the Province is brought under challenge, provision of appeal before the authorities becomes redundant because such controversies cannot be resolved by the departmental authorities. This argument might have some weight in case any provision of Punjab Excise Act, 1914 had been declared as ultra vires by the Learned Single Judge of this Court while exercising its constitutional jurisdiction. If such argument is accepted it would become a tool to avoid jurisdictional objection on maintainability of writ petition and intra Court appeal as a consequence. In instant case, the provisions of Punjab Excise Act, 1914 and the notification have been declared intra vires, meaning thereby that law is intact, therefore, remedy of appeal against the demand of impugned duty is available under the law. Hence, appellants are left with only option to invoke the provisions of Article 185(3) of the Constitution against the impugned judgment. It is settled principle of law that appeal is creation of statute, which cannot be taken away or made available except in accordance with law providing it.

3. The case law referred by the appellants is examined and found distinguishable. “Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, NWFP and another “ (PLD 1995 SC 66) deals with the powers, mode, criteria and mechanism regarding the powers of judicial review of this Court in altogether a different perspective. The ratio decendi of this case is that question of vires cannot be determined otherwise then the exercise of judicial review under Article 199 of the Constitution. The theory of ultra-vires is that the act in question, be it as legislative or an administrative is beyond the legal competence of the authority. Election Commission is not competent to deal with the vires of law and it will be finally determined/decided by the superior Courts and the forum is either High Court or Supreme Court. Maintainability of Intra Court Appeal was not the subject matter of the case nor was it discussed at all.

In case of “Pakistan International Airlines Corporation through Chairman and others v. Samina Masood and others” (PLD 2005 Supreme Court 831) vires of a regulation was directly challenged, enforcing fundamental rights conferred by Article 25 of the Constitution, against which neither any proceedings were involved nor any original order was required to be passed. The principles laid down in “Mst. Karim Bibi and others v. Hussain Bakhsh and another” (PLD 1984 Supreme Court 344) were endorsed. Relevant portion from the judgment in Samina Masood Case is reproduced:

“8. Both the learned counsel for PIA wanted to derive benefit from proviso to sub-section (2) of the Section 3 of Ordinance, 1972, canvassing the view that the petitions brought before the High Court under Article 199 of the Constitution arose out of proceedings in which the law applicable provided for at least one appeal, revision or review. They were presumably of the view that the proceedings before High Court were referable to service laws where provision of appeal was available and, hence, the petitioners could not have challenged the final order before the same Court and that the present appeals were competent. After examining the law strictly with reference to the matter in dispute, we are of the view that the appellants and the petitioner cannot avail any benefit of the aforesaid proviso; firstly, because the petitions before the High Court could not be identified with “any proceedings” and secondly, that such writ petitions were not directed against any original order of any departmental authority against whom any appeal could lie in the proceedings relevant to such law. The respondents have directly challenged the vires of a regulation enforcing their fundamental rights conferred by Article 25 of the Constitution, not capable of being identified with “any proceedings” taken under any other law where any original order had been passed by any authority. We are of the considered view that the impugned judgments, falling within the ambit of the proviso, were appealable before a Bench of two or more Judges of the same High Court under sub-section (2) thereof and appeals and the petition before this Court are not maintainable.

1. Mst. Karim Bibi v. Hussain Bakhsh PLD 1984 SC 344 was placed reliance upon. In this case, this Court has elaborately discussed Section 3 of Law Reforms Ordinance, 1972 with particular discussion on “the proceedings” referred to in proviso to sub-section (2) thereof. The principle discussed therein is in consonance with what we have arrived at but the conclusion was based on a dispute arising from proceedings under Displaced Persons (Compensation and Rehabilitation) Act of 1958 and where the authorities concerned had also passed different order. In the instant case, the conditions are not covered by proviso to sub-section (2) of Section 3 of the Ordinance, 1972.”

In case “Deputy Commissioner/Administrator, District Council Attock v. Lawrencepur Woollen Textile Mills Ltd” (1999 SCMR 1357) legality and propriety of a Notification imposing export tax was challenged on the ground that 30 days time to file objections was not made available. The writ petition was dismissed, however, learned Division Bench ignored the objection of maintainability and allowed intra Court appeal. Honorable Supreme Court held that impugned Notification, levying export tax, was in fact an order appealable to the Controlling Authority under Article 86 of the Basic Democracies Order, 1959 and Section 219 of the Punjab Act XXXIV of 1975 and Rule 2 of the Local Council Appeal Rules, 1961. Consequently the judgment in I.C.A. was set aside. To hold that impugned Notification was an appealable order, principle enunciated in “Iqan Ahmad Khuram v. Government of Pakistan” (PLD 1979 Kar. 610) were approved. The judgment by learned Sindh High Court was given on maintainability of writ petition, challenging vires of various Notifications, whereby right to promotion etc. was affected. It was held that the Notifications were order appealable before Service Tribunal, therefore, Constitutional jurisdiction of High Court was barred in view of bar contained in Article 212 of the Constitution. It may also be pointed out that the judgment by Learned Sindh High Court was upheld by the Apex Court in “Iqan Ahmad Khuram v. Government of Pakistan” (PLD 1980 Supreme Court 153). Facts of instant cases are distinguishable because the notification challenged in these petitions was not appealable before any authority, rather a notice and consequent demand was required to be raised, against which, remedies were available.

In another case of “Pakistan Oilfields Limited, Rawalpindi v. Province of Punjab, through Secretary Finance Department, Lahore and others “ (2010 SCMR 328), question for determination was that as to whether if at the time of levy of tax, the relevant statute did not provide the remedy of appeal and it was provided through a subsequent amendment, would it effect the maintainability of appeal or not, therefore, again this judgment does not apply to the instant case.

1. In view of fore-going discussion, in our opinion present appeals are caught by mischief of the proviso of sub-section (2) Section 3 of Law Reforms Ordinance, 1972 and are dismissed being not maintainable.

2. Since the appeals are not heard on merits, but are dismissed on technicalities, therefore, respondents are restrained, for 20 days from today, to withdraw the amount of tax deposited by the appellants in pursuance of order dated 10.08.2016 by this Court, enabling the appellants to pursue their remedy in accordance with law.

(Z.I.S.) Petition dismissed

PLJ 2018 Lahore 205

Present: Ibad-ur-Rehman Lodhi, J.

DILNAWAZ AHMAD BHATTI--Appellant

versus

IFTIKHAR AHMAD (deceased) through L.Rs and others--Respondents

R.S.A. No. 19153 of 2017, decided on 26.4.2017.

Specific Relief Act, 1877 (I of 1877)--

----S. 22--Contract Act, (IV of 1872), S. 2(a), 2(b), 2 (c) 2 (e)--Suit for Specific performance agreement to sell--Consideration amount was not paid--Concurrently dismissed--Challenge to--Plaintiffs in suit for specific performance have relied upon a document in writing, which was prayed for to be treated as an agreement to sell and since existence of such document was specifically denied by defendants, it was incumbent upon plaintiff to prove its valid execution within requirements of applicable laws--To grant a decree in a suit for specific performance is discretionary and even if agreement is proved, courts are not bound to pass a decree for specific performance keeping in view parameters laid down in Section 22 of Specific Relief Act, 1877--Both courts below have rightly appreciated evidence available on record in its true perspective and have rightly proceeded to dismiss suit of appellant vide impugned judgments and decrees dated 05.12.2012 and 09.03.2017--RSA was dismissed. [P. 209] A, B & C

Mr. Taki Ahmad Khan, Advocate for Appellant.

Date of hearing: 26.4.2017.

Order

The suit for specific performance of agreement to sell alongwith permanent injunction filed by the present appellant was concurrently dismissed by the courts below vide impugned judgments and decrees dated 05.12.2012 and 09.03.2017.

1. The agreement to sell (Exh.P-2) was written on stamp papers and it was established on record that Tahir Mehmood Khatana, who was the stamp vendor, was having no valid license of stamp vending at the time, when the relevant stamp papers were shown to have been purchased. PW-1 Syed Tanvir Urfi, Head Clerk of the office of D.O.R. has brought the register of stamp vending, who deposed that entry in the said register did not show the purpose of issuance of stamp paper and it also did not contain the signature of stamp vendor.

The part of consideration amount in the shape of earnest money was never paid to the relevant hands, rather admittedly it was stated to have been paid to one Malik Nasir Mehmood, who has no direct nexus with the deal stated to have been arrived at through agreement Exh.P-2. Even otherwise, said Malik Nasir Mehmood was not produced by the plaintiff in support of his contention.

PW-2 Muhammad Bashir Ghumman is the scribe of Exh.P-2 during cross-examination candidly admitted that plaintiff never put his hand on Exh.P-2 and an agreement, which is unilateral in nature is held not enforceable by the Hon’ble Supreme Court of Pakistan in case titled “Farzand Ali and another versus Khuda Bakhsh and others” (PLD 2015 Supreme Court 187).

1. Learned counsel for the appellant has contended that the view of the Hon’ble Supreme Court of Pakistan in Farzand Ali’s case has been overruled by a Larger Bench of the Apex Court in case titled “Muhammad Sattar and others versus Tariq Javaid and others” (2017 SCMR 98).

2. In order to appreciate the respective contentions of learned counsel for the parties, I have minutely gone through both the esteemed views of the Hon’ble Supreme Court of Pakistan and as per my humble understanding, the view laid down in Farzand Ali’s case was neither overruled nor even distinguished by means of the latter view in Muhammad Sattar’s case, rather the view taken in Farzand Ali’s case has further been elaborated in Muhammad Sattar’s case. It is only on account of wrongheaded attitude of the editor giving head notes to the judgment in Muhammad Sattar’s case that an impression has been given that perhaps the earlier view in Farzand Ali’s case has been distinguished by the Apex Court in Muhammad Sattar’s case.

Some extracts from Farzand Ali’s case, which are relevant for the purposes of present case are reproduced herein below:--

“9….It is an undisputed fact that appellants agreement has not been signed by them….”

“10. Considering the proposition if the agreement of the appellants was required to be proved by the examination of two attesting witnesses, it is settled law that an agreement to sell an immovable property squarely falls within the purview of the provisions of Article 17(2) of the Qanun-e-Shahadat Order, 1984 and has to be compulsorily attested by the two witnesses and this is sine qua non for the validity of the agreement. For the purposes of proof of such agreement it is mandatory that two attesting witnesses must be examined by the party to the lis as per Article 79 of the Order ibid ...”

And it was concluded by the Apex Court in Farzand Ali’s case that where a contract was reduced into writing, not only should it be founded upon the imperative elements of offer and acceptance, but its proof was also dependent upon the execution of that contract by both the contracting parties i.e. by signing or affixing their thumb impression, so that it should reflect and establish their “consensus ad idem”, which obviously was the inherent and basic element of the meeting of the minds, which connoted the mutuality of assent, and reflected and proved the intention of the parties thereto and non-execution (non-signing) of the agreement to sell by the vendee meant that in law and fact there was no contract (agreement).

Now, we have to see as to what has been held by the Apex Court in Muhammad Sattar’s case, which is being taken in certain circles as an overruling or distinguishing view to the earlier view in Farzand Ali’s case.

For ready reference, some extracts from the authoritative view in Muhammad Sattar’s case are reproduced herein below:--

“7. The primary and basic law relating to the contracts is obviously the Contract Act, 1872. The essentials of a valid contract are an offer communicated, the unconditional acceptance of such offer and consideration. There is nothing in the Contract Act, 1872 which requires that such order and acceptance must necessarily be in writing or form a single document. The law i.e. the Contract Act, 1872 envisages a valid enforceable contract, which may even be oral. A perusal of the provisions of the said enactment also reveals that both the proposal and its acceptance may be expressed or implied, as is apparent from Section 9 thereof, which reads as under:

“9. Promise, express and implied.--Insofar as the proposal or acceptance of any promise is made in words, the promise is said to be express. Insofar as such proposal or acceptance is made otherwise than in words, the promise is said to be implied.”

“9. .... Be that as it may, there is nothing in the Transfer of Property Act, 1882 or any other law, which requires that an Agreement to Sell of immovable property must necessarily be reduced into writing or be signed by the parties thereto.”

In Muhammad Sattar’s case, by placing reliance on an earlier view of Hon’ble Supreme Court of Pakistan in case titled “Messer ‘s Jamal Jute Baling and Co, Dacca v. Messrs M. Sarkies Sorts (Sons), Dacca” (PLD 1971 SC 784), it was held that although there was no written agreement, but subsequent conduct of the parties suggest that they accepted such understanding as a contract by supplying 125 bales of jute.

By referring a judgment from the Supreme Court of India in case titled “Aloka Bose v. Parmatma Devi and others” (AIR 2009 SC 1527), it is held that in case, the contract (agreement) is signed by one side, it would be subsequent conduct of the parties, which would be relevant to give status of such understanding although oral as a contract/agreement.

In Para 19 of Muhammad Sattar’s case, impact of Farzand Ali’s case has been discussed in detail and while concluding, it was held that an Agreement to Sell even not signed by one of the parties “if proved to have been accepted and acted upon” would be a valid Agreement to Sell and finally it was held that the existence and validity of the Agreement and it being specifically enforceable or otherwise would depend upon the proof of its existence, validity and enforceability in accordance with the Qanun-e-Shahadat Order, 1984, the relevant provisions of the Contract Act, 1872, the Specific Relief Act, 1877 and any other law applicable thereto.

It is also to be kept in mind that in Muhammad Sattar’s case, no appeal has finally been decided, rather in fact a preliminary question, which has arisen in all the civil appeals to the effect as to whether such agreements to sell not signed by the vendees were valid and enforceable in law, was answered and while such question was answered, it was directed that Civil Appeals be set down for hearing to be decided separately on the basis of the evidence available on the record in terms of the observations made by the Hon’ble Supreme Court of Pakistan, while dealing with such preliminary legal issue.

For the above reasons, this Court has reached to the conclusion that Muhammad Sattar’s case is in fact an elaboration of the earlier view, as was laid down by the Apex Court in Farzand Ali’s case, for, still the enforceability and validity of the agreement reduced into writing is held dependent upon the provisions of referred Statutory Laws.

1. In the case in hand, the plaintiffs in the suit for specific performance have relied upon a document in writing, which was prayed for to be treated as an agreement to sell and since existence of such document was specifically denied by the defendants, it was incumbent upon the plaintiff to prove its valid execution within the requirements of the applicable laws. The relevant provisions of The Contract Act, 1872 provided for an enforceable contract are detailed herein below:--

2(a) “Proposal”. When one person signifies to another his willingness to do or to abstain from doing anything with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal.

2(b) “Promise”. When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted, becomes a promise.

2(c) “Promisor” and “promisee”. The person making the proposal is call the “promisor”, and the person accepting the proposal is called the “promisee”.

2(e) “Agreement”. Every promise and every set of promises, forming the consideration for each other, is an agreement.

Putting Exh.P-2 on the litmus test on the touchstone of the above provisions, the same would not qualify to be treated as an agreement (contract).

1. Even otherwise, to grant a decree in a suit for specific performance is discretionary and even if the agreement is proved, the courts are not bound to pass a decree for specific performance keeping in view the parameters laid down in Section 22 of The Specific Relief Act, 1877, which reads as under:

“The jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principle and capable of correction by a Court of Appeal.”

1. Both the courts below have rightly appreciated evidence available on record in its true perspective and have rightly proceeded to dismiss the suit of the appellant vide impugned judgments and

decrees dated 05.12.2012 and 09.03.2017. No illegality or irregularity has been found in the impugned judgments and decrees passed by the courts below warranting interference by this Court in its appellate jurisdiction.

1. Resultantly, finding no force, this appeal is dismissed.

(M.M.R.) Appeal dismissed

PLJ 2018 Lahore 210[Multan Bench Multan]

Present: Shehram Sarwar Ch. J.

SHAFIQUE AHMAD--Petitioner

versus

ADDITIONAL SESSIONS JUDGE/EX-OFFICIO JUSTICE OF PEACE, JAHANIAN DISTRICT KHANEWAL and 4 others--Respondents

W.P. No. 5525 of 2015, heard on 29.6.2015.

Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 22-A, 22-B & 154--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Application for registration of case--Cognizable offence--Medical was conducted--Statutory obligation--Report and parawise comments--No occurrence took place--An Ex-Officio Justice of Peace should exercise caution and restraint in this regard and he may call for comments of officer incharge of relevant Police Station in respect of complaints of this nature before taking any decision of his own in that regard so that he may be apprised of reasons why local police have not registered a criminal case in respect of complainant’s allegations--If comments furnished by office incharge of relevant Police Station disclose no justifiable reason for not registering a criminal case on basis of information supplied by complaining person then an Ex-Officio Justice of Peace would be justified in issuing a direction that a criminal case be registered and investigated--An Ex-Officio Justice of peace is not bound to seek report from police at every cost and he is fully competent to decide application and pass an order even without any report by police--But when a report is called, to know truth and real facts, as per above mentioned dictum, then it should not be ignored--If Ex-Officio Justice of Peace does not agree with report, then should give reasons--Seeking and obtaining a police report but ignoring and passing an order, contrary to it, without assigning any reason could not be appreciated--Special care to this situation is required--Petition was accepted. [Pp. 212 & 213] A & B

Syed Jaffar Tayyar Bukhari, Advocate for Petitioner.

Ch. Naveed A. Maan, Advocate of Respondent No. 3.

Date of hearing: 29.6.2015.

Judgment

This writ petition is directed against the order dated 11.4.2015, passed by learned Ex-Officio Justice of Peace/ Respondent No. 1 whereby on an application moved by Respondent No. 3 for registration of a criminal case against the petitioner a direction to the SHO concerned has been given that he should record statement of Respondent No. 3 and if any cognizable offence is made out he should perform his statutory duties in light of Section 154, Cr.P.C.

1. Briefly the facts of the case are that Respondent No. 3, Sobia Hameed, occasionally used to visit the general store for purchasing hosiery articles which is situated at Ghareebabad Jahania. On 24.3.2015, the date of occurrence, at about 1.00 p.m. she went to the general store to purchase certain hosiery articles where petitioner was present. He offered Respondent No. 3 to use the try room of the above-said general store on which she went to the upper story where unknown person along with Respondents No. 4 and 5 were present, they caught her and tried to tear her clothes on the pistol point and on the threat Zina-Bil Jabar was committed with her by the petitioner as well as rest of the accused, on her hue and cry two persons, namely, Abdul Hameed and Naeem Safdar reached at the spot and have witnessed the occurrence.

2. Respondent No. 3 approached the police station for medical check-up and on refusal there-from she got an order of Illaqa Magistrate for medical which was conducted. Thereafter the instant application is filed. Report and parawise comments from Respondent No. 2 were called. According to the report no such occurrence took place as serious questions have been raised against the character of Respondent No. 3 and it was also mentioned by Respondent No. 2 that the said petition under Sections 22-A & 22-B Cr.P.C. filed by Respondent No. 3 is result of malice, ill-will and to blackmail the petitioner for the purpose of grabbing money in the garb of this whole proceedings.

3. It has been found that the learned Ex-Officio Justice of Peace has failed to give any weight to the abovementioned report, made by the police or even discuss it and preferred to pass the impugned order.

4. The purpose of the report/comments from the police has been described in detail in the case titled Khizar Hayat and others vs. Inspector General of Police (Punjab) Lahore and others”, reported as (P.L.D. 2005 Lahore 470) in the following terms:

“It is prudent and advisable for an Ex-Officio Justice of the Peace to call for comments of the officer incharge of the relevant Police Station in respect of complaints of this nature before taking any decision of his own in that regard so that he may be apprised of the reasons why the local police has not registered a criminal case in respect of the complainant’s allegations. It may well be that the complainant has been economizing with the truth and the comments of the local police may help in completing the picture and making the situation clearer for the Ex-Officio Justice of the Peace facilitating him in issuing a just and correct direction, if any.”

“The officer incharge of the relevant Police Station may be under a statutory obligation to register an F.I.R. whenever information disclosing commission of a cognizable offence is provided to him but the provisions of Section 22-A(6), Cr.P.C. do not make it obligatory for an Ex-Officio Justice of the Peace to necessarily or blindfoldedly issue a direction regarding registration of a criminal case whenever a complaint is filed before him in that regard. An Ex-Officio Justice of the Peace should exercise caution and restraint in this regard and he may call for comments of the officer incharge of the relevant Police Station in respect of complaints of this nature before taking any decision of his own in that regard so that he may be apprised of the reasons why the local police have not registered a criminal case in respect of the complainant’s allegations. If the comments furnished by the office incharge of the relevant Police Station disclose no justifiable reason for not registering a criminal case on the basis of the information supplied by the complaining person then an Ex-Officio Justice of the Peace would be justified in issuing a direction that a criminal case be registered and investigated.

1. The above mentioned dictum clearly indicates importance of the report of the police, so that real facts, should come on the record, but in the matter in hand, as stated above, the learned Ex-Officio Justice of Peace, although has sought report from the police but

despite its availability on the record, has ignored it and failed to give any reason for not believing the same.

1. An Ex-Officio Justice of peace is not bound to seek report from the police at every cost and he is fully competent to decide the application and pass an order even without any report by the police. But when a report is called, to know the truth and real facts, as per the above mentioned dictum, then it should not be ignored. If Ex-Officio Justice of Peace does not agree with the report, then should give the reasons. Seeking and obtaining a police report but ignoring and passing an order, contrary to it, without assigning any reason could not be appreciated. Special care to this situation is required.

2. Report further reveals that there is a lady named as Ulfat Bibi, who is running a brothel house and Respondent No. 3 Sobia Hameed is working for her. It is also categorically mentioned that there is some sort of dispute of the property between the petitioner and said Ulfat Bibi pursuant to that grudge whole proceedings have been initialed by Sobia Hameed, Respondent No. 3 against the petitioner.

3. Resultantly, the instant writ petition is accepted, the impugned order is set aside and the application for registration of the case is dismissed.

4. Despite of the above-mentioned, Respondent No. 3, if so advised, shall have the remedy of filing a private complaint according to the dictum laid down in the cases reported as Khizer-Hay at and others vs. Inspector General of Police (Punjab), Lahore and others (PLD 2005 Lahore 470) and RaiAshraf and others vs. Muhammad Saleem Bhatti and others (PLD 2010 SC 691).

(M.M.R.) Petition accepted

PLJ 2018 Lahore 213 [Multan Bench, Multan]

Present: Abdul Rahman Aurangzeb, J.

GHULAM MUSTAFA, etc.--Petitioners

versus

MianMUHAMMAD NAWAZ, etc.--Respondents

C.R. Nos. 631 to 634 of 2012, decided on 17.5.2017.

Punjab Pre-emption, Act, 1991 (IX of 1991)--

----S. 13--Civil Procedure Code, 1908 (V of 1908) O. 7, R. 11--Suit for possession through Pre-emption--Sale mutation--Application for Talb-e-Muwahibat--Maintainability--Application for amendment was not allowed--Plaint rejected appeal--Allowed--Challenge to--Question of--Whether plaint be allowed to amend subsequently for filling up afterthought lacunas--Validity--Amendment in pleadings sought by respondents when pre-emptors/respondents on basis of this fatal aspect filed application under Order VII Rule 11, CPC, therefore, its insertion in plaint be clearly visualized that same was filed for filling-up lacuna and if this amendment is to be allowed then whole super-structure of Section 13 of Punjab Pre-emption Act, 1991 will not be sustained--Learned appellate Court have not exercised its powers judiciously while ascertaining validity of impugned judgment and decree and reversed findings of learned Civil Judge illegally which was validly expressed by learned Civil Judge--Thus, I am of considered view that learned appellant Court while allowing proposed amendment acted in exercise of its jurisdiction with grave illegality and material irregularity on basis of erroneous and unreasonable view--Civil revisions allowed.

[Pp. 216 & 217] A & B

Mian Saeed Ahmad, Advocate for Petitioners.

Mr. Aamir Altaf Khan Alaizai, Advocate for Respondents.

Date of hearing: 17.5.2017.

Judgment

Through this single judgment, I intend to decide all the above mentioned civil revisions as in all these petitions same question of law and fact is involved.

1. Precise facts of the case are that pre-emptors/respondents filed four suits of possession through pre-emption challenging four different sale mutations against petitioners/vendees. After filing of the suit, the petitioners/vendees filed an application under Order VII Rule 11, CPC for rejection of plaint on the ground that the requisite ingredients of Talb-e-Muwathibat was not fulfilled as the “place” of performance of Talb-e-Muwathibat was not mentioned in the plaint, hence, the suit is not maintainable and the plaint is liable to be rejected.

2. The respondents/pre-emptors filed an application for amendment in all the plaints. Both these applications were decided jointly by the learned Civil Judge vide his order dated 10.02.2010 whereby the proposed amendment was not allowed, and consequently the plaint was rejected on the said defect in pleadings. The pre-emptors/respondents filed separate appeals against these judgments and decrees which were allowed by the learned Additional District Judgevide his judgment and decree dated 17.04.2012. Feeling aggrieved, the petitioner/vendee agitated through instant Civil Revision.

3. Heard. Record perused.

4. Undeniably the contents of the plaint in all the four suits reveals that in Paragraph No. 4 of the plaint there is no mentioning of the “place” where the pre-emptors performed their alleged performance of Talb-e-Muwathibat. By non-mentioning the “exact place” in the plaint, the petitioners/vendees having accrued with the right to challenge the validity of defective plaint, filed an application under Order VII Rule 11, CPC on 30.10.2009. Facing with this crucial aspect the respondents/pre-emptors having tackled with the situation by filing an afterthought application for amendment of pleadings on 2.2.2010 with the assertion that they have inadvertently not mentioned the “place” of performance of Talb-e-Muwathibat in the plaints, therefore, they be allowed to amend the pleadings.

5. I have examined the contention of the respondents with respect to effect of amendment of pleadings in the plaint of pre-emption. There is no denial with this settled proposition that in the case of “Mian Pir Muhammad vs. Faqir Muhammad through L.R.s and others” (PLD 2007 SC 302) it has been held that mentioning of particulars as to “date”, “time” and “place” of making talbs are sine qua non for a successful pre-emptory action, and in case of failure, would always invariably be fatal for the pre-emptor. This dictum was followed with persistency in the judgments “Muhammad Ismail v. Muhammad Yousaf” (2012 SCMR 911), “Mst. Imtiaz Begum and others v. Mst. Sultan Jan (2008 SCMR 1268), “Abdul Aziz v. Sheikh Fateh Muhammad” (2007 SCMR 336), “Muhammad Ali and 7 others vs. Mst. Humera Fatima and 2 others” (2013 SCMR 178), “Dr. Pir Muhammad Khan versus Khuda Bakhsh and others” (2015 SCMR 1243). The latest citation “Muhammad Anwar vs. Safeer Ahmed and 5 others” (2017 SCMR 404) further elaborated and emphasized the necessity of mentioning the particulars with the following observations:

“It is now settled law that Talb-i-Muwathibat is a sine qua non for maintaining a Suit for Possession through Pre-emption. It is equally settled law that in the plaint, the time, date and place of Talb-i-Muwathibat must necessarily be pleaded along with the source of information of the sale pre-empted, as has been held by this Court in the judgments, reported as Muhammad Ismail (supra), Mst. Imtiaz Begum and others (supra) and Abdul Aziz (supra).”

1. Admittedly, the respondents/pre-emptors have accepted their non-performance of the requisite detail of “place” where Talb-e-Muwathibat has been performed and the essential principle of “place” when missing in the plaint then they have to face the music for this omission. The learned trial Court while evaluating the pleadings have considered that in presence of this material defect the cause of action to the pre-emptors have not accrued and in such circumstances the further proceedings in the matter is mere a futile exercise and thus the plaint was rightly rejected.

2. The effect of rectification of the plaint on the basis of proposed amendment of the pleadings have taken the pivotal position in the instant case. The question hinges “whether the plaint be allowed to amend subsequently for filling up afterthought lacunas”. To meet with the requirements of talbs as elaborated by the judgment of the Apex Court the learned counsel for the petitioner while relying upon “Ghulam Nabi vs. Sardar Nazir Ahmad” (1985 SCMR 824) treated that non-mentioning of the “place” for performance of Talb-e-Muwathibat mere an accidental or clerical error or omission which had inadvertently crept into the plaint at the time of its presentation. I am not inclined with the observation with reference to the case law cited by the petitioner. The referred citation reveals that in the said plaint arithmetical mistake of mentioning of khasra number is in question, therefore, the Apex Court while allowing the order of amendment hold that the mentioning of wrong Khasra number is a mere accidental slip or omission or clerical mistake which can be allowed to be rectified. Whereas in the instant proposition the case is altogether different and pre-requisite of talbs i.e. “place of performance” of Talb-e-Muwathibat were not mentioned explicitly in the plaints. As such it is held that this fact of performance of Talb-e-Muwathibat at a particular “place” is a sine qua non and when this omission has been occurred either deliberately or inadvertently, it cannot be allowed to amend afterthought.

3. As I have earlier mentioned that amendment in the pleadings sought by the respondents when the pre-emptors/ respondents on the basis of this fatal aspect filed application under Order VII Rule 11, CPC, therefore, its insertion in the plaint be clearly visualized that the same was filed for filling-up the lacuna and if this amendment is to be allowed then the whole super-structure of Section 13 of the Punjab Pre-emption Act, 1991 will not be sustained. Reliance can be placed upon “Karamat Ali Shahzad vs. Muhammad Zulqarnain and 4 others” (PLD 2009 Lahore 356). For enunciation of this wisdom I have also sought guidance from the enshrined case law “Ghulam Yasin and others vs. Ajab Gul” (2013 SCMR 23) whereas the amendment with regard to the necessary mentioning of particulars as to “date”, “time” and “place” of making of Talbs and their necessity of mentioning in the plaint has been elaborately discussed. The view observed by the Hon’ble Supreme Court of Pakistan bearing direct effect on the lis in hand which is worth mentioning and the same is reproduced below:

“Quite apart from this since a pre-emption case under the latest dispensation is more like a criminal case and a plaint in the former is almost like an F.I.R. in the latter, no omission however, fatal it may be, can be allowed to be supplied by means of amendment. In case it is done by means of amendment, it would open room for additions, afterthoughts and improvements which would go ad infinitum. Neither the pre-emption nor the criminal case with this modus operandi would admit of an end in the mundane existence of the parties. We, therefore, have committed no error much less patent on the face of the record by declining the prayer for amendment of plaint and dismissing the appeal of the petitioner.”

1. The learned appellate Court while allowing the pre-emptors/respondents to amend the pleadings to make up the deficiency, shortcoming in the suit is not sustainable as the same fall in the change of nature and complexion which was originally filed by the pre-emptors/respondents. Therefore, the view rendered by the learned appellate Court is not sustainable and the same is hereby reversed by reviving the judgment and decree passed by the learned Civil Judge dated 10.12.2010.

2. Upshot of the above discussion is that the learned appellate Court have not exercised its powers judiciously while ascertaining the validity of impugned judgment and decree and reversed the findings of the learned Civil Judge illegally which was validly expressed by the learned Civil Judge. Thus, I am of the considered view that the learned appellant Court while allowing the proposed amendment acted in exercise of its jurisdiction with grave illegality and material irregularity on the basis of erroneous and unreasonable view. Therefore, in exercise of revisional jurisdiction meant for correction of illegal orders, I have no other option left except to allow these civil revisions, the same are allowed. Consequently, the judgments and decrees passed by learned Additional District Judge dated 17.04.2012 are set-aside while the judgment and decree passed by learned Civil Judge dated 10.12.2010 are hereby revived, upheld with no order as to costs.

(Y.A.) Civil revision allowed

PLJ 2018 Lahore 218 [Multan Bench, Multan]

Present: Abdul Rahman Aurangzeb, J.

TARIQ SIDDIQUE--Petitioner

versus

ADDL. RENT CONTROLLER, etc.--Respondents

Writ Petition No. 11336 of 2015, decided on 3.5.2017.

Urban Rent Restriction Ordinance, 1959 (VI of 1959)--

----R. 13.1(2)--Ejectment Petition--Application for impleading as party--Allowed--Application for deposit of monthly rent--Dismissed--Registered sale-deed--Validity of ownership--Suit for declaration--Concurrently dismissed--Challenge to--When order having left no remedy, and order effecting right of petitioner directly then invocation against interlocutory order is not precluded--Nature of order passed in circumstances is vividly clear that status of an alien person has been determined as owner by Additional Rent Controller who has no locus standi with rented premises even then he was impleaded in lis--Opinion of Additional Rent Controller reflects that he is fully aware about status of agreement to sell with could not confer any right, but when order dated 15.2.2016 was passed by same Rent Controller, he kept his eyes closed with this aspect of case and it seems that impugned order was passed without adverting even to legal ethics, therefore, an order which is patently illegal is not sustainable--Respondent No. 2 was allowed to implead in ejectment petition, myth of general laws as well as special law have been violated by impleading an alien person who has no locus standi with regard to rented premises--In this way a grave injustice has been caused--Petition allowed. [Pp. 220, 221 & 222] A, B & C

M/s. Muhammad Ashraf Tasneem and Khalil-ur-Rehman Mayo, Advocates for Petitioner.

Mr. Nafees Ahmad Ansari, Advocate for Respondent No. 2.

Date of hearing: 3.5.2017.

Judgment

Through this single order, I intend to decide the instant writ petition as well as connected Writ Petitions No. 11334 of 2015 and No. 11335 of 2015 as same nature of orders have been assailed in all these three writ petitions.

1. These writ petitions are directed against the orders passed by the learned Additional Rent Controller, Multan, dated 15.02.2013 and 10.06.2013 whereby two miscellaneous applications, one filed by Respondent No. 2 for impleading him as party in the ejectment petition, was allowed, whereas the other application filed by the petitioner for the deposit of monthly rent in the Court by Respondent No. 3/tenant, was dismissed.

2. Learned counsel for the petitioner has contended that the order passed on the application for impleading of Respondent No. 2 as party is against law and facts and the same is liable to be set-aside. Respondent No. 2 is neither necessary nor proper party who would not on the basis of agreement to sell entitled to be arrayed as respondent in the main ejectment petition. Similarly the petitioner also agitated that in presence of registered sale-deed in favour of the petitioner/landlord, the tenant/Respondent No. 3 is under obligation to deposit the monthly rent before the learned Rent Controller.

3. No one appeared on behalf of Respondent No. 3/tenant to defend the matter on the application for deposit of monthly rent before the learned Rent Controller; therefore, Respondent No. 3 is proceeded against ex-parte. The contention raised in the said application is convincing. The claim of the petitioner/landlord is based upon registered sale-deed which remained un-rebutted and the status of the Respondent No. 3 as tenant is also not denied, hence, the tenant/Respondent No. 3 is under obligation to deposit the monthly rent before the learned Rent Controller till the final decision of ejectment petition. Therefore, the order dated 10.06.2013 is set-aside and Respondent No. 3/tenant is directed to deposit the monthly rent with the learned Additional Rent Controller, Multan, till the final decision of ejectment petition.

4. So far as the application for impleading of Respondent No. 2 in the ejectment petition is concerned, this plea was hotly contested by Respondent No. 2 that on the basis of an agreement to sell dated 10.05.2011 in respect of suit property which is allegedly in his favour from the previous owner. He stated that he being necessary party was rightly allowed to implead in the ejectment petition and as such the order passed by learned Additional Rent Controller is sustainable.

5. Conversely, learned counsel for the petitioner vehemently opposed the order passed by the learned Additional Rent Controller for impleading Respondent No. 2 in the ejectment petition. Indicating the legal infirmity in the impugned order, the petitioner assert that the agreement to sell is not a title deed, hence, the Respondent No. 2 is neither necessary nor proper party, therefore, the order of the learned Additional Rent Controller, is liable to be set- aside.

6. Refuting the contention, learned counsel for the Respondent No. 2 submits that the order passed by Respondent No. 1 on 15.02.2013 was assailed before this Court on 03.08.2015, hence, the “principle of laches” is applicable on this writ petition. He adds that the learned Rent Controller passed an interlocutory order which cannot be assailed in the writ jurisdiction; therefore, this writ petition is not maintainable.

7. Heard. Record perused.

8. There is no denial with this fact that Respondent No. 2 filed his claim on the basis of an agreement to sell dated 11.05.2011 and on the strength of this agreement to sell the applicant challenging the validity of ownership of the petitioner. Admittedly, the applicant filed a suit for declaration regarding said subject matter before the learned Courts of law which was concurrently dismissed on 17.12.2015, 25.03.2017 & 12.04.2017. I have examined the contention of Respondent No. 2 and also scrutinized the validity of order dated 15.02.2013 whereby the Respondent No. 2 was allowed to be impleaded in the ejectment petition. The learned Additional Rent Controller has wrongly allowed the Respondent No. 2 to implead him in the ejectment petition on the basis of an agreement to sell which was already dispelled. It was held in the plethora of judgments that agreement to sell is not a title deed. For ready reference “Mst. Seema Begum vs. Muhammad Ishaq and others” (PLD 2009 Supreme Court 45) can easily be relied where the claim of the tenant was that he was an occupant on the basis of an agreement to sell but this claim was not accepted and the tenant liable to be vacated from the rented premise. As I have already opined that the Respondent No. 2 has failed to prove his claim before any Court of law, hence, he is not liable to be impleaded in the ejectment petition.

9. Reverting the other contention of the Respondent No. 2 by relying upon “Muhammad Iftikhar Mohamand versus Javed Muhammad and 3 others” (1989 SCMR 328) that the High Court has no authority to express upon the validity of the interim order when there is a remedy available for an aggrieved person, against the interim order, then the only recourse is of filing of appeal after final order as the interim order merged into the final order. I am not convinced with this contention of the Respondent No. 2. Order of the learned Additional Rent Controller although being interlocutory order which can be challenged through final appeal, but when the order having left with no remedy, and the order affecting the right of petitioner directly then the invocation against the interlocutory order is not precluded. The nature of the order passed in the circumstances is vividly clear that the status of an alien person has been determined as owner by the learned Additional Rent Controller who has no locus standi with the rented premises, even then he was impleaded in the lis. It is held in Division Bench decision of Peshawar High Court in “Ashiq Hussain versus Sikandar Shah and 14 others” (2011 CLC 373) [Peshawar] that if the impugned interlocutory order is against law and suffering from legal infirmities then it could be interfered by the High Court through its constitutional jurisdiction and High Court has power to set-aside the impugned order although the same having the status of interlocutory in nature. It is further held in “Robina Yasmeen and others versus Rana Javed Iqbal and others” (2011 CLC 1779) that the constitutional petition against an interim order passed by Special Court was not maintainable, yet it was not an absolute rule, and fact of each case had to be considered before proceeding to determine question of maintainability of constitutional petition. If the Rent Tribunal had proceeded against mandatory provision of law, as such there is no provisions exists in “the Cantonment Rent Restriction Act, 1963 to implead a person in the ejectment proceedings, then the same should have been checked instead of waiting for passing of a final order. It is also observed that impeachment of interim order if necessary at proper stage was not allowed, then it would lead to the wastage of public time and would also multiply the litigation between the parties. The ejectment petition was filed on 25.09.2012 and after the span of more than four & half years the same is still subjudice before the Rent Tribunal. These state of affairs are not appreciable and the learned Rent Tribunal is under obligation to decide the matter on a fast track.

10. The other contention of the Respondent No. 2 that the petition is also not maintainable on the ground of laches. For this reason the bar of laches can be examined. It is held in case law reported as “Umer Baz Khan through L.Hrs. versus Syed Jehanzeb and others” (PLD 2013 Supreme Court 268) that no Court could dismiss a lis on the ground of laches if it defeated the cause of justice and thereby perpetuated on injustice. It is also observed with utmost dismay that the conduct of the learned Additional Rent Controller is approbate and reprobate who vide his order dated 06.06.2013 regarding the same alleged matter dismissed the application of one Asim Mahmood for impleading him in the ejectment petition whereby the same learned Additional Rent Controller opined as under:

“It is an established law that agreement to sell does not create any title and ownership cannot be claimed on such basis unless the suit is decreed and through execution of such decree the title deed is executed in favour of the claimant.”

This opinion of the learned Additional Rent Controller reflects that he is fully aware about the status of agreement to sell which could not confer any right, but when the order dated 15.02.2016 was passed by the same learned Rent Controller, he kept his eyes closed with this aspect of the case and it seems that the impugned order was passed without adverting even to the legal ethics, therefore, an order which is patently illegal is not sustainable.

1. From every angle when I examined this case that the Respondent No. 2 was allowed to implead in the ejectment petition, the myth of the general laws as well as the special law have been violated by impleading an alien person who has no locus standi with regard to the rented premises. In this way a grave injustice has been caused. On the strength of above mentioned references there is no bar to set at naught the wrong order by invoking the provisions of constitutional jurisdiction under Section 199 of the constitution of Islamic Republic of Pakistan, 1973 even in the presence of bar of laches.

2. Last but not least the dictum laid down in the judgment of Hon’ble Supreme Court of Pakistan for such like violative acts cited as “Muhammad Anwar and others versus Mst. Ilyas Begum and others” (PLD 2013 Supreme Court 255), is also relevant wherein it is held that:

“It is the inalienable right of every citizen to enjoy the protection of law and to be treated in accordance with law and thus where an order has been passed by any forum or Court, including the Revisional Court, which is patently illegal and violative of law, especially the express provisions and the spirit of law, which (order) if allowed to stay intact tantamounts to, and shall cause serious breach to the legal rights of the litigants and shall cause prejudice to them, the learned High Court in appropriate cases while exercising its constitutional jurisdiction can rectify the illegality and violation of law and undo the harm caused by the order of such (revisional) Court”.

Further held that:

“It is a well-known principle of law that where the law requires an act to be done in a particular manner it has to be done in that manner alone and such dictate of law cannot be treated as a technicality.”

1. For the foregoing reasons I am of the considered view that this writ petition is allowed and in consequence the impugned order

dated 15.02.2013 as well as the order dated 10.06.2013 passed by the learned Additional Rent Controller, Multan are hereby, set-aside. Before parting with this order the learned Additional Rent Controller, Multan is further directed to conclude the pending ejectment petitions within one month after receipt of copy of this order, under intimation to this Court.

(Y.A.) Petition allowed

PLJ 2018 Lahore 223

Present: Syed Mansoor Ali Shah, J.

MianMEHMOOD-UR-RASHEED--Petitioner

versus

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY through its Chairman--Respondent

W.P. No. 25704 of 2016, decided on 12.8.2016.

Constitution of Pakistan, 1973--

----Arts. 3 & 199--General Clauses Act, 1894, S. 24-A--Constitutional Petition--Pendency of application before Chairman Electronic Media Regulatory Authority--Determination of maintainability-- Challenge to--Public functionaries are bound under law to decide grievance of public pending before them after application of mind and after showing cogent reasons as mandated under Article 4 of Constitution of Islamic Republic of Pakistan, 1973 read with Section 24-A of General Clauses Act, 1894--Copy of this petition be dispatched to respondent, who after determining maintainability of application shall decide same strictly in accordance with law, after granting a hearing to petitioner by passing a speaking order--Petition disposed of. [P. 224] A & B

Mr. Sheraz Zaka, Advocate for Petitioner.

Mian Tariq Ahmad, D.A.G for Pakistan for Respondent.

Date of hearing: 12.8.2016.

Order

Sole grievance of the petitioner is that its application dated 21.07.2016 placed at Annex-B page 14 of this petition is pending before the respondent and prays that the same be decided expeditiously, in accordance with law.

1. Public functionaries are bound under the law to decide grievance of the public pending before them after application of mind and after showing cogent reasons as mandated under Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 read with Section 24-A of the General Clauses Act, 1894. Reliance is placed on Government of Pakistan through Director-General, Ministry of Interior, Islamabad and others v. Farheen Rashid, (2011 SCMR 1) and Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others (1998 SCMR 2268) respectively.

2. Let a copy of this petition be dispatched to the respondent, who after determining the maintainability of the application shall decide the same strictly in accordance with law, after granting a hearing to the petitioner by passing a speaking order within a period of three months from the receipt of this order, if not earlier decided.

3. Disposed of.

(Y.A.) Petition disposed of

PLJ 2018 Lahore 224

Present: Syed Mansoor Ali Shah, J.

SUBAY KHAN--Petitioner

versus

FEDERATION OF PAKISTAN through Secretary and Ministry of Law and 2 others--Respondents

W.P. No. 7870 of 2015, decided on 9.12.2015.

Minimum Wages Ordinance, 1961--

----Employees Social Security Ordinance, 1965--S. 55-A--Constitution of Pakistan, 1973, Art. 3 & 199--Constitutional Petition--Domestic worker--Minimum wage--Definition of worker’s--Medical facility--Discrimination--Domestic workers are being unduly discriminated--It is now a settled principle that equal work must carry equal pay, this, principle rests on Article 3 of Constitution of Islamic Republic of Pakistan, 1973--Issue of minimum wages for domestic workers requires legislation and is, therefore, a policy issue--Therefore, a copy of this petition and order is dispatched to Secretary, Labour & Human Resource Department, Government of Punjab with hope and expectation that Government of Punjab will consider possibility of legislation--Petition disposed of. [P. 225] A & B

Mr. Sheraz Zaka, Advocate for Petitioner.

Mr. Nasar Ahmad, Deputy Attorney General for Pakistan.

Ms. Hina Hafeezullah Ishaq, Standing Counsel for Pakistan.

Mr. Anwaar Hussain, Assistant Advocate General, Punjab.

Mr. Abbas Ali, Law Officer, Labour Department.

Mr. Rab Nawaz Zahid, Assistant Director on behalf of Respondents No. 2 and 3.

Date of hearing: 9.12.2015.

Order

C.M.No. 7803/2015

This is an application to place additional Documents on the record. Allowed subject to all just, and legal exceptions.

C.M.No. 7804/2015

1. Dispensation prayed for is allowed subject to all just and legal exceptions. CM. disposed of.

MAIN CASE.

1. This is a public interest petition praying that domestic workers should have a minimum, wage. He has placed reliance on Minimum Wages Ordinance, 1961 and definition of “workers” which includes a domestic worker in an industrial undertaking. He has also placed reliance on Domestic Workers’ Convention, 2011 to support his contention. He frankly submits that Pakistan is not a signatory to the said convention but any such convention carries persuasive value and relies on Human Rights Case No. 29388-K of 2013 (PLD 2014 SC 305).

2. Learned Law Officer submit that Government has already initiated efforts in this regard and has referred to draft Punjab Domestic Workers’ Policy, 2015’ initiated by the Labour & Human Resource Department, Government of Punjab.

3. Learned DAG and the Standing Counsel, on the other hand, submit that the subject’ of labour/ employment has devolved to the Provinces. They referred to Section 55-A of the Provincial Employees’ Social Security Ordinance, 1965 which provides that every employer of a domestic worker must provide medical facility to the domestic workers.

4. This is an important issue and it appears that in the light of the law referred to above, the domestic workers are being unduly discriminated. It is now a settled principle that equal work must carry equal pay, this, principle rests on Article 3 of the Constitution of Islamic Republic of Pakistan, 1973.

5. Without prejudice to the above, the issue of minimum wages for domestic workers requires legislation and is, therefore, a policy issue. Therefore, a copy of this petition and order is dispatched to Secretary, Labour & Human Resource Department, Government of Punjab with the hope and expectation that Government of Punjab will consider the possibility of legislation on the subject.

6. Disposed of.

(Y.A.) Petition disposed of

PLJ 2018 Lahore 226 [Multan Bench Multan]

Present: Aslam Javed Minhas, J.

ALI RAZA--Petitioner

versus

ADDITIONAL SESSIONS JUDGE/EX-OFFICIO JUSTICE OF PEACE, BUREWALA DISTT. VEHARI and others--Respondents

W.P. No. 1623 of 2016, decided on 17.2.2016.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 22-A--Scope of Powers--Direction for Registration of case Factual inquiry--Jurisdiction--Ex-officio Justice of Peace was not bound to seek report from police at every cost and he was fully competent to decide application and pass an order, even without any report by police--However when a report was called, to know truth and real facts, then same should not be, ignored--Since matter requires factual inquiry which cannot be gone into in writ jurisdiction--However, SHO/ Respondent No. 2 is directed to hear both parties, record their respective versions, receive oral as well as documentary evidence, then -proceed with case impartially and strictly in accordance with law without being influenced by order dated 23.1.2016 passed by learned Justice of Peace, Burewala--Petition disposed of. [Pp. 227 & 228] A & B

2005 SC 297, ref.

Syed Muhammad Jaffar Tayyar Bukhari, Advocate for Petitioner.

Ch. Muhammad Afzal Jatt, Advocate for Respondent No. 3.

Mehr Nazar Abbas Chawan, A.A.G.

Date of hearing: 17.2.2016.

Order

Through this petition, the petitioner has challenged the vires of order dated 23.1.2016 passed by the learned Justice of Peace, Burewala whereby on the application filed by the Respondent No. 3, learned Justice of Peace ordered the SHO to record the version of the Respondent No. 3. The facts of the case are that the Respondent No. 3 filed application u/S. 22-A, Cr.P.C. alleging therein that on 14.8.2015, Ishfaq, Respondent No. 4 along with his son Allah Rakha went for watering the land because he needed help of Allah Rakha for that and then went to Khasra No. 59/2 at some distance of village where accused Sarfraz, Ali Raza (petitioner) and Sajjad armed with sootas were already present and then they started to beat Allah Rakha with their sootas. Wnen he became senseless, Ali Raza strangulated him on which he died. The occurrence was witnessed by Mirza and Muhammad Jan Sher while passing near the place of occurrence on motorcycle and identified the accused. The motive behind that occurrence was that Ali Raza suspected that Allah Rakha created ilicit relations with his sister.

1. Learned counsel for the petitioner contended that from the contents of the application filed by Respondent No. 3 under Section 22-A, Cr.P.C. commission of cognizable offence was not made out, yet the learned Justice of Peace illegally and wrongly issued direction for the registration of case against the petitioner. Further contended that the application dated 26.8.2015 filed by Respondent No. 3 for disinterment of the dead body of Allah Rakha shows that he was not the eye-witness of the occurrence and that when already F.I.R has been registered, therefore, there is no need for registration of second F.I.R. In support of his contentions he placed reliance upon 2014 P.Cr.LJ 1146 to argue that Ex-officio Justice of Peace was not bound to seek report from the police at every cost and he was fully competent to decide the application and pass an order, even without any report by the police. However when a report was called, to know the truth and real facts, then the same should not be, ignored. Where Ex-Officio Justice of Peace did not agree with the police report, then he should give reasons for doing so. Seeking and obtaining a police report but subsequently ignoring the same and passing an order contrary to it, without assigning any reason could not be appreciated.

2. On the other hand learned A.A.G assisted by the learned counsel for Respondent No. 3 opposed this petition and argued that registration of second F.I.R. In support of his contentions he placed reliance upon PLD 2005 SC 297.

3. I have heard the learned counsel for the parties and perused the record. Since the matter requires factual inquiry which cannot be gone into in writ jurisdiction. However, SHO/ Respondent No. 2 is directed to hear both the parties, record their respective versions, receive oral as well as documentary evidence, then proceed with the case impartially and strictly in accordance with law without being influenced by order dated 23.1.2016 passed by the learned Justice of Peace, Burewala. With this direction, this petition stands disposed of.

(M.M.R.) Petition disposed of

PLJ 2018 Lahore 228

Present: Mrs. Ayesha A. Malik, J.

NAYAB SOHAIL--Petitioner

versus

PUNJAB PUBLIC SERVICE COMMISSION through its Secretary and 2 others--Respondents

W.P. No. 27454 of 2016, decided on 28.9.2017.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Advertisement for post of Lecturer (Deaf field)--Equivalence of degree--Disqualification--Validity--Degree of MA (Special Education) cannot be equated with M.Ed. Special Education as per QEDC since MA (Special Education) is a four year degree programme and has 66 credit hours whereas M.Ed Special Education is one year degree programme and has only 36 credit hours--Petition was dismissed.

[P. 230] A

Mr. Hassan Fareed, Advocate for Petitioner.

Mr. Anwaar Hussain, Addl. A.G. for Respondent No. 1.

Mr. Faisal Mukhtar, Law Officer for Respondent No. 2.

Date of hearing: 28.9.2017.

Order

Through this petition, the petitioner seeks a direction to Respondent No. 1 to appoint her on the post of Lecturer (Deaf Field) BS-17.

1. The facts of the case are that the petitioner applied for the post of ‘Lecturer (Deaf Field) BS-17’ through proper channel with reference to the advertisement issued by Respondent No. 1. Provisional interview call letter was also issued to the petitioner after fulfilling the requirements prescribed by Respondent No. 1. The petitioner being second on the merit list was recommended to the Provincial Government for the post of Lecturer (Deaf Field) on contract basis for five years in the Punjab Special Education Department on 29.4.2016. Subsequently Respondent No. 2 forwarded the appointment of selected candidates including the petitioner to Respondent No. 1 by stating that selected candidates are not qualified for the post as per rules and regulations of Special Education Department. The petitioner approached Respondent No. 1 through application dated 24.8.2016 stating that her degree of Masters in Special Education is equivalent to the degree of M. Ed Special Education but till date no reply has been given by Respondent No. 1. Learned counsel for the petitioner argued that the petitioner was selected and appointed to the post of Lecturer (Deaf Field) after fulfilling the requirements/criteria, hence she cannot be denied the post.

2. Report and parawise comments have been filed on behalf of Respondents No. 1 and 2. Learned Law Officer argued that as per the Service Rules the required qualification for the post of Lecturer (Deaf Field) was MA (Special Education) whereas Respondent No. 1 recommended the candidates for the post who possess degree of M.Ed Special Education. Respondent No. 1 considered the request of the Administrative Department and revised its earlier recommendation through letter dated 15.8.2016. The recommendation of the petitioner was also withdrawn along with two other recommendees. Learned Law Officer further submitted that Qualification Equivalence Determination Committee (“QEDC”) vide its minutes dated 16.5.2016 has also decided the issue and declared that M.A Special Education is not equivalent to M.Ed (Visually Impaird). Therefore in the light of QEDC’s decision the petitioner was not eligible for the said post.

3. Heard and record perused.

4. The basic grievance of the petitioner is that she possesses the degree of M.Ed which is equal to MA (Special Education) degree which should be considered for the post of Lecturer (Deaf Field). The

petitioner has relied upon letter dated 23.1.2017 issued by the Higher Education Department to show equivalence of MA (Special Education) with M.Ed. Special Education. The letter of 23.1.2017 reads as follows:

The Higher Education Commission recognizes Master of Education in Special Education degree held by you from University of Education, Lahore after ‘Post Graduate Diploma in Teaching the Deaf/15-year schooling’ as equivalent to corresponding Master’s degree in the relevant field involving 16 years of schooling.

The aforesaid letter of 23.1.2017 issued by the Higher Education Department does not provide that M.Ed. Special Education as equal to MA (Special Education), hence cannot be applied to this case. Furthermore the degree of MA (Special Education) cannot be equated with M.Ed. Special Education as per the QEDC since MA (Special Education) is a four year degree programme and has 66 credit hours whereas M.Ed Special Education is one year degree programme and has only 36 credit hours.

1. Under the circumstances, no case for interference is made out. Petition is dismissed.

(M.M.R.) Petition dismissed

PLJ 2018 Lahore 230

Present: Shujaat Ali Khan, J.

NAGHMA RANI--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, GUJRAT etc.--Respondents

W.P. No. 9836 of 2016, decided on 27.9.2017.

Guardian and Wards Act, 1890 (VIII of 1890)--

----S. 25--Guardian Petition--Custody of minor--Welfare of minor--Document exhibited--Waived right for custody of minor--Compromise--Appeal accepted--Challenge to--It is trite law that while deciding matter regarding custody of minor, welfare of the minor is considered pivotal. Insofar as case in hand is concerned, the documents got exhibited by Respondents No. 3 & 4 before the learned Guardian Judge, Gujrat as Exh.R/5, Exh.R/6 & Exh.R/7 show that due to proper attention of Respondent No. 3 minors have exceptional academic results--Admittedly, Qudsia Hassan, the daughter, has crossed 8th year of her age and in view of her growing age her stay with second husband of the petitioner, who is alien for her, would be illegal--Nobody else can be considered as substitute to mother’s laps, however, when the mother herself has contracted second marriage with a person who is alien to the minors, said principle is not applicable in routine rather the Court has to see welfare of the minor--Petition dismissed.

[Pp. 232 & 233] A, B & C

Mr. Faisal Toqeer Sial, Advocate for Petitioner.

Mr. Ijaz A. Janjua, Advocate for Respondents No. 3 & 4.

Date of hearing: 27.09.2017

Order

Succinctly, the petitioner filed a guardianship petition for custody of minors, namely, Qudsia Hassan and Hassan Ali, against Respondents No. 3 & 4, which was accepted by the learned Guardian Judge, Gujrat, vide order, dated 14.01.2016, against which Respondents No. 3 & 4 filed an appeal which was accepted by the learned Additional District Judge, Gujrat,vide judgment & decree, dated 03.03.2016; hence this petition.

1. Learned counsel for the petitioner submits that while deciding the matter the learned Appellate Court did not bother to consider that step-mother cannot be preferred over real mother; that mere second marriage of mother does not disentitle her for custody of the minor; that Respondent No. 3 has contracted second marriage with a lady who is alien to the minors, thus, custody of the minors with Respondent No. 3 is improper and that as Respondent No. 3 mostly remains out of home in relation to earn his livelihood, minors cannot be left at the mercy of step-mother. Relies on Mst. Razia Rehman v. Station House Officer and others (PLD 2006 SC 533), Iftikhar Ahmad Chishti v. District Judge, Chakwal and others (2012 MLD 670), Muhammad Nazir v. Additional District Judge, Mianwali and another (2009 CLC 1010) and Ghulam Mustafa v. Mst. Manzooran Bibi and others (1994 MLD 1199).

2. Conversely, learned counsel representing Respondents No. 3 & 4, while defending the impugned judgment & decree, submits that instant petition is liable to be dismissed simply for the reason that the documents produced before the Court of first instance have not been appended by the petitioner; that as a matter of fact compromise was affected between the parties during proceedings before the learned Judge Family Court, Wazirabad according to which the petitioner waived her right for custody of the minors factum whereof was incorporated in the order passed by the learned Judge Family Court, Wazirabad; that after making statement before the learned Judge Family Court, Wazirabad regarding relinquishment of her right regarding custody of the minor the petitioner was estopped to approach the Guardian Court; that welfare of the minors would be at stake if they are handed over to the petitioner for the reason that a criminal case in respect of heinous offence has already been registered against her brother, thus, stay of the minors with such family is illegal; that the documents tendered in evidence by Respondents No. 3 & 4, during the course of evidence, show that not only the minors are being looked after properly in respect of their social needs but also they are exceptional in their education; that as Respondent No. 3 is goldsmith by profession, he is in a better position to bear expenses of the minors; that second husband of the petitioner, being alien to the minors especially the daughter, custody of the minors with the petitioner would be illegal especially in view of growing age of the daughter and that as second husband of the petitioner works on a Bus Stand he cannot manage requisite funds to meet with daily expenses of the minors. In support of his contentions, learned counsel has relied upon the case reported as Mst. Shaheen Bibi (Nusrat Shaheen) v. Zulfiqar Ali Shah Kazmi and 2 others (1995 CLC 306).

3. While exercising his right of rebuttal, learned counsel for the petitioner submits that mother of Respondent No. 3 died when he was student of Class VI, presently there is step grandmother in the house of Respondent No. 3, thus, there is nobody in the house of Respondent No. 3, having blood relation with the minors, to look after them in absence of Respondent No. 3.

4. I have heard learned counsel for the parties at considerable length and have also gone through the documents, annexed with this petition, as well as the case-law cited at the bar.

5. It is trite law that while deciding matter regarding custody of minor, welfare of the minor is considered pivotal. Insofar as case in hand is concerned, the documents got exhibited by Respondents No. 3 & 4 before the learned Guardian Judge, Gujrat as Exh.R/5, Exh.R/6 & Exh.R/7 show that due to proper attention of Respondent No. 3 minors have exceptional academic results. This is proof positive of the fact that minors are being looked after properly.

6. Learned counsel for the petitioner, while relying on the case reported as Iftikhar Ahmad Chishti v. District Judge, Chakwal and others (2012 MLD 670) has argued that second marriage of mother does not disentitle her for custody of the minor. Perhaps, learned counsel for the petitioner has raised such plea in oblivion of the law laid down by the apex Court of the country in the case reported as Shabana Naz v. Muhammad Saleem (2014 SCMR 343) wherein it has been held that when mother contracts second marriage with a person who does not fall within prohibitory degree with the minor, she loses her normal right of custody of the minor. Further, the exceptional circumstances highlighted by the apex Court of the country in the said judgment, where mother can be granted custody of the minor despite her second marriage, are missing in the case in hand.

7. During the course of arguments, learned counsel representing Respondents No. 3 & 4 has referred to Exh.R/3 which is a compromise between the parties produced before the learned Judge Family Court, Wazirabad. Not only the said compromise deed was signed by the petitioner but also got recorded her statement before the Court. After making statement before the Court the petitioner was bound to abide by that and any proceedings instituted by her in violation thereof were to be considered by the Court with due care and caution. Moreover, when the petitioner otherwise is not entitled for custody of the minors, the question of compromise is inconsequential.

8. Admittedly, Qudsia Hassan, the daughter, has crossed 8th year of her age and in view of her growing age her stay with second husband of the petitioner, who is alien for her, would be illegal. The apex Court of the country, in the case of Mst. Nazir v. Hafiz Ghulam Mustafa etc. (1981 SCMR 200) has held that a daughter cannot be allowed to stay with a person who does not fall within the prohibitory degree with her.

9. There is no cavil with the preposition that nobody else can be considered as substitute to mother’s laps, however, when the mother herself has contracted second marriage with a person who is alien to the minors, said principle is not applicable in routine rather the Court has to see welfare of the minor. During the course of arguments, it has surfaced on the scene that second husband of the petitioner is working on a bus stand meaning thereby that his financial status as compared to Respondent No. 3 is feeble.

10. Though affidavit in evidence of Imran Khan, AW-2 and Fahad Aamir, AW-3 were got exhibited before the learned Guardian Judge, Gujrat as Exh.A/2 and Exh.A/3, however, the petitioner opted not to produce them before the Court for cross-examination which prima-facie suggests that they were not ready to support her case, thus, inference goes against her.

11. During the course of arguments, learned counsel for the petitioner has argued that Respondent No. 4 is not the real mother of Respondent No. 3 and real grandmother of the minors. On the other hand, learned counsel appearing on behalf of Respondents No. 3 & 4, has clarified that Respondent No. 4 is though not real grandmother of the minors but she is the real sister of real grandmother of the minors. Thus, the said objection taken by learned counsel for the petitioner has little importance as Respondent No. 4 has no adverse interest against the minors.

12. So far as the case-law cited by learned counsel for the petitioner, is concerned, suffice it to observe that the same is not applicable to the case in hand inasmuch as in the case of Mst. Razia Rehman (Supra) the Hon’ble Supreme Court of Pakistan has inter-alia held that if the mother had waived her right of custody through some compromise the same had no binding force in the eyes of law but in the instant case after entering into a compromise the present petitioner appeared before the Court and made statement in line with the compromise thus the said case is quite distinguishable. So far as the case of Iftikhar Ahmad Chishti (Supra) is concerned, this Court inter-alia decided that better atmosphere alone cannot be considered sufficient to determine question relating to custody of the minor rather other factors are also to be taken into consideration. Admittedly, in the case in hand, the minors are living with their father/Respondent No. 3 without any objection from any corner, thus, besides his better financial conditions other factors also tilt in his favour. In the case of Muhammad Nazir (Supra) this Court held that in absence of the father, step-mother cannot be considered as a fit person to look after the minor but in the case in hand, it has been established on record that the minors are being looked after by Respondent No. 4 in absence of Respondent No. 3, thus, the said case is of no help. Now coming to the case of Ghulam Mustafa (Supra), I have observed that mother can be held entitled for custody of a minor even despite her second marriage but the same is subject to certain principles laid down by the apex Court of the country in the case reported as Shabana Naz v. Muhammad Saleem(2014 SCMR 343) which in my humble opinion are missing in the case in hand.

13. For what has been noted above, instant petition is dismissed with no order as to costs. However, the petitioner would be at liberty to file an application before the learned Guardian Judge for meeting with the minor as per observation of the learned Appellate Court.

(M.M.R.) Petition dismissed

PLJ 2018 Lahore 235

Present: Shahid Karim, J.

PAK TELECOM MOBILE LIMITED--Petitioner

versus

FEDERATION OF PAKISTAN & others--Respondents

W.P. No. 20727 of 2014, decided on 5.10.2017.

Sales Tax Act, 1990 (VII of 1990)--

----S. 3(3)(b)--Constitution of Pakistan, 1973, Art. 199--Sale tax amendment--Whether unconstitutional--Judicial review of legislation--Taxing statute--Amendment effected by Finance Act 2014, whether constitutionally permissible and valid--Federal legislative list--Legislative competence--Pak Telecom has been made liable to pay sales tax on account of registration of IMEI No and Supply of Subscriber Identification Module by way of impugned amendment in Sales Tax Act 1990, whether permissible through Finance Act 2014--”Supply” & “Taxable Supply”--Structural Considerations of Sales Tax Act 1990--Determination--Structural considerations which permeate entire length and breadth of Act are a source of authoritative insight into its implications in matters such as one in hand--There is a statutory plan to give effect to intent underlying various provisions of Act--It is of essence to bear in mind intrinsic nature of tax imposed by Act, 1990 and which is primarily levied on occasion of sale of goods--Over time, decided cases establish a clear destination between subject matter of a tax and standard by which amount of tax is measured--Sales tax, like any other tax, has three elements: 1) nature of tax; 2) measure of tax and 3) machinery of its collection--Of these, nature of sales tax (or value-added tax intrinsically) is of first importance--Nature of sales tax has been contrasted with duties of excise in a number of precedents and it would be useful to refer to a few cases simply to emphasise need for analyzing nature of a tax in any challenge to an impost--Liability of sales tax arises on occasion of a sale’--Act of 1990 refers to it as ‘supply’ or ‘taxable supply’ and defines those terms but whatever words used, sense remains same--Legal texts cannot alter fundamental nature of tax--And this has to chime with entry No. 49 in Federal Legislative List which is provenance of power to impose sales tax--Statutory enterprise of Act, 1990 must conform to legislative field delineated by entry No. 49 and cannot travel beyond that field--Core ingredient of this entry is concept of sale and that is foundational element--Thus if a sale or purchase takes place, tax may be imposed on transaction--Every sale envisages a purchase necessarily and vice versa--Case of Pak Telecom is refreshingly simple--It is that supply of certain goods is subject matter of sub-section (3B) of Section 3 and this is notwithstanding anything contained in sub-section (1) and (3)--Those goods are mentioned in Ninth schedule and sales tax is to be charged, collected and paid at rate, in manner, at time and subject to procedure and conditions as specified therein as also that liability to charge, collect and pay tax shall be on persons specified therein--Thus connection means activation of customer equipment on system whereas SIM card means a Subscriber Identification Module card that contains customer’s information--Pivotal clause in this agreement is 13(h)(i) which, without equivocation, says that all SIM cards supplied to customers shall remain property of Pak Telecom--There could not be any clearer expression of property of SIM card vesting in Pak Telecom--This agreement and its stipulations are not denied by respondents as also that it seems that agreement is a standard document which has been approved by Pakistan Telecommunication Authority (PTA) and, therefore, will be deemed to have been issued as a condition of regulation prescribed by PTA--For all intents and purposes therefore SIM card does not become property of customer and therefore no sale takes place between Pak Telecom and customer--Consequently, there is no escape from conclusion that in fact there is no supply of goods in case of a SIM card and it is otiose to presume that since a sale took place sales tax can be imposed on supply of SIM card--This is not countenanced by provisions of Act, 1990 nor is it covered by definition of supply given in Act, 1990--No amount of fiction can be employed to include such a transaction to be one of sale so as to be caught by mischief of term ‘supply’ as given in Act, 1990--Amendment in Schedule declared ultra vires--Petition allowed.

[Pp. 241, 242, 245, 251, 252 & 253] A, B, K & L

Constitution of Pakistan, 1973--

----Art. 199--Sales Tax Act, 1990, S. 3(3)(b)--Whether Unconstitutional--Interpretation of Statutes--Provisions of Taxing Statutes are to be strictly construed with a leaning in favour of taxpayer. [P. 245] C

Constitution of Pakistan, 1973--

----Art. 199--Sales Tax Act, 1990, S. 3(3)(b)--Sale tax--Registered person--Taxable activities--Concept of sale and purchase--Transfer of the right to dispose of goods as owner--Agreement--Supply of goods--Determination--Term ‘sale’ has not been defined in Act, 1990 and by Section 3, sales tax is charged on taxable supplies made by a registered person in course or furtherance of a taxable activity or goods imported into Pakistan--These activities are, however, included in broad concept of ‘sale and purchase of goods imported, produced, manufactured or consumed”, and it is presumed that they are valid and within constitutional limitation--Definitions of ‘supply’ and ‘taxable supply’ are fulcrum around which, in large measure, concept of taxation under Act, 1990, revolves--It can be seen that sales tax has been imposed on ‘taxable supplies’ and a taxable supply, in turn, means a ‘supply’ of taxable goods made by an importer, manufacturer, wholesaler distributor or retailer--Thus crucial concept is that of ‘supply’ to which legislature continues to revert--Term ‘sale’ and words ‘other transfer of right to dispose of goods as owner’ are similar and have to be read ejusdem generis with each other--Given context, words have to be given a meaning which appear to determine its aptest, most likely sense--An elaboration of words ‘sale’ and ‘transfer’ would bring forth at once clear demarcation of two concepts and restrictive nature of word ‘sale’ as against a wider meaning assigned to word ‘transfer’ which generally means a conveyance of a right, title, or interest in real or personal property from person or entity to another--It includes any mode of disposing of or parting with an asset or an interest in an asset, including a gift, payment of money, release, lease, or creation of a lien or other encumbrance--Much broader sweep of term ‘transfer’ is at once noticeable and what is required to be done as a judicial task is to discern its true meaning in context and setting of law in which word is found--Definition of term ‘supply’ used in Act, 1990--’Sale’, it will be recalled, is transfer of property or title for a price--It connotes a parting of possession to pass to buyer and does not envisage a reversion of that title or retention of any right in property transferred--Against price in money paid, seller passes on title, absolutely and unconditionally--concept of supply has to comport to constitutional concept of levy of sales tax--Words ‘transfer of right to dispose of goods as owner’ when weighed on this scale, merely convey concept of sale in fact, though by using different semantics--Crucial words are ‘transfer of right’ and ‘as owner’--Thus act must result in transfer of right to dispose of goods as owner--In other words, what is being transferred is ownership right to deal with goods and to dispose of them at will--When a supply is made, vendee shall become new owner as transferee of that right as such and may dispose of those goods--I have no doubt in my mind that transfer of right of ownership is at heart of expression when read in its entirety--Act to dispose of is associated with new owner--Crucial step is transfer of all rights and property in goods which includes right to dispose of those goods as subsequent owner--In pith and substance, therefore, this too, constitutes sale--Foundational element in any transfer, in given paradigm, seems to be a sale of property in goods so as to pass title in goods--Whether it is an executor contract of sale (Agreement to sell) or an executed contract of sale plus a conveyance is to be determined by intention of parties--Petition was allowed.

[Pp. 246, 247, 248, 249 & 251] D, E, F, G, H & J

Sardar Ahmad Jamal Sukhera, Advocate for Petitioner.

Mr. Sarfraz Ahmad Cheema, Advocate for Respondents.

Dates of hearing: 12.9.2017, 4.10.2017.

Judgment

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (“the Constitution”) has the following prayer:

“In view of the above submissions, it is most respectfully prayed that this honourable Court may most graciously strike down:--

(i) Sub-section (3B) of Section 3 of the Sales Tax Act, 1990 as being unconstitutional;

(ii) Ninth Schedule to the Sales Tax Act, 1990 as being unconstitutional;

Any other relief deemed appropriate in the circumstances by this honourable Court may also most graciously be granted.”

1. This judgment shall also decide connected constitutional petition W.P. No. 21010 of 2014 which raises a common question of law.

2. For facility, the facts in the instant petition are being reproduced and it would not be necessary for the decision of these petitions to narrate the facts in W.P. No. 21010 of 2014.

3. Pak Telecom Mobile Ltd. (“Pak Telecom”) is engaged in the business of providing telecommunication services and is a Cellular Mobile Operator (CMO). Through Finance Act, 2014, the Sales Tax Act, 1990 (“the Act, 1990”) was amended and sub-section (3B) was inserted after sub-section (3A) of Section 3. Simultaneously, 9th Schedule was incorporated to the Act, 1990 and which was merely intended to give effect to the provisions of Section (3B). For facility, sub-section (3B) of Section 3 and the 9th Schedule are reproduced as under:

“(3B) Notwithstanding anything contained in sub-sections (1) and (3), sales tax on the import and supply of the goods specified in the Ninth Schedule to this Act shall be charged, collected and paid at the rates, in the manner, at the time, and subject to the procedure and conditions as specified therein or as may be prescribed, and the liability to charge, collect and pay the tax shall be on the persons specified therein”.

NINTH SCHEDULE [See sub-section (3B) of Section 3]

Table

| | | | | | | --- | --- | --- | --- | --- | | 1. | 2. | 3 | 4 | 5 | | S. No. | Description/Specification of Goods | Sales tax on Import (payable) by importer at the time of import) | Sales tax (chargeable) at the time of registration of IMEI number by CMOs) | Sales tax on supply (payable at the time of supply by CMOs) |

1. Subscriber Identification Module - Rs.250

2. A. Low Priced Cellular Mobile Phones Rs.150 or satellite phones Rs.150

i. All cameras; 2.0 mega-pixels or less

ii. Screen size: 2.6 inches or less

iii. Key pad

B. Medium Priced Cellular Mobile Rs.250 Rs.250 Phones or Satellite Phones

(i) One or two cameras: between 2.1 to 10 mega-pixels

(ii) Screen sixe: between 2.6 inches and 5.0 inches

(iii) Micro-processor; less than 2 GHZ

C. Smart Cellular Mobile Phones or rs.500 Rs. 500 Phones Satellite

i. One or two cameras: 10 mega-pixels and above

ii. Touch Screen: size 5.0 inches and above

iii. 4GB or higher Basic Memory

iv. Operating system of the type IOS, Android V2.3, Android Gingerbread or Higher, windows 8 or Blackberry RIM

v. Micro-processor: 2GHZ or higher, Dual core or quad core.”

1. In a nub, Pak Telecom has been made liable to pay sales tax on account of registration of IMEI (International Mobile Equipment Identity) number and supply of Subscriber Identification Module (SIM) to its customers. The learned counsel for the petitioners did not choose to address arguments on the challenge regarding the registration of IMEI as according to them the issue is not required to be dilated upon and determined in this petition and left the matter to be addressed as and when the need arose at a future time. The challenge with regard to the supply of SIM, however, remains to be decided in this petition.

Issue:

1. Although Pak Telecom has raised a challenge to the constitutionality of sub-section (3B) of Section 3 but, in essence, the challenge merely relates to whether at all there is a supply of SIM and if so, the sales tax to be collected and charged at the time of its supply. Pak Telecom contends that in fact no supply of SIM takes place within the meaning of the term “supply” as defined in Act, 1990 and, therefore, no liability arises in respect of payment of sales tax against Pak Telecom and the company is not under obligation to charge and collect sales tax on the supply of SIM. The document at the heart of the petitioners’ case is the Cellular Services Agreement (the Agreement) which is to be executed between Pak Telecom and a customer to whom the SIM is supplied and for porting into the PTML network. In particular clause 13(i) (Clause) has been referred to which so far as relevant reads as under:--

13(i) All SIM Cards supplied to Customer shall remain the property of PTML.”

1. On the basis of the clause in the Agreement, reproduced above, the learned counsel for Pak Telecom has asserted that since all SIMs supplied to the customers remain the property of Pak Telecom, no question of a supply in fact arises for which the liability of payment of sales tax could be set up against the company. The second plank of the petitioners’ arguments is that at worst the taxable supply in question is that of services and not of goods and is within the provincial domain not liable to be taxed by the Parliament. On this basis too the learned counsel has invited this Court to hold that the provisions are ultra vires.

2. Mr. Sarfraz Ahmad Cheema, Advocate has ably controverted the arguments raised by the learned counsel for the petitioner and which arguments shall be referred to during the course of the discussion which follows. In summation, they are as follow:--

(i) The learned counsel contends that the petition is not maintainable and the burden was an indirect tax which was passed on to the consumers.

(ii) The Constitution by virtue of Article 77 empowers the Parliament to impose taxes and Entry 49 of the fourth schedule permits the Federation to levy tax on the sale and purchase of the goods and there was nothing in the Constitution that restricts the Parliament’s powers to legislate as the tax was to be levied and the manner of its collection.

(iii) Sub-section (3B) of Section 3 and Ninth Schedule of the Act, 1990 begin with a non obstante clause and, therefore, the provisions will prevail over all other provisions of the Act, 1990. He relied upon M/s. Elahi Cotton Mills v. Federation of Pakistan (1997 PTD 1555) for the expansion of the concept of non obstante clause.

(iv) According to the learned counsel, ‘goods’ has been defined in Section 2(12) of the Act, 1990 and includes every kind of movable property other than actionable claims, money, stocks, shares and securities.

Section 3(3B) & Ninth Schedule:

1. The imposition under challenge has to be justified as a lawful burden and one which is woven into the fabric of the Act, 1990. As Chief Justice John Roberts (US Supreme Court) said:

“The Act imposes current burdens and must be justified by current needs”.

1. As a prefatory, however, the concept of supply of goods, which is a core ingredient of the Act, 1990 must receive some attention, so as to square it with the burden enacted through the Ninth Schedule. Supply of goods specified in the Ninth Schedule has to be taken to mean the construction of the term in the context and setting of the law in which the term has been used. of special importance is an aspect of the Act, 1990 that is indisputably central--its structure. The structural considerations which permeate the entire length and breadth of the Act are a source of authoritative insight into its implications in matters such as one in hand. There is a statutory plan to give effect to the intent underlying the various provisions of the Act. It is of essence to bear in mind the intrinsic nature of the tax imposed by the Act, 1990 and which is primarily levied on the occasion of the sale of goods (and now services, too). Over time, decided cases establish a clear destination between the subject-matter of a tax and the standard by which the amount of tax is measured. The sales tax, like any other tax, has three elements: (1) the nature of the tax; (2) the measure of the tax and (3) the machinery of its collection. of these, the nature of sales tax (or value-added tax intrinsically) is of the first importance. The nature of sales tax has been contrasted with the duties of excise in a number of precedents and it would be useful to refer to a few cases simply to emphasis the need for analyzing the nature of a tax in any challenge to an impost. In AIR 1939 FC 1, Gwyer CJ observed:

“…the power to make laws with respect to duties of excise given by the Constitution Act to the Federal Legislature is to be construed as a power to impose duties of excise upon the manufacturer or producer of the excisable articles, or at least at the stage of, or in connection with, manufacture or production, and that it extends no further.”

“This is to confuse two things, the nature of excise duties and the extent of the federal legislative power to impose them… But there can be no reason in theory why an excise duty should not be imposed even on the retail sale of an article, if the taxing Act so provides. Subject always to the legislative competence of the taxing authority, a duty on home-produced goods will obviously be imposed at the stage which the authority finds to be the most convenient and the most lucrative, wherever it may be; but that is a matter of the machinery of collection, and does not affect the essential nature of the tax. The ultimate incidence of an excise duty, a typical indirect tax, must always be on the consumer, who pays as he consumes or expends; and it continues to be an excise duty, that is a duty on home-produced or home-manufactured goods, no matter at what stage it is collected.”

1. It was held in the Province of Madras v. Messrs Boddu Paindanna & Sons AIR 1942 FC 33, 35 that:

“The duties of excise which the Constitution Act assigns exclusively to the Central Legislature are, according to 1939 FCR 18, duties levied upon the manufacturer or producer in respect of the manufacture or production of the commodity taxed. The tax on the sale of goods, which the Act assigns exclusively to the Provincial Legislatures, is a tax levied on the occasion of the sale of the goods. Plainly a tax levied on the first sale must in the nature of things be a tax on the sale by the manufacturer or producer; but it is levied upon him qua seller and not qua manufacturer or producer. It may well be that a manufacturer or producer is sometimes doubly hit; but so is the taxpayer in Canada who has to pay income-tax levied by the Province for Provincial purposes and also income-tax levied by the Dominion for Dominion purposes; see 1924 AC 999; 1937 AC 260. If the taxpayer who pays a sales tax is also a manufacturer or producer of commodities subject to a central duty of excise, there may no doubt be an overlapping in one sense; but there is no overlapping in law. The two taxes which he is called on to pay are economically two separate and distinct imposts. There is in theory nothing to prevent the Central Legislature from imposing a duty of excise on a commodity as soon as it comes into existence, no matter what happens to it afterwards, whether it be sold, consumed, destroyed or given away. A taxing authority will not ordinarily impose such a duty, because it is much more convenient administratively to collect the duty (as in the case of most of the Excise Acts) when the commodity leaves the factory for the first time, and also because the duty is intended to be an indirect duty which the manufacturer or producer is to pass on to the ultimate consumer, which he could not do if the commodity had, for example, been destroyed in the factory itself. It is the fact of manufacture which attracts the duty, even though it may be collected later; and we may draw attention to the Sugar Excise Act in which it is specially provided that the duty is payable not only in respect of sugar which is issued from the factory but also in respect of sugar which is consumed within the factory. In the case of a sales tax, the liability to tax arises on the occasion of a sale, and a sale has no necessary connection with manufacture or production. The manufacturer or producer cannot of course sell his commodity unless he has first manufactured or produced it; but he is liable, if at all, to a sales tax because he sells and not because he manufactures or produces; and he would be free from liability if he choose to give away everything which came from his factory. In our opinion the power of the Provincial Legislature to levy a tax on the sale of goods extends to sales of every kind, whether first sales or not.”

1. In Muhammad Younas v. Central Board of Revenue (PLD 1964 SC 113), Supreme Court of Pakistan had the occasion to consider the nature of the excise duty and while doing so, distinguished it from sales tax in the following words:

“… It is obvious that the taxing authority will impose it at a stage at which it would be most convenient and most lucrative but that is a matter which does not, in our view, affect the essential nature of the tax. The excise duty which is an indirect tax must, in the ultimate resort, always fall on the consumer but as to the stage at which it is to be collected there can be no inflexible rule. If a legislature is competent to make laws with respect to duties of excise, the question as to whether that power extends to imposing duties on home-produced or home-manufactured goods at any stage up to consumption must always be determined upon the true construction of the enactment itself. All that can be said is that subject to the provisions of the statute, a duty of excise is a tax on goods produced or manufactured in the taxing country, and it ought normally not to be confused with a tax which is a turnover or sales tax.”

1. A subject which has received little attention in considering a taxing statute is the constitutional aspect and its source from the supreme law of the land. This was alluded to in Pakistan v. Kohat Cement Company (PLD 1995 SC 659, 674) in the following manner:

“…The concept of the excise duty is a Constitutional concept. While under the Government of India Act, 1935, excise duty was a central subject, and sales tax was a provincial subject, under our Constitution, as also under the Indian Constitution, both are now central subjects. (see Items 44 and 49 of Federal Legislative list in the Fourth Schedule to the 1973 Constitution). But that fact cannot alter the fundamental nature of the excise duty. Even under the Government of India Act, the Provincial, and not the Federal, legislature had power, in certain cases, to impose a duty of excise as also the sales tax. In those excepted cases, so observed their Lordships of the Privy Council in G.G. in Council v. Province of Madras AIR 1945 PC 98, 101, “there appears to be no reason why the Provincial Legislature should not impose a duty of excise in respect of the commodity manufactured and then a tax on first or other sales of the same commodity.

1. The decided cases referred to above have long settled that the duty of excise is primarily a duty levied upon a manufacturer or producer in respect of the commodity manufactured or produced. Unlike the sales tax, where the liability to tax arises on the occasion of a sale, it is the fact of manufacture or production which attracts the duty of excise, even though it may be collected at a later stage. This is recognized by Section 3 of the Act of 1944 itself--that section authorizes the levy and collection “in such manner” as may be prescribed of “duties of excise on all excisable goods, produced or manufactured … in Pakistan.”

2. Thus the liability of sales tax arises ‘on the occasion of a sale’. The Act of 1990 refers to it as ‘supply’ or ‘taxable supply’ and defines those terms but whatever the words used, the sense remains the same. Legal texts cannot alter the fundamental nature of the tax. And this has to chime with the Entry No. 49 in the Federal Legislative List which is the provenance of the power to impose sales tax (as it is called in the Act, 1990). The statutory enterprise of the Act, 1990 must conform to the legislative field delineated by Entry No. 49 and cannot travel beyond that field. Entry No. 49 reads as under:

“49. Taxes on the sales and purchases of goods imported, exported, produced, manufactured or consumed [, except sales tax on services.]”

1. A question could legitimately be asked whether the provisions of the Act, 1990 are within the periphery of powers conferred on the Federal Legislature. However, that question was neither raised nor forms the subject matter of challenge in these petitions. I shall therefore restrain myself from entering the thicket. Chief Justice John Roberts (of US Supreme Court) said:

“If it is not necessary to decide more, it is necessary not to decide more.”

1. But in putting a construction on sub-section (3B) of Section 3 and the Ninth Schedule of the Act, 1990, I shall be guided by the well-worn principle that such provisions are to be strictly construed with a leaning in favour of the taxpayer in case of ambiguity. Again quoting from the dissent in Kohat Cement:

“…The rule of law, and it is a Constitutional rule, “that no pecuniary burden can be imposed upon the subjects of this country, by whatever name it may be called, whether tax, due, rate, or toll, except under clear and distinct legal authority, established by those who seek to impose the burden, has so often been the subject of legal decisions that it may be deemed a legal axiom … “ (Wilde C.J. in Goshing v. Velry (1850) 12 QB 328, 407. The rule is “that a charge cannot be made unless the power to charge is given by express words or by necessary implication. These last words impose a rigorous test going far beyond the proposition that it would be reasonable or even conducive or incidental to charge for the provision of a service … “ Reg v. Richmond (1992) 2 AC 48, 67.”

1. The term ‘sale’ has not been defined in the Act, 1990 and by Section 3, sales tax is charged on taxable supplies made by a registered person in the course or furtherance of a taxable activity or goods imported into Pakistan (which too are purchased from a foreign seller). These activities are, however, included in the broad concept of ‘sale and purchase of goods imported, produced, manufactured or consumed”, and it is presumed that they are valid and within the constitutional limitation. The definitions of ‘supply’ and ‘taxable supply’ are the fulcrum around which, in large measure, the concept of taxation under the Act, 1990, revolves. ‘Supply’ has been defined as:

“Supply” means a sale or other transfer of the right to dispose of goods as owner, including such sale or transfer under a hire purchase agreement, and also includes –

(a) putting to private, business or non-business use of goods produced or manufactured in the course of taxable activity for purposes other than those of making a taxable supply;

(b) auction or disposal of goods to satisfy a debt owed by a person;

(c) possession of taxable goods held immediately before a person ceases to be a registered person; and

(d) in case of manufacture of goods belonging to another person, the transfer or delivery of such goods to the owner or to a person nominated by him:

Provided that the Federal Government may, by notification in the official Gazette, specify such other transactions which shall or shall not constitute supply.

1. And ‘taxable supply’ as follows:

“taxable supply” means a supply of taxable goods made by an importer, manufacturer, wholesaler (including dealer), distributor or retailer other than a supply of goods which is exempt under Section 13 and includes a supply of goods chargeable to tax at the rate of zero per cent under Section 4.”

1. It can be seen that sales tax has been imposed on ‘taxable supplies’ and a taxable supply, in turn, means a ‘supply’ of taxable goods made by an importer, manufacturer, wholesaler (including dealer) distributor or retailer. Thus the crucial concept is that of ‘supply’ to which legislature continues to revert.

2. We are here not concerned with the entire definition of the term ‘supply’ and so I shall confine myself to the words “a sale or other transfer of the right to dispose of goods as owner’. These words assume significance in the factual matrix of the instant petitions. The term ‘sale’ does not present much of a problem as to the core meaning of the term. The words ‘transfer of the right to dispose of goods as owner’ need to be interpreted as their true explication has presented problems over the years. Interestingly, in our jurisprudence much of the emphasis has gone into seeking the true meaning of the term ‘dispose of’ or ‘disposition’ in a bid to capture the spirit of the term ‘sale’ and to align the two. With due deference to that approach, however, the real emphasis should be to analyse the two terms viz. ‘sale’ and ‘transfer of the right to dispose of goods as owner’. There is no doubt in my mind that the term ‘sale’ and the words ‘other transfer of the right to dispose of goods as owner’ are similar and have to be read ejusdem generis with each other. Given the context, the words have to be given a meaning which appear to determine its aptest, most likely sense. As stated above, since the words ‘sale’ and ‘transfer’ have not been defined in the Act, we will have to fall back on the meaning of these words for their semantic nuances in the judicial dictionaries:

STROUD’S Judicial Dictionary of Words and Phrases:

Sale; Sell; Sold. “ ‘Sale’ undoubtedly, in general, implies an exchange for money; and is so defined in Benjamin on Sale”.

“A “sale” means the exchanging of property for money and applies to a sale of land and to a sale of chattels equally. An agreement to extinguish an existing debt if land is transferred is not a contract for the sale of land (Simpson v. Connolly [1953] 1 W.L.R. 911.”

Transfer: The operative verb “transfer” “is one of the widest terms that can be used” (per James L.J., Gathercole v. Smith, 17 Ch. D. 1; see further per Erle J., R. v. General Cemetery Co, 6 E. & B. 419; see TRANSFERABLE). Learned counsel for the petitioner. SUBROGATION.

“Transfer of assets” (finance Act 1936 (c.34) s.21) in the definition of settlement included an absolute and unconditional gift (Thomas v. Marshall [1953] A.C. 543.”

Merriam – Webster’s Dictionary of Law:

Sale: n 1 a: the transfer of title to property from one party to another for a price; also: the contract of such a transaction –.”

Transfer: n 1: a conveyance of a right, title, or interest in real or personal property from one person or entity to another 2: a passing of something from one to another.”

Black’s Law Dictionary, Ninth edition:

Sale: n (bef. 12c) 1. The transfer of property or title for a price. See UCC 2-106(1). [Cases: Sales 1; Vendor and Purchaser 1.] 2. The agreement by which such a transfer takes place. The four elements are (1) parties competent to contract, (2) mutual assent, (3) a thing capable of being transferred, and (4) a price in money paid or promised.”

Transfer:, n (14c) 1. Any mode of disposing of or parting with an asset or an interest in an asset, including a gift, the payment of money, release, lease, or creation of a lien or other encumbrance. The term embraces every method – direct or indirect, absolute or conditional, voluntary or involuntary – of disposing of or parting with property or with an interest in property, including retention of title as a security interest and foreclosure of the debtor’s equity of redemption.

1. Negotiation of an instrument according to the forms of law. The four methods of transfer are by indorsement, by delivery, by assignment, and by operation of law. [Cases: Bills and Notes, 176-222.] 3. A conveyance of property or title from one person to another. [Cases: Bills and Notes, 176-222.]”

2. An elaboration of the words ‘sale’ and ‘transfer’ would bring forth at once the clear demarcation of the two concepts and the restrictive nature of the word ‘sale’ as against a wider meaning assigned to the word ‘transfer’ which generally means a conveyance of a right, title, or interest in real or personal property from the person or entity to another. It includes any mode of disposing of or parting with an asset or an interest in an asset, including a gift, the payment of money, release, lease, or creation of a lien or other encumbrance. The much broader sweep of the term ‘transfer’ is at once noticeable and what is required to be done as a judicial task is to discern its true meaning in the context and setting of the law in which the word is found.

3. With this background in mind, we can now analyse the definition of the term ‘supply’ used in the Act, 1990. ‘Sale’, it will be recalled, is the transfer of property or title for a price. It connotes a parting of possession to pass to the buyer and does not envisage a reversion of that title or retention of any right in the property transferred. Against price in money paid, the seller passes on the title, absolutely and unconditionally. I have no doubt in my mind that the concept of supply has to comport to the constitutional concept of levy of sales tax. The words ‘transfer of the right to dispose of goods as owner’ when weighed on this scale, merely convey the concept of sale in fact, though by using different semantics. The crucial words are ‘transfer of the right’ and ‘as owner’. Thus the act must result in the transfer of the right to dispose of goods as owner. In other words, what is being transferred is ownership right to deal with the goods (by the vendee) and to dispose of them at will. When a supply is made, the vendee shall become the new owner as transferee of that right as such and may dispose of those goods. I have no doubt in my mind that the transfer of right of ownership is at the heart of the expression when read in its entirety. The act to dispose of is associated with the new owner. However, prior to that the crucial step is the transfer of all rights and the property in the goods which includes the right to dispose of those goods as the subsequent owner. In pith and substance, therefore, this too, constitutes sale.

4. An analysis of the legal landscape will be incomplete without referring to Halsbury’s Laws of England (Volume 91), Fifth Edition, and the construction which has been put on these terms. The meaning of sale has been described as:--

“Sale is the transfer by mutual asset of the ownership of a thing from one person to another for a money price. Where the consideration for the transfer consists of other goods or some other valuable consideration (not being money), the transaction is called exchange or barter, although in certain circumstances it may be treated as one of sale.

It is clear that statutes relating to the sale of goods do not, as such, apply to transactions by way of barter, where the consideration for the thing does not consist in money, or by way of hire, where ownership in the thing is not transferred. The terms implied in contracts for the sale of goods by the Sale of Goods Act 1979 are, however, similarly implied in contracts for the supply of goods by the Supply of Goods and Services Act 1982, which applies to contracts for the transfer of goods, other than (inter alia) contracts for the sale of goods, and to contracts for the hire of goods, other than a hire-purchase agreement. Contracts of exchange or barter and contracts for the hire of goods would consequently be covered by the terms implied by the Supply of Goods and Services Act 1982 and this would be the case whether or not either type of contract also provides for the carrying out of a service and, in either type of contract, whatever the nature of the consideration.”

1. So the essence of sale consists in transfer of ownership for a money price. Where the consideration does not consist in money, it may be barter or exchange but not sale.

2. As to the meaning of ‘contract for the transfer of goods’, it says that:

“A ‘contract for the transfer of goods’ means a contract under which one person transfers or agrees to transfer to another the property in goods.”

1. Thus transfer of goods envisages a transfer of property in goods and to reiterate, property here means general property and not merely a special property. Terms about title etc. transfer by description, quality or fitness are implied in contracts for the transfer of goods and an elaboration of the concept has been alluded to in the following words:--

“71. Title, quiet possession and freedom from charges in contracts for the transfer of goods. In a contract for the transfer of goods, other than one in the case of which there appears from the contract or is to be inferred from its circumstances an intention that the transferor should transfer only such title as he or a third person may have, there is:

(1) an implied condition on the part of the transferor that, in the case of a transfer of the property in the goods, he has a right to transfer the property and, in the case of an agreement to transfer the property in the goods, he will have such a right at the time when the property is to be transferred;

(2) an implied warranty that the goods are free, and will remain free until the time when the property is to be transferred, from any charge or encumbrance not disclosed or known to the transferee before the contract is made, and

(3) an implied warranty that the transferee will enjoy quiet possession of the good, except so far as it may be disturbed by the owner or other person entitled to the benefit of any charge or encumbrance so disclosed or known.”

1. Thus the foundational element in any transfer, in the given paradigm, seems to be a sale of property in the goods so as to pass the title in the goods. Whether it is an executory contract of sale (Agreement to sell) or an executed contract of sale plus a conveyance is to be determined by the intention of the parties.

2. The above discussion forms the backcloth of the analysis of sub-section (3B) and the Ninth Schedule that follows. The term supply as defined in the Act, 1990, has to comport with the broad contours of the field of taxation delineated in Entry 49 of the Federal Legislative List. The simple terms in which the entry is couched is at once striking. Not much leevay is handed to the legislature to play with taxation in this area. The core ingredient of this entry is the concept of sale and that is the foundational element. Thus if a sale or purchase takes place, tax may be imposed on the transaction. Every sale envisages a purchase necessarily and vice versa. The case of Pak Telecom is refreshingly simple. It is that the supply of certain goods is the subject matter of sub-section (3B) of Section 3 and this is notwithstanding anything contained in sub-sections (1) and (3). Those goods are mentioned in the Ninth schedule and the sales tax is to be charged, collected and paid at the rate, in the manner, at the time and subject to the procedure and conditions as specified therein as also that the liability to charge, collect and pay the tax shall be on the persons specified therein. Although one of the goods mentioned in the Ninth schedule i.e. Subscriber Identification Module (SIM) cards, concerns Pak Telecom, the said goods are not ‘sold’ by Pak Telecom and thus no ‘supply of goods’ takes place. Consequently, since sales tax of Rs.250 is to be paid on the supply of SIM cards, and no supply in fact is effected, no liability in respect of payment of sales tax arises regarding SIM cards.

3. The basis for the above assertion is the Cellular Services Agreement executed between the customer and Pak Telecom. Some of the clauses which will exercise a gravitational pull on the controversy in hand are reproduced below.

Agreement and Provisions:

“Connection” means activation of Customer Equipment on the System;

“Customer” means the customer named overleaf porting into the PTML Network;

“Customer Equipment” means the telephone equipment, SIM Card and/or accessories supplied to the Customer by PTML or its authorized dealer(s), and other telephone equipment, SIM Card, and/or accessories specifically approved by PTML as Customer Equipment;

“SIM Card” means a Subscriber Identity Module Card that contains Customer information.”

“13. Miscellaneous:

(a) It is the Customer’s duty to acquaint himself and to comply with all applicable requirements and restrictions imposed by the Government of Pakistan and other applicable authorities including PTA relating to use of the Service. In particular, the Customer may not use or allow the use of Customer Equipment while on board, or in the proximity of any aircraft whether stationary or not. The Customer hereby indemnifies PTML against all liability it may incur in consequence of the Customer failing to comply herewith.”

b)

c)

d)

e)

(f) This contract including the particulars overleaf constitutes the entire agreement between PTML and the Customer. All orders accepted by PTML and all Service provided by PTML are subject to these conditions only.”

g)

h)

i) All SIM Cards supplied to Customer shall remain the property of PTML.”

1. Thus connection means the activation of customer equipment on the system whereas SIM card means a Subscriber Identification Module card that contains customer’s information. The pivotal clause in this agreement is 13(h)(i) which, without equivocation, says that all SIM cards supplied to the customers shall remain the property of Pak Telecom. There could not be any clearer expression of the property of the SIM card vesting in Pak Telecom. This agreement and its stipulations are not denied by the respondents as also that it seems that the agreement is a standard document which has been approved by Pakistan Telecommunication Authority (PTA) and, therefore, will be deemed to have been issued as a condition of the regulation prescribed by PTA. For all intents and purposes therefore the SIM card does not become the property of the customer and therefore no sale takes place between Pak Telecom and the customer. Consequently, there is no escape from the conclusion that in fact there is no supply of goods in the case of a SIM card and it is otiose to presume that since a sale took place sales tax can be imposed on the supply of SIM card. This is not countenanced by the provisions of the Act, 1990 nor is it covered by the definition of supply given in the Act, 1990. No amount of fiction can be employed to include such a transaction to be one of sale so as to be caught by the mischief of the term ‘supply’ as given in the Act, 1990.

2. The learned counsel for Pak Telecom relied upon some observations made in the Indian Supreme Court judgment reported as Idea Mobile Communication Limited v. Commissioner of Central Excise and Customs, Cochin [(2011) 12 Supreme Court Cases 608]. The issue was encapsulated in Paragraph 2 in the following words:--

“2. The issue which arises for our consideration in this appeal is: whether the value of the SIM cards sold by the appellant herein to their mobile subscribers is to be included in taxable service under Section 65(105)(zzzx) of the Finance Act, 1994, which provides for levy of service tax on telecommunication service OR whether it is taxable as sale of goods under the Sales Tax Act?”

1. In conclusion, the position was summed up as follows:--

““…The position in law is therefore clear that the amount received by the cellular telephone company from its subscribers towards the SIM cards will form part of the taxable value for levy of service tax, for the SIM cards are never sold as goods independent from services provided. They are considered part and parcel of the services provided and the dominant position of the transaction is to provide services and not to sell the material i.e. SIM card which on is own but without the service would hardly have any value at all.

1. Thus, it is established from the records and facts of this case that the value of the SIM cards forms part of the activation charges as no activation is possible without a valid functioning of a SIM card and the value of the taxable service is calculated on the gross total amount received by the operator from he subscribers. The Sales Tax Authorities understood the aforesaid position that no element of sale is involved in the present transaction.”

2. Although the matter in dispute in Idea Mobile was not squarely the one involved in the present petition, the observations reproduced above will lend some support to the conclusion drawn in this judgment. However, in coming to the conclusion as aforesaid the Indian Supreme Court relied upon a holding of the Supreme Court of India in an earlier precedent reported as Bharat Sanchar Nigam Ltd. and another v. Union of India and others [(2006) 3 Supreme Court Cases 1] and which is more pertinent for our purposes. In BSNL in dilating upon a similar proposition of law it was held that:--

“87. It is not possible for this Court to opine finally on the issue. What a SIM card represents is ultimately a question of fact, as has been correctly submitted by the States. In determining the issue, however the assessing authorities will have to keep in mind the following principles: if the SIM card is not sold by the assessee to the subscribers but is merely part of the services rendered by the service providers, then a SIM card cannot be charged separately to sales tax. It would depend ultimately upon the intention of the parties. If the parties intended that the SIM card would be a separate object of sale, it would be open to the Sales Tax Authorities to levy sales tax thereon. There is insufficient material on the basis of which we can reach a decision. However we emphasise that if the sale of a SIM card is merely incidental to the service being provided and only facilitates the identification of the subscribers, their credit and other details, it would not be assessable to sales tax. In our opinion the High Court ought not to have finally determined the issue. In any event, the High Court erred in including the cost of the service in the value of the SIM card by relying on the “aspects” doctrine. That doctrine merely deals with legislative competence. As has been succinctly stated in Federation of Hotel & Restaurant Assn. of India v. Union of India (SCC pp. 652-53, Paras 30-31)

“ ‘… subjects which in one aspect and for one purpose fall within the power of a particular legislature may in another aspect and for another purpose fall within another legislative power’.

There might be overlapping; but the overlapping must be in law. The same transaction may involve two or more taxable events in its different aspects. But the fact that there is overlapping does not detract from the distinctiveness of the aspects.”

1. No one denies the legislative competence of the States to levy sales tax on sales provided that the necessary concomitants of a sale are present in the transaction and the sale is distinctly discernible in the transaction. This does not however allow the State to entrench upon the union List and tax services by including the cost of such service in the value of the goods…”

2. The above precedent is an authority for the proposition that in determining the issue of what a SIM card actually represents, it would depend entirely upon the intention of the parties. Also in determining the issue, the assessing authority will have to keep in mind the principles that if the SIM card is not sold by the assessee to the subscribers but is merely part of the services rendered by the service providers, then a SIM card cannot be charged separately to sales tax. Contrarily, if the SIM card was a separate object of sale it would be open to the Sales Tax Authorities to levy sales tax thereon. In conclusion, while admitting the legislative competence of the State to levy sales tax, it was made subject to the necessary concomitant of sale to be present in the transaction and the act of sale is distinctly discernible in the transaction.

3. In the same vein is a judgment of Chancery Division (United Kingdom) reported as Beecham Foods, Ltd. v. North Supplies (Edmonton), Ltd. [1959] 2 All E.R. 336, where the question arose under Section 25(1) of the Restrictive Trade Practices Act, 1956 which enacted:

“Where goods are sold by a supplier subject to a condition as to the price at which those goods may be resold . . . that condition may . . . be enforced by the supplier against any person not party to the sale who subsequently acquires the goods with notice of the condition as if he had been party thereto.”

1. On the question whether the bottles in which goods were sold were themselves sold or not, it was held that:--

“The short answer to this action is that the bottles in which “Lucozade” is sold are never themselves sold at all. Section 25 (1) of the Act has nothing to do with hiring agreements. It applies only to sales, and these bottles in respect of which the 3d. is claimed, are, so far as I can see, never sold at all to a purchasing customer. It is interesting to observe that in the distributors’ Retail Price List dated may, 1958, there is a statement on the back page that “ Lucozade “ (twenty-six ounce) bottles are “ charged at 3s. per dozen, refundable”, followed by a statement that

“Actual ownership of these . . . bottles does not pass to our customers although a charge for them is made.

It is further stated that any charge in this respect is “in the nature of a deposit and will be refunded when the . . . bottles are returned”. I think that the distributors’ view is perfectly right, and that the goods which are sold in the present case are the contents of the bottles and not the bottles themselves. Indeed, it is this fact, and this fact only, which justifies the prominence given to the figures 2s. 6d. on the labels.

It is, of course, impossible to regard a bottle as convertible currency, which it plainly is not, for it cannot be used to pay an omnibus fare or buy a postage stamp. The contract with the customer with regard to the bottles is entirely different from that which affects their contents; they are merely hired while the contents are sold out and out. This sort of dealing may raise some difficult questions, whether, for example, the customer could be compelled to return the bottles to the retailer or the distributor or the plaintiffs or anybody else, or whether he could be sued for conversion of the bottles in any, and what, circumstances. All such questions are beside the point of the present case if the truth be, as I think it is, that the bottles are never sold to a customer and so do not come within S. 25(1) at all. The plaintiffs’ claim is, in my judgment, misconceived, and I think that the action fails and must be dismissed with costs.”

1. The learned judge of the Chancery Division upon a consideration of the entire transaction, came to the conclusion that the bottles in which the Lucozade was sold were never themselves sold at all and, therefore, the price of the bottles could not be included in the goods which were sold. Also that Section 25 had nothing to do with hiring agreements and applied only to goods. Although the judgment did not involve the levy and payment of sales tax but the concept of whether the price of the bottles could be included in the value of supply, is aptly applicable to the facts of the present case and the same set of reasoning will apply to these cases. The transactions in the present case are also similar in nature and the underlying concept shall apply, a fortiori.

2. In view of the above, these petitions are allowed. However, as stated above, the relief claimed by the petitioners is polycentric and invites this Court to strike down sub-section (3B) of Section 3 of the Act, 1990 as well as the Ninth Schedule. It will not be necessary to hold the sub-section (3B) of Section 3 as unconstitutional and it would suffice if it is held that serial No. 1 (relating to SIM cards) of Ninth Schedule is ultra vires the Act, 1990 and consequently the petitioners are not liable to charge, collect and pay sales tax on the supply of SIM cards to its customers.

(Z.I.S.) Petitions allowed

PLJ 2018 Lahore 257

Present: Ch. Muhammad Iqbal, J.

Mst. BILQEES BARKAT etc.--Petitioners

versus

MEMBER BOARD OF REVENUE J-V/CSC etc.--Respondents

W.P. No. 79106-R of 2017, decided on 28.9.2017.

Displaced Persons (Land Settlement) Act, 1958--

----Ss. 10 & 11--Transfer of Property Act, (IV of 1882), S. 41--Constitution of Pakistan, 1973, Art. 199--Agricultural land--Consolidation proceedings--Cancellation of mutations and allotments as well by board of revenue--Sale of state land through private treaty--Land in question purely a building site notified by Chief Settlement Commissioner--Fraud and misrepresentation vitiates for obtaining claim as well as allotment of land--Validity--High Court found that genuineness or otherwise of claim and allotment of evacuee land to petitioner’s predecessors were initially in dispute--It revealed that allotment of petitioner’s predecessors brought on record on basis of RL-II Khata No 2 through a consent decree but there is not order passed by competent authority to incorporate alleged allotment in revenue record--Disputed mutation was entered in revenue record after repeal of settlement laws in 1974, moreover, in Register of RL-II, name of claimant is also not available, which leads to an irresistible conclusion that claim of petitioner’s predecessors was absolutely bogus and non existent in revenue record--Chief Settlement Commissioner notified urban limits of Lahore as building site and same stood excluded from constitute compensation pool, as such, disputed land is purely a building site, therefore, same was not available for allotment against outstanding verified claims and any mischief played in contravention of law deserved immediate reversal--Petitioner’s predecessor committed a glaring fraud and misrepresentation in obtaining fraudulent claim as well as allotment which gathers no sanctity in eyes of law being void ab initio and non existent--Chief Settlement Commissioner after repeal of At 1975 is not competent to conceive any fanciful procedure at his own whim and caprice to doled valuable state land upon cherished person through any private treaty rather is under strict obligation to be loyal to benefit of state and show extra ordinary care and caution while dealing with disposal of state assets and also to protect and preserve state assets from clutches of fraudulent vultures--Moreover, there is no provision in law or in scheme for sale of state land through any private treaty and no policy exists in which notified officer is shown competent to dispose of evacuee property through any private understanding rather it is mandatory that any disposal of state land as well as its letting or leasing out shall be made through transparent, unrestricted public auction--Petition was dismissed.

[Pp. 260, 261, 275, 276 & 280] A, B, C, D & E

Ch. Shaukat Ali Javed, Advocate for Petitioners.

Mian Subah Sadiq Wattoo, AAG for Respondents.

Mr. Muhammad Yaqoob Kanjoo, Advocate for Respondents No. 1 & 2 /Settlement Department on Court’s call.

Date of hearing: 28.9.2017

Order

Through this single order, I intend to decide titled writ petition alongwith connected Writ Petition No. 79005 of 2017 as parties to the lis in both the writ petitions are same, common questions of law and facts are involved and arisen out of same impugned orders.

1. Through these writ petitions, the petitioners have challenged the validity of consolidated order dated 24.04.2017 passed by learned Member (Judicial-V), Board of Revenue/Chief Settlement Commissioner/Administrator (Residual Properties)/Notified Officer, Punjab whereby cases titled “Muhammad Iqbal vs. The State/Bilqees Barkat etc.” and “Riaz Ahmad vs. The State/Bilqees Barkat etc.” were allowed and allotment of land measuring 769-Kanals in favour of Sharaf Din vide Mutation No. 89 dated 24.02.1975 and all subsequent series of mutations were ordered to be cancelled.

2. Brief facts of the case as contended by the learned counsel for the petitioners are that a chunk of agricultural land measuring 769-Kanals against RL-II Khata No. 2 in Mouza Shivepura Kalan, Tehsil Cantt., District Lahore was allotted to Sharaf-ud-Din son of Muhammad Umar Qureshi against his alleged abandoned land in Mauza Jawaharpur and Jharera Dehli India and said allotment was confirmed by the competent authority on 24.05.1972. Said Sharaf Din allottee entered into an agreement to sell of the said land with Ch. Riaz Ahmad who filed suit for declaration and permanent injunction on 31.01.1974, which was decreed vide judgment & decree dated 28.01.1974 and said decree was given effect in revenue record through Mutation No. 89 dated 24.02.1975 in his favour. The said Riaz Ahmad further sold the said land to Mst. Bilqees Barkat etc. the present petitioners through sale-deed No. 5759 Behi No. 1, Jild No. 203 dated 27.04.1977 and a Mutation No. 107 dated 18.06.1978 was duly sanctioned in favour of the petitioners. On the basis of Mukhbari applications one filed by Habib Khan and Muhammad Iqbal etc. the allotment of Sharaf Din was cancelled by the Chief Settlement Commissioner on 04.06.1978. The petitioners challenged said order through Writ Petition Nos.789-R/78 and 1052-R/78 and this Court vide order dated 10.11.1985 accepted the petitions, set aside the impugned order and remanded the case to the Notified Officer for decision afresh. In the post remand proceedings Respondent No. 1 vide order dated 24.04.2017 again cancelled the allotment made in favour of Sharaf Din (original allottee) as well as all the subsequent mutations and ordered the resumption of the said land in favour of the state. Hence, these writ petitions.

3. Learned counsel for the petitioners submits that impugned order is illegal, coram-non-judice, without jurisdiction, based on misreading and non-reading of record, against the law and facts of the case; that Respondent No. 1/Notified Officer has no jurisdiction to cancel the allotment of Sharaf Din and all subsequent mutations; that order of the then Chief Settlement Commissioner dated 23.02.1978 still holds field and in the presence of the said order, impugned order could not have been passed which is illegal on the face of it; further submits that the petitioners are bona fide purchaser of the suit property and have protection under Section 41 of the Transfer of Property Act.

4. Learned law officer assisted by the learned counsel appearing on behalf of the settlement department submits that allotment in favour of Sharaf Din and Dawood both sons of Muhammad Umer Qureshi was obtained on the basis of fraud, misrepresentation; that in compliance of direction passed by this Court in Writ Petition No. 789-R/78 the Chief Settlement Commissioner/ Notified Officer after hearing the parties passed the impugned order and no illegality has been committed; that Sharaf Din filed claim of the revenue estate of Jawaharpur and Jharera Tehsil and District Dehli, India which had already been acquired for establishment of Palumpur Airport etc. and compensation whereof had also been paid to land owners by the Indian Government in the year 1909 and property/land exclusively had stood vested with Federal Government; that the claim/allotment in favour of Sharaf Din and Dawood are fake, bogus, fictitious and based on fraud; further submits that the then Chief Settlement Commissioner through Memorandum dated 06.07.1972 restrained/banned the further allotment. Against the said stay order one Qutab-ud-Din and 35 others including the petitioners and his brothers filed Writ Petition No. 458-R/72 which was dismissed by this Court. Feeling dis-satisfied an appeal was filed which was also dismissed and order impugned wherein were upheld by Hon’ble Supreme Court of Pakistan vide judgment dated 02.07.1976 which is reported as 1976 SCMR 524; that in violation operative stay order allotment in favour of Sharaf Din was made; further submits that Mutation No. 89 dated 24.02.1975 was sanctioned after repeal of settlement laws against land measuring 769-Kanals, whereas the suit land had already been declared by Chief Settlement Commissioner as building site 1973, as such, Respondent No. 1 after considering all the submissions made by the learned counsels for the parties and perusing the record rightly passed order and no illegality has been committed.

5. I have heard the arguments of the learned counsels for both the parties at full length and gone through the record with their able assistance.

6. The whole controversy is centered around the genuineness or otherwise of claim and allotment of the evacuee land to Sharaf-ud-Din son of Muhammad Umar Qureshi who got allotted land measuring 769 Kanals in Mauza Shivepura Tehsil Cantt. Lahore against his alleged claim of abandoned land in Mauza Jawaharpur and Jharera Dehli India, details of allotted land whereof is as under:

| | | | | | | | --- | --- | --- | --- | --- | --- | | Sr.No. | Khasra No. | Land Measuring | | Ownership according to Jamabandi | Remarks | | K | M | | 1 | 317 | 5 | 4 | Balqees Barkat etc. | Abadi | | 2 | 318 | 5 | 5 | -do- | -do- | | 3 | 323 | 13 | 19 | -do- | -do- | | 4 | 324 | 9 | 14 | -do- | -do- | | 5 | 325 | 7 | 1 | -do- | -do- | | 6 | 326 | 3 | 13 | -do- | -do- | | 7 | 343 | 5 | 15 | -do- | -do- | | 8 | 344 | 3 | 18 | -do- | -do- | | 9 | 345 | 3 | 16 | -do- | -do- | | 10 | 346 | 5 | 2 | -do- | -do- | | 11 | 347 | 6 | 10 | -do- | -do- | | 12 | 348 | 7 | 7 | -do- | -do- | | 13 | 349 | 8 | 0 | -do- | -do- | | 14 | 350 | 14 | 18 | -do- | -do- | | 15 | 352 | 6 | 0 | -do- | -do- | | 16 | 353 | 6 | 9 | -do- | -do- | | 17 | 354 | 5 | 1 | -do- | -do- | | 18 | 356 | 4 | 15 | -do- | -do- | | 19 | 357 | 3 | 8 | -do- | -do- | | 20 | 358 | 6 | 19 | -do- | -do- | | 21 | 359 | 9 | 0 | -do- | -do- | | 22 | 360 | 7 | 14 | -do- | -do- | | 23 | 361 | 9 | 18 | -do- | -do- | | 24 | 362 | 4 | 10 | -do- | -do- | | 25 | 363 | 7 | 1 | -do- | -do- | | 26 | 364 | 12 | 3 | -do- | -do- | | 27 | 365 | 2 | 6 | -do- | -do- | | 28 | 366 | 13 | 4 | -do- | -do- | | 29 | 367 | 10 | 18 | -do- | -do- | | 30 | 368 | 4 | 5 | -do- | -do- | | 31 | 369 | 5 | 2 | -do- | -do- | | 32 | 370 | 9 | 0 | -do- | -do- | | 33 | 371 | 4 | 19 | -do- | -do- | | 34 | 372 | 2 | 19 | -do- | -do- | | 35 | 373 | 12 | 5 | -do- | -do- | | 36 | 374 | 10 | 1 | -do- | -do- | | 37 | 375 | 3 | 8 | -do- | -do- | | 38 | 376 | 2 | 0 | -do- | -do- | | 39 | 377 | 5 | 2 | -do- | -do- | | 40 | 378 | 8 | 7 | -do- | -do- | | 41 | 379 | 4 | 6 | -do- | -do- | | 42 | 380 | 6 | 18 | -do- | -do- | | 43 | 381 | 3 | 4 | -do- | -do- | | 44 | 382 | 4 | 2 | -do- | -do- | | 45 | 383 | 9 | 3 | -do- | -do- | | 46 | 385 | 17 | 19 | -do- | -do- | | 47 | 386 | 8 | 18 | -do- | -do- | | 48 | 387 | 6 | 2 | -do- | -do- | | 49 | 388 | 7 | 14 | -do- | -do- | | 50 | 392 | 10 | 3 | -do- | -do- | | 51 | 393 | 8 | 19 | -do- | -do- | | 52 | 394 | 2 | 10 | -do- | -do- | | 53 | 443 | 5 | 6 | -do- | -do- | | 54 | 444 | 5 | 4 | -do- | -do- | | 55 | 446 | 5 | 11 | -do- | -do- | | 56 | 449 | 14 | 4 | -do- | -do- | | 57 | 450 | 12 | 6 | -do- | -do- | | 58 | 451 | 9 | 0 | -do- | -do- | | 59 | 452 | 15 | 13 | -do- | -do- | | 60 | 459 | 9 | 0 | -do- | -do- | | 61 | 462 | 19 | 17 | -do- | -do- | | 62 | 463 | 12 | 2 | -do- | -do- | | 63 | 471 | 7 | 8 | -do- | -do- | | 64 | 474 | 5 | 10 | -do- | -do- | | 65 | 475 | 7 | 10 | -do- | -do- | | 66 | 476 | 5 | 17 | -do- | -do- | | 67 | 479 | 5 | 5 | -do- | -do- | | 68 | 481 | 5 | 0 | -do- | -do- | | 69 | 482 | 10 | 10 | -do- | -do- | | 70 | 485 | 6 | 8 | -do- | -do- | | 71 | 486 | 5 | 8 | -do- | -do- | | 72 | 490 | 4 | 19 | -do- | -do- | | 73 | 491 | 5 | 10 | -do- | -do- | | 74 | 492 | 24 | 3 | -do- | -do- | | 75 | 255 | 15 | 15 | -do- | DHA | | 76 | 256 | 6 | 6 | -do- | -do- | | 77 | 257 | 7 | 10 | -do- | -do- | | 78 | 455 | 8 | 19 | -do- | -do- | | 79 | 456 | 10 | 14 | -do- | -do- | | 80 | 465 | 44 | 16 | -do- | -do- | | 81 | 466 | 41 | 2 | -do- | -do- | | 82 | 469 | 4 | 14 | -do- | -do- | | 83 | 470 | 6 | 13 | -do- | -do- | | 84 | 483 | 7 | 6 | -do- | -do- | | 85 | 484 | 9 | 19 | -do- | -do- | | 86 | 467 | 06 | 14 | -do- | -do- |

After securing above allotment Sharaf Din alienated the said land to one Ch. Riaz Ahmad, who got incorporated the said land under the command of decree of Civil Court in the Revenue Record through Mutation No. 89 dated 24.02.1975. Whereafter said Ch. Riaz Ahmad further sold the land to the petitioners.

Against the above as well as many other allotments, Habib Khan etc. filed Mukhbari applications and the then Chief Settlement Commissioner passed the injunctive order dated 06.07.1972 restraining all the wings of the Settlement as well as the Revenue department to make any further registration of claims, attestation of mutations, registries and any other sort of alienation of the evacuee lands. This order of the Chief Settlement Commissioner was challenged through filing W.P.No. 458-R of 1972, which was dismissed by this Court. The order of this Court was challenged before the Hon’ble Supreme Court of Pakistan through Civil Appeal No. 609/1975 which was dismissed by the Hon’ble Apex Court vide order dated 02.07.1976 maintaining the order passed by this Court as well as order of the Chief Settlement Commissioner dated 06.07.1972. After the conclusion of the proceeding against above said injunctive order, the Chief Settlement Commissioner allowed the Mukhbari application dated 29.06.1974 filed by Muhammad Iqbal etc. and cancelled the allotment of Sharaf-ud-Din vide order dated 04.06.1978. Present petitioners (Mst. Bilqees Barkat etc.) challenged the said cancellation order through filing Writ Petition Nos.789- R/78 and 1052-R/78 on the ground of being a bona fide purchaser. The said writ petitions were accepted vide order of this Court dated 10.11.1985 and the case was remanded to the Member Board of Revenue/Chief Settlement Commissioner for decision afresh in accordance with law.

1. In the post remand proceedings, the entire matter was re-opened to investigate existence element of fraud, as well as the genuineness or otherwise of the claim and allotment of evacuee land in favour of Sharaf-ud-Din. It evinces from the record that the alleged RL-II Khata No. 2 appended with this petition was issued in the name of Sharaf Din on 09.05.1972 on the basis of his claim of being evacuee having abandoned the land in Mouzas Jawaharpur and Jharera Tehsil & District Dehli India. The said RL-II Khata No. 2 according to available record has never been entered in the revenue record till 24.02.1975, whereas, for the first time the said allotment came on the record through a decree dated 28.01.1974 passed in a suit for declaration in favour of Riaz Ahmad, a subsequent purchaser from said Sharaf-ud-Din when it (decree) was incorporated in the revenue record through Mutation No. 89 dated 24.02.1975, in clear violation of the injunctive order of the Chief Settlement Commissioner dated 06.07.1972 as well as during the pendency of Writ Petition No. 458-R/1972 and even after the repeal of evacuee laws. Moreover, in order to ascertain the genuineness of the claim held by Sharaf-ud-Din in 01.07.1974, the judicial record of Writ Petition No. 444-R of 1978 was also examined and according to Gazette Notification dated 22nd December 1911 (appended with writ petition) the entire land of Mouza Jawaharpur and Jharera was acquired by the British Government of India for establishment of Palumpur Airport as well Cantonment and Capital City of new Dehli India. The Chief Commissioner Delhi while exercising power under Section 3 (C) of the Act, XVII of 1887 Gazette Notification of India dated 15th March 1915 acquired entire land of Mouza Jawaharpur and Jharera as reflected at Serial No. 17 & 18 of the said notifications. For ready reference, notifications are as under:

Since the issuance of the gazette notification supra the entire land of the said two Mouzas stood vested with the British Govt. of India leaving behind no private ownership in field, which has direct negative bearing upon the very status of the petitioners’ predecessor-in- interest, who claimed to be an evacuee having abandoned his agricultural land in Mauza Jawaharpur and Jharera India. Further, under Section 2 of the Displaced Persons/Lands Settlement Act XLVII of 1958 only those refugees were considered to be genuine claimant who abandoned their urban/agricultural land in India as an evacuee w.e.f. 01.03.1947 to 15.06.1953, whereas, the land of petitioners’ predecessor in Mouza Jawaharpur and Jharera (if any) on which basis Sharaf Din and others submitted their claims had already been acquired as back as in 1911 much before the partition of the India and for both the above reasons, he (Sharaf-ud-Din) does not qualify as a genuine claimant, as such, foundation of their claim to be an evacuee having abandoned land in India stood frustrated and his claim in its generic was fake, fictitious and result of fraud, as he had not abandoned any land in the aforementioned Mouzas. Sharaf Din despite being cognizant of above facts got allotted land measuring 769-Kanals in Mouza Shivepura Kalan, Tehsil and District Lahore RL-II, Khata No. 2 which (allotment) for the first time unearthed/reflected through Mutation No. 89 dated 24.02.1975. Against the bogus claims and allotments, one Habib Khan etc. instituted Mukhbari application to the then Chief Settlement Commissioner who passed an injunctive order dated 06.07.1972 which is as under:

Habib Khan petitioner, through his counsel has submitted an application purporting to be under Sections 10 & 11 of the Displaced Persons (Land Settlement) Act, 1958 and under Section 14 of the Registration of Claims (Displaced Persons) Act, 1956, alleging that the claimants hailing from the revenue estates of Jawaharpur and Jharera, Tehsil and District Delhi, had obtained numerous allotments of agricultural lands, both urban and rural, under the Rehabilitation Settlement Scheme, by means of fraud and false representation, which are liable to cancellation. In this connection, it has been contended that the areas of both the abovementioned revenue estates stood acquired by the Government of India in the year 1908-09 and thereafter there existed no private ownership. It has been vehemently alleged that the claimants from these estates filed claims under Registration of Claims (Displaced Persons) Act, 1956 and by adducing false evidence and submitting, in respect of their claims, information which they know to be false or did not believe to be true and by fraudulently concealing and misrepresenting facts, for the purpose of making the claims which they know to be false, procured orders of verification which subsequently formed basis of Entitlement Certificates issued by the Central Record Office and in lieu which the alleged allotments of land had been confirmed. It has also been urged by the counsel for the petitioner that compensation under the Rehabilitation and Settlement Laws is only intended for persons who had actually suffered losses whereas in the case of persons from the revenue estates of Jawaharpur and Jharera, the position is quite different as they and their predecessors-in-interest had already received compensation at the time of acquisition by the Government of India. Prima facie, a case of fraudulent verification of claims and securing of allotments of land against the claimant is ---. Taking into consideration the material placed on record, the circumstances of the case warrant that all such allotments which have already since been confirmed against the disputed claims of person hailing from the revenue estates of Jawaharpur and Jharera, be not allowed to be disposed of by way of sale, mortgage, exchange, gift etc., or by any means whatsoever, and also further allotments of agricultural lands are stopped forthwith. I therefore order that the district authorities should stop further allotments of land against claims pertaining to the said revenue estates and the local field staff may especially be directed to withhold mutations regarding sale, mortgage, exchange, gift etc., regarding areas already allotted against such claim still further orders.

It is also hereby directed that complete details of all such allotments of land against these claims in all the districts of NWFP, Sindh Baluchistan and Punjab should be furnished by all the district authorities urgently, for taking further necessary action in the matter.

Being aggrieved of the above said injunctive order, a Joint W.P.No. 458-R of 1972 was filed by Qutab-ud- Din etc. (including Sharaf-ud-Din Petitioner No. 6) which was dismissed by this Court. Against the decision of the High Court, they (petitioners in W.P.No. 458-R of 1972) filed Civil Petition, which was converted into Civil Appeal No. 609 of 1975 and the same was dismissed vide order dated 02.07.1976 by the Hon’ble Supreme Court by upholding the order passed by this Court as well as the above quoted injunctive order of Chief Settlement Commissioner which is reported as Qutubuddin & Others vs. Sardar Hidayat Ullah Khan Mokal & another (1976 SCMR 524). In the said order, it was held as under:

We have heard Mr. S.M. Zafar and find no merit in the contentions raised in support of the petition. In case inquiries made by the Chief Settlement Commissioner reveal that fraud has been practised by the petitioners on the claims registering authorities or the Rehabilitation and Settlement Authorities the transactions by which verification of claims and allotments of land have been obtained will, in their entirety, become void ab initio and non set in law. The contention that under the Registration of Claims Act claims already verified cannot be reviewed has, therefore, no substance. Another aspect of the case is that writ jurisdiction cannot be invoked to provide a shield to orders of verification of claims obtained by fraud. The learned Judge, was, therefore, right in dismissing the writ petition on this short ground. On the contrary if it is found that no fraud has been practised and allotments have been obtained in due course of law then the inquiry shall automatically come to an end without resulting in irreparable loss to the petitioners. The prayer that no inquiry shall be held at all was, therefore, a tall claim which has been rightly rejected by the High Court.

Admittedly Chief Settlement Commissioner passed injunctive order on 06.07.1972 restraining all his subordinate wings in Revenue/ Settlement department to stop further proceeding or making any allotment qua the bogus claim including claim of the petitioners’ predecessor which (order) remained upheld upto Hon’ble Supreme Court of Pakistan but during existence of said injunctive order of Chief Settlement Commissioner, Sharaf Din with the collusion of officials of revenue/settlement department and committing misrepresentation and fraud got allotted land measuring 769-Kanals in his favour and under the compromise decree of the Civil Court further alienated the said land through Mutation No. 89 dated 24.02.1975 in favour of Riaz Ahmad etc., in clear violation of the restraining order. The alleged allotment in favour of Sharaf Din was based on fraud and any further alienation to subsequent vendees Riaz Ahmad and sale-deed in favour of the petitioners on 27.04.1977 in the presence of restraining order dated 06.07.1972 carry no significance in the eyes of law. The settlement department circulated instructions notification on 19.06.1978 furnishing guidelines to its subordinate authorities that any allotment remained unimplemented before repeal of Settlement Laws or within one year of the passing of allotment order the same should be deemed to be ante-dated and have been obtained by committing fraud in the record of Register RL-II and same should be cancelled forthwith.

From the perusal of order dated 06.07.1972 the then Chief Settlement Commissioner specifically stopped further allotment of land against the claim pertaining to Mouza Jawaharpur and Jharera and directed to the local field staff to withhold further making of any entry of any mutation regarding sale, mortgage, exchange, gift deeds etc., associated to the areas already earmarked under list of doubtful Mouza Jaats. Moreover admittedly the claim of Sharaf Din No. 9282/139 equivalent to 7763 P.I.Us was initially issued for District Sukhar Sindh as per annexure-D appended with written arguments submitted by the petitioners before Chief Settlement Commissioner but there is no entry or any documentary proof available on the record that the said claim has ever been transferred from Sukhar to Lahore for its satisfaction. Further from the perusal of record, it reveals that the allotment of Sharaf Din for the first time brought on record on the basis of RL-II, Khata No. 2 through a consent decree dated 21.03.1974. From perusal of the file it reveals that neither RL-II nor there is any order passed by the competent authority to incorporate the alleged allotment in the revenue record is available on the file. Whereas Mutation No. 89 dated 24.02.1975 was entered in the revenue record after repeal of settlement laws in 1974 which (alienation) is against law and instructions quoted above. Moreover, in the Register RL-II of Mouza Shivepur Kalan the name of claimant is also not available, which leads to an irresistible conclusion that the claim of Sharaf-ud-Din was absolutely bogus and non-existent in the said record.

1. So far as the arguments of the learned counsel for the petitioners that vide order dated 23.02.1978 the then Chief Settlement Commissioner Ch. Muhammad Saddique has verified the claim in favour of Sharaf Din etc., which has attained the status of past and close transaction, suffice it to say that order of Chief Settlement Commissioner dated 23.02.1978 (if any) is passed in brazen violation of injunctive order dated 06.07.1972 which has never been reviewed subsequently by any competent forum rather this Court as well as Hon’ble Supreme Court of Pakistan already maintained the validity of the same. Moreover, in the year 1973 all Registers RL-II were sealed by the order of the competent authority which eradicate any possibility of further lawful allotment whereas all the Settlement Laws stood repealed w.e.f. 1st July 1974, as such, in the interregnum no allotment could have been made against any claim. Whereas, the order of the Chief Settlement Commissioner dated 23.02.1978 is absurd and sketchy in nature as no reason has been given with regard to element of fraud, entitlement of the claimant and no bona fide probe was made qua the each and every claim separately which vitiate the sanctity of the said order being perverse and against the record passed in derogation of judicial application of mind as well as the sacred principles of dispensation of justice. It can conveniently be said that the order of certification of the claim/allotment was obtained with mala fide and collusion of the Notified Officer. Further all the evacuee lands available in district Lahore stood declared as building site with issuance of Notification dated 16.05.1973 and same could not have been allotted even against validated claim whereas the allotment against the claim of Sharaf-ud-Din was unveiled through Mutation No. 89 dated 24.02.1975 entered clearly after the repeal of Settlement Laws Act, w.e.f. 01.07.1974. Which legal aspects have not even been discussed in the said order, as such, the order of CSC suffer from infirmities, perversity and illegality which has rightly been set at naught by his successor through the impugned order.

Even otherwise, vide Notification dated 16.05.1973, the Chief Settlement Commissioner notified the urban limits of Lahore as building site and the same stood excluded from the constituted compensation pool under Sections 4 & 5 of the Displaced Persons (Land Settlement) Act, 1958, as such, the land in question is purely a building site, therefore, the same was not available for allotment against outstanding verified claims and any mischief played in contravention of the above deserved immediate reversal. Reliance is placed on the cases reported as Ali Muhammad through LRs & Others vs. Chief Settlement Commissioner & Other (2001 SCMR 1822) & Muhammad Ramzan & Others vs. Member (Revenue) Chief Settlement Commissioner & Others (1997 SCMR 1635).

1. Undoubtedly Sharaf-ud-Din committed a glaring fraud and misrepresentation in obtaining the fraudulent claim as well as the allotment which gathers no sanctity in the eyes of law being void ab-initio and non-existent. It is well settled law that fraud vitiates the most solemn proceedings and any edifice so raised on the basis of such fraudulent transaction stood automatically dismantled and any ill gotten gain achieved by committing fraud cannot be validated under any laws. Reliance is placed on the cases of Nawab Syed Raunaq Ali etc. vs. Chief Settlement Commissioner & Others (PLD 1973 SC 236), The Chief Settlement Commissioner, Lahore vs. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331), Muhammad Younus Khan & 12 Others vs. Government of N.W.F.P. through Secretary, Forest and Agriculture, Peshawar & Others (1993 SCMR 618), Lal Din & Another vs. Muhammad Ibrahim (1993 SCMR 710), Khair Din vs. Mst. Salaman & Others (PLD 2002 SC 677), Talib Hussain & Others vs. Member, Board of Revenue & Others (2003 SCMR 549), Khadim Hussain vs. Abid Hussain & Others (PLD 2009 SC 419), Lahore Development Authority vs. Firdous Steel Mills (Pvt.) Limited (2010 SCMR 1097).

2. The next argument of the learned counsel for the petitioners that after the repeal of settlement laws on 01.07.1974 the Chief Settlement Commissioner has no jurisdiction to investigate the matter and cancel the allotment of Sharaf-ud-Din suffice it to say that admittedly, the evacuee laws were stood repealed with effect from 01.07.1974 thereafter the Chief Settlement Commissioner was vested with no authority to make any fresh allotment or entertain any claim whereas a limited jurisdiction was bestowed upon him only to conclude the pending proceedings before him or those matters which are referred to him by the Hon’ble Supreme Court or this Court as enunciated under Section 2(2) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. Section 2 (2) of the ibid. Act is reproduced as under:--

“2. Repeal of Certain Laws.

(2) Upon the repeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the, officers notified as aforesaid.”

In addition to the above, the Hon’ble Supreme Court of Pakistan in its latest judgment reported as Member Board of Revenue/Chief Settlement Commissioner, Punjab, Lahore vs. Abdul Majeed & another (PLD 2015 SC 166) has held that the Chief Settlement Commissioner/Notified Officer is not competent to allot any fresh or alternate land to anybody. Further, in the instant case the inquiry proceedings against the genuineness of Sharaf-ud-Din claim were initiated on Mukhbari applications and injunctive order was passed on 06.07.1972 and all the evacuee lands in District Lahore were declared as building site in 16.05.1973 whereas the evacuee laws were repealed w.e.f 01.07.1974. As the inquiry proceeding with regard to the commission of fraud were pending since 06.07.1972 before the repeal of evacuee law, as such, Chief Settlement Commissioner was well within jurisdiction to take cognizance of matter of commission of fraud under Sections 10 & 11 of the Displaced Land Settlement Act, 1958 as well as under Section 2(2) of Repealing Act 1975. Moreover, the allotment of Sharaf-ud-Din revealed through Mutation No. 89 dated 24.02.1975 after the repeal of evacuee laws on 01.07.1974 which (mutation) was got incorporated by practicing fraud in the settlement department and it is well settled law that the forum at which fraud has been committed, the same has the jurisdiction to investigate the said fraud and to undo the same under Section 21 of the General Clauses Act as well. Moreover, the matter was remanded by this Court to the settlement authority to determine the geniuses of claim, as such the Notified Officer was well within jurisdiction to decide the matter afresh.

1. So far as the argument of learned counsel that petitioner is bona fide subsequent purchaser and her rights are duly protected under Section 41 of the Transfer of Property Act suffice it to say that the petitioner herself stated that the sale-deed and sale mutation in favour of the petitioners were registered/incorporated in the revenue record merely on the basis of alleged Mutation No. 89 dated 24.02.1975. But from perusal of the said decree sheet, the details of the property and whereabouts of allotted land in Mouza Shivepura Tehsil Cantt., Lahore have not been mentioned and the petitioners have also not append any copy of plaint as well as judgment dated 28.01.1974 of the said suit with this petition. Further, a note dated 24.02.1975 has been given in the Mutation No. 89 merely mentioning the Khasra Nos.100-103, 115-117, 121-124-125-127, 129-130 of the land without any particular specification and measurement of land, which does not co-relate with the claimed Khasra Numbers by the petitioners. Moreover, the very claim as well as the allotment of Sharaf-ud-Din vendor has been declared as illegal and void ab-initio in the preceding paras as he procured the state land through committing a fraud and misrepresentation. Petitioner herself has committed default in making bona fide investigations qua the genuineness of vendor’s title as required under the principle of caveat emptor, therefore, the protection of Section 41 of the Transfer of Property Act, is not available to the subsequent vendees of the evacuee property as settled by the Hon’ble Supreme Court of Pakistan in a reported case titled as Talib Hussain & Others vs. Member, Board of Revenue & Others (2003 SCMR 549). For ready reference, relevant para is reproduced as under:

2. Now the next question is as to whether petitioners who are the vendees can enjoy the protection as it has been envisaged under Section 41 of the Transfer of Property Act suffice it to observe that in respect of evacuee property no such protection is available to a vendee as it has been held in the judgments (1) Kanwal Nain and 3 others v. Fateh Khan and others (PLD 1983 SC 53), (2) Manzoor Hussain v. Fazal Hussain and others (1984 SCMR 1027), (3) Gul Muhammad and others v. The Additional Settlement Commissioner and others (1985 SCMR 491), (4) Ejaz Ahmad Khan v. Chahat and others (1987 SCMR 192), (5) Mst. Resham Bibi v. Mst. Elahi Sain (PLD 1991 SC 1034) and (6) Sufi Zaheer Ahmad (deceased) through Legal Heir v. Chief Settlement and Rehabilitation Commissioner and others (1993 MLD 195). It is important to emphasis that petitioner’s entitlement is based upon the entitlement of Syed Nizamuddin, therefore, petitioner either to have survive or sink depending upon determination of legal status of the property which was transferred to him and as now he has failed to keep his entitlement alive, therefore, petitioner’s claim is bound to be rejected.

As the predecessor-in-interest of the petitioners obtained state land through practicing fraud and misrepresentation and the Notified Officer has reversed/undo the same which even if it is presumed that order has no consonance with the law even then this Court can refuse to grant the sought for relief and can decline to interfere in that erroneous order in its constitutional jurisdiction on the sole grounds of unclean hands of the petitioner’s predecessor as held in the case reported as Muhammad Baran & Others vs. Member (Settlement and Rehabilitation), Board of Revenue, Punjab & Others (PLD 1991 SC 691), the relevant portion is reproduced as under:

Assuming for the sake of arguments advanced that the Board of Revenue passed an illegal order as no proceedings were then pending and even if such order would have been without jurisdiction, in the circumstances of this case, the High Court after correctly stating the legal position could withhold the relief in its entirety and could also dismiss the Writ Petitions filed by the appellants as they had soiled hands.

Further, the petitioners have purchased the land during the pendency of the inquiry proceedings in the settlement department initiated since the year 1972 qua the bogus, fraudulent claims and allotments without making any investigation into the title and claims of the vendors, as such, she is precluded to claim better title or any protection of being bona fide purchaser as per law and it is settled law that any infirmity or flaw in the title of the vendors the same always travels with the property and the subsequent purchaser is debarred to claim better title than that of the vendors. A subsequent purchaser has to sail and sink with the original vendors, therefore, the petitioner is disentitled to claim any better right in the said property and the prayer of the petitioner in these writ petitions be considered as declined.

1. Further, with regard to disposal of state land, the Chief Settlement Commissioner after the repeal of evacuee laws under Section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 is not competent to conceive any fanciful procedure at his own whim and caprice to doled the valuable state land upon the cherished person through any private treaty rather is under strict obligation to be loyal to the benefit of the state and show extra ordinary care and caution while dealing with disposal of the state assets and also to protect and preserve the state assets from the clutches of fraudulent vultures. Moreover, there is no provision in the law or in the scheme for the sale of state land through any private treaty and no policy exists in which the notified officer is shown competent to dispose of the evacuee property through any private understanding rather it is mandatory that any disposal of state land as well as its letting or leasing out shall be made through transparent, unrestricted public auction to fetch the maximum price as laid down in a recent judgment reported as American International School System vs. Mian Muhammad Ramzan & Others(2015 SCMR 1449), wherein the Hon’ble Supreme Court of Pakistan has held that under Paragraphs 1(d), 11, 12 and 30 of the Scheme for Management and Disposal of Available Urban Properties, 1977, the evacuee urban properties shall be disposed of (if needed) through unrestricted public auction. As there is no provision in the Evacuee Laws after Repeal Laws to sale the Evacuee land through private treaty and a glorified modus oprandi of its (state land) Disposal/Sale through unrestricted public auction has finally been accepted as suitable for the best interest of the state as discussed in the case of Muhammad Din & Others vs. Ghulam Muhammad Naseem Sindhu & Others (PLD 1991 SC 1) and in C.P. No. 709-L/2009 titled Member (Judicial-V), Board of Revenue/Chief Settlement Commissioner, Punjab & 2 Others vs. Sagheer Muhammad Khan & Others, where the Hon’ble Supreme Court of Pakistan vide order dated 02.01.2015 settled that after the Repeal Act, the property be disposed of through open auction, the relevant portion thereof is reproduced as under:

“7. Considering the above, we are clear firstly that the conclusion arrived at by the learned Single Bench in Para 9 of the impugned judgment, as reproduced above is incorrect and the reliance on the case of Muhammad Hussain (supra) is also misplaced. Secondly, it is evident that as of date, the respondents can have no claim on the property in question. According to the current law and arrangements put in place by the Province subsequent to the Repeal Act the property will have to be disposed of through open public auction so that the assets vested in the Province and ultimately in the people of the Province are duly protected. This shall not prevent the Province from proceeding against the respondents or others both for recovery of compensation for occupation and use of the property and for any other action civil or criminal in this case. This petition is converted into appeal and is allowed in the above terms.”

Furthermore, the urban property has already been declared as building site vide notification dated 16.05.1973 and the urban evacuee property only could be disposed of through an in unrestricted open auction as prescribed in Para 11 of the Scheme for the Management and Disposal of Available Urban Properties of 1977 framed under Section 3 of the Evacuee Properties & Displaced Persons Laws (Repeal) Act No. XIV of 1975 as settled by the Hon’ble Supreme Court of Pakistan in the case reported as Muhammad Ramzan & Others vs. Member (Rev.)/CSS & Others (1997 SCMR 1635).

1. As such the Chief Settlement Commissioner/Notified Officer has applied his judicious mind to each and every piece of Settlement as well as revenue record and rightly passed the impugned order which does not suffer from infirmity or any illegality calling for interference through these constitutional petitions, as such, both these petitions are hereby dismissed in limine being devoid of any merit.

(Z.I.S.) Petitions dismissed

PLJ 2018 Lahore 282 [Multan Bench Multan]

Present: Muzamil Akhtar Shabir, J.

MUHAMMAD RAFIQUE--Petitioner

versus

MANAGER (ADMN) TEVTA, LAHORE and 4 others--Respondents

W.P. No. 17742 of 2016, decided on 27.11.2017.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Transfer orders wedlock policy--Prob was conducted--Recommendation of prob officer--Constitutional jurisdiction--As per wedlock policy, husband and wife are entitled to be posted at same station but this is not absolute principle of law and is subject to posting elsewhere if not found practicable--There is recommendation of probe officer not to post the petitioner in any women institution without commenting upon veracity of recommendations of prob officer, this Court would not like to exercise its constitutional jurisdiction to set aside aforeferred order of transfer as constitutional petition is an equitable jurisdiction and no prejudice has been caused to petitioner for being transfer from one institution to other--Petition dismissed. [Pp. 283 & 284] A & B

Mian Tahir Iqbal, Advocate for Petitioner.

Malik Amjad Mushtaq, Advocate for TEVTA along with Ayesha Rehman, District Manager, Khanewal/Vehari.

Date of hearing: 27.11.2017.

Order

Through this constitutional petition, the petitioner has called in question the order dated 03.06.2016 passed by Deputy Manager (Admn.) TEVTA, 96-H, Gulberg-II, Lahore (Respondent No. 2), whereby the petitioner has been transferred from Govt. Vocational Training Institute (W), G.T.Road, Mian Channu, District Khanewal to Govt. College of Technology, Burewala, District Vehari.

1. Brief facts of the case as stated are that the petitioner joined Government Vocational Training institute as Chowkidar (BPS-02) in the year 2004 on contract basis. His services were regularized on 26.04.2006, Vide order dated 03.06.2016, the Respondent No. 2 transferred the petitioner from Govt. Vocational Taining Institute (W), G.T.Road, Mian Channu, District Khanewal to Govt. College of Technology, Burewala, District Vehari, against a vacant post of Chowkidar. The said order is under challenge through this constitutional petition.

2. The counsel for the petitioner has argued that as per wedlock policy, the petitioner is entitled to remain posted in Mian Channu as his wife is a PTC Teacher and serving in Mian Channu. Besides, the petitioner is a low paid employee and has been transferred far-away from his place of residence and the said transfer order is not in the public interest.

3. The counsel appearing on behalf of respondents states that the petitioner was transferred on the basis of some complaints submitted by the staff and the students of the institute. The petitioner was earlier transferred from Govt. Vocational Training Institute (Women), Mian Chabbu to Govt. College Commerce Mian Channu vide order dated 01.04.2006 on the basis of some complaints. In the year 2011, he managed his transfer back in Government Vocational Training Institute (Women), Mian Channu. Again in May 2016 on the basis of complaint, a probe was conducted against the petitioner wherein the probe officer recommend the transfer of the petitioner to any male institute in the interest of the institute, female staff and female students in order to maintain the sanctity of chaddar and chaardevari. The counsel for the respondents further argued that the petitioner was appointed in BS-01 and not in BS-02. The transfer orders are on administrative grounds and the petition is liable to be dismissed.

4. Heard. Record perused.

5. The petitioner was appointed as Chowkidar in the Government Vocational Training Institute (Women), Mian Channu. However, twice he has been transferred on administrative grounds due to some complaints. This Court would not like to comment on the veracity of the complaint, however, as the respondents have stated that probe officer had recommended that the petitioner be not placed as Chowkidar in any women institute, therefore, he has been transferred to the Government College of Technology, Burewala. Besides, it is stated that there is only one seat of Chowkidar available at previous place of posting at Mian Channu, which has been filled, therefore, he cannot be appointed in Mian Channu and the nearest post was available in District Burewala, where competent authority has posted him. Although, as per wedlock policy, husband and wife are entitled to be posted at the same station but this is not absolute principle of law and is subject to posting elsewhere if not found practicable. The reference in this behalf is placed on Clause 17 of the Wedlock policy which may be reproduced as under:

“Normally the competent authority should make an effort to post husband and wife, when both are Govt. Servants at one station unless administratively it is not practicable.”

1. Furthermore, the policy of TEVTA relating to transfer of posting is as under:

“Three years mandatory stay at one station may be observed strictly except in case of administrative grounds.”

As the transfer has been made on administrative grounds and no other post is available in the previous institute and also there is recommendation of the probe officer not to post the petitioner in any women institution, without commenting upon the veracity of the afore-referred recommendation, this Court would not like to exercise its constitutional jurisdiction to set-aside the afore-referred order of transfer as constitutional petition is an equitable jurisdiction and no prejudice has been caused to the petitioner for being transfer from one institution to the other.

1. For what has been discussed above, this petition being devoid of any force stands dismissed.

(Y.A.) Petition dismissed

PLJ 2018 Lahore 284 [Bahawalpur Bench Bahawalpur]

Present: Tariq Iftikhar Ahmad, J.

ZAKA ULLAH--Petitioner

versus

MEMBER BOARD OF REVENUE, etc.--Respondents

W.P. No. 7093 of 2014, decided on 1.11.2017.

Constitution of Pakistan, 1973--

----Art. 199--West Pakistan Land Revenue Rules 1968, R. 17--Appointment to post of lambardar--Hereditary claim--Involvment in criminal case--Whether affects eligiblity criteria--Interference in administrative orders of board of revenue--Petitioner was appointed as Lambardar after fulfilling all codal formalities, which order was nullified by Member Board of Revenue on representation filed by a private respondent, accordingly, petitioner was denotified and private respondent was so appointed--Challenge to--Held: Rule 17 of the West Pakistan Land Revenue Rules, 1968 provides a criteria to select a person as a Lambardar--According to said rules, specific numbers have been earmarked--According to contents, private respondent was ahead of candidates, however, due to involvement in criminal cases, private respondent could not be considered as a fit person to hold post of Lambardar--Revenue authorities who have direct liaison with applicant for post of Lambardar are considered to be best judges for selection of a person--Name of petitioner had been recommended by lower forums on tangible ground, but Member Board of Revenue without referring any persuasive material--According to Amended Rule 17, though certain marks have been earmarked on account of experience but no authority including member board of revenue is allowed to convert marks of experience into hereditary claim--Petition allowed.

[Pp. 288 & 289] A, B & C

Constitution of Pakistan, 1973--

----Art. 199--West Pakistan Land Revenue Rules 1968, R. 17--Appointment to post of lambardar--Involvment in criminal case--Principle of good governance--Presumption of Innocence disbelieved High Court held that while dealing with question relating to registration of criminal case against private respondent has shown so magnanimity that without any verdict of competent Court of law has given a clean chit by declaring him eligible for post, which being a public office cannot be given in hands of person involved in criminal cases--There is no cavil with proposition that generally, until and unless an accused is convicted in a criminal case, he is presumed to be innocent--Said analogy, cannot be applied in matters relating to appointment of Lambardar as registration of criminal cases against a person in society and that too on moral turpitude, shatter confidence of people of locality--Private respondent being involved in number of criminal cases is required to appear before different Courts on most of dates, thus, his presence in revenue estate would not be possible--A person who does not remain in revenue estate around clock cannot be appointed as Lambardar as he is considered to be an absentee--Duties being performed by Lambardar being of vital in nature cannot be put off on a future date as it would result into embarrassment for revenue authorities towards collection of revenue/cess and implementation of their policies, no person who remains out of estate for most of days cannot be appointed against post of Lambardar--Appointment of private respondent quashed--Petition allowed. [Pp. 288 & 289] D & E

Ch. Riaz Ahmad & Ms. Naurin Atta, Advocates for Petitioner.

Mr. Nadeem Iqbal Chaudhry, Advocate for Respondent No. 8.

Mehr Muhammad Iqbal, AAG.

Date of hearing: 1.11.2017.

Order

The present Constitutional petition is directed against the orders dated 03.04.2013 and 06.08.2014 handed down by the Member Board of Revenue, Punjab, Lahore-Respondent No. 1 whereby orders dated 30.12.2010 passed by District Officer (Revenue), Bahawalpur and 16.08.2011 handed down by the Additional Commissioner (Consolidation), Multan Division, Multan, appointing the petitioner as Lambardar, have been set aside and Respondent No. 8 was appointed Lambardar.

1. Necessary facts giving rise to the instant writ petition are that Mehfoz Ahmad, Respondent No. 8 who is son of Muhammad Rafiq, permanent Lambardar of Chak No. 90/DB, after the death of his father (Muhammad Rafiq) moved an application for his appointment as permanent Lambardar against the vacant post. The Tehsildar concerned invited applications from the inhabitants of the Chak for the appointment of Lambardar and after observing the codal formalities submitted his report to the District Officer (Revenue), Bahawalpur who after hearing the candidates vide order dated 30.12.2010 appointed the petitioner as permanent Lambardar of Chak No. 90/DB, Tehsil Yazman, District Bahawalpur. Respondent No. 8 assailed the said order by way of appeal before the Additional Commissioner (Consolidation) Multan Division, Multan, which was dismissed through order dated 16.08.2011. Thereafter, Respondent No. 8 challenged the said order of Additional Commissioner in ROR, before the Board of Revenue, Punjab, Lahore. The ROR preferred by Respondent No. 8 was allowed by the Member (Judicial-II), Board of Revenue, Punjab whereby orders dated 30.12.2010 & 16.08.2011, as mentioned earlier, passed by District Officer Revenue and Additional Commissioner (Consolidation), Bahawalpur, respectively, were set aside; hence this petition.

2. Learned counsel for the petitioner contends that the order passed by the appointing authority being an administrative measure could not have been set aside by the Board of Revenue without any cogent ground. In support of his contention he placed reliance on dictum laid down by the Apex Court in “Muhammad Saeed v. Ghulam Sarwar and another” (2008 SCMR 1586), “Sharaf Din v. Qazi Abdul Jalil and another” (1986 SCMR 1368), “Muhammad Ramzan v. Member (Revenue), Board of Revenue and others” (1989 SCMR 614) and “Abdul Wahid v. The Member, Board of Revenue, Punjab, Lahore and another” (1971 SCMR 719). Further contends that Respondent No. 8 could not have been appointed as permanent Lambardar due to the factum of registration of innumerable criminal cases against him and the Member Board of Revenue-Respondent No. 1 did not consider this important aspect of the case while rendering the impugned orders dated 03.04.2013 and 06.08.2014, respectively. In this behalf, learned counsel has placed reliance on a judgment of this Court in “Muhammad Ali v. Muhammad Mumtaz and others” (1992 CLC 1456). In this context, learned counsel has also placed on record photocopies of FIRs in which Respondent No. 8 has been nominated as an accused i.e. FIR No. 765 of 2009, registered under Sections 302, 324, 109, 34, of The Pakistan Penal Code, 1860, FIR No. 500 of 2004, registered under Sections 420, 468, 471 of The Pakistan Penal Code, 1860, FIR No. 369 of 2012, registered under Sections 420, 468, 471 of The Pakistan Penal Code, 1860, at Police Station Yazman, District Bahawalpur. While continuing with his arguments he submits that appointment of Lambardar cannot be claimed as of a right. Reliance in this behalf is placed on “Muhammad Shafi v. Member (Revenue), Board of Revenue, Punjab, Lahore and 2 others” (1972 SCMR 253) and “Muhammad Warrayam v. Member, Board of Revenue, Punjab, Lahore and 3 others” (1972 SCMR 354). Further submits that the impugned orders passed by Respondent No. 1 are based upon non-appreciation of real facts, result of misreading of record and as such are liable to be declared illegal, void ab-initio, against the law and facts and are not sustainable in law.

3. On the other hand, learned counsel for Respondent No. 8 while controverting the submissions made on behalf of the petitioner has opposed this petition contending that though Respondent No. 8 has been involved in certain criminal cases but in none of the same conviction has been recorded against him. He placed reliance on a judgment of this Court in “Haji Shah Muhammad v. Member (Jud1cial-IV) Board of Revenue, Punjab, Lahore and 2 others” (2005 MLD 1663). Further contends that Respondent No. 1 while passing the impugned orders has rightly exercised its jurisdiction to which no exception can be taken in writ jurisdiction by this Court and that the matter relating to the appointment of Lambardar falls purely within the domain of Respondent No. 1. In support of his contentions he placed reliance on “Abdul Ghafoor v. The Member (Revenue) Board of Revenue and another” (1982 SCMR 202), “Abdul Rehman Bajwa v. Sultan and 9 others” (PLD 1981 SC 522), “Abdul Kar1m v. Member, Board of Revenue, Punjab and 2 others” (1993 MLD 1628). Further submits that there is no jurisdictional defect in the impugned orders passed by Respondent No. 1, so it cannot be interfered with by this Court. Reliance in this behalf is placed on a judgment of this Court in “Bashir Ahmed v. Member Board of Revenue, Punjab, Lahore and 2 others” (2007 CLC 354).

Learned law officer, however, supported the impugned orders being assailed in the present Writ Petition.

1. I have heard learned counsel for the parties and have also gone through the documents appended with this petition.

2. Rule 17 of The West Pakistan Land Revenue. Rules, 1968 provides a criteria to select a person as a Lambardar. According to said rules specific numbers have been earmarked. Though according to contents Respondent No. 8 was ahead of the candidates, however, as he was involved in more than one criminal case he could not be considered as a fit person to hold the post of Lambardar. While dilating upon some of the similar situation this Court in the case “Muhammad Ali v. Muhammad Mumtaz and others” (1992 CLC 1456) held that such a person cannot be given the task of Lambardar as he has to play role of mediator between assesses and the department to collect land revenue. Decision of the Member Board of Revenue setting aside the concurrent verdicts of the Courts below is considered on the touchstone of the afore-quoted judgment of this Court. There leaves no ambiguity that the same has been passed in a clear cut violation of the said judgment.

3. Considering the matter from another angle the revenue authorities who have direct liaison with the applicant for the post of Lambardar are considered to be best judges for the selection of a person against the said post. Insofar as the case in hand is concerned, though the lower forums in the revenue hierarchy recommended the name of the petitioner for appointment as Lambardar on tangible ground but the Member Board of Revenue reversed the findings of the said forums without referring to any persuasive material. Inasmuch as cursory glance over the order passed by the Member Board of Revenue shows that the same is bereft of any reasoning, what to talk of valid reasons. Reference in this behalf is placed on “Messrs United Woollen Mills Ltd. Workers’ Union v. Messrs United Woollen Mills Ltd.” (2010 SCMR 1475), “Fasih-ud-Din Khan and others v. Government of Punjab and others” (2010 SCMR 1778) and “Muhamad Saeed v. Ghulam Sarwar and another” (2008 SCMR 1586).

4. The Apex Court of the country in the case of “Maqbqol Ahmad Qureshi v. The Islamic Republic of Pakistan” (PLD 1999 SC 484) has scraped the idea of appointment of a person against the post of Lambardar on hereditary basis. According to the Amended Rule 17, though certain marks have been earmarked on account of experience but no authority including the Member Board of Revenue is allowed to convert the marks of experience into that of hereditary claim as the said approach amount to nullify the effect of the decision of the Apex Court. Even otherwise, if for the sake of academic discussion it is presumed that 30 marks were earmarked on account of experience, it is not believable that out of 30 marks, 100% were to be given to Respondent No. 8.

5. According to Section 24-A of The General Clauses Act, every government functionary is bound to decide a matter through a speaking order encompassing valid reasons and if for the valid reasons the impugned order is adjudged in view of Section 24-A the same does not fulfill the criteria laid down for a speaking order. Reference in this behalf may be made to “Mollah Ejahar Ali v. Government of East Pakistan and others” (PLD 1970 SC 173).

6. It is astonishing to note that while dealing with the question relating to registration of criminal cases against Respondent No. 8, the Member Board of Revenue has shown so magnanimity that without any verdict of competent Court of law has given a clean chit by declaring him eligible for the post of Lambardar which being a public office cannot be given in the hands of the person who is involved in criminal cases. There is no cavil with the proposition that generally until and unless an accused is convicted in a criminal case he is presumed to be innocent. However, said analogy cannot be applied in the matters relating to the appointment of Lambardar as registration of criminal cases against a person in the society and that too of moral turpitude, shatter the confidence of the people of the locality. Thus, the appointment of said person would be useless as he would not be able to have commanding influence in the society who help out the revenue authorities in respect of revenue collection and implementation of the government policies.

7. It is well settled by now that while dealing with the question relating to appointment of Lambardar the revenue authorities enjoy prerogative to select a suitable candidate while taking into consideration multifaceted element including the general repute in the area, qualification, holding in the locality and brotherhood. When the revenue officer who finds an opportunity to have direct liaison with all the land owners in the revenue estate came to the conclusion that respondent No.8 was not a suitable person on account of his involvement in multiple criminal cases, his findings cannot lightly be set aside by the Member Board of Revenue specially when the same were up-held by the Additional Commissioner (Consolidation). Reliance in this regard is placed on “M. Nazir Ahmad v. Muhammad Aslam and others” (2013 SCMR 363).

8. As the post of Lambardar has been declared as essentially an administrative measure, therefore, respondent No.8 could not lay any claim to that office as of right. Reference may be made to “Muhammad Shafi and “Muhammad Warrayam” (supra).

9. Admittedly, Respondent No. 8 being involved in number of criminal cases is required to appear before different Courts on most of the dates, thus, his presence in the revenue estate would not be possible. A person who does not remain in the revenue estate around the clock cannot be appointed as Lambardar as he is considered to be an absentee. The duties being performed by Lambardar being of vital in nature cannot be put off on a future date as it would result into embarrassment for the revenue authorities towards collection of revenue/cess and implementation of their policies, no person who remains out of the estate for most of the days cannot be appointed against the post of Lambardar.

10. It is very strange that the Member Board of Revenue proceeded to reverse the findings of the forums below while relying on his observation made in Para 6 of his decision and that too without assigning any reason. At the cost of repetition, it is observed that his verdict to setting aside the decisions of lower forums, does not qualify the test for a reasoned order and the same cannot be allowed to hold the field even for a moment.

11. So far as case law cited at the bar by learned counsel for Respondent No. 8 is concerned, with due reverence it is stated that the same is distinguishable to the facts and circumstances of the case in hand rather it provide supports to the claim of the petitioner in “Abdul Ghafoor” (supra).

12. In view of above facts and circumstances, while allowing this writ petition orders passed by the Member Board of Revenue dated 03.04.2013 and 06.08.2014, rendered by Respondent No. 1 are set aside and those passed by the District Officer (Revenue) Bahawalpur dated 30.12.2010 and Additional Commissioner (Consolidation), Multan Division, Multan, dated 16.08.2011 are restored.

(Z.I.S.) Petition allowed

PLJ 2018 Lahore 291 (DB)

Present: Ibad-ur-Rehman Lodhi and Ali Akbar Qureshi, JJ.

SyedALI RIAZ KIRMANI and another--Petitioners

versus

ELECTION TRIBUNAL, PUNJAB BAR COUNCIL, LAHORE and others--Respondents

W.P. No. 25216 of 2016, decided on 2.11.2017.

Constitution of Pakistan, 1973--

----Arts. 4 & 199--Due process of law--Pakistan Legal Practitioners & Bar Council Rules 1976, R. 3, 4, 5 & 61 Election of Punjab Bar Council--Exclusion of votes from final count--Right of franchise--Annulment of election by Returning Officer--Filing of objections--By filing objection petitions, objectors complained that their votes were excluded from final count, as such, they were disfranchised--Election tribunal allowed objection petition--Challenge to--Respondents objected to maintainability of objection petition before election trial--High Court framed issue as to Whether objectors fell within definition of “aggrieved persons”--Held that under law returning officer shall publish a programme of election of member of Provincial Bar Council by providing a date by which objections to validity of election of a member shall be filled and that such objections may be filed by any “candidate at election” or by any five voters to contest validity of election of candidate--Under Rules, remedy is available only to a candidate at election and in case of any five voters, an objection petition would only be competent if validity of election of a candidate is called in question--In present case, no candidate at election has ever filed an objection petition and voters who have filed objection petition, have never prayed for a relief, which is available to voters by calling in question validity of election of a candidate--Objectors in this particular case have voiced against their alleged disfrnachization and for inclusion of their votes into final count and in fact validity of any election of a candidate in particular sense has never been called in question by objectors--No aggrieved person has ever made competent to file objection petition calling in question validity of election of a candidate and further no objection petition is available in scheme of law on subject providing remedy to voters in election to ask for inclusion of their votes in final count, which for any reason were not included by election staff in final count--High Court held that objection petition before tribunal was not legally maintainable--Petition allowed.

[Pp. 294 & 297] A, B, C & D

Mr. Abid Saqi, Advocate for Petitioners.

Mr. S.M. Zeeshan Mirza, Advocate for Respondent 2.

Mr. Muhammad Shahzad Shaukat, Advocate for Respondent No. 4.

Date of hearing: 2.11.2017.

Judgment

Ibad-Ur-Rehman Lodhi, J.--Through this Constitutional petition, the petitioners have called in question the order passed by the Election Tribunal especially constituted under Rule 3(c)(i) of Pakistan Legal Practitioners & Bar Councils Rules, 1976 (hereinafter to be referred as Rules) to probe into objection petition filed by some voters from Polling Booths No. 19, 24, 37, 39 and 42 of different Polling Stations of Lahore Division established for the purposes of conduct of elections of Punjab Bar Council on 22.11.2014. In the objection petition, the objectors complained that their votes were excluded from the final count and in such manner, they have been disfranchised. The objection petitioners have also sought a finding against order dated 27.11.2014 passed by the Returning Officer of the said election with a request to include their votes/ballots in the final count.

The learned Tribunal by means of impugned judgment dated 28.07.2016 proceeded to allow the objection petition. The order of the Returning Officer dated 27.11.2014 and the subsequent final notification intimating the result of the election issued on 12.12.2014 to the extent of GROUP OF DISTRICT-VIII Lahore Division were declared as annulled with a direction that ballot papers of Polling Stations/Booths No. 19, 24, 37, 39 and 42 not having the seal or signatures of the Polling Officer, but issued by the Returning Officer, shall be counted and after inclusion of such ballot papers in final count, final result be prepared and successful candidates be notified accordingly.

1. At the start of hearing, learned counsel for the objection petitioners/respondents herein was asked to show the competence and maintainability of objection petition under Rule 5(1)(h) read with Rule 61 of the Rules, to which, learned counsel after some hesitation responded that maintainability and competence of the objection petition was never questioned by the present petitioners before the Tribunal or even before this Court in the present Constitutional petition, therefore, a relief, which was never prayed for, cannot be granted or even considered. In support of his such contentions, learned counsel for the objection petitioners by placing reliance on cases titled “Ali Muhammad through Legal Heirs and others versus Chief Settlement Commissioner and others” (2001 SCMR 1822) and “Akhtar Abbas and others versus Nayyar Hussain” (1982 SCMR 549) has held that High Court, while exercising powers under Article 199 of The Constitution of Islamic Republic of Pakistan, 1973 does not enjoy suomotu jurisdiction to grant relief to a party, which was never claimed.

To resolve controversy, as to whether the objection petition filed on behalf of the “voters” was competent and maintainable in view of Rules referred to hereinabove and further that whether this Court would be competent to ask for such questions from the objection petitioners, we have minutely gone through the record.

In order to dispose of the objection petition, the learned Tribunal framed a number of issues. We are concerned at the moment with Issues No. 12 and 13, which are reproduced herein below:--

1. Whether the present objection petition is not maintainable in its present form? OP-Ghulam Sarwar Nahang

2. Whether the objectors are barred to file this objection petition and also to raise objections referred in the grounds of objection petition? OP-Ghulam Sarwar Nahang

The learned Tribunal, while answering such issues, has held that Rule 5(1 )(h) read with Rule 61 of the Rules provides a remedy to the “aggrieved persons” by way of filing an objection petition before the Tribunal, therefore, it cannot be said that objection petition before the Tribunal was not maintainable.

For ready reference, Rules 5(1)(h) and 61 are reproduced as under:--

5(1)(h) The Returning Officer shall publish a programme of the election of Members of the Provincial Bar Council (and the Islamabad Bar Council) in the official gazette specifying, the date by which objections to the validity of election of a member shall be filed.

61 An objection to the election under Paragraph (h) of sub-rule (1) of Rule 5 or under Paragraph (h) of sub-rule (1) of Rule 30, may be filed by any candidate at the election or by any five voters to contest the validity of the election of a candidate, by letter signed and delivered to the Chairman of the Bar Council who shall refer such objection to the Election Tribunal concerned for disposal within fifteen days of the date fixed for filing objections. The objection shall be accompanied by a deposit of Rs.20,000/-.

The joint reading of both these Rules do create a picture that the Returning Officer shall publish a programme of the election of the members of Provincial Bar Council by providing inter alia a date by which objections to the validity of election of a member shall be filed and that such objections may be filed by any “Candidate at the election” or by any live voters to contest the validity of the election of a candidate.

It is, thus, clear that objection petition within the meaning of above referred Rules is a remedy available only to a candidate at the election and in case of any five voters, an objection petition would only be competent if the validity of the election of a candidate is called in question.

The learned Tribunal has imported the category of “aggrieved persons” for the purposes of maintaining an objection petition under the referred Rules, which class of persons is not provided in the relevant Rules, rather only “a candidate” or at least “live voters” are made competent to call in question the validity of the election of a candidate.

In the present case, no candidate at the election has ever filed any objection petition and the voters, who have filed the objection petition, have never prayed for a relief, which is available to the voters by calling in question the validity of election of a candidate. The objectors in this particular case have in fact voiced against their alleged disfranchisation and for inclusion of their votes into final count and in fact validity of any election of a candidate in particular sense has never been called in question by the objectors.

1. So far as contention of learned counsel for the objectors to the effect that High Court does not enjoy jurisdiction under Article 199 of The Constitution of Islamic Republic of Pakistan, 1973 to extend a relief, which was never prayed for in explicit terms, is concerned, suffice it to say that the provisions of The Code of Civil Procedure, 1908 are applicable, while this Court is hearing a Constitutional petition.

The provisions of Order VII Rule 7, C.P.C., which are being referred in response to the contentions as noted hereinabove are reproduced herein below:

“Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement.

This Court, thus, is of the view that while deciding a Constitutional petition, it is empowered to grant an effective or ancillary relief, even if not prayed for.

We are fortified in support of such contention with the case of “Haji Ibrahim versus S. Rehmatullah (Represented by Legal Heirs)” (1985 SCMR 241), wherein the Hon’ble Supreme Court of Pakistan has held as under:

“in our considered opinion a discretion is vested in this behalf in the Courts to be judicially exercised in proper cases in order to avoid multiplicity of proceedings, to shorten litigation, and to do complete justice between the parties and mould the relief according to the altered circumstances in the larger interest of justice.”

Similarly, in case titled “Samar Gul versus Central Government and others” (PLD 1986 Supreme Court 35), the Hon’ble Supreme Court of Pakistan has observed in the following manner:

“Therefore, we have no hesitation to hold that no prejudice has been caused to the respondents on account of couching the relief in the declaratory form. It is well-settled that a Court is empowered to grant such relief as the justice of the case may demand and for purposes of determining the relief asked for, the whole of the plaint must be looked into, so that the substance rather than the form should be examined. The argument advanced on behalf of the respondents is accordingly without substance that no prayer for redemption of the mortgage was made by the appellant in his suit.”

The Hon’ble Supreme Court of Pakistan in case titled “Javaid Iqbal versus Abdul Aziz and another” (PLD 2006 Supreme Court 66) has held as under:

“13. On its part, in the exercise of its revisional jurisdiction, Lahore High Court was perfectly justified in observing that the suit could not fail merely for the reason that some relief which was available and not been claimed. Honourable Judge of the High Court is perfectly justified in observing that the suit could not have been dismissed on account of any defect in form. In view of the assertion of the respondents that they had passed on total sale consideration and obtained possession in part performance of sale, they would be entitled to full protection of their possession within the contemplation of Section 53-A of the Transfer of Property Act, 1882. In our considered opinion, both the Courts below failed to take into account the legal impact and effect of the provisions contained in Section 53-A of the Transfer of Property Act and the provisions of Code of Civil Procedure, 1908 providing sufficient mechanism for doing complete justice to the parties. Evidently and essentially, this was a fit case for exercise of jurisdiction under Order VI, Rule 17, Order VII, Rule 7 and Section 151, C.P.C., rather than attaching much importance to the defective drafting of the plaint and the prayer clause. The view taken by the High Court in exercise of its revisional jurisdiction, in our considered opinion, does not suffer from any inherent legal infirmity misreading of record, misconception of law or error of jurisdiction. To the contrary the judgment of the High Court in the peculiar facts and circumstances of the case, on the face of the record, appears to be just, fair, equitable and expedient to achieve the ends of justice and to defeat the mischief. The order of remand is, therefore, fully justified and not open to any exception.”

In another case titled “Syed Phool Badshah and others versus ADBP through Manager, Peshawar Branch and others’’ (2012 SCMR 1688), the Hon’ble Supreme Court of Pakistan has provided illuminated principle by observing as under:

“7. The provisions of Order VII, Rule 7 of the Civil Procedure Code empowers the Court to grant an effective or ancillary relief even if not prayed, as the plaint as whole is to be looked into in order to determine relief for which plaintiff is entitled, however, no relief can be granted upon the facts and documents not disclosed in the pleading.’’

Despite the fact that Issues No. 12 and 13 relating to maintainability of objection petition and locus standi of the objectors were specifically framed, but while answering such issues, the learned Tribunal has

proceeded to a wrong direction by extending the competence of filing objection petition to aggrieved persons, which was never the intention of the legislation on the point. No aggrieved person has ever been made competent to file objection petition calling in question the validity of election of a candidate and further that no objection petition is available in the scheme of law on the subject providing remedy to the voters in the election to ask for inclusion of their votes in the final count, which for any reason were not included by the election staff in the final count. The learned Tribunal in our considered view has not dealt with the objection petition in the manner, in which it should have been addressed and the objection petition, which was neither competent nor maintainable, was finally allowed.

1. In view of above discussion, we have reached to an irresistible conclusion that objection petition filed under Rule 5(1)(h) read with Rule 61 of the Rules by the voters asking for inclusion of their votes/ballots in the final count was not competent and not maintainable. As such, the order impugned herein passed by the learned Tribunal is not sustainable and by setting aside the same, we declare the objection petition filed by the respondents as incompetent and not maintainable.

2. This Constitutional petition is allowed in the above lines.

(Z.I.S.) Petition allowed

PLJ 2018 Lahore 297

Present: Syed Mansoor Ali Shah, C.J.

MUHAMMAD AHMAD SAMDANI--Petitioner

versus

GOVERNMENT OF PUNJAB, etc.--Respondents

W.P. No. 9938 of 2017, heard on 14.6.2017.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Advertisement for post of project director--Petitioner applied and was not selected--Lack of eligibility criteria--Transparency of appointment process--Validity--There is nothing on record to establish that process of appointment any way was tainted or tailored to promote case of Respondent No. 12. allegations levelled by learned counsel for petitioner are not substantiated by record of case, hence appointment of Respondent No. 12 as Project Director from existing record does not appear to be illegal or based on malafide--Petitioner is an employee of TEVTA, Chairman TEVTA is directed to inquire into matter and if it is found that petitioner is violating law, to proceed strictly against petitioner in accordance with law--Chairman, TEVTA will also submit his report with Registrar of this Court regarding action taken in this regard within three months from today--In case report of Chairman, TEVTA is not received within three months, office will put up this case on administrative side for necessary orders--Petition was dismissed. [P. 302] A & B

M/s. Muhammad Azhar Siddique and Muhammad Rizwan Gujjar, Advocates for Petitioners.

M/s. Anwaar Hussain and Ahmad Hasan Khan, Additional Advocates General, Punjab.

Hafiz Muhammad Saleem, Advocate for Respondent No. 12.

Mr. Muhammad Nawaz Manik, Director (Law), Environment Protection Department, Punjab.

Mian Ejaz Majeed, Deputy Director (L&E), Environmental Protection Agency, Punjab, Lahore.

Date of hearing: 14.6.2017

Judgment

Brief facts of the case are that Environmental Protection Agency, Punjab (“EPA”) advertised certain posts including the post of Project Director for a scheme launched for the EPA under the name and title of “Capacity Building of EPA Punjab for Enforcement of Environment Standards in Punjab including Combined Effluent Treatment Plants (CETPs) and Industrial Estates (IEs) under J&C Program”. It is submitted that petitioner applied for the said post, however, was not selected. Grievance of the petitioner is that process adopted for the appointment of Project Director was not transparent and as a consequence tainted with mala fide.

1. Learned counsel for the petitioner has argued that the entire recruitment process has been tailored to accommodate Respondent No. 12 as a Project Director so that he can maintain control over the Environment Protection Department. He submits that this is evident from the fact that initially the advertisement describes the age of Project Director as 35-55 years and in the corrigendum advertised on 04.02.2017 the age limit of the Project Director has been enhanced to 35-58 years. He further contends that Respondent No. 12 has already been removed by this Court as Director General of EPA vide judgment dated 26.10.2016 passed in Writ Petition No. 27033/2016. He adds that Respondent No. 12 is also under probe by the National Accountability Bureau (“NAB”). He has also referred to letter issued by the Federation of Pakistan, Chambers of Commerce & Industry dated 28.11.2016 highlighting that Respondent No. 12 is involved in corruption and, therefore, must not be appointed in the Environment Department.

2. Referring to the process adopted for the appointment of the Project Director, learned counsel submits that the list of ineligible candidates prepared by the respondent department shows that certain candidates were not considered because some of their documents were missing e.g., lack of domicile, experience certificate or academic degrees. He submits that no opportunity was granted to the candidates to supply the said documents and the entire process has been hurriedly carried out just to give advantage to Respondent No. 12.

3. Even though the petitioner has not raised this point in his pleadings, he submits that the entire Project is a burden on the public exchequer because it is not required. He submits that at best in pursuance to order of this Court dated 20.10.2016 passed in W.P. No. 12016/2014, EPA undertook to upgrade the Central Laboratory, at the cost of Rs. 158.483 million but the Project does not provide for improvement of the Central Laboratory, EPA, hence, the Project has no useful purpose. In support of his contention he has placed reliance on Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 SC 132), Engr. Ghazanfar Ali Khan and others v. F.O.P. and others (PLD 2014 Lahore 375).

4. Mr Anwaar Hussain, Additional Advocate General Punjab alongwith Chief (Environment), P&D Department has referred to PC-II of the Project titled: “Capacity Building of EPA Punjab for Enforcement of Environment Standards in Punjab including Combined Effluent Treatment Plants (CETPs) and Industrial Estates (IEs) under J&C Program” which has been prepared with total cost of Rs.295.331 million with the gestation period from 2016-2018. He submits that the Project has two main objectives:

a. To identify gaps so as to restructure and build capacity of EPA, etc.

b. Establishment of Environmental Monitoring Center by operationalization of laboratories of EPA.

He submits that in the wake of order passed by this Court dated 20.10.2016 in W.P. No. 12016/2014 special emphasis has been laid on the upgradation of the Central Laboratory. He referred to the portion of PC-II under Item 6 i.e., Description, Justification and Technical Parameters, to point out that the human resource at the enhanced Central Laboratory EPD shall be enhanced and its equipment repaired and upgraded. Referring to the total allocation of fund for the purpose of upgrading/improving the Central Laboratory, it is submitted that a total Rs.113.42 million is to be spent on the infrastructure and Rs.44.986 million is to be spent on the human resource with a total sum of Rs.158.485 million allocated for the Central Laboratory, as undertaken before this Court in the earlier case.

1. Referring to the process adopted in appointing the Project Director, learned Law Officer submits that description of the age and its eligibility criteria has been clearly spelled out in PC-II which describes the age to be 35-58 years. He submits that after approval of PC-II, advertisement was issued on 25.12.2016, however, because it described the wrong age, the corrigendum was issued on 04.02.2017, therefore, the age limit had already been provided in PC-II and was not changed later on as argued by the learned counsel for the petitioner.

2. He submits that a total of 23 applications were received for the post of Project Director out of which 21 candidates were declared ineligible and only two candidates were short listed for interview including Respondent No. 12. He submits that the second candidate did not come for the interview, as a result, Respondent No. 12 was appointed as Project Director who meets all the qualificational requirements given in the advertisement.

3. Reasons and details of the candidates who were declared ineligible have also been placed on the record. Perusal of the document reveals that the said candidates could not be considered because they could not supply the relevant documents i.e., domicile, experience certificate, copies of the degrees, etc. It is submitted that list of eligible/ineligible candidates was uploaded on the website on 05.03.2017 and were given three days to meet the objections but no one came forward. He submits that even today, except the petitioner, who was not appointed because he does not hold a foreign degree as per advertisement, no other candidate has approached this Court raising any grievance regarding the process adopted for the appointment of Project Director.

4. Learned Law Officer submits that he has serious objection regarding the bona fide of the instant petition. In this regard he submits that the petitioner who is a permanent employee of TEVTA since 1988 and is presently working as Instructor Mechanical (BS-17) in Govt. College of Technology Railway Road, Lahore. It is submitted that inspite of holding a government office he is privately carrying out business in the name and style of “Here Associates” and has referred to certain documents to show that he undertakes private work against consideration and also describes himself as “Dr. M.A. Samdani” when he does not hold a doctorate degree. Learned Law Officer has referred to Rule 16 of the Punjab Government Servants (Conduct) Rules, 1966 to submit that no government servant is allowed to engage in any trade or undertake any employment or work other than his official duties. He submits that in the present case the petitioner has violated the said rule and is liable to disciplinary action.

5. Learned counsel for Respondent No. 12 submits that the process for appointment has been transparent and Respondent No. 12 fully meets the qualificational requirements of the post and, therefore, has been rightly selected as Project Director.

6. I have heard the parties and perused the record.

7. Main thrust of the petition is that petitioner has been deprived from being appointed as the Project Director. It is further contended that process of appointment is not transparent and based on malafide. I have gone through the record of the case in detail including PC-II of the Project, as narrated above.

8. A total of 23 candidates applied for the post out of which 21 were declared ineligible due to reasons mentioned above and only two candidates were short listed including Respondent No. 12. Second candidate did not turn up for interview, therefore, Respondent No. 12 was selected for the post.

9. There are allegations that Respondent No. 12 was removed by this Court in an earlier writ petition and that an inquiry against him is pending in NAB. As far as the writ is concerned, he was removed because his appointment did not meet the requirement of Environment Protection Department Services Rules, 1997 which required that a Director General, EPA be appointed from amongst APUG/PMC officers and as Respondent No. 12 was not from the said service, he was removed as Director General. Hence, removal order dated 26.10.2016 passed in W.P. No. 27033/2016 was not due to any personal disqualification and has no bearing on his present appointment. As far as the pending inquiry before NAB is concerned, it is trite law that pendency of an inquiry is not a disqualification. As to the submission that the candidates were not given time to make up the deficiency in supplying their testimonial by allowing them extra time, it has been submitted by the learned Law Officer that three days were given to the candidates to meet the deficiency but they failed to do so. As far as the petitioner is concerned, he does not hold the requisite qualification for the post. He does not hold a degree from a foreign university which is the requirement for the post, hence, as far as the petitioner is concerned, he has no right to the post of the Project Director.

10. There is nothing on record to establish that the process of appointment any way was tainted or tailored to promote the case of Respondent No. 12. The allegations levelled by the learned counsel for the petitioner are not substantiated by the record of the case, hence appointment of Respondent No. 12 as Project Director from the existing record does not appear to be illegal or based on malafide.

11. As far as, the upgradation of Central Laboratory, EPA is concerned, I have gone through PC-II and have carefully examined the submissions made by the representative of P&D Department. It is clear that one of the fundamental features of the new Project is upgradation of Central Laboratory as directed in order dated 20.10.2016 passed in W.P. No. 12016/2014. A sum of Rs.158.483 million has been allocated for the said purpose.

12. Regarding the conduct of the petitioner, learned Law Officer has pointed out that the petitioner being a civil servant is carrying out private business for gain which is violative of the Punjab Government Servants (Conduct) Rules, 1966. Considering that the petitioner is an employee of TEVTA, Chairman TEVTA is directed to inquire into the matter and if it is found that the petitioner is violating the law, to proceed strictly against the petitioner in accordance with law. Chairman, TEVTA will also submit his report with the Registrar of this Court regarding the action taken in this regard within three months from today. In case report of Chairman, TEVTA is not received within three months, office will put up this case on administrative side for necessary orders.

13. For the above reasons, this petition has no force and is hereby dismissed. Interim relief granted on 5.4.2017 is hereby vacated.

(M.M.R.) Petition dismissed

PLJ 2018 Lahore 303

Present: Jawad Hassan, J.

HASSAN JAVED and another--Petitioners

versus

PUNJAB EDUCATION FOUNDATION and 4 others--Respondents

W.P. No. 16223 of 2014, heard on 9.10.2017.

Contract Appointment Rules--

----R. 6(2)(b)--Punjab Education Foundation Act 2004--Punjab Education Foundation Regulations 2010--Punjab Education Foundation Employees Service Amended Regulations 2010--Constitution of Pakistan, 1973, Arts 4, 10-A, 25 & 199--Employees of statutory autonomous authority--Termination of services, whether ultra vires to law & constitution--Question of regularization--PEF advertised certain posts to be filled on contract basis--Issuance of notifications for regularization of employees appointed on contract basis--Services were terminated--Challenge to--Termination orders were void, as same were issued without extending any right of hearing to petitioners--Contention--By virtue of Rule 6(2)(a), no vested right of regular appointment ever accrued to petitioners, as such, termination orders having legal backings--Out of divergence, High Court framed 4 points of determination--Held: Foundation was established under PEFA as an autonomous statutory body to encourage and promote education on non commercial/non-profit basis--Foundation was restructured for promotion of education, especially encouraging and supporting efforts of private sector in providing education to poor, through public private partnership, and matters ancillary thereto--Contract Appointment Rules empowers foundation to employ any person on contract basis in accordance with Rules through selection committee, constituted by Board for recruitment under Contract Appointment Rules--MD is also authorized to settle terms and conditions of contract, which does not confer any right for regular appointment to contractual employees--MD has also been authorized to terminate services of contract employees without assigning any reason or without approval of Board--However, MD can only extend contract and re-negotiate new terms and conditions of contractual appointment with approval of Board--MD is empowered to exercise all such functions and powers delegated by Board and has powers to perform functions of Board, with approval of Government, in case Board becomes non-existent or non-functional for any reason--MD can only extend contract and re-negotiate terms and conditions of contractual appointment with approval of Board--Petitions were dismissed.

[Pp. 317, 318, 321 & 322] A, B & C

Contract Appointment Rules--

----R. 6(2)(b)--Constitution of Pakistan, 1973, Arts. 4, 10-A, 25 & 199--Punjab Education Foundation Act, 2004--Punjab Education Foundation Regulations, 2010--Punjab Education Foundation Employees Service Amended Regulations 2010--Powers of Government--Employees of Statutory autonomous authority--Statutory Rules--Maintainability of Petition--Whether Statutory Rules of employment violated--It is an established principle that constitutional petition is maintainable against a statutory body, having statutory rules governing terms and conditions of employment of its employees--Government has been given absolute power to make rules for carrying out purposes of Act through a notification--Act does not specifically allow Board, Foundation or Federal Government to appoint any employee on contractual basis--Provincial Government made Rules through notification to allow foundation to engage personnel on contractual basis and to govern terms and conditions of their service contracts--While doing so, Provincial Government has exercised its statutory powers under Section 13 of Act, which generally allows Government to make rules through notification--Rules, therefore, are exclusively within domain of Provincial Government for employment in foundation and unless Rules are amended, repealed, modified or re-enacted under Act, same have a binding statutory force--Section 13 of Act does not provide that recruitment rules are to be made in any particular manner, nor does it prescribe special method for appointment of candidates to posts--Contract Appointment Rules framed under a statute, applies uniform treatment to everyone contractually employed in the foundation, and impose obligation and restrictions on statutory authority, which cannot deviate from Contract Appointment Rules--Existence of Contract Appointment Rules under statute is to ensure regular conduct of foundation and its contractual employees with a distinctive attitude to that conduct of a standard--Authority which has been established for higher objectives as is provided in preamble and other provisions of Act, cannot thrive and flourish, if its rules are not abided by or enforced on being violated--Petitioners had established that they were governed by statutory rules of service--Services of employees of Foundation, including services of Petitioners under their respective terms and conditions of service contracts, were squarely and undoubtedly regulated by binding Contract Appointment Rules, which do not lack statutory protection. [Pp. 332 & 333] D, E, F & G

Constitution of Pakistan 1973--

----Arts. 4, 10-A, 25 & 199--Punjab Education Foundation Act 2004--Punjab Education Foundation Regulations 2010--Contract Appointment Rules, Rule 6(2)(b)--Punjab Education Foundation Employees Service Amended Regulations 2010--Termination of services--Question of--Whether contractual employees were entitled to regulation of their contract--Scope of--In compliance of Rule 5(1)(b) of Contract Appointment Rules, Foundation issued a news clipping specifically highlighting that “appointments will be on contract basis, extendable on basis of performance--Post carries competitive market based remuneration packages”--Petitioners were award at very beginning that their appointments are being made on contractual basis and on market-based salary, which was different from other regular employees, if any--Petitioners applied for their respective posts and were awarded their respective positions on contractual basis--It was specifically mentioned in terms and conditions of appointments of Petitioners that they were governed by Contract Appointment Rules, which have statutory backing--Although Section 5(8) of Act empowers Board to appoint employees and other functionaries of foundation and determine terms and conditions of their employment--However, such powers have been delegated through a statutory instrument, Contract Appointment Rules, to MD--Rules 6 of Contract Appointment Rules empowers appointing authority, MD, to settle terms and conditions of contract appointment, who could also terminate services of contract employees on one month’s salary in lieu thereof without assigning any reason or without approval of Board or Government--Can only extend contract re-negotiate new terms and conditions of contractual appointment of Petitioners with approval of Board under Rule 5(3) of Contract Appointment Rules--Petitioners were intimated for non-renewal of their contract or termination through impugned letters issued for and on behalf of Competent Authority, which was not defined in Contract Appointment Rules or Act--Order was passed by MD for termination of contracts of petitioners and therefore, petitioners were intimated of same--Order was passed by competent authority having powers under applicable--Impugned letter were issued in compliance with directions of MD--Apparently, no violation of contract of employment or statutory contract appointment rules was made by Foundation--Petitions was dismissed. [Pp. 334 & 335] H, I & J

Constitution of Pakistan 1973--

----Arts. 4, 10-A, 25 & 199--Regularization of contract employees--Jurisdiction of High Court--Services governed by a contract would not confer a guaranteed right on employee to continue in employment and to seek reinstatement on being illegally dismissed or terminated--Affected persons could not approach Court of law for seeking appointment even if they were refused employment illegally or in contravention of service contract or non-statutory rules/ regulations--Servant, against termination of service by master, could claim damages for illegal or wrongful decision refusing employment--Petitions were dismissed. [P. 338] K

M/s. Waqqas Ahmad Mir, Mian Wajhat Ali, Hassan Niazi and Miss Noor Bano, Advocates for Petitioners.

Mr. Mahmood Ahmad Qazi & Malik Muhammad Usman Awan, Advocates, Jari Ullah Khan, Mr. Shan Gull, Additional Advocate-General and Mr. Ashfaq Ahmed Kharal, Asst. AG for Respondents.

Date of hearing: 9.10.2017

Judgment

Through this Judgment, this Court intends to decide the following writ petitions, in which common questions of laws and facts are raised and vires of same laws have been challenged:--

1. Tanveer Ahmed Zaffar vs. Punjab Education Foundation and others, W.P. No. 13664/2014 (the “First Petition”);

2. Hassan Javed and Mohsin Rasheed Gillani vs. Punjab Education Foundation and others, W.P. No. 16223/2014 (the “Second Petition”); and

3. Usman Ali Jarral vs. Punjab Education Foundation and others, W.P. No. 13669/2014 (the “Third Petition”).

4. By virtue of these Petitions, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the “Constitution”), the Petitioners have assailed and challenged the letters dated 5 May 2014 (the “Impugned Letter(s)”) whereby the service contracts of all the Petitioners were terminated by the Respondents/Punjab Education Foundation (the “Foundation”). The Petitioners have also challenged the decision of the Board of Directors of the Foundation (the “Board”) dated 9 December 2013 (the “Impugned Decision”).

A. Essential Facts of the First Petition:

1. For the sake of clarity, the facts leading to institution of the First Petition are that the Managing Director of the Foundation (the “MD”) issued a notification on the 7 September 2009, whereby the Petitioner was appointed as the Deputy Managing Director (Operations) on contract basis for a period of three (3) years with a condition to remain on probation for a period of three (3) months. This decision was made after selection by the Recruitment Committee for Senior Professionals headed by the Chairman of Board of Directors on 5 September 2009. It was specifically provided that his services will be governed under the Punjab Education Foundation (Contract Appointment) Rules, 2005 (the “Contract Appointment Rules”) and Punjab Education Foundation Regulations, 2006 (the “2006 Regulations”). On the 12 September 2009, consequent upon selection and appointment of the Petitioner by above Notification, MD intimated the terms and conditions of employment, approved by the Board, to the Petitioner. Clause 7 specifically provided that the “appointment will be on contract basis for a period of 3 years subject to satisfactory performance”. The Petitioner continued to work in the Foundation and on 30 March 2013, the Director Human Resource Management (“HRM”), with approval of the Competent Authority, extended the contract of the Petitioner from the 7 September 2012 till 6 September 2013. Similarly, on the 22 October 2013, the Deputy Director, HRM, with approval of the Competent Authority, informed the Petitioner for extension in contract for further period of six (6) months with effect from the 7 September 2013 to the 6 March 2014. It was specifically mentioned that the services of the Petitioner shall be governed under the Contract Appointment Rules and the Punjab Education Foundation Regulations, 2010 (the “2010 Regulations”). However, on 30 October 2013, the letter dated 22 October 2013 was withdrawn by the Deputy Director, HRM, with approval of the Competent Authority, without providing any justification or reason. Even after expiry of the service period of the Petitioner on the 6 September 2013, the Petitioner prolonged to work in the Foundation with salary and other benefits under the terms and conditions of the employment contract. On the 5 May 2014, the Impugned Letter was issued for and on behalf of the Competent Authority for termination of the service contract of the Petitioner as the Deputy Managing Director (Operations), and to relieve the Petitioner from services of the Foundation with immediate effect with one (1) month salary in lieu of notice period. It was informed in the letter that the contract of the Petitioner was expired on the 6 September 2013, and keeping in view the office exigencies, he was allowed to continue his job. Therefore, the Petitioner has mainly prayed to declare the Impugned Letter dated 5 May 2014 pertaining to his termination as illegal; to regularize employment of the Petitioner, or alternatively refer the matter of regularization to the Scrutiny Committee; and to declare the decision of the Board of Directors of the Foundation dated 9 December 2013 as illegal. The prayers made in the First Petition are reproduced verbatim:

(i) Declare Impugned Letter dated 05.05.2014 and Petitioner’s termination as illegal, void and without legal effect and reinstate the Petitioner to his office; till final decision of this petition, the Impugned Order’s effect and operation may also kindly be suspended:

(ii) Declare Petitioner as regularized employees of PEF keeping in view the facts and circumstances of the case. In the alternative this Honourable Court may kindly be pleased to reinstate the Petitioner and direct PEF to refer the matter of regularization to the Scrutiny Committee as per the government of Punjab’s Notification.

(iii) Declare PEF’s Board decision dated 09.12.2013 as illegal, without jurisdiction and without lawful authority.

(iv) Restrain Respondents No. 1 to 3 from harassing the Petitioner and his family and to allow access to his personal belongings.

1. It is pertinent to mention here that on the 23 January 2014, the MD issued a warning letter to the Petitioner, with reference to earlier directions dated 22 January 2014 and 23 January 2014, to improve his efficiency and not to engage in habitual delaying tactics, having negative impact on the Foundation’s performance in Chief Minister’s Education Roadmap and to comply with directions of seniors in letter and spirit. On the 23 January 2014, MD also wrote for displeasure on inappropriate behavior of the Petitioner in office of MD on the 23 January 2014. It was written that the Petitioner was given clear instructions to submit urgent information in a high priority matter but he left the meeting on a defiant and arrogant manner. He was warned to improve professional behavior, observe office decorum, failing which he would entail strict disciplinary action. On the 27 January 2014, the MD called for explanation from the Petitioner, within two (2) working days, in reference to directions of the MD on the 24 January 2014 to attend the Working Group Meeting of the District Education Authorities on 25 January 2014. It was alleged that the Petitioner was deputed to represent MD in meeting but despite clear instructions, failed to attend the meeting and deputed a junior officer for same. On the 31 January 2014, the MD called for explanation from the Petitioner for not submitting the “Job Descriptions of NSP and the IT department” for over a year, despite clear direction to complete pending Job Descriptions by 16 January 2014 for audit meeting on 10 January 2014. The Petitioner was directed to ensure compliance and send the Job Descriptions to the Deputy Managing Director, HRM, immediately. On the 3 February 2014, the MD again called for explanation from the Petitioner for non-compliance to MD’s instructions as conveyed through the minutes of the Coordination Meeting held on 18 November 2013. The Petitioner was not present in the meeting and was required to submit reply justifying his absence from the same. On the 6 February 2014, the MD again asked for explanation from the Petitioner in reference to direction given by the MD during Steering Committee Meeting on the 29 January 2014 to share tentative list of all shortlisted/selected NSP schools. The MD informed that not observing deadlines and reluctance to share NSP information is adversely affecting work and performance in the CM’s meetings, and such habitual delays reflect poor management and inefficiency on his part, in violation of decorum and discipline. On the 7 February 2014, the Petitioner was again called for explanation by the Deputy MD (HRM) to explain unprofessional behavior and non-compliance of orders, within two (2) days, for his failure to attend the Pre Stock Take meeting on 5 February 2014. On the 6 March 2014, the Petitioner was issued a warning letter by the MD, for his reluctance to share information about NSP, position of the Petitioner for past three (3) months and unprofessional behavior on his part, which placed senior management in an awkward position in high level meetings. He was advised to comply with orders and instructions as and when given, and to improve professional behavior and maintain office discipline in future. He was also warned to be careful in his correspondence with senior management, failing which disciplinary action would be initiated against such irresponsible behavior. On the 11 March 2014, the Petitioner sent a reply in reference to letter of the MD dated 6 March 2014, explaining change of reporting line of FAS and EVS Department, information about NSP Program, latest progress of NSP Department, comments on hiring process, synopsis of his performance since 2009, and process of victimization. The Petitioner requested for withdrawal of the above letter of the MD.

B. Essential Facts of the Second Petition:

1. The facts succinctly revealed from the Second Petitioner that the Petitioner No. 1, Mr. Hassan Javed, was employed in the August 2007 by the Respondent No. 1 as a Project Officer on contract basis, which was subsequently extended till the 9 August 2013. The Petitioner No. 1 in the Second Petition was being governed under the Contract Appointment Rules. Even after expiration of his contract, he continued his service for a long period without any express/written extension in contract by the Foundation. However, the services of the Petitioner No. 1 were terminated on the 5 May 2014 through the Impugned Letter when he was working as the Deputy Director/Program Incharge (New Schools Program) at the Foundation. Similarly, the Petitioner No. 2, Mr. Mohsin Rashid, was employed in December 2009 as a Project Officer (Education Voucher Schemes) for a period of one (1) year, which was subsequently extended on the 30 November 2010 and 8 May 2013. The Petitioner No. 2 in the Second Petition was being governed under the Contract Appointment Rules. Ultimately, after the expiry of the purported contract, the Petitioner No. 2 was retained as an employee till his termination on 5 May 2014 through the Impugned Letter. Earlier, the Petitioners in the Second Petition filed a petition titled Mohsin Rasheed Gillani etc vs. GoP and others, W.P. No. 19154 of 2013, seeking their regularization in which a direction was issued to the Foundation on the 31 July 2013 by the Lahore High Court to decide the representation of the petitioners, if pending, strictly in accordance with law after affording opportunity of hearing to all concerned and through well-reasoned speaking order as expeditiously as possible. On the 9 December 2013, the Chairman of Board of Directors unanimously decided, in compliance of the order of this Court dated 31 July 2013 in Mohsin Rasheed Gillani etc vs. GoP and others, W.P. No. 19154 of 2013, that the request of regularization of contract employees of the Foundation could not be acceded to. For the sake of clarity, the Petitioners in the Second Petition have mainly prayed to declare the Impugned Letters dated 5 May 2014 pertaining to termination of the Petitioners as illegal; to regularize employment of the Petitioner, or alternatively refer the matter of regularization to the Scrutiny Committee; to declare the decision of the Board of Directors of the Foundation dated 9 December 2013 as illegal; to declare the Rule 6(2)(b) of the Contract Appointment Rules and Regulation 7 of the Punjab Education Foundation Employees Service Amended Regulations, 2010 void; and to declare the actions of the Foundation as ultra vires. The prayers made in the Second Petition are reproduced verbatim:--

(i) Declare Impugned Letter dated 05.05.2014 and Petitioner’s termination as illegal, void and without legal effect and reinstate the Petitioners to their offices; till final decision of this petition, the Impugned Order’s effect and operation may also kindly be suspended:

(ii) Declare Petitioners as regularized employees of PEF keeping in view the facts and circumstances of the case. In the alternative this Honourable Court may kindly be pleased to reinstate the Petitioners and direct PEF to refer the matter of regularization to the Scrutiny Committee as per the government of Punjab’s Notification.

(iii) Declare PEF’s Board decision dated 09.12.2013 as illegal, without jurisdiction and without lawful authority.

(iv) Declare Rule 6(2)(b) of PEF Contract Appointment Rules to be violative of Articles 4, 9, 14, 18 & 25 of the Constitution as well as violative of PEF Act, 2004 and therefore void and without legal effect;

(v) Restrain Respondents No. 1 to 3 from harassing the Petitioner and his family and to allow access to his personal belongings.

(vi) Declare Regulation 7 of the Punjab Education Foundation Employees Service Amended Regulations, 2010 to be ultra vires the PEF Act, 2004 and Contract Rules, 2005.

(vii) Declare the Actions of the Respondents as ultra viresthe Recruitment Policy, 2004.

C. Essential Facts of the Third Petition:

1. The facts giving rise to the Third Petition are that the Petitioner, Mr. Usman Ali Jarral, was employed by the Foundation in November 2009 on contract basis vide letter dated 29 September 2009 for a period of one (1) year, which was extendedvide letter dated 19 January 2012 till 11 December 2012. Despite of the written extension in the service contract, the Petitioner continued to work in the Foundation with salary and other benefits under the terms and conditions of the service contract, and kept performing his duties. The Petitioner in the Third Petition was being governed under the Contract Appointment Rules. However, the services of the Petitioner were terminated on the 5 May 2014 through Impugned Letter when he was serving as Director (Information Technology). For the sake of clarity, the Petitioner in the Third Petition has mainly prayed to declare the Impugned Letter dated 5 May 2014 pertaining to his termination as illegal; to reinstate the Petitioner to his office; and to declare the decision of the Board of Directors of the Foundation dated 9 December 2013 as illegal. The prayers made in the Third Petition are reproduced verbatim:

(i) Declare Impugned Letter dated 05.05.2014 and Petitioner’s termination as illegal, void and without legal effect and reinstate the Petitioner to his office; till final decision of this petition, the Impugned Order’s effect and operation may also kindly be suspended:

(ii) Declare order dated 09.12.2013 to be illegal.

D. Relevant Facts for all the Petitions:

1. The Foundation issued a newspaper clipping inviting persons for several posts listed in the newspaper, specifically highlighting that “the appointments will be on contract basis, extendable on the basis of performance. The post carries competitive market based remuneration packages…” It is pertinent to note that all the appointments of the Petitioners were made pursuant to this newspaper clipping. On the 28 February 2012, the Secretary (Regulations), Services & General Administration Department (“S&GAD”) issued a Notification, informing that the Chief Minister has constituted a Committee to determine the eligibility and suitability of contract employees in BS-16 and above working in the Autonomous Bodies in Punjab for their appointment on regular basis. It was informed that the contract employee appointed prior to 10 November 2010 may be considered by the Committee keeping in view conditions mentioned herein. After scrutiny of the cases, the recommendations of the Committee were to be sent to respective Appointing Authority in the concerned Autonomous Body for appointment on regular basis. On the 2 March 2013, Secretary (Regulations), S&GAD issued another notification, informing that the CM has, on the 28 February 2012, constituted a Committee to determine the eligibility and suitability of contract employees in BS-16 and above working in the Autonomous Bodies in Punjab for their appointment on regular basis. The contract employee appointed prior to the 1 March 2013 were to be considered by the Committee keeping in view conditions mentioned therein. On the 9 December 2013, the Chairman of Board of Directors unanimously decided, in compliance of the order of the Lahore High Court dated 13 July 2013, that the request of regularization of the contract employees of the Foundation could not be acceded to [the “Impugned Decision”]. On the 2 January 2014, the MD issued a Notification in respect of Extension in Contract Employment, which was substituted by a Notification issued on 3 January 2014. MD directed the HRM Department in Notification dated 3 January 2014 to finalize the matter of contract renewal of all such employees who are not involved in any case of corruption, departmental inquiry, audit paras, irregular, recruitment, judicial proceedings etc. within and outside the Foundation without any further delay for the period as per past practice, excluding the pending duration, if any, till the 31 December 2013. On the 19 June 2014, the Member, the Chief Minister Inquiry Team (“CMIT”), moved a summary to the CM regarding termination of service contracts and the CM, vide Order dated 21 May 2014, desired to enquire into complaint made by Mr. Mohsin Rashid Gillani, that the Petitioners in all these Petitions were terminated because allegedly, they had pointed out some wrong doings in the administration of the Foundation. It was recommended in the summary after analyzing all the issues in detail, among others, that the Foundation may be directed to adopt zero percent (0%) tolerance across the board against wrong doings of all and the termination of four (4) officers is in accordance with the Contract Employment Rules. On the 20 June 2014, the Chairman CMIT informed the Chief Minister, the crux of the enquiry conducted by Member CMIT and fully supported the recommendations of Member CMIT in Summary dated 19 June 2014, and also suggested a special audit of the Foundation. On the 28 August 2014, the Secretary to the CM, Punjab informed that recommendations contained in Summary dated 19 June 2014 are approved, and the CM is desirous that an enquiry may be initiated against the delinquent officers involved in irregularity and may be proceeded under relevant rules of Anti- Corruption and the PEEDA Act, 2006. Therefore, the termination of all four (4) Petitioners in all the Petitions was approved by the CM. On the 4 September 2014, Section Officer of the Schools Education Department directed the MD to take necessary action for implementation of recommendations mentioned in the Summary to the CM, as approved by the CM.

E. Submissions of the Petitioners:

1. To plead the Petitions, it has been inter alia submitted by the learned counsel for the Petitioners that the Impugned Letters are against law and facts as no inquiry prior to termination of the Petitioners has been conducted by the Respondents; that the Petitioners have not been afforded any opportunity of personal hearing which is clear-cut violation of principle of audi alteram partum; that the Impugned Letters have been issued without any lawful authority because the Board has not signed the Impugned Letters and the MD has never been given any such power; that the vires of Rule 6(2)(b) of the Contract Appointment Rules through which the MD has allegedly been bestowed powers, has been challenged to be ultra vires the Act; that since the term of the Directors of the Board as well as Chairman of the Board has expired on the 18 March 2014, as such the current Board and the Chairman cannot make any decision or validate any decision of the MD, therefore, the actions against the Petitioners are clearly void, without jurisdiction and without lawful authority; that Rules 6(2)(b) of the Contract Appointment Rules is unconstitutional and violative of the Petitioners’ rights under Articles 3, 4, 9, 10- A, 14, 18 and 25 of the Constitution; that allowing the Petitioners to continue their work by the Foundation without any extension after the expiry of their contract period tantamounts to regularization of petitioners’ services; that the decision dated 9 December 2013 made by the Board of the Foundation is also illegal as the Board was not mandated to decide the case of regularization of the Petitioners rather it was the Scrutiny Committee which has to look into the matter; that the Respondents have never referred the case of the Petitioners for regularization to the Scrutiny Committee as per the Government Regularization Policy; that as per the Punjab Education Foundation Service Rules, 2006 all the employees who were recruited in the Foundation after 2006 including the Petitioners were to be considered as regular employees; that similarly placed persons have been regularized but the Petitioners have been deprived of the same, hence a discriminatory attitude has been adopted towards the Petitioners which is also a violation of the Article 25 of the Constitution; and that the act of termination of petitioners’ services is based on mala fide as such liable to be set aside.

2. The learned counsel for the Petitioners has placed reliance on the case titled Samina Kanwal v. Director Punjab Forestry Research Institute Faisalabad(PLD 2011 Lahore 563 (D.B), Marathwada University v. Seshrao Balwant Rao Chavan (AIR 1989 S.C. 1582 (1989) 3 SCC 132), National Bank of Pakistan v. Iftikhar Rasool Anjum and others (2017 PLC C.S. 453= PLJ 2017 Lahore 313), Dewan Salman Fiber Pvt. Ltd. v. Federation of Pakistan and others (2015 PTD 2304), Shafique Ahmad Khan and others v. NESCOM and others (PLD 2016 S.C. 377), Muhammad Zaman v. Government of Pakistan etc. (2017 SCMR 571), Muhammad Tariq Badar and another v. National Bank of Pakistan and others (2013 SCMR 314), State Bank of Pakistan v. Muhammad Shafi (2010 SCMR 1994), Pakistan Red Crescent Society v. Syed Nazir Gillani (PLD 2010 S.C. 806), Walayat Ali Mir v. Pakistan International Airlines Corporation through its Chairman (1995 SCMR 650), Burhannudin Sheikh v. Natioal Bank of Pakistan (1985 CLC 2003 Karachi), Halsbury Laws of India (2015); Delegated Legislation [005.009]OG.32, Sukhdev Singh & others v. Bagatram Sardar Singh(AIR 1975 S.C. 1331, 1975 SCR (3)619) and Maharashtra State Board v. Paritosh Bhupesh Kumar Seth etc. (AIR 1984 S.C. 1543 SCR (1) 29).

F. Submissions of the Respondents:

1. On the contrary, in reply to these petitions, the Respondents filed report and parawise comments raising certain preliminary objections regarding the maintainability of the Petitions as well as on merits. The learned counsels for the Respondents vehemently controverted the arguments advanced by the learned counsel for the Petitioners and prayed for dismissal of these Petitions on the grounds that the Foundation, being an autonomous body, recruits its employees under the Contract Appointment Rules on purely contract basis from the market and pays them market based salaries as approved by the Board of Directors; that the Petitioners have no vested right to be regularized as Rule 6(2)(a) of the Rules clearly mentioned that “such appointment shall not confer any right for regular appointment”; that the Petitioners have never been given gesture that their services would be regularized; that the order dated 9 December 2013 was passed by the Board of the Foundation in pursuance of the Order of the Lahore High Court dated 31 July 2013 in W.P. No. 19154 of 2013 and the contempt petition filed subsequently was dismissed by the Lahore High Court vide order dated 21 January 2014, that the services of the Petitioners have been terminated in accordance with relevant laws and terms of the employment contract; that no irregularity has been committed while issuing the Impugned Letters as all the procedure and laws have been observed; that the Petitioners were enjoying extension in their contract period by the letters not issued under the signatures of the MD rather some of them under the signature of the HR Department, as such at this stage they cannot assert that the Impugned Letters have been issued by the incompetent authority; that the Board of Directors of the Foundation was reconstituted vide notification dated 22 December 2014 and hence, was functioning at the time of passing the Impugned Letters; that the Foundation is an autonomous body having its own Act and the directions of the CM cannot have precedence over the Rules made under the Act; that all the positions in the Foundation are purely on contract basis and for the last 26 years no permanent position in the Foundation was ever created; that it is settled law that in contract employments an unwilling employee cannot be imposed upon an employer; that the MD has never sub- delegated any powers to the Deputy Managing Director; and that the contract employees have no vested rights to be reinstatement in service or to be regularized through constitutional petition.

2. The learned counsels for the Respondents have placed reliance on the case titled Mukhtar Ahmad and 37 others v. Government of West Pakistan through the Secretary Food and Agriculture, Civil Secretariat Lahore and another (PLD 1971 Supreme Court 846), Jahangir Mirza, Senior Superintendent of Police, Lahore and another v. Government of Pakistan through Secretary, Establishment Division and others (PLD 1990 Supreme Court 1013), Federation of Pakistan vs. Muhammad Azam Chattha (2013 SCMR 120), Waseem Ali vs. Chief Administrator Auqaf, Punjab and 2 others (2011 PLC (CS) 1630), Lt. Commander (R) Naeem Javed vs. University of Punjab, (2014 PLC (C.S) 29 Lahore), Attaullah Khan vs. Samiullah, (2007 SCMR 298) & Government of Pakistan through DG, Ministry of Interior, Islamabad vs. Farheen Rashid, (2011 SCMR 1).

G. Nub of the Matter/Moot Points:

1. In order to render/pass judgment upon the above mentioned facts, circumstances and arguments urged by the counsels for the parties at length, following moot points were framed and considered for determination of this Court, arising out of these Petitions:--

a. Whether the Impugned Letters dated 5 May 2014 were issued by the competent authority functioning under the Act?

b. Whether the Board of the Foundation was duly constituted at the time of passing the Impugned Letters?

c. Whether the Foundation which is the attached Department of the School Education Department, was bound under the Rules of Business to following the instructions of the Chief Minister?

d. Whether all the positions of the Foundation are purely on contract basis, if not can Petitioners’ case be sent to the Scrutiny Committee for regularization?

e. Whether the Rule 6(2)(b) of the Contract Appointment Rules is volatile of the Constitution and the Act?

f. Whether Regulation 7 of the 2010 Regulations is ultra vires to the Act and Contract Appointment Rules?

1. However, having considered the submissions made by learned counsels for the Parties to the present Petitions; the precedents/case-law cited at the bar; and the conflict of opinion recited by the Petitioners and the Respondents, the questions which crop up for consideration broadly have been reconstructed and summarized for rendering decision in these Petitions, as follows:

(i) Whether the instant Writ Petitions are maintainable against the Foundation?

(ii) Whether the Impugned Letters are issued contrary to the Act and the Contract Appointment Rules?

(iii) Whether contractual employees of the Foundation are entitled to regularization/extension of their contract under the facts and circumstances of the case?

(iv) Whether the Petitioners were entitled to a right of hearing before their dismissal?

1. This Court has given anxious considerations to the contentions of the learned counsels for the Parties and has gone through the record annexed therewith.

H. The Punjab Education Foundation:

1. Before addressing the questions of termination and regularization of the Petitioners in order to resolve the controversy, to deal with the issues raised, and to better appreciate the question mooted above for dilating any determination, it would be of relevance to give a brief overview of the law, structure and functions of the Foundation.

2. Importantly, the Foundation was established under the Punjab Education Foundation Act, 1991 as an autonomous statutory body to encourage and promote education on noncommercial/non-profit basis. The Foundation was restructured under the Punjab Education Foundation Act, 2004 [the “Act”] for the promotion of education, especially encouraging and supporting the efforts of the private sector in providing education to the poor, through public private partnership, and matters ancillary thereto.

3. The Foundation, therefore, is a statutory body created under the Act, and is listed at Entry 35 of the First Schedule of the Punjab Government Rules of Business, 2011, as an autonomous body working/attached with the School Education Department. The Second Schedule of the Punjab Government Rules of Business, 2011 provides distribution of business among departments of the Government and entrusts the School Education Department with responsibility to promote quality education through public–private partnership through the Foundation, and to administer the Act of the Foundation.

4. Section 3 of the Act establishes the Foundation, a body corporate having perpetual succession and a common seal. Section 4 of the Act carries functions of the Foundation, which include:--

“(i) provide financial assistance for the establishment, expansion, improvement, and management of educational institutions and allied projects;

(ii) provide incentives to students, teachers, and Educational Institutions;

(iii) promote public-private partnerships relating to education;

(iv) provide technical assistance to Educational Institutions for testing policy interventions and innovative programmes for replication;

(v) rank private educational institutions based on educational standards;

(vi) raise funds through donations, grants, contributions, subscriptions etc.;

(vii) assist Educational Institutions in capacity building, including training of teachers; and

(viii) undertake any other function as may be assigned to it by the Board with the approval of the Government.”

1. Under Section 5 of the Act, the executive and managing authority of the Foundation lies with its Board of Directors, who also has powers to appoint the employees and other functionaries of the Foundation and determine the terms and conditions of their employment. Section 5 specifically provides:

“5. Board of Directors:

…

(8) The Board shall appoint the employees and other functionaries of the Foundation and determine the terms and conditions of their employment.

(9) No act or proceedings of the Board shall be invalid merely on the ground of the existence of any vacancy or any defect in the constitution of the Board.

(10) The Board may delegate any of its powers to the Managing Director to enable him to carry out its functions.

(11) The Board shall establish an effective system for monitoring, supervision and control of the discharge of functions under the Act.”

1. The Managing Director/Chief Executive Officer [the “MD”] of the Foundation is appointed under Section 6 of the Act, and has all such powers and can do all such acts and things as are authorized by the Board. Section 11 empowers the Board to constitute financial, technical, advisory and other committees for carrying out the purposes of the Act. Under Section 13 of the Act, the Government is authorized to make rules for carrying out the purposes of the Act. Under Section 14 of the Act, the Board may, with the previous approval of the Government, make regulations as may be necessary to carry out the purposes of the Act. Under Section 13A of the Act, the Foundation is required to be bound by and shall give effect to the directions of the Government in the performance of its functions.

2. It follows from the abovementioned Sections of the Act that the executive and managing authority of the Foundation lies with its Board of Directors, who also has powers to appoint the employees and other functionaries of the Foundation and determine the terms and conditions of their employment. Further, MD can exercise all such powers and can do all such acts and things as are authorized by the Board. Therefore, all functions and powers of the Board and MD have elements of public authority.

I. The Punjab Education Foundation (Contract Appointment) Rules, 2005:

1. Under Section 13 of the Act, the Punjab Government has made the Punjab Education Foundation (Contract Appointment) Rules, 2005 [the “Contract Appointment Rules”]. Rule 2(b), (d) and (h) respectively defines Appointing Authority, Contract Appointment and Selection Committee, as follows:

“(b) “Appointing Authority” means Managing Director of the Foundation; …

(d) “Contract Appointment” means appointment made under specific agreement for a fixed period;

…

(h) “Selection Committee” means a committee to be constituted by the Board for recruitment under these rules;”

1. Rule 3 of the Contract Appointment Rules authorizes the Foundation to employ persons on contract basis:

“3. Employment on Contract Basis:--

(a) The Foundation may employ on contract such persons who are otherwise eligible for the post through an open and transparent selection process.

(b) Such employment will be made through the Selection Committee.”

1. Rule 5 of the Contract Appointment Rules provides method of appointment in accordance with the Rules, on merit based, and by Selection Committee on invitation through newspapers:

“5. Method of Recruitment:--

(1) All contract appointments will be made:

(a) In accordance with the provisions of these rules; and

(b) On the basis of merit. For this purpose, Selection Committee will invite applications through newspaper for appointment under these rules.

(2) When a post is created by the Board or the Managing Director, the Appointing Authority will forward a requisition to the Selection Committee.

(3) Subject to the approval of the Board, the Appointing Authority may extend the contract and re-negotiate new terms and conditions of the contractual appointment.

(4) In case a government servant applies for any such appointment and is selected, the Foundation may request the Government for borrowing the services of such servant. The terms and conditions of such contract employees will be settled by the Board.” (emphasis added)

1. Rule 6 of the Contract Appointment Rules provides terms and conditions of contract appointment:

“6. Terms and Conditions of Contract Appointment:-

(1) The terms and conditions of contract appointment will be settled by the Appointing Authority.

(2) Without prejudice to the generality of above said:--

(a) Such appointment will not confer any right for regular appointment;

(b) The Appointing Authority may, without assigning any reason, terminate services of the contract employee on one month’s notice or one month’s pay in lieu thereof;

(c) The contract employee may resign from the service by giving one month’s notice or one month’s salary in lieu thereof;

(d) The appointment will be non- pensionable; and

(e) All contract employees will be governed by the rules and regulations of the Foundation.

(3) The contract appointment will be post specific. The appointee may not claim any right for transfer from one post to another. He may, however, be transferred anywhere in the province of Punjab.

(4) Contract employees shall have to undergo essential training programs, if deemed necessary.

(5) In case a loss is caused to the Foundation by any act of the contract employee, the contract may be liable to be terminated by the Foundation and the loss so caused may be recovered from such employee as arrears of land revenue.”

1. Rule 9 of the Contract Appointment Rules provides performance evaluation of the contract employees:

“9. Performance Evaluation:--

The performance and evaluation of the contract employee will be assessed on the basis of attitudes, work output, efficiency, conduct, dedication, and service delivery and the performance by the management.”

1. The abovementioned Contract Appointment Rules empowers the Foundation to employ any person on contract basis in accordance with the Rules through the Selection Committee, constituted by the Board for recruitment under the Contract Appointment Rules. The contractual appointments are made on the basis of merit after inviting applications through newspaper. The MD is also authorized to settle terms and conditions of the contract, which does not confer any right for regular appointment to the contractual employees. The MD has also been authorized to terminate the services of the contract employees without assigning any reason or without the approval of the Board or the Provincial Government. However, the MD can only extend the contract and re-negotiate new terms and conditions of the contractual appointment with the approval of the Board.

J. The Punjab Education Foundation (Conduct of Business) Rules, 2005:

1. Under Section 13 of the Act, the Government has also made the Punjab Education Foundation (Conduct of’ Business) Rules, 2005 (the “Conduct of Business Rules”). Rule 3 of the Conduct of Business Rules provides powers and duties of the Board of Directors of the Foundation:

“3. Powers and Duties of the Board of Directors.--(1) The Board may:--

(a) Determine the direction and scope of the activities of the Foundation; …

(e) Delegate any of its powers to the Managing Director;

(f) Determine human resource requirements, salary structure and incentives for the employees of the Foundation;

(g) Recruit, dismiss, appoint, transfer and promote employee of the Foundation; …

(3) In case the Board becomes non-existent or non-functional for any reason, the Managing Director may, with the approval of the Government, perform functions of the Board.”

1. Rule 5 of the Conduct of Business Rules provides responsibilities of MD:

“5. Responsibilities of the Managing Director.--The Managing Director shall:--

(a) be the Chief Executive of the Foundation and shall cause the orders and decisions of the Board to be carried out; …

(e) act as Secretary and record the minutes of the meeting of the Board, maintain the records of the proceedings of the Board and keep the minutes open for inspection by any member during office hours;

(f) exercise all the executives, financial and administrative powers delegated by the Board; …

(h) carry out all duties as assigned to him from time to time by the Board;”

1. It generally follows from the above mentioned Rules that the Conduct of Business Rules empowers the Board to recruit, dismiss, appoint, transfer and promote employee of the Foundation. However, the MD is empowered to exercise all such functions and powers delegated by the Board and has powers to perform the functions of the Board, with the approval of the Government, in case the Board becomes non-existent or non-functional for any reason.

K. The Punjab Education Foundation Service Rules, 2006:

1. The Governor of the Punjab has also made the Punjab Education Foundation Service Rules, 2006 (the “Service Rules”) which provides provisions pertaining to Seniority (Rule 3), Termination of Services (Rule 4), Retirement (Rule 5), Transfer (Rule 6), Leave (Rule 7), Medical Facilities (Rule 8), General Provident Fund (Rule 9), Pension Fund (Rule 10), Salary (Rule 11), Benevolent Fund (Rule 12), and Welfare Fund (Rule 13).

2. The Service Rules recognize the “Contract Appointment”, i.e. “appointment made under a specific agreement for a fixed period”. However, it does not contain any specific provision for the contractual appointments. The Service Rules contains a “Saving” clause which states that: “The existing employees of the Foundation, who are otherwise eligible, shall be deemed to have been regularized from the date of their appointment/absorption in the Foundation.”

L. The Punjab Education Foundation Employees Service Regulations (Amended), 2010

1. Under Section 14 of the Act, in consonance with the permission granted by the Education Department, Government of the Punjab dated 14 April 2010, the Competent Authority has made the Punjab Education Foundation Employees Service Regulations (Amended), 2010 [the “2010 Regulations”]. These 2010 Regulations has repealed the Punjab Education Foundation Regulations 2006. Under Regulation 1(2)(b) of the 2010 Regulations, the Regulations apply to “a person who is employed against a sanctioned post or on temporary basis as and when required for a specific period on specific terms and conditions”.

2. Regulation 3 of the 2010 Regulations provides Recruitment Procedure:

“3. Recruitment Procedure.--The appointments shall be made through Board or Selection Committee(s) notified by the Board on its behalf. All appointments shall be made as per the Human Resource Policies of the Foundation.”

1. Regulation 4 of the 2010 Regulations provides Terms and Conditions of Employment:

“4. Terms and Conditions of Employment.--The terms and conditions of an employee shall be the same as per the Human Resource Policies of the Foundation.”

1. Regulation 5 of the 2010 Regulations provides ending of employment:

“5. Ending of Employment.--Notwithstanding what is stated here in above, Foundation reserves the absolute right to terminate the employment of any member of staff at any time in accordance with the terms and conditions of employment. At the ending of employment an employee shall be governed as per Human Resource Policies of the Foundation whereas in case employees recruited before the restructuring of the Foundation in 2004, shall be governed as per applicable rules notified by the Government time to time.”

1. Regulation 16 of the 2010 Regulations provides Conduct and Procedure for Disciplinary Action:

“16. Conduct & Procedure for Disciplinary.--Every employee shall confirm to and abide by the Foundation’s Regulations, and shall observe, comply with and abide by all orders, which may from time to time be given by any person under whose control he/she may for the time being be placed. Whereas an employee recruited before the restructuring of Foundation in 2004, shall be governed as per applicable rules notified by the Government from time to time. The procedure for disciplinary action is as per Human Resource Policies of the Foundation.”

1. The above-mentioned 2010 Regulations apply to a person who is employed against a sanctioned post or on temporary basis for a specific period on specific terms and conditions. These Regulations empowers the Board or the Selection Committee of the Board to appoint employees on terms and conditions mentioned in the Human Resource Policies. Under the 2010 Regulations, the Foundation has further absolute right to terminate the contract in accordance with the terms and conditions of the contract.

M. Determination:

1. Having mentioned all the relevant provisions of the Act, the Contract Appointment Rules, the Conduct of Business Rules, the Service Rules and the 2010 Regulations, now I would like to thrash out the moot points culled out of the Petitions, mentioned above as under:

(i) Whether the instant Writ Petitions are maintainable against the Foundation?

1. The legal question which eminently calls for the resolution of the above-mentioned moot point, is that whether the employment of the Petitioners was governed under the statutory rules or not.

(a) What constitutes rules to be statutory:

1. To determine this question, I intend first to see the test and criteria laid down by the Honourable Supreme Court and the High Court(s) in various judgments in this regard and then find out whether the said test and criteria is applicable to the case of the Petitioners.

2. It was held in the case titled Masood Ahmed Bhatti vs. Federation of Pakistan and others (2012 SCMR 152) in para 9 by the Honourable Supreme Court that the rules adopted by reference in the statute itself applicable to and binding on a statutory body are statutory rules:

“whatever rules were in place governing the employment of the appellants in the T&T Department, were adopted by reference in the statute itself and were made applicable to and binding on the Corporation. There can be little doubt that by virtue of Section 9, ibid such rules acquired statutory status having been sanctified by the PTC Act itself. We can, therefore, conclude without difficulty that the rules of employment which were applicable to the appellants during their service with the Corporation were statutory rules.”

1. However, in a recent judgment, Muhammad Zaman v. Government of Pakistan etc. (2017 SCMR 571), the Honourable Supreme Court has elaborated the criteria for the rules to be statutory, and has laid down that “the test of whether rules/regulations are statutory or otherwise is not solely whether their framing requires the approval of the Federal Government or not, rather it is the nature and efficacy of such rules/regulations. It has to be seen whether the rules/regulations in question deal with instructions for internal control or management, or they are broader than and are complementary to the parent statute in matters of crucial importance. The former are non-statutory whereas the latter are statutory. … A perusal of the Regulations suggests that they relate to pension and gratuity matters of the employees of SBP and therefore it can be said that the ambit of such Regulations is not broader but narrower than the parent statute, i.e. the Act. Thus the conclusion of the above discussion is that the Regulations are basically instructions for the internal control or management of SBP and are therefore non-statutory. Hence the appellants could not invoke the constitutional jurisdiction of the learned High Court which was correct in dismissing their writ petition.” (emphasis added).

2. Similarly, in another case titled Shafique Ahmad Khan and others v. NESCOM and others (PLD 2016 S.C. 377), the Honourable Supreme Court has held that:

“12. … Under Section 26 of the Ordinance, the Federal Government was empowered to make Rules for carrying out the purposes of the Ordinance, while under Section 27 of the Ordinance, the Authority was empowered to make Regulations to provide for the matters for which provision is necessary or expedient for carrying out the purposes of the Ordinance. … The Rules made under Section 26, in view of their nature, were given statutory status while the Regulations made under Section 27 of the Act, in view of their nature, were treated as non-statutory. …

… But a survey of all these judgments would reveal that it is not the sole criterion which makes them statutory or otherwise. It is indeed their nature and area of efficacy which are determinative of their status. Rules dealing with instructions for internal control or management are treated as non-statutory while those whose area of efficacy is broader and are complementary to the parent statute in the matters of crucial importance are statutory. …

1. … An Authority which has been established for higher objectives as is provided in the preamble and other provisions of the Act, cannot thrive and flourish, if its rules are not abided by or enforced on being violated. What good would they bring to the Authority when they are ornamental rather than statutory? What purpose would they serve when whim of anybody at the higher pedestal could replace them with impunity? Unaccounted exercise of unfettered powers is dangerous and even devastating for an institution of this type. Whether it is exercise of powers or exercise of discretion, better and more uniform results in long term could only be achieved when it is structured and streamlined. Autonomy, independence and efficacy of the Authority are better attained with statutory rather non-statutory Rules. … Employees whose terms and conditions of service are regulated by non- statutory rules are more exposed to mischief than those whose terms and conditions of service are regulated by statutory rules. It would rather be naive and even myopic to equate the rules dealing with the matters of crucial importance having so wide a scope and area of efficacy with the instructions meant for internal management and thereby deprive them of their statutory status. We, thus, hold that the Rules made by the Authority under Sections 7, 9 and 15 of the Act cannot be confused or even compared with the Rules and Regulations framed under other enactments without the approval of the Federal Government.

… It thus follows that the rules framed under Sections 7, 9 and 15 of the Act are statutory on all accounts and by every attribute. They are thus declared as such…” (emphasis added)

(b) Writ Petition not maintainable against non-statutory rules:

1. It has been held in numerous judgments that if the employment of employees is contractual in nature governed under non-statutory rules and their services were terminated as per their contractual terms and conditions of service, then on such account the constitutional petitions before the High Court are incompetent and had to fail. (see generally, Muhammad Zaman v. Government of Pakistan etc. (2017 SCMR 571), IPC vs. Arbab Altaf Hussain, (2014 SCMR 1573), Muhammad Qamar vs. Oil and Gas Regulatory Authority, (2016 PLC (CS) 1066 [Lahore]), Qazi Tehmid Ahmed vs. Secretary Ministry of Petroleum, (2015 PLC(CS) 449 [Lahore]), Rehan Ali vs. Ministry of Technical Professional, (2014 CLC 503 [Islamabad]), Hyderabad Electric Supply Company vs. Mushtaq Ali Brohi (2010 PSC 1392), Muhammad Naseer Khan vs. General Manager, Sui Northen Gas Pipe Lines Ltd, 2013 PLC(CS) 698 [Peshawar], Usman Ghani vs. Islmia University, (2012 PLC(CS) 830 [Lahore]), Chairman PIA vs. Tayyab Husnain, (2012 PLC(CS) 696 [Islamabad]), Rizwan Ahmad Bhatti vs. Federation of Pakistan, (2012 PLC(CS) 681 [Islamabad]), Abdur Razaq vs. District Council, Peshawar and another, (1994 C L C 1733 [Peshawar]) and Munir Hussain vs. PIA, (2007 PLC(CS) 405 [Lahore]).

2. The Honourable Supreme Court, in the case of Abdul Wahab vs. Habib Bank Ltd., (2014 PLC(CS) SC 393), has elaborated the principle that the cases where the employment/service(s) were not regulated by any law, but by non-statutory rules or contractual stipulations, and no specific forum was designated for the resolution of such service issues, an infringement of any condition of such a contract shall at the most entitle and clothe the employees to avail his ordinary remedy for the breach of contract and wrongful action against him, before the Court of plenary jurisdiction. In such a situation, it could not be urged that the fundamental right(s) of the employee had been violated conferring upon him a right to enforce the same in terms of Article 199 of the Constitution.

3. In some other cases, the law has been settled that the relationship between any corporation having no statutory rules and contractual employee governed under non-statutory rules is of “master and servant”, and the constitutional petition in such cases is not maintainable. His remedy against wrong dismissal or termination is only to claim damages (see generally, Executive Council, Allama Iqbal Open University vs. M. Tufail Hashmi, (2010 SCMR 1484) Pakistan International Airline vs. Tanweer-ur-Rehman, (PLD 2010 SC 676), Guiasuddin Sheikh vs. Federation of Pakistan, (2007 PLC(CS) SC 140), Pakistan International Airline vs. Noreen Naz Butt (2017 PLC (CS) 923 [Lahore]), Lt. Col. Rtd. Sultan Zeb Khan vs. Board of Governors, Fazle Haq College, (2015 PLC(CS) 1385 [Peshawar]), Shaukar Ali vs. Managing Director KTWMA, (2015 PLC(CS) 782 [Lahore]), Noor Badshah vs. United Bank Limited, (2015 PLC(CS) 468 [Lahore]), Amir Shahzad Chaudhry vs. Chairman, Bank of Punjab, (2015 PLC(CS) 423 [Lahore]), Kamran Ahmad vs. WAPDA, (2014 PLC(CS) 332 [Lahore]), Zulfiqar Cheema vs. Technical Education and Vocational Training Authority, (2011 PLC(CS) 914 [Lahore]), Naweed Akhtar Cheema vs. Chairperson, TEVTA, (2011 PLC(CS) 803 [Lahore]), Bashir Ahmad Sheikh vs. SME Bank Ltd, (2008 PLC(CS) 1179 [Islamabad]), and Ali Gohar vs. Managing Director Sui Northern Gas Pipe Lines Ltd., (1998 PLC(CS) 828 [Peshawar]).

4. Similarly, the Lahore High Court, in the case of Kamran Ahmad vs. WAPDA, (2014 PLC (CS) 332 [Lahore]), relying on the case of the Honourable Supreme Court titled Anwar Hussain vs. Agricultural Development Bank of Pakistan (PLD 1984 SC 194), has reproduced the relevant extract and principle established by the august Supreme Court:

“The test of the employer/employee relation is the right of the employer to exercise control of the details and method of performing the work. It follows that if the relationship is the result of a contract freely entered into by the contracting parties, then the principle of Master and Servant will apply. The Principle, however, will not apply if some law or statutory rule intervenes and places fetters upon the freedom of the parties in the matter of the terms of the contract. It is on this principle that a civil servant for whom there are constitutional safeguards, is not governed by the principle of Master and Servant; for he is possessed of a legal character for the enforcement of which he can bring an action. Even where the employee is not a civil servant but there are statutory safeguards governing his relationship with the employer and placing restrictions on the freedom of the parties to act, the general law of Master and Servant will not apply. In such cases the employer would be bound to follow the procedure provided for in the statute or the statutory rules before terminating the service of the employee and in the absence of conformity to such procedure, the termination of service would not be clothed with validity and the employee will be entitled to an action for his reinstatement.”

(c) Writ Petition maintainable against statutory rules:

1. The Honourable Sindh High Court in the case of Burhannudin Sheikh vs. National Bank of Pakistan (1985 CLC 2003 Karachi), has held that:

“There is no substantial difference between rule, regulation and bye-law inasmuch as these are subordinate by delegation under powers conferred by the statute. A rule framed under a statute applies uniform treatment to everyone or to all members of some group or class. The Respondent No. 1 is required by the statute to frame bye-laws and rules inter alia for the purpose of the duties and conduct and conditions of service of officers and other employees. These rules and bye-laws impose obligation on the statutory authority. The statutory authority cannot deviate from the conditions of service. Any deviation will be enforced by legal sanction of declaration by Courts to invalidate action in violation of rules, regulations and bye-laws. The existence of rules, regulations and bye-laws under the statute is to ensure regular conduct with a distinctive attitude to that conduct of a standard. The statutory rules and bye-laws in this case under consideration give the employees a statutory status and impose restriction on the employer and the employee with no option to vary the conditions. An ordinary individual in a case of master and servant contractual relationship enforces breach of contractual terms. The remedy in such contractual relationship of master and servant is damages because personal service is not capable of enforcement. In cases of statutory bodies there is no personal element whatsoever because of the impersonal character of statutory bodies. In the case of statutory bodies it has been said that the element of public employment of service and the support of statute requires observance of rules, regulations and bye-laws. Failure to observe requirements by statutory bodies is enforced by Courts by declaring action in violation of rules and regulations to be without lawful authority and would be subject to the supervisory jurisdiction of this Court. …

For the foregoing reasons, we hold that rules framed by the Respondent No. 1 have the force of law. The employees of the Bank have a statutory status and they are entitled to declaration of being in employment when their dismissal or removal or action is taken in contravention of statutory provision and would be subject to the supervisory jurisdiction of this Court.” (emphasis added)

1. The Lahore High Court in the Kamran Ahmad case supra, in para 23, has established that:

“23. … the larger Bench of august Supreme Court deduced and summarized the following principles of law:---

(i) Violation of Service Rules or Regulations framed by the Statutory bodies under the powers derived from Statutes in absence of any adequate or efficacious remedy can be enforced through writ jurisdiction.

(ii) Where conditions of service of employees of a statutory body are not regulated by Rules/Regulations framed under the Statute but only Rules or Instructions issued for its internal use, any violation thereof, cannot normally be enforced through writ jurisdiction and they would be governed by the principle of ‘Master and Servant’.

(iii) In all the public employments created by the Statutory bodies and governed by the Statutory Rules/Regulations and unless those appointments are purely contractual, the principles of natural justice cannot be dispensed with in disciplinary proceedings.

(iv) Where the action of a statutory authority in a service matter is in disregard of the procedural requirements and is violative of the principles of natural justice, it can be interfered with in writ jurisdiction…”

1. In the case of Nemat Ullah vs. Chairman Governing Body, Worker Welfare Board, (2017 PLC SC 1), it has been held in para 19 that:

“19. For what has been discussed above, from constitutional, and all legal angles we are of the considered view that the services of the appellants are fully protected by the statutory rules, referred to above in the earlier para of the judgment and any invasion on their service benefits and rights by the authorities entitle them to approach the High Court through Constitution Petition ...”

1. In another case, Dr. Ishaque Muhammad Shah vs. President, National Bank of Pakistan, (2010 PLC(CS) 748 [Karachi]), the Honourable Sindh High Court has held that in order to maintain a petition, petitioner has to demonstrate that he was governed by statutory rules of service and that while terminating or separating him from the service, the employer has violated such rules and if such fact of violation is established, the Court will exercise its constitutional jurisdiction and come to rescue the employee who has been wronged.

2. Same principle was enunciated by the Honourable Supreme Court in the case titled PTCL vs. Iqbal Nasir, (2011 PLC(CS) SC 623) which is as under:

“24. However, this Court, in the case of Principal Cadet Collage Kohat v. Mohammad Shoaib Qureshi (PLD 1984 SC 170), while dealing with the question, as to whether in absence of any breach of statutory provision the employees of a corporation can maintain an action for reinstatement, held that where the conditions of service of an employee of a statutory body were governed by statutory rules, any action prejudicial taken against him in derogation or in violation of the said rules could be set aside by a writ petition; however, where his terms and conditions were not governed by statutory rules but only by regulations, instructions or directions, which the institution or body, in which he was employed, had issued for its internal use, any violation thereof would not, normally, be enforced through a writ petition.” (emphasis added)

1. It is an established principle that constitutional petition is maintainable against a statutory body, having statutory rules governing the terms and conditions of employment of its employees. (Masood Ahmed Bhatti vs. Federation of Pakistan,(2012 SCMR 152); and Syed Azam Raza vs. Sindh Agriculture University, 2014 PLC(CS) 1177 [Sindh]).

2. Now coming to the facts of the present Petitions, it stands established that under Section 13 of the Act, the Government has been given absolute power to make rules for carrying out the purposes of the Act through a notification. The Act does not specifically allow the Board, the Foundation or the Federal Government to appoint any employee on contractual basis. It is evident, however, that the Provincial Government made the Rules through Notification No. S.O. (S-VII)1-33/2004 dated 26 October 2005 to allow the Foundation to engage personnel on contractual basis and to govern the terms and conditions of their service contracts. While doing so, the Provincial Government has exercised its statutory powers under Section 13 of the Act, which generally allows the Provincial Government to make rules through notification. The Rules, therefore, are exclusively within the domain of the Provincial Government for the employment in the Foundation and unless the Rules are amended, repealed, modified or re-enacted under the Act, the same have a binding statutory force. Section 13 of the Act does not provide that the recruitment rules are to be made in any particular manner, nor does it prescribe the special method for appointment of candidates to the posts. Therefore, the Contract Appointment Rules fulfills the only criteria mentioned in the Act, and it is an admitted position that the Contract Appointment Rules have been framed as per the mandate of law ibid.

3. Further, the Contract Appointment Rules, having been sanctified by the Government, were applicable to the Petitioners during their service with the Foundation, and were adopted by reference in the statute itself and were made applicable to and binding on the Foundation. Although the power of contractual appointment has not been specifically given in the Act itself, but the Government has notified in a legal manner the Contract Appointment Rules in matters of crucial importance. They are not instructions for internal control or management, and area of efficacy of the Contract Appointment Rules is broader. These Contract Appointment Rules framed under a statute, applies uniform treatment to everyone contractually employed in the Foundation, and impose obligation and restrictions on the statutory authority, which cannot deviate from the Contract Appointment Rules.

4. Therefore, the Contract Appointment Rules made under Section 13 of the Act, in view of their nature discussed above, have statutory status, and any deviation from the same can be enforced by legal sanction of declaration by a competent Courts of jurisdiction to invalidate action in violation of the Contract Appointment Rules. The existence of the Contract Appointment Rules under the statute is to ensure regular conduct of the Foundation and its contractual employees with a distinctive attitude to that conduct of a standard. An Authority which has been established for higher objectives as is provided in the preamble and other provisions of the Act, cannot thrive and flourish, if its rules are not abided by or enforced on being violated.

5. The Petitioners were, admittedly, employees of the Foundation who accepted employment on the basis of their service contracts and had agreed to be governed by the Contract Appointment Rules and the 2006 Regulations, repealed by the 2010 Regulations. The Petitioners were employed by the Foundation as a result of a statutory process of the Foundation and they were taken into employment on their unequivocal acceptance of the terms and conditions of employment. Therefore, the services of the employees of the Foundation, including services of the Petitioners under their respective terms and conditions of the service contracts, are squarely and undoubtedly regulated by the binding Contract Appointment Rules, which do not lack statutory protection.

6. In view of the above principles laid down by the Honourable Courts in Pakistan, the Petitioners have established that they were governed by statutory rules of service. Being amenable to the constitution jurisdiction of a person/statutory body is one thing and to enforce the terms and conditions of service through constitutional jurisdiction is altogether a different thing. However, it is yet to be seen by this Court that the Foundation has violated such statutory rules and if such fact of violation is established, the Court will exercise its constitutional jurisdiction and come to rescue the Petitioners because when services are protected by statutory rules, any invasion on their service benefits and rights by the authorities entitle them to approach the High Court through Constitution Petition.

7. Now since it has been established that the Rules are statutory in nature and writ petition can be filed for any violation of the statutory rules, it remains to be seen that the whether any rule has been violated or any invasion on their service benefits and rights by the authorities have been done?

(ii) Whether the Impugned Letters are issued contrary to the Act and the Contract Appointment Rules?

1. I now turn to the issue that whether any violation of the statutory Contract Appointment Rules or the Act has been committed by the Foundation or not. For dilating decision on this question, reference to the documents produced by the parties in the present Petitions is necessary.

2. In compliance of Rule 5(1)(b) of the Contract Appointment Rules, the Foundation issued a news clipping specifically highlighting that “the appointments will be on contract basis, extendable on the basis of performance. The post carries competitive market based remuneration packages.” Therefore, the Petitioners were aware at the very beginning that their appointments are being made on contractual basis and on market-based salary, which was different from the other regular employees, if any. The Petitioners applied for their respective posts and were awarded their respective positions on contractual basis. It is of paramount importance to note here that it was specifically mentioned in the terms and conditions of the appointments of the Petitioners that they were governed by the Contract Appointment Rules, which have statutory backing.

3. Although Section 5(8) of the Act empowers the Board to appoint the employees and other functionaries of the Foundation and determine the terms and conditions of their employment. However, such powers have been delegated through a statutory instrument, the Contract Appointment Rules, to the MD. Rules 6 of the Contract Appointment Rules empowers the Appointing Authority, the MD, to settle terms and conditions of the contract appointment, who could also terminate the services of the contract employees on one month’s salary in lieu thereof without assigning any reason or without approval of the Board or the Government. However, the Appointing Authority, the MD, can only extend the contract re-negotiate new terms and conditions of the contractual appointment of the Petitioners with approval of the Board under Rule 5(3) of the Contract Appointment Rules.

4. The Petitioners were intimated for non-renewal of their contract or termination on the 5 May 2014 through Impugned Letters issued for and on behalf of the Competent Authority, which is not defined in the Contract Appointment Rules or the Act. Therefore, it is to be seen that whether the MD, the Appointing Authority, under the Contract Appointment Rules have made such orders or not.

5. Admittedly, the order of MD dated 5 May 2014 has been annexed (Annexure G) in the CMA No. 7/2017, whereby the MD has noted that the contracts of the Petitioners have been expired and the MD has ordered the termination of the services of the Petitioners. Therefore, it prima facie is clear that the order was passed by the MD for termination of the contracts of the Petitioners and therefore, the Petitioners were intimated of the same vide the Impugned Letters. There does not seem any ambiguity that the order was passed by the competent authority having powers under the applicable law, as discussed above. As detailed above, the Impugned Letter were issued in compliance with the directions of the MD. Apparently, no violation of contract of employment or the statutory Contract Appointment Rules was made by the Foundation.

6. Even otherwise, the Petitioners were enjoying extensions in their respective contracts through letters none of which were signed by MD, but the HR Department which was not Appointing Authority. They had not raised any objection for such matters, and only raised such objection in case of their termination.

7. Further, it is to be noted that on the 19 June 2014, Member, CMIT, had moved a summary to CM regarding termination of service contracts, in which it was recommended after analyzing all the issues in detail, among others, that the termination of four (4) officers, being the Petitioners, is in accordance with the Contract Employment Rules. The recommendations in this summary were supported by the Chairman CMIT on the 20 June 2014, and on the 28 August 2014, Secretary to CM, Punjab informed that recommendations contained in Summary dated 19 June 2014 were approved. Therefore, the termination of all four (4) Petitioners in all the Petitions was also approved by the CM.

8. It is clear that the decision and action of the Foundation to employ the Petitioners, as well as other contractual employees under the Contract Appointment Rules, was primarily on market based salaries, founded upon commercial, business, administrative wisdom, and for the better interest of the Foundation, which might involve and be based upon the ability, efficiency and skills of the employees required for specific period. Therefore, it is for the Foundation to decide about the usefulness of the employees or otherwise. Obviously, it had to be the evaluation of the Foundation as to who was the employee(s) worthy of serving the best interest of the Foundation, and as to who was more suitable, so as to be retained and those who should retire after their expiration of contract.

9. Impugned decisions for not extending the contracts by the Foundation had been made seemingly pursuant to deliberations and approval of the MD and the CM, therefore, the question of arbitrariness or illegality had no relevance to the matter.

10. The counsel for the Petitioners has not cited any statutory rule or provision of the Act which may have been violated by the Foundation for terminating the employment of the Petitioners. Therefore, the Petitioners’ appointment being purely temporary on contract basis, their services in terms of his employment contract could be terminated in the absence of any alleged violation of provision of law/statutory rules. They would be entitled to one month’s notice or salary in lieu thereof, as permissible to them under the terms and conditions of the contract.

11. Such decisions cannot justifiably be interfered by this Court under its constitutional jurisdiction. The Petitioners have failed to point out any contravention of their fundamental rights by the Foundation to satisfy the conditions warranting interference by this Court in its constitutional jurisdiction. Consequently, the present Constitutional Petitions are held to be not maintainable in such circumstances and are accordingly dismissed.

(iii) Whether contractual employees of the Foundation are entitled to regularization/ extension of their contract under the facts and circumstances of the case?

1. In the case of Federation of Pakistan vs. Muhammad Azam Chattha (2013 SCMR 120), the contract employee was appointed as Presiding Officer of Banking Tribunal for a period of three (3) years but his contractual appointment was terminated by the competent authority after about two years. It was held that the contract employee instead of pressing for his reinstatement to serve for the leftover period can at best claim damages to the extent of unexpired period of his service. It was held in the case of Waseem Ali vs. Chief Administrator Auqaf, Punjab and 2 others (2011 PLC (CS) 1630 [Lahore]) that on the basis of contractual employment, the competent authority was neither required nor bound to extend the contract period of the petitioner or to regularize his services. Similarly, in the case of Sajid Ali Shah vs. WAPDA, (2013 PLC (C.S.) 715 [Peshawar]), it was held that the employer was always to be held so arbiter to deal with the employee in accordance with the terms of his contract. If the service of a temporary employee was terminated in conformity with the terms and conditions of his agreement, he would have no cause of action. Moreover, in the case of Malik Mazharul Haq vs. Chairman, PIA, (2010 PLC(CS) 1472 [Lahore]), it was held at para 10 that the Honourable Supreme Court of Pakistan in Habib Bank Ltd. v. Syed Zia-ul-Hasan Kazmi 1998 SCMR 60 and Pakistan Red Crescent Society v. Nazir Gillani PLD 2005 SC 806 has also held that an employee of a Corporation in the absence of violation of law or any statutory rule could not press into service the Constitutional jurisdiction or civil jurisdiction for seeking relief of reinstatement in service, his remedy against wrongful dismissal or termination is to claim damages.

2. It was further held in the case of PTCL vs. Iqbal Nasir, (2011 PLC(CS) SC 623), that all the employees having entered into contracts of service on the same or similar terms and conditions have no vested right to seek regularization of their employment, which is discretionary with the employer. The employer is well within his rights to retain or dispense with the services of an employee on the basis of satisfactory or otherwise performance. Further, in the case of Muhammad Azam Khan vs. Government of NWFP, (1998 PLC (C.S.) 29 [Peshawar]), it was held at paras 8 and 9 that in the circumstances we are of the view that the petitioners are not legally clothed with a right to enforce a right not vested in them nor can they compel the performance of a right not yet born on the premises which do not exist either in point of fact or law. The petitioners stand bereft of such a right from its inception. Be that as it may, not statutory duty is involved nor any legal right is being enforced nor indeed performance of a public duty is being claimed, therefore, in our opinion, a writ of Mandamus cannot be issued. This writ petition being devoid of merit/substance is, therefore, dismissed in limine along-with the Civil Miscellaneous.

3. It was held in the case of Chairman, WAPDA vs. Syed Jamil Ahmed, 1993 SCMR 346, in para 9 that:

“9. The legal position obtaining in respect of employees of the statutory corporations seems to be that where the Government while setting up a corporation does not reserve to itself the power to regulate the terms of service of the corporation’s employees under the relevant statute and does not prescribe any condition, but leaves it to the discretion of the corporation by empowering it to frame rules or regulations in respect thereof without the Government’s intervention, then the corporation will be the sole arbiter in the matter of prescribing the terms and conditions of its employees and will be competent to deal with them in accordance with the terms and conditions prescribed by it. In such a case neither a suit nor a writ petition for the relief of re-instatement will be competent and the remedy of an employee, for wrongful dismissal from or of termination of service will be a suit for damages as the principle of master and servant will be applicable. However, where the terms and conditions of service of an employee of a statutory corporation is regulated by a statute or statutory rules, any action prejudicial taken against him in derogation or in violation of the statute and/or the statutory rules will give him a cause of action to file a suit or a writ petition for the relief of re- instatement, as the power of the corporation will be fettered with the statutory provisions and the principle of master and servant will not be applicable. For the purpose of deciding the factum, whether the rules or the regulations of a corporation have the statutory force, the determining factor will not be their form or name, but the source under which they have been framed.”

1. In the cases where rules applicable are not statutory, which is not subject matter of the present Petitions, the established principle is that services governed by a contract would not confer a guaranteed right on the employee to continue in the employment and to seek reinstatement on being illegally dismissed or terminated. The affected persons could not approach Court of law for seeking appointment even if they were refused employment illegally or in contravention of the service contract or non-statutory rules/regulations. Servant, against termination of service by master, could claim damages for illegal or wrongful decision refusing the employment (See, Asadullah Mangi vs. Pakistan International Airlines, (2002 PLC (C.S.) 592 [Karachi]); Tilat Hussain vs. Chairman, PIA and others, (2002 PLC (C.S.) 1 [Karachi]); Mushtaq Ahmad vs. Pakistan Cricket Board and 2 others, (1997 PLC (C.S.) 921 [Lahore]); Chairman, WAPDA vs. Syed Jamil Ahmed, (1993 SCMR 346); and Rehan Ali vs. Ministry of Technical Professional, (2014 CLC 503 [Islamabad]).

2. It remains established that the contracts of the Petitioners were expired before the Impugned Letters and they are seeking their re-instatement and/or extension through these Petitions, which cannot be allowed in constitutional jurisdiction of this Court in absence of any statutory provision conferring such right to the Petitioners. The Petitioners have failed to point out any statutory provision conferring right for regular appointment on the Petitioners in the Foundation. Further, there is no case law which allows such extension or regularization of a contract without any vested right in statutory provisions, under the constitutional jurisdiction of this Court.

3. On the 9 December 2013, the Chairman of Board of Directors unanimously decided, in compliance of the order of this Court dated 13 July 2013, that the request of regularization of the contract employees of the Foundation could not be acceded to [the “Impugned Decision”]. Therefore, the termination of the Petitioners was also approved by the Board in a detailed order mentioning the grounds for such decision pursuant to the order of this Court. In absence of any violation of the statutory provision, such order can also not be set aside in constitutional jurisdiction of this Court.

4. The Foundation is an autonomous body constituted under the Act which defines as per Section 5(1) that the Executive Authority and managing of the foundation shall vest in the Board. The directions of the CM cannot have precedence over the Contract Appointment Rules of the Foundation under the Act.

(iv) Whether the Petitioners were entitled to a right of hearing before their dismissal?

1. It was held in the case of Lt. Col. Retd. Sultan Zeb Khan vs. Board of Governors, Fazle Haq College, (2015 PLC(CS) 1385 [Peshawar]), at para 8 that the contention of the petitioner that before termination of the remaining period of contract, the respondents were under legal obligations to provide an opportunity of hearing to the petitioner, is un persuasive and not convincing for the reason that the contract of service, under which the petitioner was appointed, specifically provides that his service shall be liable to termination on one month notice or one month salary in lieu thereof, without assigning any reason. Such a contract, in our view does not create any vested right in the appointee so as to make him entitled to be served with notice before termination of contract of his service. The learned counsel for petitioner has relied on some case-law of the apex Court, in support of his contention, careful reading of which reveals that in the referred cases the services of the petitioners therein were terminated on the basis of certain allegations but in the instant case the contract of the petitioner was terminated without stigmatizing him. He was given a very safe and Honourable exit from service, without levelling any allegation against him. We may observe that there is a marked distinction between the simpliciter termination of service in accordance with terms and conditions of appointment and the termination of service on the ground of misconduct. No doubt if a person is employee on contract basis and the terms of employment provides the manner of termination of his service, the same can be terminated in terms thereof. However, if a person is to be condemned for misconduct, in that event, even if he is a contract employee, would be entitled to a fair opportunity to clear his position. It means that in case of stigmatize termination there must be a regular inquiry in terms of Efficiency and Disciplinary Rules. In the instant case as discussed above the contract appointment of the petitioner has been simply terminated without any allegation of misconduct. The cited judgments of the apex Court having no relevance with case of petitioner, thus of no consequence for him.”

2. In another case titled Mst. Shazia Sarwar vs. Chancellor, University of The Punjab, Lahore, (2013 PLC (C.S.) 234 [Lahore]), it was held at para 19 that the contract employees are entitled for hearing if termination of their contract of service is on the basis of any allegation.

3. Therefore, since the Foundation has not raised any allegation on the Petitioners, the right of hearing was not mandatory to be provided to the Petitioners.

N. Other Arguments:

1. The case cited by the counsel of the Petitioner, titled State Bank of Pakistan v. Muhammad Shafi (2010 SCMR 1994) is distinguished from the present circumstances of the Petitions because it was held that the rules framed by Central Board of Directors did not require approval of Government, therefore, State Bank of Pakistan Regulations, 1999 could be termed as internal instructions or domestic rules/regulations having no status of statutory rules/regulations.

2. As far as the dictum of the Honourable Supreme Court in Muhammad Tariq Badar and another v. National Bank of Pakistan and others (2013 SCMR 314) is concerned, the august Supreme Court of Pakistan in fact was not dealing with the specific question involved in these Petitions, rather the Court on peculiar facts of the case was considering the issue that whether non-statutory rules have, and/or can repeal, rescind or displace the statutory rules. It may also be noted that it was held in the Tariq Badar case Supra that National Bank of Pakistan (Staff Services) Rules, 1980, at best could be termed as guidelines or domestic instructions of the bank and do not enjoy the status of a statutory instrument because the said Rules were neither made by the Federal Government nor published in the official gazette, and said rules were formulated by the Board of the Bank pursuant to its authority in the nature of management/superintendence of the affairs of the Bank and/or policy making power. However, these Petitions do not have such legal question as existed in the aforesaid judgment. The Honourable Supreme Court has further observed that:

“8. … it is not only the legal position, but has also been conceded by the counsel for both the sides that, if the rules of a statutory establishment/body are statutory in nature, the employees (who are covered by the rules) of such organization

may invoke the constitutional jurisdiction of the High Court for the redressal of their service grievance…”

1. The Petitioners have also not provided for comparison, any dates or material or the particulars of other persons, who were equally placed as them and have been retained. Provisions of Article 25 of the Constitution did not help the cause of the Petitioner and no case of discrimination in terms of said Article had been made out.

2. Upon the above discussion, I am satisfied beyond any doubt that the Petitioners have failed to satisfy with regard to the maintainability of these Constitutional petitions and have also failed to establish that they are entitled to the reliefs sought for by them in the aforesaid Constitutional petitions. Accordingly, these Constitutional Petitions stand dismissed alongwith all the miscellaneous applications pending therein.

(Z.I.S.) Petitions dismissed

PLJ 2018 Lahore 341 (DB)

Present: Mrs. Ayesha A. Malik and Jawad Hassan, JJ.

GOVERNMENT OF THE PUNJAB, SECRETARY HOME DEPARTMENT through Deputy Secretary (Police) Interior Department, Lahore etc.--Petitioners

versus

QANOOT FATIMA etc.--Respondents

I.C.A. No. 497 of 2017, heard on 2.11.2017.

Law Reforms Ordinance, 1972 (XII of 1972)--

----S. 3--Constitution of Pakistan 1973, Arts. 4 & 25--Gender discrimination--Convention for elimination of all forms of discrimination against women--Duties of signatory states highlighted--International law--Recruitment process--Quota system explained--Due representation--Counter-Terrorism Department--Appellants invited applications for post of corporals in CTD department, participated in recruitment process, fell in merit list--Respondents were denied appointments on stance that female candidates could not be appointed against open merit seats--Challenge to--Appeal was allowed and directed to appoint female--Validity--Appellants issued an advertisement for posts of corporals in CTD--Subsequent to advertisement, notification was issued fixing a quota of 5% for female candidates--Female candidates can only be adjusted against 5% quota and remaining seats must be allocated to male candidates--Contention Art. 25(3) of Constitution permits seats to be reserved for Women as a special measure for protection of women--Reservation of seats for women in public sector employment is an affirmative action to ensure that women get equal opportunity and equal access while applying for public sector jobs--When a candidate meets merit, he or she cannot be placed on a quota list simply because of their gender, disability or being a minority--Quota was fixed to facilitate and encourage representation from groups which were considered to be under represented and cannot be deemed as maximum representation from that group--Reserved seats for female candidates means that department should ensure that at least 5 % of all candidates employed by CTD are female candidates and it does not bar them from employing all female candidates who fall within merit--Fixation of quota for women in no way bars female candidates from competing on open merit and being appointed on account of their succeeding on open merit--Concept of quota is to ensure representation and participation of females in public sector and quota represents critical value below which it will be deemed that females are underrepresented--Quota does not bar department from appointing female candidates beyond 5%--Appeal was dismissed.

[Pp. 346, 347 & 348] A, B, C & E

Convention for Elimination of all Forms of Discrimination Against Women--

----Art. 4--Constitution of Pakistan 1973, Arts. 4 & 25--Gender discrimination--Duties of signatory states highlighted--International law--Recruitment process--Quota system explained--Due representation--Counter-terrorism department--Art. 4 of Convention for elimination of all forms of discrimination against Woman (“CEDAW”) obligates member states to take temporary measure, such as quotas, to neutralize effect of barriers hindering women’s participation in public sector--Art. 5 of CEDAW also requires that appropriate measures are taken to modify social and cultural patterns of conduct for men and women with a view to achieve elimination of prejudices, customary and other practices which are based on idea of inferiority of women or on stereotype roles for men and women--Government is required to devise policies which will remove obstacles and barriers for participation of women in all walks of life, be it political, social, economic or cultural--This participation is based on fundamental principle that men and women must be treated equally and there can be no discrimination on basis of gender--Government of Punjab amongst other measures took some positive steps when introducing Punjab Women Empowerment Package 2012 which required quota for women in public service employment to be increased--However essence of fixing such quota and commitment under CEDAW has been compromised by relegating female candidates who competed on open merit and satisfy merit criteria, yet are adjusted against reserved seats--Essence of fixing quotas for women in public service was to enhance their participation and to ensure that equal opportunity is given to women applying for public sector jobs.

[Pp. 347 & 348] D

Constitution of Pakistan 1973--

----Arts. 4, 18, 19 23 & 25--Gender discrimination--Convention for elimination of all forms of discrimination against women--Fundamental Right of Employment--Violation of constitutional mandate--By reducing participation to their respective quotas, appellants had in fact created another quota of abled bodied Muslim men, ensuring that open merit seats were filled by abled bodied Muslim men--When women are reduced to only reserved seats, quota acts as a bar to employment and loses its facilitative objective as well as created another group or class which is given employment--By denying female candidates their right to employment on merit, respondents have ensured that post of corporals is filled by men--Equal opportunity and equal access has effectively been denied, hence constitutional mandate violated--Seats were filled up by those who did not necessarily meet merit--By reducing female candidates to 5% quota, merit is compromised as candidates who satisfy merit are ousted on account of their gender and candidates who do not meet merit or lower in merit are included--In effect mediocracy is promoted and very purpose of setting up a rigorous induction plan is compromised--Competence cannot be measured through gender lens--Competence must be seen strictly on basis of standards set--High Court also deprecated practice by not allowing female field work by holding that even though female corporals are hired, they are not assigned field work because they are considered to be vulnerable and weak, hence they are given office jobs and no field work--This justification cannot be appreciated or given legal sanctity because if women have applied for post of corporals in CTD and have qualified physical and mental tests set by appellants then those who fall on merit must be trained along with their male counterparts and must be allowed to participate in field work--Reasoning given is precisely kind of gender stereotyping which Art. 5 of CEDAW requires to be prevented--Instead of treating male and female candidates as equal appellants have devised their own understanding of how to appoint female corporals--Gender stereotyping or classification based on stereotype roles or social expectations tantamount to discrimination which is not permissible under Constitution and goes against constitutional mandate of equality. [Pp. 349 & 350] F & G

Mr. Muhammad Ijaz, AAG on behalf of the Appellants along with Rai Muhammad Tahir, Additional IG Police/CTD, Jawad Qamar, SSP/ CTD and Altaf Hussain, DSP/Legal, CTD for Appellants.

Mr. Naveed Iqbal Sivia, Advocate for Respondents.

Date of hearing: 2.11.2017.

Judgment

Mrs. Ayesha A. Malik J.--The instant appeal along with connected ICAs No. 475/17, 487/17 and 488/17 arise out of the common order dated 2.3.2017 passed by the learned Single Judge in WP No. 1134/2015.

1. In November, 2013 the Government of Punjab (Appellant here) invited applications for the post of corporals in the Counter Terrorism Department, Punjab (“CTD”). In terms of the advertisement both men and women could apply. Accordingly the Respondents before this Court applied for the post of corporals. They cleared the tests and interview and came on the merit list. However, they were not appointed as the Appellants were of the opinion that female candidates could not be appointed against the open merit seats. The Appellants appointed 75 female corporals against a 5% quota for women and denied the Respondents’ appointment because they did not fall within the merit of the top 75 female candidates. The Respondents challenged the decision of the Appellants and vide order dated 5.11.2014 passed in WP No. 22217/2014, a direction was given to the Appellants to hear the Respondents and pass a speaking order. The Home Secretary, Punjab heard the Respondents and through order dated 6.1.2015 rejected the representation of the Respondents on the ground that the top 75 female candidates were selected and since the Respondents did not fall within the merit of the top 75 female candidates, they cannot be appointed. In this regard, the Appellants relied upon notification dated 30.9.2014 issued by the Secretary, Government of Punjab, Home Department which provides that Competent Authority has been pleased to fix 5% female quota in the recruitment process of Corporals in Counter Terrorism Department, Punjab, in view of approval of the Chief Minister dated 11.11.2013. The Respondents challenged the order of 6.1.2015 by filing WP No. 1134/2015 wherein the learned Single Judge set aside the order of 6.1.2015 and directed the Appellants to appoint the Respondents.

2. The Government of Punjab has impugned order dated 2.3.2017 passed by the learned Single Judge in W.P. Nos. 1134/2015, 190/2015, 13326/2015 and 3687/2015 on the ground that 5% quota was fixed for the recruitment of female corporals in the CTD. 75 female candidates were adjusted against the 5% quota out of 1500 corporals and the Respondents before this Court being female applicants could not be appointed because their merit was less than the 75 female candidates who were appointed against the women quota. The impugned order, however directed the Appellants to appoint the Respondents and send them for training. Hence these appeals.

3. Mr. Muhammad Ijaz, AAG on behalf of the Appellants argued that the recruitment process commenced after the advertisement was issued in November 2013. However inadvertently the advertisement did not mention the 5% quota allocated for women applicants. He explained that 1500 corporals were to be appointed out of which 1425 would be male corporals and 75 female corporals. The quota was fixed by the competent authority much before the advertisement keeping in mind the nature of the job and the practical risks involved. In this regard Rai Muhammad Tahir, Additional IG Police/CTD explained that CTD is a counter terrorism force which plans and executes counter terrorism measures, operations and investigations. A transparent recruitment process was undertaken to select the best candidates in which written test, psychological test, medical examination and physical test were carried out in order to ensure that the appointees are not only physically but mentally capable to meet the challenges of the job. Given the strenuous and dangerous requirements of the job, it was decided that out of the total strength of corporals being appointed, 5% should be women. He explained that the women corporals are not sent out in the field, as they are considered to be vulnerable and at risk. However in order to ensure that women are represented in the CTD, the required quota is maintained. As per his explanation, the CTD cannot appoint women beyond the given quota as the department needs corporals who will go into the field to carry out counter terrorism operations from time to time, whereas the female corporals are given desk jobs and cannot be sent out to do field work. As per his contentions it is a high paying job which should be given to men who are well suited for the job.

4. On behalf of the Respondents, learned counsel argued that the Respondents before this Court applied for the post of corporals and came on the open merit for the said post. The Appellants selected the top 75 female candidates and appointed them thereby restricting the other female candidates who came on the merit, simply on account of notification dated 30.9.2014. It is the case of the Respondents that fixing a female quota and restricting the female recruitment to the extent of the quota is discriminatory and prevented the Respondents from being appointed on merit.

5. Heard and record perused.

6. The Appellants issued an advertisement in November 2013 for the post of corporals in the CTD. Subsequent to the advertisement, notification dated 30.9.2014 was issued fixing a quota of 5% for female candidates. It is the case of the Appellants that female candidates can only be adjusted against the 5% quota and that the remaining seats being 1425 must be allocated to male candidates. As per their understanding even though the Respondents came on the open merit, they cannot be appointed because their merit was below the merit of the 75 female candidates who were appointed against the women quota. The impugned order finds that for the process of recruitment of corporals, the advertisement published in the newspaper did not stipulate a 5% quota for women. The quota was notified on 30.9.2014, after the advertisement even though it was approved by the Chief Minister on 11.11.2013 through a summary placed before him. Therefore, since the notification came much after the advertisement and after the commencement of the recruitment process, the Court set aside the impugned order dated 6.1.2015 and directed the Appellants to appoint the Respondents and to send them for their training with the remaining batches.

7. We have heard the case at length and are of the opinion that while the learned Single Judge has relied upon the notification dated 30.9.2014 and held that it was not applicable to the recruitment process, the act of the Appellants of not appointing the Respondents even otherwise is discriminatory. We are of the opinion that the matter in issue goes beyond the issuance of the notification of 2014 fixing a 5% quota for women candidates. We find that the general understanding of the Appellants for recruitment against reserved seats is totally misconceived and goes against the spirit of reserving seats. Article 25(3) of the Constitution of Islamic Republic of Pakistan, 1973 (“Constitution”) permits seats to be reserved for women, as a special measure for the protection of women. This special measure was considered necessary to ensure equal opportunity for women to encourage their participation in the public sector. The rationale of Article 25(3) was considered in Mst. Attiyya Bibi Khan and others v. Federation of Pakistan through Secretary of Education (Ministry of Education), Civil Secretariat, Islamabad and others (2001 SCMR 1161) wherein the august Supreme Court of Pakistan, while striking down a quota fixed for doctors’ children for admission in medical colleges, upheld the requirement of reservation of seats for women and for those who are socially or educationally backward or are considered under- developed classes in order to ensure their advancement in society. Therefore in terms of the dicta laid down by the august Supreme Court of Pakistan reservation of seats can be made with the objective to secure genuine equality amongst different classes or groups. In order to ensure substantive equality the Constitution required measures to be taken to overcome the disparity and barriers which permit substantive equality. Therefore reservation of seats for women in public sector employment is an affirmative action to ensure that women get equal opportunity and equal access while applying for public sector jobs.

8. Article 4 of the Convention for the Elimination of all forms of Discrimination against Woman (“CEDAW”) obligates member states to take temporary measure, such as quotas, to neutralize the effect of barriers hindering women’s participation in the public sector. Article 5 of the CEDAW also requires that appropriate measures are taken to modify social and cultural patterns of conduct for men and women with a view to achieve the elimination of prejudices, customary and other practices which are based on the idea of inferiority of women or on stereotype roles for men and women. Pakistan is a signatory to CEDAW since March, 1996, hence is required to take positive steps to achieve the standards set by CEDAW. The Government is therefore required to devise policies which will remove obstacles and barriers for the participation of women in all walks of life, be it political, social, economic or cultural. This participation is based on the fundamental principle that men and women must be treated equally and there can be no discrimination on the basis of gender. The Government of Punjab amongst other measures took some positive steps when introducing the Punjab Women Empowerment Package 2012 which required quota for women in public service employment to be increased. However the essence of fixing this quota and the commitment under CEDAW has been compromised by relegating female candidates who competed on open merit and satisfy the merit criteria, yet are adjusted against reserved seats. In our opinion, the essence of fixing quotas for women in public service was to enhance their participation and to ensure that equal opportunity is given to women applying for public sector jobs. The objective was never to reduce female participation to a quota.

9. In the present cases 49272 candidates applied out of which 9679 were female candidates. 12101 candidates passed the physical test, out of which 3544 were female candidates. 11835 appeared in the written test out of which 2948 candidates qualified including 730 female candidates. 1889 candidates were shortlisted out of which department chose only 75 female candidates and the remaining were all men. The Respondents before the Court came within the merit of the 1500 who were to be selected, in fact they were placed within the first 400 on the merit. They qualified at every level yet were denied appointment. The understanding of the Appellants on this issue totally negates the purpose of fixing reserved seats and the objective of encouraging women to apply to such posts. When a candidate meets the merit, he or she cannot be placed on a quota list simply because of their gender, disability or being a minority. The quota is fixed to facilitate and encourage representation from groups which are considered to be under represented and cannot be deemed as the maximum representation from that group. We are of the opinion that the 5% reserved seats for female candidates means that the department should ensure that at least 5% of all candidates employed by CTD are female candidates and it does not bar them from employing all female candidates who fall within the merit. The fixation of quota for women in no way bars female candidates from competing on the open merit and being appointed on account of their succeeding on the open merit. The concept of a quota is to ensure representation and participation of females in the public sector and the quota represents the critical value below which it will be deemed that females are under represented. Essentially the quota ensures that in the very least 5% of the candidates should be women which will signify the very minimum representation of females in that department. Hence a quota does not bar the department from appointing female candidates beyond 5%. Since the Respondents fall within the required merit, in fact were on the higher side on the merit, it was incumbent upon the Appellants to appoint them.

10. We are also of the opinion that the act of the Appellants runs contrary to the very spirit of creating reserved seats, be it for women, disabled or minorities. By reducing the participation of the aforementioned classes to their respective quotas, the Appellants have in fact created another quota of abled bodied muslim men, ensuring that the open merit seats are filled by abled bodied muslim men. When women are reduced to only the reserved seats, the quota acts as a bar to employment and loses its facilitative objective as well as created another group or class which is given employment. By denying female candidates their right to employment on merit, the Respondents have ensured that the post of corporals is filled by men. Equal opportunity and equal access has effectively been denied, hence the constitutional mandate violated. Also it means that the seats are filled up by those who do not necessarily meet the merit. By reducing the female candidates to the 5% quota, the merit is compromised as candidates who satisfy the merit are ousted on account of their gender and candidates who do not meet the merit or lower in merit are included. In effect mediocracy is promoted and the very purpose of setting up a rigorous induction plan is compromised. Competence cannot be measured through the gender lens. Competence must be seen strictly on the basis of the standards set. In this case, the standard was the combined result of the written test, psychological test, physical test, medical examination and interview. The selected female corporals all satisfied the merit. The Respondents also fulfilled the criteria but were ousted simply because they are women. Reserved seats or quotas are positive actions required to achieve substantive equality. It is a measure taken for promoting equality and is the bedrock of international conventions providing for protection against discrimination on the basis of sex, race and disability. Hence the act of the Appellants of employing only 75 women when the Respondents being female candidates were eligible on merit is discriminatory and against the spirit of the Constitution.

11. We also find it necessary to comment on the justification offered to us for restricting the employment of female corporals to 75. We were informed that even though female corporals are hired, they are not assigned field work because they are considered to be vulnerable and weak, hence they are given office jobs and no field work. This justification cannot be appreciated or given legal sanctity because if women have applied for the post of corporals in the CTD and have qualified the physical and mental tests set by the Appellants then those who fall on the merit must be trained along with their male counterparts and must be allowed to participate in the field work. The reasoning given is precisely the kind of gender stereotyping which Article 5 of the CEDAW requires to be prevented. Instead of treating

male and female candidates as equal the Appellants have devised their own understanding of how to appoint female corporals. In our opinion this justification given amounts to discrimination because female corporals are being treated differently simply on account of their gender. Therefore gender stereotyping or classification based on stereotype roles or social expectations tantamount to discrimination which is not permissible under the Constitution and goes against the constitutional mandate of equality.

1. For what has been discussed above, all the appeals are dismissed and impugned order dated 2.3.2017 passed by the learned Single Judge in W.P. No. 1134/2015 is maintained.

(Z.I.S.) Appeals dismissed

PLJ 2018 Lahore 350 [Multan Bench, Multan]

Present: Mujahid Mustaqeem Ahmed, J.

MUBASHIR NADEEM--Petitioner

versus

MEMBER (JUDICIAL-III) BOARD OF REVENUE & 3 others--Respondents

W.P. No. 317 of 2010, decided on 2.10.2017.

West Pakistan LandRevenue Rules, 1968--

----Rr. 17 & 19--Constitution of Pakistan, 1973, Arts. 4, 25, 27, 36 & 199--Hereditary claim--Appointment to post of lambardar--Discrimination as to religion and sex--Private respondent was as lambardar on hereditary basis, upon appeal filed by petitioner, appointment was set aside--Respondent filed revision petition before M.B.R., which was allowed and private respondent was so appointed again--Petitioner submitted that impugned orders are against Rule 17 & 19 of Rules 1968--Validity--Appointment of successor lambardar on ground of his proximity of relationship with late lambardar would be valid when there is nothing to indicate any reason which could have disqualified successor lambardar to appointment as successor lambardar and that under Rule 19 of Rules 1968, power of appointment of lambardar is vested in hierarchy of revenue officers created under Land Revenue Act 1967, as revenue officers are better qualified to make choice against a Court of general jurisdiction regarding appointment of lambardar--There shall be no discrimination between citizens of state mere on account of religion--Under Arts. 4, 25, 27 and 36 of Constitution, all citizens are equal before law and cannot be discriminated on basis of religion, sex--Constitution particularly guarantees and safeguards legitimate rights and interests of minorities, including their due representation in federal and provincial services.

[Pp. 353, 354 & 355] A & B

Mr. Muhammad Masood Bilal, Advocate for Petitioner.

Mr. Aziz-ur-Rehman Khan, Assistant Advocate General Respondents No. 1 to 3.

Mehr Haq Nawaz Humayun and Ch. Mudassar Sagheer, Advocates Respondent No. 4.

Date of hearing: 2.10.2017

Judgment

By filing the instant writ petition, the petitioner has assailed the legality and propriety of the order dated 15.12.2009, passed by learned Member Judicial-III, Board of Revenue, Punjab Lahore.

1. The pithy facts for fair adjudication of the instant writ petition are that on death of Muhammad Arshad, permanent Lambardar of Chak No. 366/WP, Tehsil Dunyapur, after due process, his son Muzaffar Ahmad Akhtar-Respondent No. 4 (respondent) was appointed Lambardar, whereas the claim of present petitioner was declined vide order dated 25.04.2009, passed by District Officer (Revenue)/District Collector, Lodhran. The petitioner assailed this order by filing appeal before Executive District Officer (Revenue), Lodhran, whovide order dated 20.08.2009, allowed the appeal and appointed the petitioner as permanent Lambardar of the aforesaid village. Subsequent thereto, respondent moved a petition under Section 164 of the West Pakistan Land Revenue Act, 1967. Vide impugned order, the revision petition was allowed and the order dated 20.08.2009 passed by Executive District Officer (Revenue), Lodhran was set aside by the Member Board of Revenue while observing as under:

“The petitioner Muzaffar Ahmad Akhtar, though belonging to a minority community, is most suitable for appointment as Lambardar instead of respondent. He has vast experience for 16 years and is also son of deceased Lambardar which is a priority for this post. Furthermore, the record of petitioner is unblemished and there are no complaints about any negligence during his working as Sarbrah Lambardar. I, therefore, accept the revision petition and dismiss the impugned order dated 20.08.2009 passed by the EDO (R), Lodhran.”

1. The petitioner has assailed the order passed by learned Member Judicial-III, Board of Revenue, Punjab Lahore, mainly on the grounds that the same is against facts, law and in violation of Rule 17 of the West Pakistan Land Revenue Rules, 1968. It has been vehemently maintained that the petitioner is highly educated, owns land more than respondent in the Mouza and as such he is best person to be appointed as Lambardar. Whereas respondent has supported the impugned order maintaining that the same has been passed after hearing both the parties, on the basis of ground realities and as such interference by this Court is not warranted.

2. Arguments heard. Record perused.

3. Before examining the legality of impugned order, I deem it appropriate to refer qualifications, attributes and accoutrements of Lambardar of a village, in the light of West Pakistan Land Revenue Rules, 1968 and update case law as under:--

i. He/She shall be literate and the higher qualification of the candidate should be a plus point and clear competitive advantage.

ii. He/She shall be a person of impeccable moral and financial integrity.

iii. He/She shall not be a convict in any case from any Court of competent jurisdiction in Pakistan or abroad.

iv. He/She has not committed or engaged or had been engaged in the past in smuggling, theft, robbery, dacoity or any other crime or involved in anti-social activities reported to the Police; tantamounting to disturb the repose of society.

v. He/She shall own the property in the revenue estate and shall be permanent resident of the Village. Due weight should be given to the extent of land holding by the candidate when compared to other candidates from the village revenue estate.

vi. He/She shall enjoy good reputation and shall have established eminence and erudition as a responsible member of the society.

vii. He/She should have positive mental wiring and tapestries of mind have positive attitude towards the general public and land-owners.

viii. His/Her contribution towards the welfare of the community must be weighed in quantifiable and verifiable terms, judged from independent sources by the District Collector.

ix. He/She must enjoy the privilege of commanding respect and trust in his/her person as a member of the community in a revenue estate.

x. He/She should have the right potential to prefer evidence based on truth and assist the district administration while operating against anti-social and anti-estate elements.

xi. He/She should be neutral and a non-political person.

Record reveals that District Officer (Revenue)/District Collector, Lodhran has appointed the respondent as permanent Lambardar taking into consideration the fact that he has performed duties as “Sarbrah Lambardar” for a long period in accordance with law and was not defaulter in payment of land revenue and owned 32 Kanal 9 Marla land in the village, whereas petitioner having no experience in the filed is not suitable. The learned Member Board of Revenue has passed the order after affording full opportunity of hearing to the learned counsel for the parties, as noticed supra, after considering merits and demerits of both the candidates for the post of ‘Lambardar’. The facts of this case are identical to reported case ‘Bashir Ahmad Versus Member (Judicial-III), Board of Revenue Punjab, Lahore and others’ (2002 SCMR 1371). In this case law candidate who has performed work as Temporary Lambardar for 14 years was given preference over other candidate, who lacked any experience as Lambardar.

1. The main thrust of the petitioner that he is more educated than respondent and as such better candidate for the post of Lambardar is misconceived one, as Rule 17 of West Pakistan Land Revenue Rules, 1968 is silent on the subject. In case law ‘Muhammad Rafique Versus Nazir Ahmed and others’ (NLR 2007 Revenue 66 Supreme Court of Pakistan) it has been laid down that under Rule 19 of West Pakistan Land Revenue Rules, 1968, appointment of successor Lambardar on ground of his proximity of relationship with late Lambardar would be valid when there is nothing to indicate any reason which could have disqualified the successor Lamberdar to appointment as successor Lambardar and that under Rule 19 of West Pakistan Land Revenue Rules, 1968 power of appointment of Lambardar is vested in hierarchy of the revenue officers created under Land Revenue Act, 1967 as revenue officers are better qualified to make choice as against a Court of general jurisdiction regarding appointment of Lambardar. In case ‘Muhammad Saleem Versus Member (Judicial-V), Board of Revenue, Punjab, Lahore etc’NLR 2006 Revenue 121 (BWP) it has been held that under Rules 17 and 19 of the Land Revenue Rules, 1968, hereditary claim of son to appointment as permanent Lambardar in vacancy caused by death of his father has not been washed away and it cannot be ignored as it is still part of statutory rules. In case ‘Muhammad Jameel Versus Member (Judicial-1), Board of Revenue, Punjab, Lahore etc’ NLR 2004 Revenue 118 (Lahore) while enumerating the policy it has been held that under Rule 17, appointment of Lambardar made by a Collector should not be ordinarily interfered with unless there is very serious irregularity, injustice or perverseness in Collector’s order. In case law ‘Haji Noorwar Jan Versus Senior Member, Board of Revenue, N.-W.F.P. Peshawar and 4 others’ (PLD 1991 Supreme Court 531) it was held that “any error on the part of Board of Revenue in understanding the law, in applying it or in laying down the law can and must be corrected in the Constitutional jurisdiction, for if it is left uncorrected, it will result in subverting the rule of law”. But in the case in hand learned counsel for the petitioner could not point out any error of law, committed by Respondent No. 1 (Member Board of Revenue Punjab) while passing the impugned order, warranting interference by this Court in its Constitutional jurisdiction.

2. Mere fact that respondent is member of minority community is not a disqualification under the West Pakistan Land Revenue Rules, 1968 because Lambardar is not required to perform any religious duties. He has to perform mainly following duties:--

3. To collect Government Dues declared as arrears of Land Revenue by the District Collector.

4. To collect the rents and other income of the common land.

5. Acknowledge every payment received by him in the books of landowners and tenants.

6. Report to the Tehsildar the death of any assignee of land revenue or Government Pensioner.

Moreover, respondent’s father has also successfully performed his job as permanent Lambardar and the petitioner in his life time performed duties of “Sarbrah Lambardar” and the residents of village have not objected to it. The Constitution of Islamic Republic of Pakistan, 1973 enshrines that there shall be no discrimination between citizens of the State mere on account of religion. Under Articles 4, 25, 27 and 36 of the Constitution of Islamic Republic of Pakistan, all the citizens are equal before law and cannot be discriminated on the basis of religion, sex. The latter Article, particularly guarantees and safeguards the legitimate rights and interests of minorities, in cluding their due representation in the Federal and Provincial services.

1. In sequal to above discussion, I find that the impugned order has been passed in accordance with law, after affording full opportunity of hearing to the petitioner and the learned counsel for the petitioner could not point out any illegality, violation of rules or perversity in the impugned order warranting interference by this Court in its Constitutional jurisdiction and as such instant writ petition being devoid of merits is dismissed.

(Z.I.S.) Petition dismissed

PLJ 2018 Lahore 355 [Multan Bench, Multan]

Present: Mujahid Mustaqeem Ahmed, J.

MUHAMMAD TARIQ JAVED--Petitioner

versus

AGRICULTURAL AND RESEARCH DEPARTMENT and others--Respondents

W.P. No. 2464 of 2009, decided on 11.9.2017.

Constitution of Pakistan 1973--

----Arts. 4, 9, 18, 25 & 199--Public advertisement--Recruitment process--Recommendations of departmental committee--Merit list prepared--Successful candidate--Subsequent ban on recruitment--Whether retrospectively applicable--Valuable rights--Validity--In pursuance of advertisement, petitioner appeared in recruitment process was declared as successful candidate, but respondents denied appointment on plea of subsequent ban imposed by government--Held: Petitioner had been declared successful, under law ban on recruitment has no legal effect and impact on already completed process for recruitment of vacant post/s and same cannot be given retrospective effect--Right to life as envisaged by Art. 9 of Constitution, includes right to livelihood, so it cannot hang on fancies of persons in authority--It is fully established that letter regarding imposition of ban on recruitment cannot be given retrospective effect, as value right has been accrued in favour of petitioner and he is entitled to issuance of appointment letter--Petition was allowed. [Pp. 357, 358 & 359] A, B & C

Mr. Muhammad Khalid Mehmood Ayaz, Advocate for Petitioner.

Mr. Aziz-ur-Rehman Khan, A.A.G for Respondents.

Date of hearing: 11.9.2017

Judgment

The case of the petitioner is that he alongwith others was candidate for the post of Tubewell operator in Agronomic Research Centre, Chak No. 83-85/10-R Khanewal, advertised by Respondent No. 1. After completion of the process, merit list Annexure-C dated 19.09.2007 was prepared wherein the petitioner was mentioned as successful candidate securing highest marks (76/100) but vide Letter No. 29837/4-154/Estt dated 05.09.2008 (Annexure-D), due to imposition of Ban on recruitment after 31.12.2007, no appointment letter was issued in his favour. As such the petitioner has prayed for acceptance of writ petition, declaring the above referred letter as illegal, without lawful authority and consequently issuance of direction to Respondents No. 2 and 3 to make recruitment on the basis of merit list annexure-C.

1. In report and parawise comments submitted by Respondents No. 2 and 3, issuance of advertisement for the above mentioned post, progress in recruitment and recommendations of departmental committee dated 19.09.2007 have been conceded but it has been pleaded that because of filing of writ petition by one of unsuccessful candidates namely Javbed Iqbal (finally decided on 08.04.2008) and due to imposition of complete ban on recruitment w.e.f 01.01.2008, the recommendations of “Departmental Selection Committee” remained invalidated and as such recruitment for above post could not be further processed as a result of which right of the petitioner stood extinguished. After lifting of ban by Government of Punjab fresh process for recruitment of the above post and the other vacant posts will commence on merits.

2. Arguments heard. Record perused.

3. The respondents have admitted that the present petitioner has been included, as successful candidate for the above said post in the recomendations of the Departmental Selection Committee dated 19.09.2007. As per letter Annexure-D referred supra, the ban on fresh recruitment was imposed w.e.f 01.01.2008. Under the law such ban has no legal effect and impact on the already completed process for recruitment of vacant post/s and the same cannot be given retrospective effect. In this respect reference can be made to case law reported as ‘Syed Irfan Ahmed and another Versus Government of Pakistan through Secretary, Finance, Ministry of Finance, Islamabad and 4 others’ 2009 PLC (C.S.) 4 [Karachi High Court] and unreported judgment of this Court titled ‘Ghulam Mustafa Versus Secretary Health and others’ passed in I.C.A.No. 33 of 2008. In celebrated precedent reported as ‘Muhammad Rasheed Versus Government of Punjab’ 2006 SCMR 1082 the Hon’ble Supreme Court of Pakisan has very kindly approved the following findings/observations of learned Single Judge of this Court dated 29.04.1999:--

“This brings me to the allied question as to whether the ban could be applied retrospectively and the answer is not very difficult to find. The ban imposed subsequent to the selection could not possibly take away the rights of the petitioners which have already accrued to them and were also finalized nor could it legally cloud the rights afore-stated. The ban could at the best be applied prospectively and that being so, all the cases afore-noted are saved. Needless to add that it was also argued by the petitioners that now that the ban has been recalled and removed, there is no impediment or bar in employing the petitioners who have already been selected. It goes without saying that if the ban is allowed to operate retrospectively thereby nullifying all the steps taken for the selection of a candidate, it would not only erode the confidence of the people in the functionaries of the State but also in the Government itself for the total process of selection, as enumerated above, did raise a legitimate hope in the minds of a candidate that it has the backing of the State and Government and would be fulfilled. This legitimate hope cannot be rendered meaningless by one stroke of pen thereby imposing ban on recruitment retrospectively. A plain reading of the notification whereby ban was imposed would show that it was meant to be prospective, therefore, the same could not be interpreted to apply retrospectively. In the circumstances, the petitioners are entitled to the grant of mandamus as prayed for.”

1. It is now well settled that “right to life” as envisaged by Article 9 of the Constitution of Islamic Republic of Pakistan, 1973, includes the “right to livelihood” so, it cannot hang on the fancies of the persons in authority. In case law ‘Pir Imran Sajid and others Versus Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan’(2015 SCMR 1257) following observations were made by Apex Court while examining socio-economic justice with reference to Constitution and the law framed there under:--

2. “It hardly needs to be emphasized that the whole edifice of governance of the society has its genesis in the Constitution and laws aimed at to establish an order, inter alia, ensuring the provisions of socio-economic justice, so that the people may have guarantee and sense of being treated in accordance with law that they are not being deprived of their due rights. Provision of Article 4 embodies the concept of equality before law and equal protection of law and save citizens from arbitrary/discriminatory law and actions by the Governmental authorities. Article 5(2) commands that every body is bound to obey the command of the constitution. Every public functionary is supposed to function in good faith, honestly and within the precincts of its power so that persons concerned should be treated in accordance with law as guaranteed by Article 4 of the Constitution. It would include principles of natural justice, procedural fairness and procedural propriety. The action which is mala fide or colourable is not regarded as action in accordance with law. While discharging official functions, efforts should be made to ensure that no one is prevented from earning his livelihood because of unfair and discriminatory act on their part.

3. It is now well laid down that the object of good governance cannot be achieved by exercising discretionary powers unreasonably arbitrarily and without application of mind but objective can be achieved by following the rules of justness, fairness, and openness in consonance with the command of the Constitution enshrined in different Articles including Articles 4 and 25. The obligation to act fairly on the part of administrative authority has been envolved to ensure the rule of law and to prevent failure of the justice.’

In landmark judgment reported as ‘Faisal Sultan Versus E.D.O. (Education) and others’ 2011 PLC (C.S) 419 [Relevant page 439] this Court has defined the concept of social and economic justice as under:

(K) ‘Admittedly, the petitioners belong to a less privileged segment of the society with limited social and economic choices in life. Petitioners have an unequal bargaining position compared to the government. It is for their protection that the constitution provides the concept of social and economic justice. “The expression social and economic justice involves the concept of ‘distributive justice’ which cannotes the removal of economic inequalities and rectifying the injustice resulting from dealings or transactions between unequals in society… social justice is the comprehensive form to remove social imbalance by harmonizing the rival claims or the interest of different groups and Sections in the social structure or individuals by means of which alone it would be possible to be build a Welfare State.” (The Shorter Constitution of India, 13th Edition by Durga Das Basu). Further the objectives resolution and the preamble to our Constitution state: “Wherein shall be guaranteed fundamental rights, including….social, economic and political justice…..” (emphasis supplied). The Constitution therefore reads fundamental rights to be inclusive of social and economic justice. Social and economic justices are, therefore, indelible, ineradicable, inbred and fundamental parts of a civilized life, more so in an Islamic republic, and therefore are squarely covered under Article 9 of the Constitution. With appointment comes an expectation of a lawful livelihood, hopes of a successful career, sense of wellbeing and security, social recognition and economic independence. Any process that derails a person from this path of social progress and economic self sufficiently violates social and economic justice thereby violating Article 9 of the Constitution. “ (underlined by me to supply emphasis)

1. Thus, from the above case law, it is fully established that the impugned letter Anexure-D regarding imposition of ban on recruitment cannot be given retrospective effect, as valuable right has been accrued in favour of the petitioner and he is entitled to the issuance of appointment letter.

2. Learned A.A.G. has maintained that in response to subsequent advertisement regarding the same post (actually the newly created post of same cadre), the petitioner has also applied but remained unsuccessful and as such he is barred and estopped to pray for issuance of appointment letter on the basis of earlier recruitment process. The contention of learned law officer, as rightly pointed out by learned counsel for the petitioner, is devoid of merits as the petitioner

was competent to submit application in response of any subsequent advertisement made by respondents for the said post. Moreover,vide order dated 13.05.2009 passed by this Court in this petition, respondent/department was permitted to further process the recruitment for the post of “Tubewell operator” subject to the decision of this writ petition. As such in view of this injunctive order issued by this Court, by filling up any post by the department during the pendency of this writ petition, the instant writ petition will not become infructuous.

1. As a sequal to above discussion, the instant writ petition is allowed, Letter No. 29837/4-154/Estt dated 05.09.2008 (Annexure-D) is declared without lawful authority, having no legal effect and thus ineffective upon the rights of the petitioner. Respondents are directed to issue appointment letter in favour of the petitioner within thirty days on the basis of recommendations dated 19.09.2007 (Annexure-C) prepared by the departmental selection committee of the respondent department. No order as to costs.

(Z.I.S.) Petition allowed

PLJ 2018 Lahore 360 [Multan Bench, Multan]

Present: Mujahid Mustaqeem Ahmed, J.

KAUSAR BIBI--Appellant

versus

GHULAM SHABBIR--Respondent

Transfer Application No. 38-C of 2017, decided on 19.9.2017.

West Pakistan Family Courts Act 1964--

----S. 25-A--Transfer of case--Custody of minor--Minor filed suit for maintenance against father, which was pending before Family Court, whereas, husband has filed guardian petition, which was also pending--Petitioner seeks transfer of guardian case from “M” to “J”--Welfare of minor--Validity--Mother of minor is resident of Tehsil “J” and it is quite inconvenient for her to appear before Guardian Judge “M” to contest guardian petition for custody of minor--Presence of minor before Court is also needed, and it will be quite inconvenient, difficult and hazardous to health of minor to appear before Guardian Judge “M”--In family matters, while adjudicating transfer application, convenience of lady has been given preference by superior Courts--It is always desirable that family suits are tried, heard and adjudicated by one and the same Court to avoid conflicting judgments--Petition was allowed.

[Pp. 361 & 362] A

Malik Nasir Javed, Advocate for Petitioner.

Date of hearing: 19.9.2017

Order

In-spite of due service of respondent, no one has entered appearance on behalf of the respondent, hence exparte proceedings are initiated against him.

1. It has been maintained that the suit for maintenance allowance of Alina Bibi minor, filed through next friend/petitioner/real mother, titled as “Kausar Bibi and another vs. Ghulam Shabbir” is pending before the learned Judge Family Court, Jahanian, whereas the respondent has filed an application for custody of minor titled as “Ghulam Shabbir vs. Mst. Kausar Bibi”, which is sub-judice before the learned Guardian Judge, Multan. As such by filing this petition, the petitioner has prayed for transfer of latter application for custody of minor from the Court of learned Guardian Judge, Multan, to the learned Judge Family Court, Jahanian.

2. Heard. Documents appended with this petition perused.

3. Section 25-A of West Pakistan Family Courts Act, 1964 (Act XXXV of 1964) caters for situation where more than one family suits are pending between the same parties before the different family Courts, which is reproduced as under:

“Section 25-A. Transfer of cases.--Notwithstanding any contained in any law the High Court may either on the application of any party or of its own accord, by an order in writing--

(a) transfer any suit or proceeding under this Act from one Family Court to another Family Court in the same district or from a Family Court of one district to a Family Court of another district;

(b) transfer any appeal or proceeding under this Act from the District Court of one district to the District Court of another district…”

1. As per record, petitioner/real mother of the minor is resident of Tehsil Jahanian and as such it is quite inconvenient for her to appear before the learned Guardian Judge, Multan to contest the guardian petition for custody of minor. Moreover, for adjudication of

that petition, presence of minor before the Court is also needed and it will be quite inconvenient, difficult and hazardous to health of minor to appear before the learned Guardian Judge, Multan.

1. It is not easy for a lady to alone travel to another District to pursue and defend a case and she would have to bear travelling expenses. So, in family matters, while adjudicating transfer application convenience of lady has been given preference by the Superior Courts. Moreover, it is always desirable that family suits are tried, heard and adjudicated by one and the same Court to avoid conflicting judgments. Reliance is placed on “Kashif Meraj versus Judge Family Court and another” (2010 YLR 2568 Lahore), “Mst. Sugra Bibi versus Muhammad Akbar Ali” (2010 YLR 12 Lahore), “Atiqa Muzammil versus Muhammad Umar Farooq” (2010 YLR 1519 Lahore) and “Mst. Shazia versus Sohail Nazir Khan” (2015 YLR 684 Lahore).

2. In view of the above discussion, the instant petition is allowed and the latter petition for custody of the minor titled as “Ghulam Shabbir vs. Mst. Kausar Bibi”is withdrawn from the learned Guardian Judge, Multan and is entrusted to the learned Judge Family Court/Guardian Judge, Jahanian District Khanewal (before whom the suit for maintenance allowance is pending) for its disposal, in accordance with law. Both the parties are directed to appear before the learned transferee Court on 03.10.2017.

(Z.I.S.) Petition allowed

PLJ 2018 Lahore 362 [Multan Bench, Multan]

Present: Mujahid Mustaqeem Ahmed, J.

ABDUL RASHEED through LRs and others--Appellants

versus

MUHAMMAD AKHTAR and another--Respondents

R.S.A. No. 07 of 2011, heard on 25.9.2017.

Civil Procedure Code, 1908 (V of 1908)--

----S. 100--Special Relief Act, 1877, S. 12--Concurrent findings of fact by Courts below--Agreement to sell--Question of forged & fictitious signatures--Non-production of marginal witness--Effect--Predecessor-in-interest of respondent was owner of land--Predecessor vide agreement to sell agreed to sell possession of land was delivered in favor of appellant--Respondents submitted that their predecessor was illiterate, during his life time, he always affixed thumb impression, whereas, agreement to sell purportedly bearing signatures was forged, fictitious--Trial Court after framing issues dismissed the suit filed by appellant, appeal filed by the appellants was also dismissed--Challenge in Second Appeal--Validity--Agreement to sell by his father in favour of appellants was not executed in his presence--DW claimed that his father being illiterate used to affix his thumb mark and has never signed any document--During cross-examination he deposed that he has not purchased stamp paper for execution of agreement to sell and had not identified vendor at that time--Stamp paper for agreement to sell was purportedly purchased by respondent’s predecessor though his son--From attested copy of register of stamp vendor, it is established that his license for stamp vendor was cancelled by as such sale of purported stamp paper in favor of respondent’s predecessor has not been incorporated in Register--Respondent has placed on record registered lease deed and two other un-registered deeds to establish that his predecessor being illiterate used to affix thumb mark only--Appellants had failed to place on record any other deed on which he has affixed his signatures instead of thumb mark--Appellants had failed to establish valid execution of agreement to sell, payment of earnest money--Appellant were held not entitled to the discretionary relief under Section 12 of Act 1877.

[P. 366 & 367] A, B, C & D

Malik Muhammad Latif Khokhar, Advocate for Appellants.

Mr. Muhammad Shahzad Khan, Advocate for Respondent No. 1.

Ex-partefor Respondent No. 2.

Date of hearing: 25.9.2017

Judgment

By filing Regular Second Appeal, the appellants have assailed the concurrent judgments dated 28.01.2010 and 01.12.2010 passed by learned Civil Judge Ist Class, Multan and learned Additional District Judge, Multan respectively, by which suit of the appellants for specific performance of contract as well as appeal were dismissed.

1. Brief facts culminating into this regular second appeal and necessary for its fair adjudication are that Mir Dad Khan predecessor in interest/father of respondents was owner of 25 Kanal 16 Marla land situated in Mouza Masood Pur Tibba, Tehsil and District Multan. The case of the present appellants is that said Mir Dad Khan (deceased) vide agreement to sell dated 12.11.1992 (Exh.P1) agreed to sell 7 Kanal land in their favour [i.e Abdul Rasheed, Ghulam Farid (since dead being represented by legal heirs), Allah Ditta and Allah Wasaya], against consideration of Rs.322,000/- out of which Rs.265,000/- were paid in cash, possession was delivered in favour of the appellants and date for completion of agreement to sell was fixed as 19.12.1995. But immediately thereafter Mir Dad Khan vide registered ‘Tamlik Nama’ dated 15.12.1992 (Exh.D2) transferred his entire holding in favour of his one son Muhammad Akhtar-Respondent No. 1 and the same was also incorporated in the revenue record. The present appellants prayed for a decree for specific performance of contract in their favour. This suit has been resisted by Respondents No. 1 and 2 by filing separate written statements. Respondent No. 1/Muhammad Akhtar specifically alleged that Mir Dad Khan was illetrate. On various documents executed in his life time he has affixed his thumb mark, whereas the agreement to sell purportedly bearing signature of vendor was forged, fictitious and result of collusion of appellants with his real brother/Respondent No. 2. He further claimed that his father had not even purchased the stamp paper for execution of agreement to sell and it was purportedly purchased through Respondent No. 2. Whereas Respondent No. 2 also denied the avernments of plaint. However, he conceded possession of the appellants over the suit property.

2. To resolve controversy in between the parties, learned Civil Judge framed the following issues:--

ISSUES

1. Whether agreement to sell has been fabricated with collusion of Defendant No. 2 with the plaintiff? OPD-1

2. Whether the suit is time barred? OPD-2

3. Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction? OPD-2

4. Whether the suit is based on malafide? OPD

5. Whether Mir Dad Khan propositus of the defendants agreed to sell the suit land to the plaintiff against Rs.3,22,000/- received Rs.2,65,000/- as money, delivered its possession to the plaintiffs and executed agreement to sell dated 12.11.1992? OPP

6. Whether the plaintiffs are entitled to get the decree for Specific performance of agreement on the basis of averments contained in the plaint, if so, on what terms and conditions? OPP

7. Whether the suit is not maintainable as per preliminary objection No. 2 of the written statement? OPD-2

8. Whether the stamp paper was not purchased by the father of the Defendant No. 1 and same is forged and fictitious? OPD-1

9. Whether the plaintiffs are liable to be proceeded u/S. 476 Cr.P.C.? OPD-1

10. Whether the suit is not maintainable in its present form? OPD-1

11. Whether the Defendant No. 1 is entitled to special costs, if so, then to what amount? OPD-1

12. Relief.

After recording evidence of the parties, hearing arguments, the suit of appellants was dismissed vide judgment and decree dated 28.01.2010 passed by learned Civil Judge, Multan. The present appellants assailed the same before the learned first appellate Court but vide judgment and decree dated 01.12.2010 their appeal was also dismissed. Feeling dissatisfied with the impugned judgments, the appellants have assailed the same by filing regular second appeal, maintaining that the same are based on misreading and non-reading of evidence, as such the same are not sustainable.

1. Arguments heard. Record perused.

2. The main point for determination before this Court is whether Mir Dad Khan has agreed to sell the suit property in favour of appellantsvide agreement to sell (Exh.P1) for Rs.322,000/- and out of sale consideration Rs.265,000/- were paid to him at the time of execution of agreement to sell. Muhammad Ali-PW1, son of Muhammad Afzal deed writer, deposed that agreement to sell (Exh.P1) was scribed by his father. During cross-examination he conceded that he has not brought “the register of deed writer” in which the agreement to sell was incorporated. As stated at bar, this witness on subsequent dates could not produce the register despite specific direction by the learned Civil Judge, Multan. Karim Haider/PW-2 (property dealer) and Abdul Ghaffar/PW3 brother in law (سالا) of Abdul Rashid, one of the appellants, are marginal witnesses of agreement to sell, who supported appellants’ case regarding valid execution of agreement to sell (Exh.P1) and payment of earnest money. PW-4 Abdul Rashid, one of the appellants, supported the case incorporated in the plaint. During cross-examination he made the following statement regarding attestation of Exh.P1 and identity of the vendor and Muhammad Akhtar-Respondent No. 2:-

“علم نہ ہے کہ میر داد ان پڑھ تھا۔ علم نہ ہے کہ وہ دستخط نہ کر سکتا تھا۔ میرے علم میں نہ ہے کہ میر داد نے کسی دیگر دستاویز پر دستخط کیے ہیں۔ میر داد بوقت تکمیل معاہدہ بیع شناختی کارڈ نہ لایا تھا۔ اختر کا بھی شناختی کارڈ نہ تھا۔ میر داد کا فوٹو نہ لگایا تھا۔”

Atif Jaffari, D.S.P. Incharge Finger Print Bureau, Punjab Lahore-PW5 proved his report Exh.P5 according to which on Exh.P1 Respondent No. 2 has affixed his signature.

Whereas Respondent No. 2 as DW-1 deposed that agreement to sell by his father in favour of appellants was not executed in his presence. He however claimed that his father being illetrate used to affix his thumb mark and he has never signed any document. During cross-examination he deposed that he has not purchased stamp paper for execution of agreement to sell and he had not identified Mir Dad Khan at that time. DW-2 Abdul Latif, nephew of Mir Dad Khan and DW-3 Yameen have deposed that Mir Dad Khan being illetrate had never signed any document and he used to affix his thumb mark. DW-4 Muhammad Akhtar/Respondent No. 1 deposed that his father on 17.12.1992 has transferred 25 Kanal 12 Marla land in his favour by executing registered ‘Tamleek Nama’. Mir Dad Khan has not executed any agreement to sell in favour of appellants and the same is forged and fictitious. He further deposed that Mir Dad Khan being illetrate was not in a position to sign any deed. During cross-examination he deposed that the appellants being members of ‘Qabza Group’ have forcibly occupied the suit land after institution of suit. DW-5-Javed Abbas Khan/son of deed writer has deposed that on 12.12.1995 Respondent No. 2 has executed general power of attorney deed in favour of Abdul Ghaffar-PW3, marginal witness of agreement to sell and on the same date Respondent No. 2 has also entered into an agreement to sell with the appellants.

1. Perusal of record transpires that the stamp paper for agreement to sell (Exh.P1) was purportedly purchased by Mir Dad Khan through his son/Respondent No. 2, from one Atta-ur-Rehman on 12.11.1992. From attested copy of register of said stamp vendor Exh.D13, it is established that his license for stamp vendor was cancelled by the Deputy Commissioner on 12.11.1992, as such the sale of purported stamp paper in favour of Mir Dad Khan has not been incorporated in the register. After examining the entire evidence on record, the learned Courts below have come to the just conclusion that Respondent No. 2 Muhammad Asghar was aggrieved of ‘Tamleek deed’ (Exh.D2) executed by Mir Dad Khan (deceased) in favour of Respondent No. 1 and by filing civil suit Exh.D8 on 26.02.1994, he challenged this transaction and thereafter he in connivance with appellants prepared forged agreement to sell and for that purpose he purchased ante dated stamp paper from an unauthorized stamp vendor and became its marginal witness, whereas Mir Dad Khan had died on 28.05.1993, and there was no occasion for Respondent No. 2 and present appellants to obtain his thumb mark on agreement to sell (Exh.P1) and thus his forged signature was affixed on it.

2. Respondent No. 1 has placed on record registered lease deed dated 07.05.1980 Mark-A and two other unregistered deeds Mark-B and Mark-C to establish that Mir Dad Khan being illetrate used to affix thumb mark only. As admitted by PW-2, property dealer, Mir Dad Khan also sold away his other landed property but the appellants have failed to place on record any other deed on which he has affixed his signatures instead of thumb mark. Even on registered ‘Tamleek Deed’ Exh.D2 dated 15.12.1992 (executed just one month after Exh.P1) in favour of Respondent No. 1, Mir Dad Khan has affixed his thumb mark. Thus to my view, the learned Courts below are fully justified to disbelieve execution of agreement to sell (Exh.P1), payment of earnest money to Mir Dad Khan and delivery of possession under said agreement to sell. Learned counsel for the appellants could not satisfy this Court on the point that when out of sale consideration Rs.322,000/-, a major amount of Rs.265,000/- has been paid to the vendor, why the period of more than three years was fixed for completion of agreement to sell. Such long and unusual period for completion of agreement to sell also establishes that conclusion drawn by the learned Courts below that after knowledge of execution of ‘tamleek deed’ in favour of Respondent No. 1, Respondent No. 2 with the connivance of appellants has prepared a forged agreement to sell, is correct one.

The appellants have failed to establish valid execution of agreement to sell, payment of earnest money to Mir Dad Khan. Even otherwise in view of peculiar facts and circumstances of the case, the appellants are not entitled to the discretionary relief under Section 12 of the Specific Relief Act, 1877. Reliance is placed on ‘Muhammad Abdur Rehman Qureshi Versus Sagheer Ahmad’ (2017 SCMR 1696), ‘Liaqat Ali Khan and others Versus Falak Sher and others’ (PLD 2014 Supreme Court 506) and ‘Abdul Aziz and another Versus Abdul Rehman and others’ (1994 SCMR 111).

1. Learned counsel for the appellants has vigorously maintained that Respondent No. 1 has made unauthorized amendments in amended written statement and taken the plea that present appellants have moved application for correction of entries in “Khasra Girdawri” and during that proceedings Abdul Rasheed and Ghulam Farid appellants have made statements before revenue officer that they had entered into an oral agreement to sell with Respondent No. 1 and some earnest money was also paid to him and subsequently the forged agreement to sell Exh.P1 was prepared by the appellants as a result of their connivance with Respondent No. 2. As such oral as well as documentary evidence led in support of such plea is inadmissible. In support of this contention reliance has been placed on ‘Muhammad Boota through legal heirs and 6 others Versus Abdul Razak’ (2005 YLR 2119 Lahore) and ‘Jane Margrat William Versus Abdul Hamid Mian’(2003 MLD 1430 Lahore). Whereas learned counsel for Respondent No. 1 has referred the case law reported as ‘Mst. Hajiani Hajrabai Versus Afzal Ali and 2 others’ (1992 MLD 453 Karachi) and ‘Haji Suleman Ali Muhammad Versus Ahmad Ali and other’ (PLD 1982 Karachi 111) to maintain that respondent has made amendment in written statement in response to the amendment in the plaint but he has not raised any plea in consistant to his case already pleaded in the written statement. The case law referred by respondent’s side is fully applicable to the facts of the case. Now it is well settled that the Court has vast discretionary powers to allow amendment in pleadings and such discretion should be exercised liberally to promote the ends of justice and to determine the real controversy in between contesting parties. While submitting amended written statement, besides replying to the amended paras of plaint, the defendant can take pleas which are available to him, under the law. But it will not authorize defendant to resile from the admission made in the earlier written statement or add a new or inconsistent case, as already pleaded in earlier written statement. Admission made by a party to the lis in the pleading cannot be revoked without express permission of the Court.

2. No doubt, amendments in para Nos. 2, 5 to 7 of preliminary objections in amended written statement dated 15.12.2000 were unauthorized but by those amendments, Respondent No. 1 has not resiled from any earlier plea taken in written statement. Even otherwise if the oral as well as documentary evidence regarding litigation between the parties before revenue Court is discarded, even then the appellants have failed to establish valid execution of agreement to sell.

3. The appellants have failed to point out that impugned judgments are contrary to law or that the learned Courts below have failed to determine some material issue of law or there is substantial error or defect in the procedure provided by, C.P.C..

4. In view of above discussion, this Regular Second Appeal being devoid of merits stands dismissed with costs.

(Z.I.S.) RSA dismissed

PLJ 2018 Lahore 369 [Multan Bench, Multan]

Present: Mujahid Mustaqeem Ahmed, J.

ALLAH BUKHSH through legal heirs--Petitioner

versus

Mst. BUKHTAWAR and others--Respondents

Civil Revision No. 286-D of 2016, heard on 19.9.2017.

Civil Procedure Code, 1908 (V of 1908)--

----S. 115--Inheritance claim--Relinquishment of right of inheritance--Whether unislamic--Capacity of minor to relinquish--Question of public policy--Predecessor-in-interest of petitioners owned agriculture land, upon his death mutation of inheritance was attested in favor of petitioner--Respondent filed suit for declaration with prayer that he and his sister are entitled to inheritance, any entry made during their minority age is void to their rights--Any relinquishment deed prepared or entered in revenue record is also void--Trial Court decreed suit filed by respondent, which was upheld by appellate Court--Challenge to--Petitioner contended that impugned sanction is 65 years ago, as such, presumption of truth is attached to them, therefore, Courts below fell in legal error--Case of respondent/plaintiff was that she was owner in possession of suit land being successor-in-interest and that she had not relinquished her right to inherit and that defendant/petitioner has deprived plaintiff of inheritance in collusion with revenue staff--Plaintiff claimed that she was minor at time of attestation of mutation, as such was not competent to enter into any transaction/contract or relinquish her right in inheritance and thus whole affair was manoeuvred--Defence of petitioners through written statement and subsequent evidence was that at time of opening of succession of late, predecessor-in-interest of parties, respondent/plaintiff had relinquished her right in favour of her brother, upon which mutation was attested in his favour, as such she subsequently cannot claim her right in inheritance which she had already validly surrendered--Whole case of respondent hinges on point that at time of attestation of mutation she was minor as such under law she was not competent/capable to relinquish her right and that impugned mutation has been obtained on basis of fraud--Trial Court has framed issues to resolve controversy and onus to prove these issues was on plaintiff--Plaintiff produced her husband as her special attorney and also produced documents including impugned mutation--Perusal of whole record shows that it was never defence of defendant/petitioners that co-respondent was not minor at time of attestation of impugned mutation--Thus plaintiff has succeeded to prove that at time of opening of succession of attestation of impugned mutation, she was minor and that being successor-in-interest, was legally entitled to inherit his legacy and as such was co-owner/co-sharer of suit land--Having thus established she was, under law, not competent to make any transaction or enter into an agreement or even to make consent for relinquishment of her right and thus any transaction made by her or on her behalf against her interest is liable to be declared void ab initio and struck down--Question of limitation does not arise in case of setting aside a void order for having no legal worth in eye of law--Impugned mutation was void ab initio for having been fraudulently entered and attested on behalf of minor during her minority--Respondent alongwith her other sister was deprived from revenue estate of deceased on ground that they have relinquished their right of inheritance in favour of petitioners--Admittedly respondent did not appear before Revenue Officer at time of attestation of impugned mutation--Therefore, even if her mother or paternal uncle had made any consenting statement on her behalf, same has no binding effect upon rights of respondent--Respondent being minor at time of attestation of impugned mutation was not competent to relinquish her share in favor of predecessor in interest of petitioners and thus was admittedly a co-sharer and impugned mutation of inheritance being ineffective qua her right of inheritance, no limitation runs for filing a suit for declaration by her--Petition was dismissed.

[Pp. 373, 374 & 375] A & B

Mr. Azeem-ul-Haq Pirzada and Rana Zulfiqar Ali, Advocates for Petitioner.

Malik Muhammad Shehzad Fareed Langerial, Advocate Respondent No. 1.

Proceeded ex-parte Respondents No. 2 to 4.

Date of hearing : 19.9.2017

Judgment

Through instant revision petition filed in terms of Section 115, C.P.C. successors-in-interest of Allah Bukhsh, defendant (hereinafter to be called, the petitioners) have assailed judgments and decrees dated 29.2.2012 passed by learned Civil Judge, Taunsa Sharif, Distt. D.G. Khan whereby suit of Respondent No. 1 was decreed and dated 25.1.2016 passed by learned Addl. Distt. Judge, Taunsa Sharif whereby appeal of the petitioners was dismissed affirming the decision of learned trial Court.

1. Brief but admitted facts of the case are that Sardar, predecessor-in-interest/father of Allah Bukhsh (predecessor-in-interest of present petitioners), Mst. Bakhtawar, (Respondent No. 1) and Mst. Jannatan (predecessor-in-interest of Respondents No. 2 to 4) (who are brother and sisters inter se), owned agriculture land in two Mauzas i.e. Bohar (21 kanals and 1 marla, subject-matter of present litigation) and Mauza Mepal of Tehsil Taunsa Sharif of Distt. D.G. Khan. On the death of said Sardar mutation of inheritance No. 2581 (Ex.P.5) with regard to the land situated in Mauza Bohar was attested on 21.3.1940 in favour of Allah Bukhsh, defendant (since dead and represented by legal heirs) excluding his sisters Mst. Bakhtawar (plaintiff/here-in-after to be called the respondent) and Mst. Jannatan (predecessor-in-interest of proforma Respondents No. 2 to 4). It may be mentioned here that by another Mutation No. 349 (Ex.P.6) attested on 20.6.2007 revenue estate of said Sardar situated in Mauza Mepal devolved upon all the legal heirs (referred supra). In this backdrop on 2.7.2005 the respondent filed suit for declaration to the effect that she and her real sister Mst. Jannatan were entitled to inherit revenue estate of their father Sardar situated in “Mauza Bohar” and impugned mutation of inheritance No. 2581 attested on 21.3.1940 was against facts and law and ineffective upon their rights. The suit was vehemently contested by Allah Bukhsh, defendant by submitting written statement and divergent pleadings of the parties led the trial Court to frame following issues:

2. Whether the plaintiff is owner in possession of the suit property and the defendants have no concern with the same? OPP.

3. Whether the entries in the revenue record are against the facts, void, false and ineffective upon the rights of the plaintiff? OPP.

4. Whether the suit is time barred? OPD.

5. Whether the Defendant No. 1 has incurred Rs.two lacs on development and as such he is entitled to receive the same in case the suit is decreed against him? OPD.

6. Whether the plaintiff has no cause of action to bring this suit? OPD.

7. Whether the plaintiff is stopped by her words and conduct to bring this suit? OPD.

8. Whether the value of suit for the purposes of Court fee and jurisdiction has wrongly been fixed? OPD.

9. Relief.

10. In order to prove their case, both parties led their respective oral as well as documentary evidence. At the conclusion of trial, after recording evidence and hearing arguments on behalf of the parties, learned Civil Judge decreed the suit of the respondent. Feeling dissatisfied with the judgment and decree of learned trial Court, the petitioners assailed the same by way of appeal which was dismissed by a learned Addl. Distt. Judge Taunsa Sharif, affirming the judgment of learned trial Court, as noted above. Hence this petition.

11. Learned counsel for the petitioners has vehemently contended that the suit filed by the respondent was badly time barred but this legal aspect was not properly appreciated by the Courts below. Further contends that impugned mutation was sanctioned on 21.3.1940 i.e. 65 years ago and as such presumption of truth is attached to the said document under the law. Learned counsel further contends that at the time of attestation of mutation, mother and paternal uncle of the plaintiff/respondent were present on her behalf and with their consent impugned mutation had been sanctioned but the impugned judgments have been passed by both the learned Courts below on the basis of mis-reading and non-reading of evidence. Learned counsel further contended that learned Ist. appellate Court did not decide appeal issue-wise as such the impugned judgment of learned Addl. Distt. Judge is liable to be set aside. Lastly learned counsel has argued that the petitioners have spent a huge amount for levelling the suit land to convert it in cultivable condition and are thus entitled for compensation for such improvement.

12. Learned counsel for Respondent No. 1 has supported the impugned judgments.

13. Arguments heard and record gone through with the assistance of learned counsel for the parties.

14. Perusal of record shows that case of the respondent/plaintiff was that she was owner in possession of suit land being successor-in-interest of Sardar and that she had not relinquished her right to inherit and that the defendant/petitioner has deprived the plaintiff of inheritance in collusion with revenue staff. The plaintiff claimed that she was minor at the time of attestation of mutation, as such was not competent to enter into any transaction/contract or relinquish her right in inheritance and thus the whole affair was manoeuvred. Defence of the petitioners through written statement and subsequent evidence was that at the time of opening of succession of late Sardar, predecessor-in-interest of the parties, the respondent/plaintiff had relinquished her right in favour of her brother Allah Bukhsh, upon which Mutation No. 2581 was attested in his favour, as such she subsequently cannot claim her right in inheritance which she had already validly surrendered. Thus pleadings of the parties depict that whole case of the respondent hinges on the point that at the time of attestation of Mutation No. 2581 dated 21.3.1940 she was minor as such under the law she was not competent/capable to relinquish her right in favour of Allah Bukhsh and that the impugned mutation has been obtained on the basis of fraud. Learned trial Court has framed Issues No. 1 and 2 to resolve this controversy and onus to prove these issues was on the plaintiff. The plaintiff produced her husband Ahmad Bukhsh as her special attorney as P.W.1 and also produced documents Exs. P.1 to P.6 including impugned mutation Ex.P.5. From perusal of impugned mutation (Ex.P.5) it was very much established, vide note of Revenue Patwari, that when inheritance of Sardar was devolved upon his legal heirs, Mst. Bakhtawar was minor. It was never case of the petitioners that Mst. Bakhtawar was not daughter of Sardar nor it was even remotely suggested to P.W.1 that Mst. Bakhtawar was not minor at the time of attestation of impugned mutation. Contrary to this, Ghulam Ilyas, one of the petitioners while appearing as DW.1 conceded it correct that Bakhtawar plaintiff and Mst. Jannatan are the daughters of Sardar Khan. A careful analysis of impugned mutation (Ex.P.5) reveals that it was incorporated by the Patwari in Column of Remarks that Mst. Bukhtawar was a minor at that time. This note of the Patwari was never challenged by the petitioners/defendant as being incorrect. Perusal of whole record shows that it was never defence of the defendant/petitioners that Mst. Bakhtawar was not minor at the time of attestation of impugned mutation. Thus the plaintiff has succeeded to prove that at the time of opening of succession of Sardar/attestation of impugned mutation, she was minor and that being successor-in-interest of Sardar, was legally entitled to inherit his legacy and as such was co-owner/co-sharer of the suit land. Having thus established she was, under the law, not competent to make any transaction or enter into an agreement or even to make consent for relinquishment of her right and thus any transaction made by her or on her behalf against her interest is liable to be declared void ab initio and struck down. Thus question of limitation does not arise in case of setting aside a void order for having no legal worth in eye of law. Impugned mutation was void ab initio for having been fraudulently entered and attested on behalf of minor during her minority. She alongwith her other sister Mst. Jannatan was deprived from the revenue estate of the deceased on the ground that they have relinquished their right of inheritance in favour of the petitioners. Admittedly the respondent did not appear before the Revenue Officer at the time of attestation of impugned mutation. Therefore, even if her mother or paternal uncle had made any consenting statement on her behalf, the same has no binding effect upon rights of the respondent. The Hon’ble Supreme Court while dealing with the matter of inheritance under Mohammadan Law vide celebrated judgment reported as Ghulam Ali and two others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) laid down the following principle.

“As soon as an owner dies, succession to his property opens. There is no State intervention or clergy’s intervention needed for the passing of the title immediately, to the heirs. Thus it is obvious, that a Muslim’s estate legally and juridically vests immediately on his death in his or her heirs and their rights respectively come into separate existence forthwith. The theory of representation of the estate by an intermediary is unknown to Islamic Law of Inheritance as compared to other systems. Thus there being no vesting of the estate of the deceased for an interregnum in any one like an executor or administrator, it devolves on the heirs automatically, and immediately in definite shares and fraction. It is so notwithstanding whether they (the heirs) like it, want it, abhor it, or shun it. It is the public policy of Islamic law. It is only when the property has thus vested in the heir after the succession opens, that he or she can alienate it in lawful manner.”

It was further observed as under:

“Recognition and enforcement of law of inheritance by the State agencies including the Courts, vis-à-vis, the female heirs, is a matter of public policy in Islam.

Dealing with the relinquishment of right of inheritance by female heirs, it was held in the said salutary judgment as under:

“Relinquishment of her inheritance by a female co-sharer without consideration--Such relinquishment having been declared void being against public policy under Section 23 of the Contract Act cannot be revived and given life merely because it suffered from another serious infirmity and such infirmity could not be overcome by a resort to exceptions given in S.25 of the Act. Presumption would be that relinquishment was not on account of natural love but on account of social constraints.”

Dictum has thus been set up that:

“Relinquishment of right of inheritance is against public policy and that scope of right of inheritance of females is so wide and their thrust so strong that it is duty of Courts to protect and enforce them even if the legislative action for this purpose of protection in accordance with Islamic jurisprudence is yet to take its own time.”

1. While elaborating the question of limitation, the Apex Court in a recent precedent reported as Khan Muhammad through L.Rs. and others v. Mst. Khatoon Bibi and others (2017 SCMR 1476) observed as under:

“Where a right of inheritance was claimed, the claimant became co-owner/co-sharer of the property left by the predecessor alongwith others the moment the predecessor died. Entry of mutations of inheritance was only meant for updating the revenue record and for fiscal purposes. No limitation would run against the co-sharer.

Keeping in view the above dictum it can safely be held that Mst. Bakhtawar being minor at the time of attestation of impugned mutation was not competent to relinquish her share in favour of the predecessor in interest of petitioners and thus was admittedly a co-owner/co-sharer and impugned mutation of inheritance being ineffective qua her right of inheritance, no limitation runs for filing a suit for declaration by her and the Courts below have rightly held so. In view of above noticed facts coupled with the fact that respondent alongwith others has inherited revenue estate of deceased in other Mauza vide mutation Ex.P.6 and the case law, the contention of learned counsel for the petitioners that the suit is time barred, is devoid of merits and is discarded.

1. Learned counsel for the petitioner has further maintained that predecessor-in-interest of the petitioners has spent Rs.2,00,000/- to level and make the suit land cultivable but this plea of the petitioners was not attended to by the Courts below. In this context he has referred statement of Ghulam Ilyas, DW.1. This witness was not even born at the time of opening succession of Sardar, predecessor of the parties and as such his version regarding improvement of status of suit property and their entitlement to recover the same is just hearsay not supported by any independent witness. Even otherwise Allah Bukhsh, has cultivated the suit property and as such received its usufruct for such a long period. As such claim for improvement is unjustified and the petitioners are not entitled for any such compensation particularly when the respondents had not been given their “Shari” share of inheritance in revenue estate of their father.

2. Contention of learned counsel for the petitioners that the impugned judgments and decrees are based on misreading and non-reading of evidence or that the findings of learned appellate Court have not been recorded issue-wise are devoid of merits and no valid ground whatsoever has been shown for interference in the concurrent judgments and decrees passed by learned Courts below which are based on proper appreciation of evidence. While dealing with the revisional jurisdiction of the High Court under Section 115 of the, C.P.C.. the Hon’ble Supreme Court in case reported as Ghulam Qadir and others v. Sh. Abdul Wadood and others (PLD 2016 SC 712) held as under:

“The jurisdiction of an appellate Court can be invoked by a person who believes that the subordinate Court has erred in law or in fact whilst passing the judgment/order under appeal. On the other hand a revision also involves an exercise of reconsideration/re-examination of the judgment/order of a subordinate Court but only to the extent that it falls squarely within the parameters of Section 115 of the, C.P.C.. Although the matter of revision is not a mere privilege afforded to the aggrieved person but also a right this revisional power remains discretionary. The function of the revisional Court is to ensure the proper administration of justice through the proper

exercise of jurisdiction, procedural accuracy, correctness of the decision and legality thereof by the subordinate Court. If the revisional Court is satisfied that the subordinate Court has not erred in this regard and the decision is sound in law, then it will not reverse or modify the decision solely on the basis that the subordinate Court could have reached a different conclusion on merits.”

In this regard principle declared in Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469) may also be referred.

1. In view of what has been notice and discussed above, in the light of case law referred supra I find that the impugned judgments passed by learned Court below are advancing cause of justice and do not suffer from mis-reading or non-reading of evidence resulting in material illegality or irregularity.

2. In sequel to above discussion, I do not find any justification to interfere in the impugned judgments of the Courts below. Resultantly, this petition being devoid of merits is dismissed with costs.

(Z.I.S.) Petition dismissed

PLJ 2018 Lahore 377 [Multan Bench Multan]

Present: Muhammad Ali, J.

Mst. FOUZIA BIBI--Applicant

versus

HajiAHMAD--Respondent

Transfer Appln. No. 40-C of 2016, decided on 24.4.2017.

West PakistanFamily Court Act, 1964 ( of 1964)--

----S. 25-A--Transfer application--Civil suits, pending--Law is settled that it is convenience of a female which is to be considered in determining jurisdiction of Family Court--High Court could pass appropriate orders in this behalf under Section 25-A of “Act” to transfer any suit or proceedings under “Act” from one Family Court to another Family Court in same District or from a Family Court of one District to a Family Court of another District--The suits arising under “Act” between same parties should be tried by one and same Court at a place where wife has instituted suit or where she resides, in order to avoid conflicting judgments--Petitioner deserves to be accommodated. [Pp. 378 & 379] A

Rana Jehanzeb Khan, Advocate for Petitioner.

Nemo for Respondent.

Date of hearing: 24.4.2017.

Order

Through this Transfer Application under Section 25-A of the West Pakistan Family Courts Act, 1964 (“Act”) the petitioner is seeking transfer of suit titled “Haji Ahmad v. Mst. Fouzia Bibi”, suit for restitution of conjugal rights pending in the Court of Mr. Ahsan Safdar learned Judge Family Court Kabirwala to be transferred to Multan, where the suit filed by the petitioner for dissolution of marriage is pending in the Court of Mrs. Komal Tabassum, learned Judge Family Court, Multan titled as “Mst Fouzia Bibi v. Haji Ahmad”.

1. The facts in brief are that the petitioner filed a suit for dissolution of marriage against the respondent before the learned Judge Family Court, Multan. The respondent on the other hand filed a suit for restitution of conjugal rights before the learned judge Family Court, Kabirwala.

2. Learned counsel for the petitioner submits that both the family suits should be tried and decided at Multan because the petitioner is residing at Multan. The petitioner being a woman is going to face hardships if the petitioner travels to Kabirwala covering distance of 100 Kilometer to pursue the suit. The respondent is already-extending threats for withdrawal of family suit and the petition is not in a position to travel to Kabirwala were her life could be in danger.

3. The service of the respondent has been effected on male member of his family. No one has entered appearance on behalf of the respondent in spite of his service. The respondent is proceeded against ex-parte.

4. I have heard learned counsel for the petitioner and perused the record.

5. The law is settled that it is the convenience of a female which is to be considered in determining jurisdiction of the Family Court. This Court could pass appropriate orders in this behalf under

Section 25-A of the “Act” to transfer any suit or proceedings under the “Act” from one Family Court to another Family Court in the same District or from a Family Court of one District to a Family Court of another District. The suits arising under the “Act” between the same parties should be tried by one and the same Court at a place where wife has instituted the suit or where she resides, in order to avoid conflicting judgments. The petitioner, being a female already apprehends some foul play at the hands of the respondent in case she defends the case filed against her at Kabirwalal. In the circumstances petitioner deserves to be accommodated.

1. As a result of the above discussion, the application of the petitioner is accepted. The suit titled “Haji Ahmad v. Mst. Fouzia Bibi” suit for restitution of conjugal rights is ordered to be withdrawn from the Court of Mr. Ahsan Safdar, learned Judge Family Court Kabirwala and entrusted to the Court of Mrs. Komal Tabassum, learned Judge Family Court, Multan where suit titled as “Mst Fouzia Bibi v. Haji Ahmad” is already pending. The learned Judge Family Court Kabirwala is directed to immediately send the file of the case to the learned transferee Court through proper channel. Both the suits shall be tried together by the same Judge at Multan and decided in accordance with law. The transfer application is decided accordingly with no order as to costs.

(A.A.K.) Petition allowed

PLJ 2018 Lahore 379 (DB)

Present : Shahid Jamil Khan and Masud Abid Naqvi, JJ.

FEDERAL BOARD OF REVENUE etc.--Appellants

versus

M/s. CHENONE STORES Ltd.--Respondent

I.C.A. No. 855 of 2014, heard on 17.11.2017.

Income Tax Ordinance, 2001 (XLIX of 2001)--

----Ss. 120, 177 & 214(c)--Sales Tax Act, (VII of 1990), S. 25--Federal Exercise Act, 2005, S. 46--Constitution of Pakistan, 1973, Arts. 4, 10, 10A, 25 & 199--Amendments introduced through Finance Act, 2010, Finance Act, 2013--Filling of Returns--Declaration by Tax Payer--Commissioner’s power to select for audit--Self-assessment--Discretionary power of Commissioner and Federal Board of Revenue--Absence of guidelines/criteria for pre-audit--Historic overview of Commissioner’s power to select for audit, the controversy, in backdrop of the changes in relevant law, is necessary--Every attempt to select and audit the tax affairs, after self- assessment, was subjected to litigation since erstwhile Income Tax Ordinance, 1979 (“Repealed Ordinance”)--Challenge to selection for total audit, by Regional Commissioner, of returns filed under self-assessment Scheme--Notices under the amended Section 177, were challenged before this Court; contending again that selection could not have been made without disclosure of criteria for selection before filing of returns--FBR is given similar power to select for audit under other Taxing Statutes i.e., by inserting Section 72B in the Act of 1990 and Section 42B in the Act of 2005--Provisions of these inserted Sections are, mutatis mutandis, similar to language used in the Section 214C--FBR has been vested with substantive power to select and after being so selected only, the Commissioner can conduct audit in accordance with procedure given in the Section 177--Powers of Commissioner, under Section 177, are independent of FBR’s power under the Section 214C and that nothing contained in the latter section shall restrict the powers of Commissioner to call for record for audit and to conduct audit under the former section--State, through FBR, has a right to audit, against taxpayer’s corresponding duty to make correct declarations and comply with the statutory commands under three Federal Taxing Statutes--Commissioner can call for last six years record for audit, as is deducible from the second proviso, therefore, collective reading would show that the Legislature deprecates, as a rule, selection or calling for record of a taxpayer every year--Calling for record in the next or following year should be in exceptional circumstances on very sound reasons--Commissioner’s power to select for audit as per the criteria given, under the then Section 177(1), by FBR was different from his power to select independently and conduct audit under the Section 177(4) as these sub-sections were existing before amendments through Finance Act, 2010.

[Pp. 384, 387, 393, 407, 408, 409 & 411] A, B, C, F, G, J, K & L

Words & Phrases--

----Call for record--Phrase ‘call for record’ in the substituted sub-section (1) of Section 177, in absence of word ‘selection’, became the basis of controversy. [P. 394] D

Power of Commissioner--

----Scope--The ratio of discrimination, unstructured and unbridled powers was applied for holding that Commissioner has no power to select for audit, independent of selection by FBR, under respective provisions of the other Taxing Statutes. [P. 395] E

Fundamental Rights--

----Constitutional jurisdiction--Discriminatory--Act of picking and choosing arbitrarily can always be taken cognizance of by Courts and declared to be in violation of fundamental right, but the law cannot be declared ultra vires for being misused. [P. 408] H

Self-Assessment--

----Right of tax administrator--After extending the facility of self- assessment, to audit a taxpayer’s declaration in the return filed under it, is the right of Tax Administrator. [P. 408] I

Mr. Sarfraz Ahmad Cheema, Advocate for Appellant(s).

M/s. Liaquat Ali Chaudhary, Raja Sikandar Khan, Muhammad Asif Hashmi, Kausar Parveen, Foziya Bukhsh, Muhammad Asif, Imran Rasool, Mian Yusuf Umar, M. Shahid Usman, Umair Awan, Irshad Ullah Chatha, Shahid Sarwar Chahil, Sohail Zahid Butt, Hafiz Shahzad Ahmad Cheema, Ch. Muhammad Yasin Zahid, Waqar A. Sheikh, Rana Muhammad Mehtab, Javed Akhtar, Amjad Hussain Malik, Sultan Mahmood, Malik Abdullah Raza, Muhammad Asif Butt, Shagufta Ijaz, Muhammad Akram Awan and Abdul Rehman Khalil, Advocates for Appellant-department in connected appeals.

Barrister Imran Aziz Khan, Tahir Mahmood Khokhar and Mian Irfan Akram, Deputy Attorney Generals for Pakistan.

Dr. Ishtiaq Ahmad Khan, Director (Law), FBR, Lahore.

Dr. Hamid Attiq Sarwar, Commissioner Inland Revenue, Lahore.

Mr. Shahbaz Butt, Advocate for Respondent(s).

M/s. Mansoor Usman Awan, Naved A. Andrabi, Imtiaz Rashid Siddiqui, Barrister Shehryar Kasuri, Barrister Qadir Buksh, Ali Sibtain Fazli, Rana Muhammad Afzal, Muhammad Ajmal Khan, Khurram Shahbaz Butt, Muhammad Humzah, Raza Imtiaz, Jamshid Alam, Qadeer Kalyar, Muhammad Imran Rasheed, Salman Zaheer, Shahid Hussain Ch., Zafar Iqbal, Yawar Mehdi Naqvi, Mirza Mubashar Baig, Ch. Wasim Ahmad, Muhammad Mansha Sukhera, Muhammad Mohsin Virk, Muhammad Ahsan Virk, Abdul Qadoos, Ch. Imran Masood, Dr. Ilyas Zafar, Syed Nasir Ali Gillani, Waheed Shahzad Butt, Shehzeen Abdullah, Asghar Leghari, Hussain Ibrahim, Muhammad Younas Khalid, Muhammad Akram Saleh, Asghar Ahmad Kharal, Muhammad Shabbir Hussain, Muhammad Ijaz Ali Bhatti, Omar Tariq Shamim, Mudassar Shuja-ud-Din, Ali Hasnain, Tahir Naeem, Waseem Ahmad Malik, M. Iqbal Hashmi, M. M. Akram, Muhammad Tahir Amin, Nadeem Mehmood, Sheikh Aqeel Ahmad, Zargham, Muneeb Zafar, Salman Ahmad, Ehsan-ur-Rehman Sheikh, Monim Sultan, Nasir Khan, Barrister Pirzada Aurangzaib, Syed Ali Imran Rizvi, Rasheed Ahmad Sheikh, Shoaib Ahmad Sheikh, M. Waseem Chaudhry, Zeeshan Ali, Aurangzeb Tahir, Muhammad Naeem Munawar, Muqtedir Akhtar Shabir, Sh. Aqeel Ahmed, Muhammad Shahid Baig, Rana Hammad Aslam, Ch. Muhammad Ali, Salman Ahmad, Muhammad Masud Akhtar, Sohail Raza, Mian Haseeb-ul-Hassan, Irtaza Naqvi, Javed Iqbal Qazi, Usman Javed Qazi, Rana Munir Hussain, Sayyid Ali Imran Rizvi, Abdul Waheed Habib, Zaeem-ul-Farooq Malik, Salman Hasan, Ahmad Farooq, Saleem Iqbal Rathore, Munawar-us-Salam, Agha Sarfraz Ahmad, Muhammad Aleem Irshad, H.M. Majid Siddiqi, Sajid Ijaz Hotiana, Iftikhar Ahmad Khan, M. Shahid Mukhtar Chandia, Mirza Anwar Baig, Jan Muhammad Chaudhry, Shahzad Mahmood Butt, Muhammad Saqib Sheikh, Zurgham Lukhesar, Syed Murtaza Ali Zaidi, Mian Abdul Ghaffar, Muhammad Amir Malik and Rana Muhammad Aslam, Advocates for Respondents taxpayers in connected appeals.

Date of hearing: 17.11.2017.

Judgment

Shahid Jamil Khan, J.--This judgment shall decide two sets of appeals filed respectively against two judgments delivered by different learned Single Benches of this Court. Common question of Commissioner’s powers to select for audit, under three Federal Taxing Statutes, is involved. Lists of the appeals, respectively, are annexed as Annexures A & B.

Appeals listed in Annex-A are filed by Revenue Department assailing judgment dated 10.05.2012 in Writ Petition No. 393 of 2012, (“Chenone Stores”); whereas, the appeals listed in Annex-B are filed by Taxpayers against judgment dated 27.05.2015 in Writ Petition No. 4691 of 2012 (“Kohinoor Sugar Mills”).

1. Both the judgments are contended to be at variance;

In Chenone Stores’ judgment notices of selection for audit, issued, after amendments through Finance Act, 2010, by Commissioner under Section 177 of the Income Tax Ordinance 2001 (“Ordinance of 2001”); Section 25 of the Sales Tax Act, 1990 (“Act of 1990”) and Section 46 of the Federal Excise Act, 2005 (“Act of 2005”), were declared illegal and without lawful authority, after striking down first proviso to the Section 177 (1).

The Kohinoor Sugar Mills’ judgment had also dealt with validity of notice of selection for audit, issued by Commissioner under Section 177, after amendments through Finance Act, 2010. The Explanations inserted, during proceedings, through Finance Act, 2013, were treated to have retrospective effect, therefore, the selection by Commissioner was held to be in accordance with law.

1. Earlier; Chenone Stores’ judgment was assailed directly before Supreme Court of Pakistan through Civil Appeal No. 1032 of 2012 along with connected Civil Appeals. The appeals were remanded, with consent of the parties, by the August Court to this Court, directing to treat them as appeals against original order and issue notice to the Attorney General under Order XXVII-A CPC. Operative part of the order is reproduced:--

“4. We agree with the learned counsel but at the same time, we are mindful of the objection of non-issuance of notice to the learned Attorney General by the learned High Court could have been taken up as one of the question before the ICA Bench seized with the matter, which too could have itself issued a notice to the learned Attorney General because after admission of the ICA, the proceedings shall be considered to be in continuation of the proceedings before the learned Single Judge by way of first appeal Striking down the provisions of law, being ultra vires the Constitution, obviously requires examination and interpretation of the provisions of the Constitution with the assistance of the learned Attorney General after due notice in terms of the provisions of Order XXVII-A Rule 1 CPC, therefore, the learned counsel for the appellants as well as the respondents in the appeals noted hereinabove, agree that the instant appeals be sent back to the ICA Bench treating the same, as the appeals against the original order and for decision after issuing notice to the learned Attorney General in order to save the parties from the agony of protracted proceedings and also to ensure that further time is not consumed in the legal proceedings, as the question in the appeals, involves Public Revenue, therefore, the interest of both the parties would also be protected in this manner.”

[emphasis supplied]

The remanded cases were treated as appeals and notice under Order XXVII-A CPC, as directed, was issued on 26.01.2015. In response to the notice Mr. Imran Aziz Khan, Deputy Attorney General represented the Attorney General’s Office. Objections on maintainability of appeals were raised by Mr. M. M. Akram Advocate, which were turned down, through an independent order dated 29.03.2017, in light of the directions, ibid, by Apex Court.

1. Learned counsels for both the parties are heard; Counsels for the Revenue Department have argued in favour of Commissioner’s power to select for audit, contending that this power was available since inception of the Ordinance of 2001; remained intact after amendment through Finance Act, 2010 and has so been clarified by the Explanations inserted through Finance Act, 2013.

Learned counsels for the taxpayers argued that scheme of law has been changed after amendments through Finance Act, 2010, therefore, only Federal Board of Revenue (“FBR”) can and Commissioner cannot select for audit. On insertion of Explanations; it is argued first; that these shall not have retrospective effect and secondly that the Explanations have not removed the defects pointed out in Chenone Stores’ judgment, therefore, are ineffective.

Relevant arguments, point wise, shall be addressed in body of the judgment as and where felt necessary.

1. Heard. Record perused.

2. Historic overview of Commissioner’s power to select for audit, the controversy, in backdrop of the changes in relevant law, is necessary. Every attempt to select and audit the tax affairs, after self- assessment, was subjected to litigation since erstwhile Income Tax Ordinance, 1979 (“Repealed Ordinance”). Challenge to selection for total audit, by Regional Commissioner, of returns filed under Self- assessment Scheme was laid to rest through judgment in Commissioner of Income Tax and others v. Messrs Media Network and others (2006 PTD 2502); Policy guidelines, issued by the then CBR, after filing of returns under the Self-assessment Scheme, were challenged, contending that the guidelines should have been issued before filing of returns under Self-assessment Scheme. Single Bench of this Court allowed the writ petitions, however, on appeal, the selection was upheld with the findings that the guidelines, being administrative in nature, had not taken away any vested right. Infringement of the principle of natural justice, claimed by taxpayer’s side was answered by holding that it was not mandatory during the course of preliminary inquiries or investigations. Relevant excerpts are reproduced:

“22. … … The C.B.R. specifically directed that before making a final selection, the Regional Commissioners of Income Tax must confront the assessees, provide them opportunity of being heard and must indicate the basis of their proposed selection in the notices to be communicated to them.These guidelines were administrative in nature meant for the internal consumption of the Income Tax functionaries which did not create any rights nor did they impose any obligations. Those instructions had not taken away any vested right of the assessees and would not govern the adjudicatory proceedings of quasi-judicial in nature. However, it could not be said that the guidelines were, in any way, extraneous, irrelevant or unfair to the object to be achieved by the process of selection of cases for total audit. In our view, the procedure of selection of cases for total audit as provided by Paragraphs 9 and 10 of the Scheme was not nullified or whittled down by the policy guidelines, dated 17-12-2002.”

“26. The rules of natural justice are not inflexible. They yield to and change with the exigencies of different’ situations. They do not apply in the same manner to situations which are not alike. These rules are not cast in a rigid mould nor can they be put in a legal strait-jacket. They are not immutable but flexible. They can be adopted and modified by the Statutes. The need to act in an emergency may also exclude at least a prior hearing or where a decision affects so many people that a hearing would be impracticable. In some cases there may be collective right, of hearing, or to be consulted although not necessarily a hearing in individual cases. Depending upon the facts and circumstances of each case, there is no mandatory requirement of natural justice that in every case the other side must be given a notice before preliminary steps are taken. It might suffice if reasonable opportunity of hearing is granted to a person before an adverse action or decision is taken against him. However, it is not possible to lay down an absolute rule of universal application governing all situations as to the exclusion or otherwise of the audi alteram partem rule during the course of preliminary inquiries or investigations.”

[emphasis supplied]

1. The challenge to Commissioner’s powers to select and conduct audit under Section 177 of the Ordinance of 2001, was laid initially, when these provisions were invoked for the first time. Relevant part of Section 177, as it stood then, is reproduced for facility of understanding the issue:--

“177. Audit.--(1) The Commissioner may select any person for an audit of the person’s income tax affairs having regard to--

(a) the person’s history of compliance or non-compliance with this Ordinance;

(b) the amount of tax payable by the person;

(c) the class of business conducted by the person; and

(d) any other matter that the Commissioner considers relevant.”

The selection was challenged before this Court under constitutional jurisdiction and through judgment in Ch. Muhammad Hussain and others v. Commissioner of Income-Tax (2005 PTD 152), it was declared that non-issuance of notice, disclosing reason for selection, was illegal. The matter went in appeal before the Hon’ble Supreme Court. The Apex Court in Commissioner of Income Tax and others v. Fatima Sharif Textile, Kasur and others (2009 PTD 37) ordered for modification of the judgment in Muhammad Hussain’s Case; Learned Attorney General of Pakistan agreed to abide by the directions for issuance of notice by the High Court if findings, that selection for audit was prejudicial to the taxpayer, were expunged. The portion, containing the findings, was deleted and matter was remanded with direction to issue fresh notices disclosing criteria/ reasons for selection. Relevant part is reproduced:

“5. In view of the above arrangement between the parties, the appeals are disposed of with consent, consequently, the portions of impugned judgment reproduced hereinabove are deleted with the observation that let appellants issue fresh notices to the respondents in terms of Section 177 of the Ordinance, as it was prevailing at the relevant time, disclosing criteria/reasons for selecting their cases for purpose of audit. As far as the cases in respect whereof observations have been made hereinabove relating to Circular C. No. 1(1)S(ITAS)/2004 or otherwise if the returns have been revised and payment has been made by the assessees no further action shall be taken against them. The parties are left to bear their own costs.”

[emphasis supplied]

1. An amendment was introduced in Section 177 through Finance Act, 2004, whereby CBR (now FBR) was given power to lay down criteria for selection of cases by the Commissioner. Relevant parts of the amended Section are reproduced:--

“177. Audit.---(1) The Board, may lay down criteria for selection of any person for an audit of person’s income tax affairs, by the Commissioner.

(2) The Commissioner shall select a person for audit in accordance with the criteria laid down by the Boardunder sub-section (1).

(3) The Board shall keep the criteria confidential.

(4) In addition to the selection referred to in sub-section (2), the Commissioner may also select a person for an audit of the person’s income tax affairs having regard to--

(a) the person’s ‘history of compliance or non-compliance with this Ordinance;

(b) the amount of tax payable by the person;

(c) the class of business conducted by the person; and

(d) any other matter which in the opinion of Commissioner is material for determination of correct income.”

[emphasis supplied]

1. Notices under the amended Section 177, were challenged before this Court; contending again that selection could not have been made without disclosure of criteria for selection before filing of returns. The direction by Apex Court in Fatima Sharif’s judgment, ibid, i.e., “let appellants issue fresh notices to the respondents in terms of Section 177 of the Ordinance, as it was prevailing at the relevant time, disclosing criteria/reasons for selecting their cases for purpose of audit” was referred in support. Learned Single Bench of this Court through judgment in Messrs Syed Bhais (Pvt.) Ltd. through Director v. Central Board of Revenue, Islamabad through Chairman and another (2007 PTD 239) dismissed the petitions, relying upon the judgment in Media Network’s Case, supra, besides referring to the Section 177(3), ibid, to hold that publication of criteria before filing of returns was not mandatory; The amended provisions of Section 177 were declared to have two parts; first, related to selection on the criteria to be laid down by the Board and the second was dealing with selection by Commissioner directly under sub-section (4) of Section 177; The words “in addition to” and “may also”, used in this sub-section, were emphasized. It was held that criteria before selection was relevant only if so provided by CBR. It was clarified that in Fatima Sharif’s Case direction was for Commissioner to disclose reasons in the notices for selection and not before filing of returns. The impugned notices, after examination, were held to have met the direction by Apex Court and requirements under the Section 177(4)(d). Operative part from the judgment is reproduced:--

“14. Now I will revert to objection of the petitioner as to the selection for audit, without laying down objective criteria before filing of returns. As mentioned in the preceding para that Section 177 comprises of two parts and authority of Commissioner to select a case, is separate under each part. In case the C.B.R. has laid down a criteria, then the Commissioner is bound to select the case of that person on the basis of the criteria. Previous publication of criteria/ guidelines in the objective form is not the requirement of law, nor it is justified. Firstly, for the reason that according to provisions of Section 177(3) of the Ordinance, 2001 C.B.R. has to keep the criteria confidential. Secondly, as observed by the Hon’ble Supreme Court of Pakistan in the case of Messrs Media Network (Supra) previous publications of criteria/guidelines will be instrument in hands of taxpayers, who by knowing before hand that their cases will not be selected or scrutinized, will take full benefit of the situation. Previous publication of criteria, will fore arm the taxpayer to evade tax. Issuance of criteria either before or at the time of announcement of scheme would frustrate the very object of provision of Section 177(3). Revenue and various respondents, entered into arrangement before the Apex Court (in Appeals Nos. 1962 to 2205 of 2005) whereby the appeals were disposed of by consent as a result thereof, Hon’ble Supreme Court, observed that fresh notices in terms of Section 177 of Ordinance, 2001 be issued, disclosing criteria/reasons for selection their cases for the purpose of audit. Revenue is bound to follow the arrangement and slightest departure from the observation/direction of the Apex Court cannot be expected. The question whether the impugned notice, in any manner, negates the said arrangement, as the notices were served without laying down a criteria, the answer is obviously a big “No”. Disclosure of criteria was only relevant when the cases were selected for audit on the basis of criteria laid down by C.B.R. in terms of Section 177(1) and (2). Since the cases of the petitioners were selected under Section 177(4), therefore, the Commissioner was to disclose reasons that while selecting the cases for audit, due regard was given to the provisions of Section 177(4)(a) to (d). The judgment of the Hon’ble Court (in Civil Appeals Nos. 1962 to 2205 of 2005) requires from the Revenue the disclosure criteria/reasons in the notice. The examination of impugned notices, challenged through these petitions, reveal that reasons for selection were duly conveyed, which are:

| | | | --- | --- | | Writ Petition No. 5471 of 2006 | Decrease in gross profit from 21.18% to 17.6% | | Writ Petition No. 5398 of 2006 | Decrease in gross profit from 14.64% to 12.49% | | Writ Petition No. 5473 of 2006 | Decrease in gross profit from 20% to 16.34% | | Writ Petition No. 5417 of 2006 | Receivables/debts were written -off, it was to examine that receivable were irrecoverable. Secondly interest on Rapco was merged in sale of investment examination. | | Writ Petition No. 6331 of 2006 | Gain on shares, interest on share merged in profit on sale of investment. | | Writ Petition No. 5472 of 2006 | Wrongly allocating the profits from local business to presumptive tax regime. |

1. The above reasons, disclosed in the impugned notices, sufficiently meet the requirement of Section 177(4)(d). The cases of the petitioners are not selected for audit under Section 177(1) and (2), therefore, disclosing criteria in the impugned notices is not relevant. The issuance of notice for selecting the case of the petitioners for audit does not infringe the arrangement arrived at between the Revenue and various taxpayers. The notices comply with the observation of the Hon’ble Supreme Court of Pakistan.

2. Coming to the objection of petitioners that selecting a person for audit, would unduly put the petitioners to the vigours of audit and process of audit without any benefit to Revenue, will unfairly cause hardship. Further the objections that selection of a case for audit without laying an objective criteria, is discriminatory and capable of arbitrary application, for the reason that it confers unbridled power on Commissioner to pick and choose, was thoroughly examined by Hon’ble Supreme Court in Messrs Media Network case (Civil Appeals Nos. 233 to 315 of 2004). The Apex Court has held, these objections, not tenable. The selection of case for audit, in view of the aforementioned decision of the Hon’ble Supreme Court, is open to exception only when selection involves personal bias; mala fide or suffers from unfair treatment. No element of bias or mala fide either exists or has been pleaded by the petitioners. Additionally, the taxpayer is legally and morally bound to furnish true declaration of income in his/its return. The taxpayer, while filing the return makes a declaration under Section 114(2)(b) to the effect that relevant record along with other particulars is kept. A true statement in the return has been made and the record is maintained as per declaration. No prejudice is caused to a taxpayer on being selected for audit, if he makes true statement and maintaining record as per declaration.”

[emphasis supplied]

1. Subsequent notices of selection for audit, by Commissioner, under the amended Section 177, ibid, were again challenged before this Court and the petitions were decided by two learned Single Benches through judgments at variance. First judgment was delivered in Mohsin Raza v. Chairman, Federal Board of Revenue and others (2009 PTD 1507), accepting the petitions, mainly, for the reason that Commissioner could not invoke the provisions of Section 177(4) in absence of criteria to be laid down by CBR under Section 177(1), besides holding that Commissioner had to form an opinion that income declared under Section 120 was incorrect. The other judgment was delivered subsequently in Messrs Sadar Anjuman-e-Ahmedia through General Attorney v. Commissioner of Income Tax (Audit Division), Faisalabad and 3 others (2010 PTD 571), wherein it was held that powers of Commissioner under Section 177(4) were independent of Section 177(1) & (2); Fatima Sharif’s Case was relied upon, besides putting emphasis on the words “in addition to” and “also”, used in the Section 177(4).

Both the judgments, being challenged before August Supreme Court, were decided through judgment in Chairman, F.B.R. and others v. Idrees Traders and others (2012 PTD 693). Leaned Counsel for appellant department was confronted with letter dated 14.01.2010, whereby notices for selection had been withdrawn. It was confronted to respondent taxpayer, based on judgment in Commissioner of Income Tax v. Messrs Eli Lilly Pakistan (Pvt.) Ltd. (2009 SCMR 1279 = 2009 PTD 1392), that constitutional jurisdiction could not be availed without resorting to departmental remedies. Consequently both the assailed judgments i.e., Mohsin Raza and Sadar Anjuman-e-Ahmedia, were set aside in following words:

“When confronted with the contents of the above letter, Mr. Muhammad Ilyas Khan and other learned counsel appearing for the revenue department could not make categorical statement, however, learned counsel for the respondents stated at bar that in view of the above policy the letters have already been withdrawn and instant discussion is nothing but an academic exercise as the relief has already been given to the tax payers by the competent authority following the above policy.

1. After having heard the learned counsel and having gone through the relevant contents of the judgments under challenge as well ratio decided in the case of Eli Lilly Pakistan (ibid) and the policy letter noted above we proceed to decide the appeals as follows:--

(i) In all the appeals listed above both the judgments dated 14th July, 2009 and 22nd October, 2009 are set aside.

(ii) The department is directed to follow the policy in letter and spirit, which has been reproduced hereinabove and if the letters have not been withdrawn, reasons should be assigned and after providing opportunity to the respondents, it be clearly pointed out to them that their cases are not covered under the policy and they may apply afresh if need be.

(iii) If the department intends to proceed, then sufficient opportunity be given to the tax payers to put up the pleas so that no prejudice may cause to them in any manner.”

1. It is important to note that the judgment in Syed Bhais’ Case, supra, was not set aside, therefore, holds the field, in light of law laid down by Apex Court in Fatima Sharif and Media Network’s Cases.

Disclosure of objective criteria/reasons, before filing of returns, for selecting a case for audit has consistently been claimed by taxpayers, since selection for total audit under the Repealed Ordinance, despite existence of the law laid down in Media Network’s Case that ‘non-disclosure of guidelines to select for audit does not take away any vested right’ and that for preliminary inquiries/ investigations, non-disclosure does not infringe the principles of natural justice. In Fatima Sharif’s Case Commissioner was directed to issue fresh notice for selection, disclosing criteria/reasons because the provisions of Section 177(1), as existing at relevant time, were so interpreted in Muhammad Hussain’s Case, however, deletion of paragraphs from its judgment; contain finding that selection for audit is prejudicial to taxpayer, was in consonance with the earlier finding in Media Network’s Case that selection for audit does not take away any vested right and that audit proceedings, being administrative in nature were not prejudicial. Syed Bhais’ judgment, by this Court, ratified the law that publication of criteria before filing of returns was not mandatory. It was clarified that selection for audit by Commissioner on the criteria by FBR, under the Section 177(1), was different from the Commissioner’s independent power to select for audit under the Section 177(4). The direction, through Fatima Sharif’s Case, of disclosing criteria/reasons, was held as mandatory for selection by Commissioner independently. The law holding field, till this stage i.e. before amendments through Finance Act, 2010, can conclusively be summarised as under:

(i) Guidelines (Selection criteria) are not required to be disclosed before filing of returns under Self-assessment; (Media Network’s Case)

(ii) Commissioner is bound to disclose the reasons/criteria in the notice if selecting the cases for audit independently; (Fatima Sharif’s Case)

(iii) Commissioner is bound to follow the criteria of selection, if laid down by the FBR; (Syed Bhai’s Case) and

(iv) Commissioner has independent power to select for audit under Section 177(4) and his power to select on the criteria given by FBR is different. (Syed Bhai’s Case)

Notwithstanding the law, ibid, taxpayers once again pleaded, in the petitions, decided through Chenone Stores’ Case, that absence of objective criteria had offended the equality clause as Commissioner had exercised unguided and unbridled discretion by picking and choosing the taxpayer for audit.

1. Through Finance Act, 2010; FBR has been given powers, for the first time under the Ordinance of 2001, to select for audit by inserting Section 214-C in it. Commissioner is entrusted with power to call for record and conduct audit, by substituting sub-section (1) and omitting sub-section (4) from Section 177. This power is qualified through first proviso by stipulating that the record shall be called after recording reasons and the reasons shall be communicated to the taxpayer. The first proviso is not applicable, under sub-section (2) of Section 214C, if the selection is made by FBR. The substituted sub-section (1) of Section 177 and Section 214C are reproduced:--

“177. Audit.--(1) The Commissioner may call for any record or documents including books of accounts maintained under this Ordinance or any other law for the time being in force for conducting audit of the income tax affairs of the person and where such record or documents have been kept on electronic data, the person shall allow access to the Commissioner or the officer authorized by the Commissioner for use of machine and software on which such data is kept and the Commissioner or the officer may have access to the required information and data and duly attested hard copies of such information or data for the purpose of investigation and proceedings under this Ordinance in respect of such person or any other person:

Provided that--

(a) the Commissioner may, after recording reasons in writing call for record or documents including books of accounts of the taxpayer; and

(b) the reasons shall be communicated to the taxpayer while calling record or documents including books of accounts of the taxpayer:

Provided further that the Commissioner shall not call for record or documents of the taxpayer after expiry of six years from the end of the tax year to which they relate.”

“214-C. Selection for audit by the Board.--(1) The Board may select persons or classes of persons for audit of Income Tax affairs through computer ballot which may be random or parametric as the Board may deem fit.

(2) Audit of Income Tax affairs of persons selected under sub- section (1) shall be conducted as per procedure given in Section 177 and all the provisions of the Ordinance, except the first proviso to sub-section (1) of Section 177, shall apply accordingly.

(3) For the removal of doubt it is hereby declared that Board shall be deemed always to have had the power to select any persons or classes of persons for audit of Income Tax affairs.”

[emphasis supplied]

The FBR is given similar power to select for audit under other Taxing Statutes i.e., by inserting Section 72B in the Act of 1990 and Section 42B in the Act of 2005. Provisions of these inserted Sections are, mutatis mutandis, similar to language used in the Section 214C.

1. The phrase ‘call for record’ in the substituted sub-section (1) of Section 177, in absence of word ‘selection’, became the basis of controversy. It was pleaded during argument in Chenone Stores’ Case, that Commissioner’s independent power to select for audit has been compromised particularly when; the FBR has been vested with the power to select for audit through the inserted Section 214C. It was contended that ‘selection of a taxpayer for audit of its tax affairs without an objective criteria offends the equality clause and thus not permissible under the law’; It was averred that Commissioner can call for record only after selection for audit by FBR under the Section 214C. The gist of challenge was that Commissioner’s unguided and unbridled power to pick and choose the taxpayer for audit, being ex facie discriminatory, is violative of the fundamental right guaranteed under Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973 (“the Constitution”). Similar assertions were made to challenge Commissioner’s power to select for audit under other Federal Taxing Statutes, after insertion of Section 72B in the Act of 1990 and Section 42B in the Act of 2005.

2. Learned Single Bench examined various provisions of the Ordinance of 2001 to hold that selection for audit is a neutral, impartial and equitable function, therefore, use of audit provision for investigation, would give the department a license to carry out a roving inquiry into the affairs of any taxpayer and to fish for defaults. It was held that ‘Legislative policy of the Ordinance cannot equip the Commissioner with naked power to pick and choose according to his whims and wishes. Even though the Commissioner may be the best person in the system to identify a tax default, he cannot enjoy unguided discretion but only exercise discretion which is under a legislative guideline showing structured, uniform and transparent exercise of discretion’. In this backdrop of discussion, the first proviso to Section 177 was struck down and second proviso was declared as redundant. Operative part from the impugned judgment is reproduced:--

“40. I am, therefore, inclined to save the statute and read down Section 177(1) (except its first proviso) and interpret it to be subservient to Section 214C. Therefore, while the substantive power to select a person for audit is provided in Section 214C, the machinery provision providing procedure for conducting the audit is in Section 177. The taxpayer will first be selected for audit under Section 214C by the Federal Board of Revenue and only then would the Commissioner conduct its audit in accordance with procedure given in Section 177. Reliance is also placed on Muhammad Umer Rathore v. Federation of Pakistan (PLD 2009 Lah. 268), Federal Steam Navigation Co. Ltd. and another v. Department of Trade and Industry (1974) 2 All E R 97), Delhi Transporate Corporation v. D.T.C. Mazdoor Congress and others (AIR 1991 SC 101), Sunil Batra v. Delhi Administration and others (AIR 1978 SC 1675) and Jagdish Pandey v. The Chancellor, University of Bihar and others (AIR 1968 SC 353).

1. The first proviso to Section 177(1) i.e., 177(1)(a) and (b) is different from Section 177(1). Unlike Section 177(1), it stands excluded for the purposes of Section 214C and therefore assumes an independent role of empowering the Commissioner to practically select a taxpayer for audit without any guidelines. Hence, the said first proviso equips the Commissioner with the arbitrary power to pick and choose any taxpayer for audit of its tax affairs, which as discussed above, is ex facie discriminatory. Second, the impugned notice shows (and as admitted by the departmental representative) the power is not being used for audit but to hold a roving inquiry into the affairs of the petitioner as an investigative tool which is also offensive to the overall scheme of self assessment and the legislative policy behind the Ordinance. The first proviso, therefore, acts to efface the legislative policy of self assessment and voluntary compliance running through the Ordinance and tries to turn back the clock of legislative history resulting in nullifying the concept of deemed assessment and reintroducing regular assessment of the erstwhile Income Tax Ordinance of 1979. The first proviso to Section 177(1) of the Ordinance is, therefore, inherently discriminatory hence violative of Article 25 and Articles 10A, 18 and 23 of the Constitution besides being inconsistent to the scheme of the Ordinance. The first proviso to Section 177(1) of the Ordinance cannot be read down, however, it can be severed from the statute in order to protect the legislative theme behind the Ordinance and to maintain the constitutionality of the remaining statute. For the above reasons, first proviso to Section 177(1) of the Ordinance is struck down as being unconstitutional and illegal. With this declaration the second proviso to Section 177(1) becomes practically redundant and ineffective.”

[emphasis supplied]

The ratio of discrimination, unstructured and unbridled powers was applied for holding that Commissioner has no power to select for audit, independent of selection by FBR, under respective provisions of the other Taxing Statutes.

1. Under Kohinoor Sugar Mills’ Case, the notices under Section 177 of the Ordinance of 2001 were for Tax Year, 2009. Most of the assailed notices were issued after 01.07.2010 when amendments brought through Finance Act, 2010 were in field, however, some of the notices were issued between the period; from 28.02.2009 till 30.06.2010, when certain amendments were brought through Finance (Amendment) Ordinance 2009 and Finance (Amendment) Ordinance, 2010, however, could not be ratified by placing them before the Parliament, therefore, the amendments lost the status of law. Mr. Naved A. Andrabi, Advocate pointed out that in some of the petitions notice were issued in the interregnum period, ibid, for which a direction was given to Commissioner for disclosing reasons. He read Paragraph No. 41 of the Kohinoor Sugar Mills’ judgment in support. In Paragraph No. 41 the Commissioner was asked to give reasons for selection of petitioners’ cases for audit, since this direction was not assailed by department in appeal, therefore, the writ petitions were converted into representations and sent back to the Commissioner with the same directions, through a separate order.

The notices for audit, issued after 01.07.2010, for Tax Year 2009 were assailed almost on same grounds as were raised in Chenone Stores’ Case with an additional ground that amendment brought through Finance Act, 2013 could not be applied retrospectively. Through Finance Act, 2013 few Explanations were inserted in Section 214C and Section 177 of the Ordinance of 2001. Similar Explanations were inserted in the other Taxing Statutes also. The insertions were brought during proceedings of Kohinoor Sugar Mills’ Case and were consequential to the judgment in Chenone Stores’ Case, to clarify and declare that Commissioner has independent power to call for record and conduct audit.

1. Through judgment in Kohinoor Sugar Mills, the Explanations were held to be declaratory; having clarified that Commissioner has independent power to select for audit, under Section 177, in presence of FBR’s power under Section 214C. It was held that legislature was competent to clarify its intent by inserting the Explanations. As the notices issued after 01.07.2010 were carrying reasons for calling record to conduct audit, therefore, were declared to have validly issued by the Commissioner. Reliance was placed upon the judgments in Syed Bhais’ and Fatima Sharif’s Cases, supra. It was observed that provisions of Section 177 are machinery in nature, therefore, are effective retrospectively. It was opined that language of Section 177 clearly confers a power on Commissioner to call for any record or documents including books of accounts, maintained under the Ordinance, for conducting audit of income tax affairs. The ambiguity, if any, was declared to have been clarified. Paragraphs No. 23 and 24 of Kohinoor Sugar Mills’ Case are reproduced hereunder:--

“23. It is common ground between the parties that the impugned notices were issued by the Commissioner under Section 177 of the ITO as substituted vide Finance Act, 2010 in view of the fact that it was the applicable law at the time of issuance of such notices. In my humble opinion, the language of Section 177 clearly confers a power on the Commissioner to call for any record or documents including books of accounts, maintained under the Ordinance for conducting audit of Income Tax affairs of a person. The argument of the learned counsel for the Petitioners that this power of the Commissioner was taken away by virtue of insertion of Section 214C through Finance Act, 2010, is misconceived and not supported by the language of Sections 177 and 214C. If at all there was any ambiguity in the matter, the legislature itself clarified and explained the same by inserting the aforenoted explanation where for removal of doubt it was declared that the powers of the Commissioner under Section 177 were independent of the powers of the Board under Section 214C and nothing contained in Section 214C restricted the power of the Commissioner to call for the record or documents including books of accounts of the taxpayer for audit and to conduct audit under Section 177 of the ITO. It is settled law that where any statutory law is changed, there is a presumption that it affects change in the legal rights to the extent provided by such amendment and the amending provisions have to be read alongwith un- amended provisions as they are part of the same Act. Reliance in this regard is placed on State Life Insurance Corporation of Pakistan vs. Mercantile Mutual Insurance Company Limited (1993 SCMR 1394).

1. Even otherwise, powers available to the Commissioner under Section 177 are independent and exercisable subject to a different set of conditions on the basis of record before him as compared to the powers available to FBR in terms of Section 214C, which are not record based, consist of power to select by random or parametric ballot and not subject to the same conditions, checks, balances and an obligation to confront and disclose reasons and provide an opportunity to the taxpayer to defend himself, as have been imposed on the Commissioner. In my view these are two independent powers, fundamentally different in nature, genesis, origin, antecedents and conditions. They can coexist independently and be exercised independent of each other. They are not mutually exclusive and are not meant to be so as clearly and unambiguously declared by the legislature by way of the aforenoted explanation inserted through Finance Act, 2013. I do not find any conflict or inconsistency between Section 177 and Section 214C that may require reconciliation.”

[emphasis supplied]

1. In our opinion, both the judgments are given under different legal positions, therefore, we would examine first; whether the Explanations, inserted through Finance Act, 2013, had cured the defect or cause of declaring the first proviso of Section 177(1) as ultra vires by examining the case law referred and available on this issue.

Supreme Court of Pakistan, under somewhat similar situation, delivered judgment in Molasses Trading & Export (Pvt.) Limited v. Federation of Pakistan and other (1993 SCMR 1905); when Section 31-A was inserted in Customs Act, 1969 (“Act of 1969”) as a consequence of decision by August Court in Al-Samrez Enterprise v. Federation of Pakistan (1986 SCMR 1917); whereby it was held that enhanced customs duty, due to withdrawal/modification of exemption, could not be demanded if contract between the importer and the foreign supplier had concluded and all necessary steps for import of goods had been taken. The Section 31-A envisaged charging of enhanced customs duty notwithstanding any other law or decision by any Court. Section 5(2) of Finance Act, 1988, whereby Section 31-A was inserted, gave it retrospective effect by use of words that the Section ‘shall be deemed always to have been so inserted’. The Apex Court held that the Section 31-A has eclipsed the rule laid down by the August Court in Al-Samrez’s Case. Relevant excerpt (at page 1922) is reproduced:--

“……The language of Section 31-A, as discussed above, clearly envisages and stipulates that the consequences that flow from the act of withdrawal or modification of an exemption notification, shall take effect with reference to the date of its issue, irrespective of the fact that the contract for the import of goods and the L.C. had come into existence prior to such date. This effect has been now prescribed by a mandatory provision of law by legislative fiat, to use the phrase earlier mentioned. The Courts would therefore have to give effect to it notwithstanding the decision in the case of Al-Samrez Enterprise.

There is another aspect of the matter which may also be mentioned. The exposition of law made in the case of Al-Samrez Enterprise took into consideration the law as it stood on the date when that decision was rendered. As shown hereinabove, the law has changed by the insertion of the new Section 31-A materially affecting the enunciation of the law made therein. Therefore the changed state of law that has come into effect was not contemplated in that decision and it cannot therefore be urged with any justification, that the principles laid down therein would still apply to the interpretation of the provisions of law discussed therein. In this view of the matter the argument that the deeming clause takes back the insertion of Section 31-A to the time of enforcement of the Act in 1969 and therefore the non obstante clause will not eclipse the decision in the case of Al-Samrez Enterprise, loses all force.

My conclusion therefore is that Section 31-A has effectively achieved the purposes for which it was enacted as explained above….”

[emphasis supplied]

Before giving the verdict, ibid, principles governing legislative power to validate a taxing provision, declared as illegal by a Court, were discussed in following words:

“Before considering this question it would be appropriate to make certain general observations with regard to the power of validation possessed by the legislature in the domain of taxing statutes. It has been held that when a legislature intends to validate a tax declared by a Court to be illegally collected under an invalid law, the cause for ineffectiveness or invalidity must be removed before the validation can be said to take place effectively. It will not be sufficient merely to pronounce in the statute by means of a non obstante clause that the decision of the Court shall not bind the authorities, because that will amount to reversing a judicial decision rendered in exercise of the judicial power, which is not within the domain of the legislature. It is therefore necessary that the conditions on which the decision of the Court intended to be avoided is based, must be altered so fundamentally, that the decision would not any longer be applicable to the altered circumstances. One of the accepted modes of achieving this object by the legislature is to re-enact retrospectively a valid and legal taxing provision, and adopting the fiction to make the tax already collected to stand under the re-enacted law. The legislature can even give its own meaning and interpretation of the law under which the tax was collected and by “legislative fiat” make the new meaning binding upon Courts. It is in one of these ways that the legislature can neutralise the effect of the earlier decision of the Court. The legislature has within the bounds of the Constitutional limitations, the power to make such a law and give it retrospective effect so as to bind even past transactions. In ultimate analysis therefore the primary test of validating piece of legislation is whether the new provision removes the defect which the Court had found in the existing law and whether adequate provisions in the validating law for a valid imposition of tax were made.”

[emphasis supplied]

1. The law declared and principles enunciated in Molasses Trading’s Case were endorsed through a subsequent elaborate judgment in Fecto Belarus Tractor Ltd. v. Government of Pakistan through Finance Economic Affairs and others (2005 P T D 2286). The Legislature was held to have power of removing the basis on which the judgment was founded; any ambiguity or doubt, in respect of a law, can be removed through a declaratory legislation. Judgment in Tofazzal Hossain and others v. The Province of East Pakistan and others (PLD 1963 SC 251) was discussed wherein it was held, “The power of the Legislature is not affected by the pendency of a proceeding before a Court or the existence of judgment by a Court”. Messrs Mamu Kanjan Cotton Factory v. The Punjab Province and others (PLD 1975 SC 50) was cited wherein division of sovereign power, amongst the principle organs of the State, was expounded by saying that ‘the executive, the Legislature and the judiciary, each being the master in its own assigned field under the Constitution’. It was held that Legislature is competent to legislate on a particular subject, to undertake any remedial or curative legislation after discovery of defect in an existing law as a result of the judgment of a Superior Court in exercise of its Constitutional jurisdiction. Shri Prithvi Cotton Mills Ltd., etc. v. Broach Borough Municipality and others (AIR 1970 SC 192) was cited from Indian jurisdiction, wherein the principles of validation by legislature to obliterate the effect of a judgment by Superior Court were discussed extensively. Relevant paragraph (at pages 194 & 195 of the Judgment) is reproduced:--

“4. Before we examine Section 3 to find out whether it is effective in its purpose or not we may say a few words about validating statutes in general. When a legislature sets out to validate a tax declared by a Court to be illegally collected under ineffective or an invalid law, the cause for ineffectiveness or invalidity must be removed before validation can be said to take place effectively. The most important condition, of course, is that the legislature must possess the power to impose the tax, for, if it does not, the action must ever remain effective and illegal. Granted legislative competence, it is not sufficient to declare merely that the decision of the Court shall not bind for that is tantamount to reversing the decision in exercise of judicial power which the legislature does not possess or exercise. A Court’s decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. Ordinarily, a Court holds a tax to be invalidly imposed because the power to tax is wanting or the statute or the rules or both are invalid or do not sufficiently create the jurisdiction. Validation of a tax so declared illegal may be done only if the grounds of illegality or invalidity are capable of being removed and are in fact removed and the tax thus made legal. Sometimes this is done by providing for jurisdiction where jurisdiction had not been properly invested before. Sometimes this is done by re-enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already collected to stand under the re- enacted law. Sometimes the legislature gives its own meaning and interpretation of the law under which the tax was collected and by legislative fiat makes the new meaning binding upon Courts. The legislature may follow any one method or all of them and while it does so it may neutralize the effect of the earlier decision of the Court which becomes in-effective after the change of the law. Whichever method is adopted it must be within the competence of the legislature and legal and adequate to attain the object of validation. If the legislature has the power over the subject-matter and competence to make a valid law, it can at any time make such a valid law and make it retrospectively so as to bind even past transactions. The validity of a Validating law, therefore, depends upon whether the legislature possesses the competence which it claims over the subject-matter and whether in making the validation it removes the defect which the Courts had found in the existing law and makes adequate provisions in the validating law for a valid imposition of the tax.”

[emphasis supplied]

1. August Supreme Court in The Province of East Pakistan v. MD. Mehdi Ali Khan (PLD 1959 SC 387), held that a law can be declared ultra vires for two reasons, first that it offends a fundamental right and second for want of legislative competence. In later situation, such legislature cannot bring a validating statute. The law needs to be re-enacted even if the legislative competence is granted subsequently. However, in former case, a provision of law, declared as ultra vires, can be validated, because declaration of a law as ‘void’, being in conflict with any fundamental law, does not repeal it but renders it as inoperative. Various judgments from American, Canadian, Australian and Indian jurisdiction were discussed before enunciating the principles in following words:--

“To sum up, the law described to be void by Article 4 by reason of its conflict with a fundamental right cannot be said not to have been in force merely by reason of the whole or any portion of it having been in conflict with a fundamental right. The law was in force not only because there were persons and territories to which the fundamental rights did not extend and in respect of such territories and persons the law had full operation but because it was void only in the sense that in the decision of a particular case which brought it into conflict with a fundamental right it had to be ignored or disregarded. The moment the fundamental right was taken away by an amendment of the Constitution the law again became operative without its being re-enacted. That this was the sense in which the word void’ was used by the framers of the Constitution becomes perfectly clear from Article 192 of the Constitution which envisages a position where by an order of the President the right to move the Court for the enforcement of a fundamental right is temporarily suspended. On such suspension being ordered the law becomes immediately operative without its being re-enacted. If the law was void ab initio, that is to say, if it did not exist on the statute book, it would require re-enactment on the making of an order suspending the operation of fundamental rights. Mr. Suhrawardy has gone to the extent of contending that the effect of wordvoid’ as used in Articles 4 and 110 of the late Constitution is that the conflicting law can never be deemed to have been in existence and that if by an amendment of the Constitution or by the making of an order by the President suspending the fundamental rights or by the repeal of the conflicting central legislation the inconsistency, repugnancy or contravention is removed, the law must be re-enacted afresh. He is driven to this result by the logic of his own argument, only to find that the position in which he thus lands himself is wholly unsustainable and directly opposed to the entire trend of authority. The contention, if given effect to, would lead to startling results and the most unmanageable situation, which were far beyond the contemplation of the framers of the Constitution. The position may be, and is indeed, different where the legislature suffers from an inherent lack of power to enact a law. Such law is void ab initio and must be deemed never to have been enacted, and if it exists on the statute book, it has no legal sanction and is essentially of the nature of an unauthorised writing on the statute book. Even if the defect of lack of jurisdiction is removed by a subsequent conferment of the requisite legislative power, the law enacted when no such power existed will continue to be void and will create no rights or obligations unless it be re-enacted. There is thus a fundamental difference between a law that is made by an incompetent legislature and a law made by a competent legislature but which is in conflict with a fundamental right, the former being void on general principles the letter being void only to the extent of the repugnancy, in the sense that it cannot be applied to a particular case. The former remains void unless re-enacted by a competent legislature, the latter requires no re-enactment and as pointed out in the Australian cases cited above, becomes fully operative when the inconsistency or repugnancy is removed by an amendment of the Constitution or the central law …”

[emphasis supplied]

1. For validation of any law, Competence of the Legislature is a precondition. A law declared ultra vires for want of legislative competence will have to be re-enacted even if the competence is supplied latter. Article 8 of the Constitution provides that any law inconsistent with the fundamental rights shall be void “to the extent of such inconsistency”. A law declared as void or invalid, being inconsistent with any fundamental right, remains a valid enactment, however, becomes ineffective or inoperative to the extent of inconsistency. As soon the inconsistency is removed, it becomes effective and operative without being re-enacted.

Different methods of validation are deducible from the law discussed ibid:--

First method is that the defect or cause of invalidity, declared in a judgment, must be removed by the validating statue, before the validation can said to have taken place effectively.

Second method is that the provision declared as invalid is so fundamentally altered that the decision could not have been given in the altered circumstances.

As was held in Molasses Trading’s judgment that by insertion of Section 31-A, the law had so changed that Al-Samrez’s judgment could not have been delivered in its presence.

Third method is that the legislature gives its own meaning and interpretation of the law and by legislative fiat makes the new meaning binding upon Courts.

It is held that the legislature may follow any one method or all of them to neutralize the effect of an earlier decision of Court which becomes in-effective after the change brought through validating statute.

1. Our Superior Courts have also held a law as ultra vires, if it ex facie offends the equality clause under Article 25 of the Constitution. However, in case of a law capable of administered discriminately, the action under such law can be declared invalid and not the law. Following excerpts from Federation of Pakistan v. Shaukat Ali Mian (PLD 1999 SC 1026) can be referred in support:--

“24. We may also point out that there is a marked distinction between a provision of a statute which may be ex facie discriminatory and a, provision thereof which may be capable of being pressed into service in discriminatory manner. The former would be liable to be struck down on the ground of violation of Article 25 of the Constitution, but the latter provision cannot be struck down on the ground that it is capable of being used in discriminatory manner. However, any discriminatory action which may be taken pursuant to such provision can be struck down. In this regard, reference may be made to the case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445), in which it was contended that since Section 34 of the Anti-Terrorism Act, 1997 (Act XXVII of 1997) conferred on the Government the power to amend the Schedule to the said Act so as to add any entry thereto or modify or omit any entry therein by a notification, the same was ultra vires the Constitution as it was capable of being misused by the Government. The above contention was repelled as under:

“(iv) It may be observed that the learned counsel for the petitioners urged with vehemence that the power given under Section 34 of the Act to the Government to amend the Schedule to the Act so as to add any entry thereto or modify or omit any entry therein by a notification is ultra vires the Constitution. It has been further urged by them that the above power has been abused inasmuch as many offences have been included which have no nexus with the object of the Act or with the offences covered by sections 6, 7 and 8 thereof. In this regard, it may be pertinent to mention that delegation of such power to the Government by the Legislature is not an unusual phenomenon. In order to implement the object of a statute or to work out certain detail, such power is normally delegated. In this regard, reference may be made to the case of Zaibtun Textile Mills Ltd. v. Central Board of Revenue and others (PLD 1983 SC 358). In the above case, the Legislature had conferred power on the Central Board of Revenue to formulate guidelines to determine rate of production, capacity tax and even to levy tax under Section 3(4), (5), (6), (7) of the Central Excises and Salt Act, 1944, as amended by the Finance Act, 1966. The above provision was assailed but this Court held that the Legislature was competent to employ proper agency to accomplish its legislative purpose. Reference may also be made to the case of Muhammad Hussain Ghulam Muhammad and another v. The State of Bombay and another Ishwarbhai Becharbhai and others, Intervenes(AIR 1962 SC 97), in which also such delegation was upheld by the Indian Supreme Court.”

This view has been endorsed in Lahore Development Authority v. Imrana Tiwana (2015 SCMR 1739) in following words:

“71. This Court has on several occasions held that where the statute is not ex facie repugnant to Fundamental Rights but is capable of being so administered it cannot be struck down unless the party challenging it can prove that it has been actually so administered.”

In this judgment, the August Court also narrowed down the guidelines, spreading over the judgments mentioned therein, to be followed and taken care of while dealing with a case where vires of a law is challenged, which are:

“65. … … the rules which must be applied in discharging this solemn duty to declare laws unconstitutional. These can be summarized as follows:--

I. There is a presumption in favour of constitutionality and a law must not be declared unconstitutional unless the statute is placed next to the Constitution and no way can be found in reconciling the two;

II. Where more than one interpretation is possible, one of which would make the law valid and the other void, the Court must prefer the interpretation which favours validity;

III. A statute must never be declared unconstitutional unless its invalidity is beyond reasonable doubt. A reasonable doubt must be resolved in favour of the statute being valid;

IV. If a case can be decided on other or narrower grounds, the Court will abstain from deciding the constitutional question;

V. The Court will not decide a larger constitutional question than is necessary for the determination of the case;

VI. The Court will not declare a statute unconstitutional on the ground that it violates the spirit of the Constitution unless it also violates the letter of the Constitution;

VII. The Court is not concerned with the wisdom or prudence of the legislation but only with its constitutionality;

VIII. The Court will not strike down statutes on principles of republican or democratic government unless those principles are placed beyond legislative encroachment by the Constitution;

IX. Mala fides will not be attributed to the Legislature.”

1. In light of the law discussed above; now we revert to examine the effect of the Explanations, inserted in the Federal Taxing Statues through Finance Act, 2013, in consequence of the Chenone Stores’ judgment:

To start with; Federal Legislature’s Competence to enact/ insert the Explanations has neither been challenged in the petitions nor against it has been declared in the Chenone Stores’ judgment, hence the precondition of ‘Legislative Competence’ to bring any validating statute stands satisfied.

Now to see whether defects, cause or reasons given in Chenone Stores’ judgment are dealt with; It is important to note that principle of reading down was employed, while interpreting the Legislative Policy after amendments through Finance Act, 2010, to hold that the Section 177(1) (except first proviso) is subservient to the Section 214C. It is held that FBR has been vested with substantive power to select and after being so selected only, the Commissioner can conduct audit in accordance with procedure given in the Section 177.

In our opinion; the Legislature has adopted third method of validation, supra, of giving its own meaning and interpretation to the provisions of law through the Explanations; which have effectively clarified the Legislative Policy and declared that powers of Commissioner, under the Section 177, are independent of FBR’s power under the Section 214C and that nothing contained in the latter section shall restrict the powers of Commissioner to call for record for audit and to conduct audit under the former Section. For reference, the Explanations inserted in the Ordinance of 2001 are reproduced:--

Section 177:

“Explanation.--For the removal of doubt, it is declared that the powers of the Commissioner under this section are independent of the powers of the Board under Section 214C and nothing contained in Section 214C restricts the powers of the Commissioner to call for the record or documents including books of accounts of a taxpayer for audit and to conduct audit under this section.”

Section 214C:

“Explanation.--For the removal of doubt, it is declared that the powers of the Commissioner under Section 177 are independent of the powers of the Board under this section and nothing contained in this section restricts the powers of the Commissioner to call for the record or documents including books of accounts of a taxpayer for audit and to conduct audit under Section 177.”

Similar Explanations, mutatis mutandis, are inserted in the other Taxing Statutes. We are convinced, in light of law laid down by Apex Court in Molasses Trading and Fecto Belarus Cases, that meanings given and interpretation made by the Legislature are binding upon the Courts. After the clarification and declaration of Legislative Policy that Commissioner’s power to select and conduct audit are independent of FBR’s power to select for audit, the binding force of the judgment in Chenone Stores’ Case has effectively been obliterated.

The first proviso to Section 177(1) was struck down with an observation that ‘it equips the Commissioner with the arbitrary power to pick and choose any taxpayer for audit’, which shows, itself, that the discretion given is capable of being misused. The provision of law cannot said to be ex facie discriminatory merely because the discretionary power given by it, can be used arbitrarily. To be dealt in accordance with law, due process, fair trial and being treated indiscriminately are fundamental rights enforceable through Court by invoking extraordinary Constitutional jurisdiction. The act of picking and choosing arbitrarily can always be taken cognizance of by Courts and declared to be in violation of fundamental right, but the law cannot be declared ultra vires for being misused, as has been held in Shaukat Ali Mian’s Case. In Imrana Tiwana’s Case, besides endorsing this view, it is held that ‘Courts must prefer the interpretation which favours the validity’ and that ‘reasonable doubt must be resolved in favour of the statute being valid’.

1. Purpose of audit has been discussed in number of cases by the Superior Courts and is held that after extending the facility of self- assessment, to audit a taxpayer’s declaration in the return filed under it, is the right of Tax Administrator. It is discernable from the law laid down by August Supreme Court in Media Network and Faitma Sharif Cases that selection and conduct of audit, being administrative in nature, is not detrimental to the interest of a taxpayer. State, through FBR, has a right to audit, against taxpayer’s corresponding duty to make correct declarations and comply with the statutory commands under three Federal Taxing Statutes. Findings in Chenone Stores’ judgment that ‘use of audit provisions for investigation, would give the department a license to carry out a roving inquiry into the affairs of any taxpayer and to fish for defaults’ is against the basic concept of audit. The concept of audit, as being internationally accepted, has traveled beyond mere verification of correct reporting by taxpayer and raising revenue. Besides creating deterrence by punishing the defaulting taxpayer, an effective audit program pinpoints non-compliant trends; defects in system, ambiguities in practice and the law. On the basis of gathered information and intelligence from an effective audit, and its publication, future Tax Administration can be reshaped; necessary steps can be taken to suggest curative legislation and clarifications of ambiguous practices. The results achieved from effective audit program may help to improve risk management techniques and determine ‘Parameters’ for future selection of high risk cases for audit.

Nevertheless, we are in agreement with the observation in Chenone Stores’ judgment that ‘Even though the Commissioner may be the best person in the system to identify a tax default, he cannot enjoy unguided discretion’. It has already been declared in Media Network’s Case that Commissioner shall give criteria/reasons in the notice for selection. Following the laid down law, first proviso to the Section 177(1) requires that reasons shall be given by the Commissioner before calling the record for audit. Yet in our opinion, his discretion to call for record to conduct audit need to be structured for avoiding its potential misuse. This discretion should not be used to call a taxpayer consecutively to meet budgetary targets of collecting tax. In sub-section (7) of the Section 177, though the legislature has authorized audit of a taxpayer in the next and following tax years but only where there are reasonable grounds for doing so. These reasonable grounds need to be confronted, in addition to the reasons for selection required under the first proviso. Commissioner can call for last six years record for audit, as is deducible from the second proviso, therefore, collective reading would show that the Legislature deprecates, as a rule, selection or calling for record of a taxpayer every year. Calling for record in the next or following year should be in exceptional circumstances on very sound reasons. Structuring of discretion, liable to be misused, has been ordained by Supreme Court of Pakistan in Amanullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others (PLD 1990 SC 1092), Government of NWFP through Secretary and 3 others v. Majee Flour Mills (Private) Limited (1997 SCMR 1804), and Muhammad Amin Muhammad Bashir Limited v. Government of Pakistan through Secretary Ministry of Finance, Central Secretariat, Islamabad and others (2015 SCMR 630).

1. The judgment reach by us, ibid, is due to able assistance by learned counsels from both sides, as most of the authoritative pronouncements, discussed above, were cited by them in support of their respective arguments, relevant of which have been discussed;

Mr. Sarfraz Ahmad Cheema Advocate, led arguments from department’s side, He referred to various judgments from High Courts of other Provinces, wherein Chenone Stores’ judgment is either not followed or has been disagreed; However, his arguments, supported by judgments that the Explanations have cured the ambiguity, if any, and that Commissioner shall have independent power to select for and conduct audit; and that the first proviso was not ex facie discriminatory, have found favour.

We have found force in the arguments, from department’s side, by Mr. Muhammad Asif, Advocate that a provision of law, being inconsistent with a fundamental right, envisaged in Article 8 of the Constitution, can be declared void, but remains on the statute book, therefore, cannot be struck down. This argument was advance on a specific query from the Court, whether Explanation could be inserted for a provision, which has been struck down by a Court. This proposition has already be dealt with eloquently by the August Court in Mehdi Ali Khan’s Case, supra, holding that it remains on the statute book as a valid enactment, however, being declared void becomes ineffective; As soon the fundamental right is taken away, or the areas for which fundamental right not extended, it becomes or remains effective.

Barrister Imran Aziz Khan, Deputy Attorney General for Pakistan, responding to notice under Order XXVII-A of CPC, took us through the history of controversy regarding Commissioner’s power to select for audit and concluded that law laid down in Syed Bhais’ Case, supra, holds the field for the period before amendments through Finance Act, 2010. His arguments, regarding competence of the Legislature to insert Explanation, have also found favour. However, he did not respond to Court’s query whether Commissioner’s discretionary power to select for audit has been structured, therefore, we have directed for structuring of the discretion.

The argument, by Mr. Shahbaz Butt Advocate, appearing for taxpayer’s side, that proviso was declared ultra vires being in conflict with audit scheme and historical perspective has already been answered against. However, his argument that Commissioner already had power to call for record under Section 176 of the Ordinance of 2001 needs to be addressed. Bare perusal of Sections 177 and 176, if juxtaposed, would reveal that call for record in both the Sections is under different circumstance; under Section 177 record can be called only for conducting audit after being selected by Commissioner or FBR. Whereas, under Section 176 record can be called for obtaining information or evidence from any person, as is evident from the caption of the Section. The purpose and manner of requiring information or evidence, in any shape, is enumerated in the provisions contained in this Section. Commissioner’s power to call for record under Section 177(1) is for distinct and specific purpose, therefore, the argument fails. His next argument; that word ‘Selection’ has deliberately been used in the Section 214C and omitted from the Section 177(1), also fails after insertion of the Explanations, whereby intent of the Legislature has been clarified and declared. His argument, that stereotype reasons are given, in the notices for selection issued to different taxpayers, is not being addressed for the reason that this objection can, at the first instance, be raised in reply to the impugned notices before the Commissioner or Taxation Officer and in case of adverse decision, alternate remedy under Section 7 of the FBR Act, 2007 is available. It has been held in number of judgments, particularly in Idrees Traders’ Case, supra, that constitutional jurisdiction could not be availed without resorting to departmental remedies.

The argument by Mr. Mansoor Usman Awan Advocate, that the Explanations shall have retrospective effect till 01.07.2010, is found correct on the face of it because the provisions of law being interpreted, clarified and so declared through the Explanations have attained current shape after amendment through Finance Act, 2010 having effect from the date ibid. Yet it does not mean that Commissioner did not have such power before these amendments. The law, as discussed above, had been settled till 30.06.2010 i.e., Commissioner’s power to select for audit as per the criteria given, under the then Section 177(1), by FBR was different from his power to select independently and conduct audit under the Section 177(4) as these sub-sections were existing before amendments through Finance Act, 2010.

1. Appeals filed by department (listed in Annex-A) are allowed to the extent and in the manner as discussed above, by declaring that the Explanations inserted, in the Federal Taxing Statutes, through Finance Act, 2013, have effectively obliterated binding force of the judgment in Chenone Stores’ Case.

The judgment in Kohinoor Sugar Mills’ Case, being in consonance with legislative declaration and clarification under the Explanations inserted in the Ordinance of 2001, through Finance Act, 2013, is upheld. The appeals filed by taxpayers (listed in Annex-B) are dismissed.

Sd/- Judge

Sd/- Judge

Annexure-A

| | | | | --- | --- | --- | | Sr. No. | | Case No. | | 1. | ICA | 58 of 2013 | | 2. | ICA | 144 of 2013 | | 3. | ICA | 190 of 2013 | | 4. | ICA | 191 of 2013 | | 5. | ICA | 192 of 2013 | | 6. | ICA | 193 of 2013 | | 7. | ICA | 194 of 2013 | | 8. | ICA | 195 of 2013 | | 9. | ICA | 197 of 2013 | | 10. | ICA | 199 of 2013 | | 11. | ICA | 200 of 2013 | | 12. | ICA | 201 of 2013 | | 13. | ICA | 202 of 2013 | | 14. | ICA | 203 of 2013 | | 15. | ICA | 204 of 2013 | | 16. | ICA | 205 of 2013 | | 17. | ICA | 206 of 2013 | | 18. | ICA | 246 of 2013 | | 19. | ICA | 247 of 2013 | | 20. | ICA | 248 of 2013 | | 21. | ICA | 249 of 2013 | | 22. | ICA | 250 of 2013 | | 23. | ICA | 257 of 2013 | | 24. | ICA | 258 of 2013 | | 25. | ICA | 259 of 2013 | | 26. | ICA | 260 of 2013 | | 27. | ICA | 261 of 2013 | | 28. | ICA | 263 of 2013 | | 29. | ICA | 264 of 2013 | | 30. | ICA | 265 of 2013 | | 31. | ICA | 266 of 2013 | | 32. | ICA | 267 of 2013 | | 33. | ICA | 268 of 2013 | | 34. | ICA | 289 of 2013 | | 35. | ICA | 291 of 2013 | | 36. | ICA | 292 of 2013 | | 37. | ICA | 382 of 2013 | | 38. | ICA | 383 of 2013 | | 39. | ICA | 384 of 2013 | | 40. | ICA | 385 of 2013 | | 41. | ICA | 386 of 2013 | | 42. | ICA | 387 of 2013 | | 43. | ICA | 388 of 2013 | | 44. | ICA | 389 of 2013 | | 45. | ICA | 390 of 2013 | | 46. | ICA | 391 of 2013 | | 47. | ICA | 392 of 2013 | | 48. | ICA | 393 of 2013 | | 49. | ICA | 394 of 2013 | | 50. | ICA | 395 of 2013 | | 51. | ICA | 396 of 2013 | | 52. | ICA | 397 of 2013 | | 53. | ICA | 398 of 2013 | | 54. | ICA | 399 of 2013 | | 55. | ICA | 400 of 2013 | | 56. | ICA | 401 of 2013 | | 57. | ICA | 402 of 2013 | | 58. | ICA | 408 of 2013 | | 59. | ICA | 409 of 2013 | | 60. | ICA | 410 of 2013 | | 61. | ICA | 411 of 2013 | | 62. | ICA | 412 of 2013 | | 63. | ICA | 413 of 2013 | | 64. | ICA | 414 of 2013 | | 65. | ICA | 415 of 2013 | | 66. | ICA | 416 of 2013 | | 67. | ICA | 417 of 2013 | | 68. | ICA | 418 of 2013 | | 69. | ICA | 419 of 2013 | | 70. | ICA | 420 of 2013 | | 71. | ICA | 421 of 2013 | | 72. | ICA | 422 of 2013 | | 73. | ICA | 423 of 2013 | | 74. | ICA | 424 of 2013 | | 75. | ICA | 426 of 2013 | | 76. | ICA | 428 of 2013 | | 77. | ICA | 430 of 2013 | | 78. | ICA | 432 of 2013 | | 79. | ICA | 434 of 2013 | | 80. | ICA | 435 of 2013 | | 81. | ICA | 436 of 2013 | | 82. | ICA | 437 of 2013 | | 83. | ICA | 438 of 2013 | | 84. | ICA | 439 of 2013 | | 85. | ICA | 440 of 2013 | | 86. | ICA | 441 of 2013 | | 87. | ICA | 442 of 2013 | | 88. | ICA | 443 of 2013 | | 89. | ICA | 444 of 2013 | | 90. | ICA | 446 of 2013 | | 91. | ICA | 448 of 2013 | | 92. | ICA | 449 of 2013 | | 93. | ICA | 451 of 2013 | | 94. | ICA | 452 of 2013 | | 95. | ICA | 453 of 2013 | | 96. | ICA | 454 of 2013 | | 97. | ICA | 455 of 2013 | | 98. | ICA | 456 of 2013 | | 99. | ICA | 457 of 2013 | | 100. | ICA | 458 of 2013. | | 101. | ICA | 459 of 2013 | | 102. | ICA | 460 of 2013 | | 103. | ICA | 461 of 2013 | | 104. | ICA | 462 of 2013 | | 105. | ICA | 463 of 2013 | | 106. | ICA | 465 of 2013 | | 107. | ICA | 466 of 2013 | | 108. | ICA | 467 of 2013 | | 109. | ICA | 469 of 2013 | | 110. | ICA | 470 of 2013 | | 111. | ICA | 471 of 2013 | | 112. | ICA | 472 of 2013 | | 113. | ICA | 473 of 2013 | | 114. | ICA | 474 of 2013 | | 115. | ICA | 475 of 2013 | | 116. | ICA | 476 of 2013 | | 117. | ICA | 477 of 2013 | | 118. | ICA | 478 of 2013 | | 119. | ICA | 479 of 2013 | | 120. | ICA | 480 of 2013 | | 121. | ICA | 481 of 2013 | | 122. | ICA | 482 of 2013 | | 123. | ICA | 483 of 2013 | | 124. | ICA | 484 of 2013 | | 125. | ICA | 485 of 2013 | | 126. | ICA | 486 of 2013 | | 127. | ICA | 487 of 2013 | | 128. | ICA | 488 of 2013 | | 129. | ICA | 490 of 2013 | | 130. | ICA | 491 of 2013 | | 131. | ICA | 492 of 2013 | | 132. | ICA | 493 of 2013 | | 133. | ICA | 495 of 2013 | | 134. | ICA | 496 of 2013 | | 135. | ICA | 497 of 2013 | | 136. | ICA | 498 of 2013 | | 137. | ICA | 499 of 2013 | | 138. | ICA | 501 of 2013 | | 139. | ICA | 502 of 2013 | | 140. | ICA | 504 of 2013 | | 141. | ICA | 505 of 2013 | | 142. | ICA | 506 of 2013 | | 143. | ICA | 507 of 2013 | | 144. | ICA | 508 of 2013 | | 145. | ICA | 509 of 2013 | | 146. | ICA | 510 of 2013 | | 147. | ICA | 511 of 2013 | | 148. | ICA | 513 of 2013 | | 149. | ICA | 514 of 2013 | | 150. | ICA | 515 of 2013 | | 151. | ICA | 552 of 2013 | | 152. | ICA | 554 of 2013 | | 153. | ICA | 555 of 2013 | | 154. | ICA | 556 of 2013 | | 155. | ICA | 557 of 2013 | | 156. | ICA | 558 of 2013 | | 157. | ICA | 559 of 2013 | | 158. | ICA | 560 of 2013 | | 159. | ICA | 565 of 2013 | | 160. | ICA | 571 of 2013 | | 161. | ICA | 575 of 2013 | | 162. | ICA | 576 of 2013 | | 163. | ICA | 583 of 2013 | | 164. | ICA | 584 of 2013 | | 165. | ICA | 585 of 2013 | | 166. | ICA | 587 of 2013 | | 167. | ICA | 591 of 2013 | | 168. | ICA | 468 of 2014 | | 169. | ICA | 198 of 2014 | | 170. | ICA | 578 of 2014 | | 171. | ICA | 821 of 2014 | | 172. | ICA | 821 of 2014 | | 173. | ICA | 822 of 2014 | | 174. | ICA | 823 of 2014 | | 175. | ICA | 824 of 2014 | | 176. | ICA | 825 of 2014 | | 177. | ICA | 827 of 2014 | | 178. | ICA | 828 of 2014 | | 179. | ICA | 829 of 2014 | | 180. | ICA | 830 of 2014 | | 181. | ICA | 831 of 2014 | | 182. | ICA | 832 of 2014 | | 183. | ICA | 833 of 2014 | | 184. | ICA | 834 of 2014 | | 185. | ICA | 835 of 2014 | | 186. | ICA | 836 of 2014 | | 187. | ICA | 837 of 2014 | | 188. | ICA | 838 of 2014 | | 189. | ICA | 839 of 2014 | | 190. | ICA | 840 of 2014 | | 191. | ICA | 841 of 2014 | | 192. | ICA | 842 of 2014 | | 193. | ICA | 843 of 2014 | | 194. | ICA | 844 of 2014 | | 195. | ICA | 845 of 2014 | | 196. | ICA | 846 of 2014 | | 197. | ICA | 847 of 2014 | | 198. | ICA | 848 of 2014 | | 199. | ICA | 849 of 2014 | | 200. | ICA | 850 of 2014 | | 201. | ICA | 851 of 2014 | | 202. | ICA | 852 of 2014 | | 203. | ICA | 853 of 2014 | | 204. | ICA | 854 of 2014 | | 205. | ICA | 856 of 2014 | | 206. | ICA | 857 of 2014 | | 207. | ICA | 858 of 2014 | | 208. | ICA | 859 of 2014 | | 209. | ICA | 892 of 2014 | | 210. | ICA | 893 of 2014 | | 211. | ICA | 894 of 2014 | | 212. | ICA | 895 of 2014 | | 213. | ICA | 896 of 2014 | | 214. | ICA | 897 of 2014 | | 215. | ICA | 898 of 2014 | | 216. | ICA | 900 of 2014 | | 217. | ICA | 901 of 2014 | | 218. | ICA | 902 of 2014 | | 219. | ICA | 903 of 2014 | | 220. | ICA | 963 of 2014 | | 221. | ICA | 964 of 2014 | | 222. | ICA | 965 of 2014 | | 223. | ICA | 966 of 2014 | | 224. | ICA | 968 of 2014 | | 225. | ICA | 969 of 2014 | | 226. | ICA | 970 of 2014 | | 227. | ICA | 160 of 2016 |

Annexure-B

| | | | | --- | --- | --- | | Sr. No. | | Case No. | | 1. | ICA | 1067 of 2015 | | 2. | ICA | 1068 of 2015 | | 3. | ICA | 1158 of 2015 | | 4. | ICA | 1159 of 2015 | | 5. | ICA | 1160 of 2015 | | 6. | ICA | 1162 of 2015 | | 7. | ICA | 1164 of 2015 | | 8. | ICA | 1200 of 2015 | | 9. | ICA | 1448 of 2015 | | 10. | ICA | 1449 of 2015 | | 11. | ICA | 1450 of 2015 | | 12. | ICA | 1451 of 2015 | | 13. | ICA | 1485 of 2015 | | 14. | ICA | 1490 of 2015 | | 15. | ICA | 1552 of 2015 | | 16. | ICA | 1651 of 2015 | | 17. | ICA | 1822 of 2015 | | 18. | ICA | 261 of 2016 | | 19. | ICA | 262 of 2016 | | 20. | ICA | 263 of 2016 | | 21. | ICA | 264 of 2016 | | 22. | ICA | 266 of 2016 | | 23. | ICA | 267 of 2016 | | 24. | ICA | 268 of 2016 | | 25. | ICA | 269 of 2016 | | 26. | ICA | 270 of 2016 | | 27. | ICA | 273 of 2016 | | 28. | ICA | 275 of 2016 | | 29. | ICA | 276 of 2016 | | 30. | ICA | 277 of 2016 | | 31. | ICA | 278 of 2016 | | 32. | ICA | 477 of 2016 |

(Z.I.S.) Appeals allowed

PLJ 2018 Lahore 421

Present: Qazi Muhammad Amin Ahmed, J.

JALIL AHMAD KHAN--Petitioner

versus

STATE and 8 others--Respondents

W.P. No. 98471 of 2017, decided on 1.11.2017.

Anti-Terrorism Act, 1997 (XXVII of 1997)--

----Ss. 6 & 7--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Application for inclusion of Sections--A speedy mechanism for prevention of cases of terrorism, involving sectarian violence and heinous offences, scheduled therein--Insofar as impact of violence is concerned, it invariably, in each case, inspires awe and fear on surroundings as its concomitance and this alone by itself would not be sufficient to bring every act of violence within ambit of Section 6 of Act--Jurisprudence so far evolved is more pointed upon designs for which violence is resorted and consequent purposes to be achieved thereupon, thus, notwithstanding magnitude of violence, run of mill criminal cases involving settlement of personal scores fall outside ambit of Act--It is complainant’s own case that respondents lodged a case of homicide against him and his brothers and that he alongwith PWs was on way to attend proceedings therein at Lahore when they came under assault; motive cited in crime report is a reference to yet another murder case wherein complainant’s younger brother Farooq Ahmad was allegedly murdered by respondents, therefore, it can be safely concluded that alleged assault was not for achievement of purposes contemplated by Act--As loss of life in wake of magnitude of violence in those incidents is not comparable with case in hand wherein petitioner and his companions survived assault unscathed, albeit injury to an unsuspecting pedestrian--Similarly mere incidence of a crime at a public place, ipso facto would not bring event within mischief of Section 6 of Act--Case is still at an investigative stage and this Court has traditionally exercise restraint to interfere with investigative processes in exercise of its constitutional jurisdiction and this is yet another reason to dismiss this petition--W.P. No. 98471 of 2017 fails--Petition was dismissed.

[Pp. 423 & 424] A, B & D

Advocate--

----Uniform--Attend Court as an accused--Argument that petitioner being an advocate, assaulted while being in uniform, case should be tried in special jurisdiction, is beside mark inasmuch as statute conferred no such status on him and thus, same cannot be imported on touchstone of his being a structural competent of our system of administration of justice; admittedly, he was on way to attend Court proceedings as an accused. [P. 424] C

Amjad Ali and others v. State PLD 2017 SC 661, ref.

Sardar Abdul Majeed, Advocate for Petitioner.

Date of hearing: 1.11.2017

Order

Jalil Ahmad Khan, petitioner herein, an Advocate by profession, is complainant in a case of murderous assault registered vide FIR No. 653 with Police Station Sabzi Mandi, Gujranwala; it is alleged that on the eventful day i.e. 14-10-2017, at 7:40 a.m, accompanied by Khalil Ahmad and Muhammad Nawaz, PW, he was on way to Lahore when the respondents accompanied by eight unknown persons, variously armed, confronted the entourage and after encircling their vehicle, opened indiscriminate fire, resulting into massive damage to the vehicle and an injury to a passerby, namely, Muhammad Nawaz. Motive for the crime is previous enmity raging between the parties on account of multiple murders. As the investigation progressed, the petitioner moved application to the learned Area Magistrate at Gujranwala for issuance of a direction to the Investigating Officer for the inclusion of Sections 6 and 7 of the Anti-Terrorism Act, 1997, henceforth referred to as the Act, disposed of in the following terms:--

“Record reveals that petitioner has already submitted application for adding offences u/S. 6/7 ATA before Investigating Officer. I.O. has submitted that he shall add the offences after recording the version of the petitioner as per contents of FIR. With this observation, application is disposed off and I.O. is directed to record version of the petitioner and add the offence u/S. 6/7 ATA if the same are made out, otherwise, to proceed further in accordance with law.”

Constructing observation ibid as a command for inclusion of offences prayed for, a direction by this Court is being sought in its Constitutional jurisdiction, to the Station House Officer to invoke the above penal provisions of the Act.

Learned counsel for the petitioner contends that reckless indiscriminate firing by the respondents, in broad daylight, at a thoroughfare, resulting into injuries to an innocent passerby not only struck terror but was also capable of creating a sense of fear and insecurity amongst the public-at-large and thus was, squarely cognizable under Section 6 of the Act; adds that the complainant in his professional robes was on way to a Court at Lahore and as such additionally a case stands made out for respondents’ trial in special jurisdiction. Places reliance upon the cases of Zia Ullah vs. Special Judge Anti-Terrorist Court, Faisalabad and 7 others (2002 SCMR 1225) and Shahbaz Khan alias Tipu and others vs. Special Judge Anti-Terrorism Court, Lahore No. 3 and others (PLD 2016 Supreme Court 1).

1. Heard.

2. The Act has been enacted to provide a speedy mechanism for prevention of cases of terrorism, involving sectarian violence and heinous offences, scheduled therein. Insofar as impact of violence is concerned, it invariably, in each case, inspires awe and fear on surroundings as its concomitance and this alone by itself would not be sufficient to bring every act of violence within the ambit of Section 6 of the Act. Jurisprudence so far evolved is more pointed upon the designs for which violence is resorted and consequent purposes to be achieved thereupon, thus, notwithstanding the magnitude of violence, run of the mill criminal cases involving settlement of personal scores fall outside the ambit of the Act. It is complainant’s own case that the respondents lodged a case of homicide against him and his brothers and that he alongwith PWs was on way to attend proceedings therein at Lahore when they came under assault; motive cited in the crime report is a reference to yet another murder case wherein complainant’s younger brother Farooq Ahmad was allegedly murdered by the respondents, therefore, it can be safely concluded that the alleged assault was not for the achievement of purposes contemplated by the Act. Reliance is placed on the case of Amjad Ali and others vs. The State (PLD 2017 Supreme Court 661), relevant portion whereof is advantageously reproduced:--

“We note in that context that a mere firing at one’s personal enemy in the backdrop of a private vendetta or design does not ipso facto bring the case within the purview of Section 6 of the Anti-Terrorism Act, 1997 so as to brand the action as terrorism.”

Same is the view taken in the case of Waris Ali and others vs. The State (2017 SCMR 1572), reproduced below:

“In the present case, besides many infirmities highlighted in the earlier paras of the judgment, it appears that the noose was thrown wider, the act/acts, the crimes committed and executed were the consequence of personal motive and in the course of the transaction no element of terrorism defined by Legislature was involved, although it was gruesome in nature, however, the punishment provided under Section 302(a) and (b), P.P.C. is also death sentence besides compensation too was awardable under Section 544-A, Cr.P.C. therefore, in the matter of punishment there is no marked distinction, if the penal provision of P.P.C. is applied. The parties are having a blood feud since long and the objection to be achieved was to take revenge for the previous murder and attempted murder, therefore, in our considered view, both the Courts below have not taken due care by applying correct provision of law to the established facts of the case. The construction on the provision of Anti-Terrorism Act and the principle laid down in the cases cited at the bar i.e. Shahbaz Khan @ Tippu V . Special Judge Anti Terrorism Court, No. II, Lahore (PLD 2016 SC 951) proceeds on different premises, both legal and factual and are not attracted to the facts and circumstances of the present case.

Cases cited at the bar are based upon facts vastly distinguishable from the case in hand, as loss of life in the wake of magnitude of violence in those incidents is not comparable with the case in hand wherein the petitioner and his companions survived the assault unscathed, albeit injury to an unsuspecting pedestrian. Similarly mere incidence of a crime at a public place, ipso facto would not bring the event within the mischief of Section 6 of the Act.

Argument that the petitioner being an advocate, assaulted while being in the uniform, the case should be tried in special jurisdiction, is beside the mark inasmuch as the statute conferred no such status on him and thus, the same cannot be imported on the touchstone of his being a structural competent of our system of administration of justice; admittedly, he was on way to attend Court proceedings as an accused.

The case is still at an investigative stage and this Court has traditionally exercise restraint to interfere with investigative processes in exercise of its constitutional jurisdiction and this is yet another reason to dismiss this petition. W.P. No. 98471 of 2017 fails. Petition dismissed in limine.

(A.A.K.) Petition dismissed

PLJ 2018 Lahore 425

Present: Mrs. Ayesha A. Malik, J.

MUHAMMAD SHAHID--Petitioner

versus

PUNJAB ENVIRONMENTAL TRIBUNAL, LAHORE etc.--Respondents

W.P. No. 74381 of 2017, heard on 18.1.2018.

Punjab Environment Protection Act, 1997--

----Ss. 12, 13, 14, 15 & 21(3)(b)--Pakistan Environmental Protection Agency, Regulation, 2000--Punjab Poultry Product Act, 2016--Construction of Poultry farm--Initial Environment Examination--Construction without approval--Environmental Impacts--Compliant before Environmental Tribunal--Jurisdiction of Environmental Tribunal--Petitioner was constructing a poultry shed and was issued notice by Environmental Protection agency stating therein that construction of poultry farm is illegal--Petitioner denied allegations--In terms of report issued by environmental protection agency, environmental tribunal issued impugned order restraining from granting any approval to petitioner with respect to poultry farm until diasion--Challenge to--Petitioner contends that environmental tribunal has no jurisdiction in matter to hear complaint directly when matter is pending before EPA--Question of--Whether poultry farm will have an adverse impact on environment--In terms of complaint filed, respondent non there are two major grievances which show that there is an adverse impact on environment--First is that surrounding area is an agricultural area and Petitioner has commenced construction of his project without any permission from competent authority--Second grievance is that poultry farm is 100 meter from a human settlement and will have an adverse impact on environment and compromise health and living conditions of residents of area--There is merit in both grounds however; EPA did not consider any of aspects of running a controlled or semi controlled poultry shed which will impact environment--In terms of information provided by Respondents, poultry farms are a source of odor and smell as well as flies, rodent and other pests--These can give rise to diseases such as cholera, typhoid, malaria and dengue--Furthermore improper disposal of waste water can pollute water and soil--Proponent of a project must provide a detailed dead bird management plan which should not adversely impact environment--Unfortunately both site reports relied upon failed to consider these aspects which are essential for establishment of a poultry farm--Close proximity of poultry farm from human settlement is a cause of great concern--Poultry facilities are undoubtedly a source of odor and smell which adversely affects life and health of people living in vicinity--Flies, rodents and other pests are an additional menace to local area, its health and well being--Their presence is mainly related to manner in which feed is managed and stored for which proper areas must be made and control mechanisms put in place to avoid flies and other pests--Furthermore water pollution and use of pesticides will damage surface water and ground water and give rise to water borne diseases--Other serious impacts on environment are disposal of waste water and dead birds--Both issues call for proper measures to be adopted to ensure minimum impact on environment--This being mandatory in nature cannot be avoided--Section 12, 13, 14 and 15 set out requirements for establishment of a poultry farm and call for bio-security measures, poultry waste management and reporting in case of poultry disease--All these requirements are directly related to well being of local inhabitants and environment--These requirements directly impact environment--Section 21 of Act provides for jurisdiction and powers of Environmental Tribunal--As per Section 21 an Environmental Tribunal can take cognizance of any offence under Section 17(1) on a complaint filed by Provincial Agency or an aggrieved person, who has given notice of not less than 30 days to Provincial Agency of alleged contravention and his intention to complain before Environmental Tribunal--Section 17(1) provides for penalties imposed if a person contravenes any provisions of Section 11, 12, 13 or 16 or any other order issued thereunder--In this case contravention alleged is of Section 12 and requirement of filing an IEE or EIA--Petitioner did not obtain any approvals from Environmental Protection Agency or relevant authority, to carry out commercial/industrial activity in an agriculture area--Affectee issued notice to Director General, Punjab Environmental Protection Agency, Lahore clearly informing him that he will be filing a complaint before Environmental Tribunal for redressal of his grievance--Therefore as per Section 21 of Act, Environmental Tribunal has jurisdiction to hear a complaint of an aggrieved person who has issued notice, as required, to EPA--Petition dismissed. [Pp. 431, 432 & 433] A, B & C

Hafiz Muhammad Saleem, Advocate for Petitioner.

Kh. Salman Mehmood, AAG along with Nabila Assistant Director Legal, Environmental Protection Agency, Lahore for Respondents.

Date of hearing: 18.1.2018

Judgment

Through this Petition, the Petitioner has impugned order dated 21.7.2017 issued by Respondent No. 1, Punjab Environmental Tribunal, Lahore.

1. The facts of the case are that the Petitioner was constructing a control poultry shed under the name of Chaudhary Protein Farm Control Shed at Chak No. 8/11-L, Tehsil Chichawatni, District Sahiwal. A notice was issued to the Petitioner under Section 21(3)(b) of the Punjab Environment Protection Act, 1997 (“Act”) on 1.3.2017 stating therein that construction of the poultry farm is illegal and in contravention to the provisions of the Act. The Petitioner responded to the show cause notice on 20.4.2017 denying all allegations. In the meanwhile, Respondent No. 3, Assistant Director Environment, Sahiwal carried out a site inspection of the poultry farm and issued its report on 24.1.2017 in terms of which it was stated that the land on which the shed is being constructed is agriculture land on which commercial/industrial activity is being undertaken without any permission or conversion of the status of the land. It was also stated in the report that within 100 meters is a residential colony which is in violation of the requirements of the law which prescribes a minimum of 500 meter distance.

2. With respect to the environment approval, it was stated in the report that no environment approval has been sought, hence it was recommended that action be taken against the Petitioner. Notices were issued to the Petitioner by the Environmental Protection Agency (“EPA”), however the Petitioner did not respond. Another complaint was filed by Respondent No. 4 before the Environmental Tribunal on 23.5.2017. The Environmental Tribunal took notice of the matter and ultimately issued the impugned order dated 21.7.2017. In terms of the impugned order, the EPA was restrained from granting any approval to the Petitioner with respect to the poultry farm until the matters in issue raised in the complaint were decided. One of the disputes pending before the Environmental Tribunal is with respect to the value of the unit as the Petitioner alleged that he was not required to take any environment approval since his unit fell under Regulation 3 read with Schedule 1 of the Pakistan Environmental Protection Agency (Review of IEE and EIA) Regulations, 2000 (“Regulations”). Subsequent thereof the EPA in compliance with the order issued by the Environmental Tribunal on 19.7.2017 again carried out another site inspection to determine the construction cost of the unit. As per the report 90% of the work is completed and the unit has been converted from a control shed to a semi control shed to reduce cost. Consequently the estimated cost has been reduced from Rs.120,000,000/- to Rs.5,000,000/-. It was also stated in the report that measures should be adopted to prevent adverse effects on the environment which are likely to be caused by the operation of the poultry shed and that there should be some plantation as well to improve the environment of the area.

3. Learned counsel for the Petitioner argued that the Environmental Tribunal has no jurisdiction in the matter as it cannot hear the complaint directly when the matter is pending before the EPA. He also argued that no environmental approval was required as the cost of the project was less than rupees one million which is the basic cost for the purposes of an Initial Environmental Examination (“IEE”). So far as the Environmental Impact Assessment (“EIA”) as per Section 12 of the Act, it is also not required as the project does not fall under Schedule II of the Regulations. Therefore it was argued that the impugned order is without jurisdiction and illegal.

4. Report and parawise comments have been filed by Respondents No. 2 and 3 and Respondent No. 4. In terms of the arguments made by the Counsel, the Environmental Tribunal acted under the law and passed a restraining order on 21.7.2017 directing Respondent No. 2 to refrain from issuing an environmental approval until the next date of hearing along with a direction to the Petitioner for not making his project functional. It was also argued that in terms of the Punjab Poultry Product Act, 2016 (“Poultry Act”), a poultry farm must be at least 500 meter away from nearby human settlement and that the Petitioner’s poultry farm was in breach of this requirement. The Counsel argued that the Petitioner’s farm is located in an agricultural area without any permission to do commercial/ industrial activity and the same would cause an adverse impact on the environment. Further that the poultry farm is being constructed in violation of the Poultry Act.

5. The basic issue in the instant Petition is with respect to the jurisdiction of the Environmental Tribunal and the requirement of IEE and EIA as stipulated in Section 12 of the Act read with the Regulations. For ease of reference Section 12 of the Act read with Regulations 3 and 4 of the Regulations are reproduced below:

6. Initial environmental examination and environmental impact assessment.--(1) No proponent of a project shall commence construction or operation unless he has filed with the Provincial Agency an initial environmental examination or where the project is likely to cause an adverse environmental effect, an environmental impact assessment, and has obtained from the Provincial Agency approval in respect thereof.

(2) The Government Agency shall:

(a) review the initial environmental examination and accord its approval, or require submission of an environmental impact assessment by the proponent; or

(b) review the environmental impact assessment and accord its approval subject to such conditions as it may deem fit to impose, or require that the environmental impact assessment be re- submitted after such modifications as may be stipulated, or reject the project as being contrary to environmental objectives.

(3) Every review of an environmental impact assessment shall be carried out with public participation and no information will be disclosed during the course of such public participation which relates to:

(i) trade, manufacturing or business activities, processes or techniques of a proprietary nature, or financial, commercial, scientific or technical matters which the proponent has requested should remain confidential, unless for reasons to be recorded in writing, the Director General of the Provincial Agency is of the opinion that the request for confidentiality is not well-founded or the public interest in the disclosure outweighs the possible prejudice to the competitive position of the project or its proponent; or

(ii) international relations, national security or maintenance of law and order, except with the consent of the Government; or

(iii) matters covered by legal professional privilege.

(4) The Provincial Agency shall communicate its approval or otherwise within a period of four months from the date the initial environmental examination or environmental impact assessment is filed complete in all respects in accordance with the prescribed procedure, failing which the initial environmental examination or, as the case may be, the environmental impact assessment shall be deemed to have been approved, to the extent to which it does not contravene the provisions of this Act and the rules and regulations made thereunder.

(5) Subject to sub-section (4) the Government may in a particular case extend the aforementioned period of four months if the nature of the project so warrants.

(6) The provisions of sub-sections (1), (2), (3), (4) and (5) shall apply to such categories of projects and in such manner as may be prescribed.

(7) The Provincial Agency shall maintain separate registers for initial environmental examination and environmental impact assessment projects, which shall contain brief particulars of each project and a summary of decisions taken thereon, and which shall be open to inspection by the public at all reasonable hours and the disclosure of information in such registers shall be subject to the restrictions specified in sub-section (3).

Regulations 3 and 4

1. A proponent of a project falling in any category specified in Schedule I shall file an IEE with the Federal Agency and the provisions of Section 12 shall apply to such project.

2. A proponent of a project falling in any category specified in Schedule II shall file an EIA with the Federal Agency and the provisions of Section 12 shall apply to such project.

In terms of Section 12 of the Act, no project shall commence construction or operation unless it has obtained permission from the Provincial Agency after having filed either an IEE or EIA. The Regulations provide for the instances when an IEE is to be filed, however, Section 12 clearly mandates that if a project has an adverse impact on the environment an EIA must be filed. Adverse effect on the environment has been defined in Section 2(i) of the Act as follows:-

Impairment of, or damage to, the environment and includes:

(a) impairment of, or damage to, human health and safety or to biodiversity or property;

(b) pollution; and

(c) any adverse environment effect as may be specified in the regulations.

In this case, the contention of the Petitioner is that he is not required to file any IEE or EIA as his project falls below rupees one million, as given in Schedule 1 of the Regulations. Schedule I provides that poultry, livestock, stud and fish farms with a total cost of more than rupees one million requires an IEE. However, irrespective of the requirement given in the Regulations Section 12 clearly mandates that an EIA is to be filed if there is an adverse impact on the environment. The question therefore is whether the poultry farm will have an adverse impact on the environment. In terms of the complaint filed by Respondent No. 4, there are two major grievances which show that there is an adverse impact on the environment. The first is that the surrounding area is an agricultural area and the Petitioner has commenced construction of his project without any permission from the competent authority. The second grievance is that the poultry farm is 100 meter from a human settlement and will have an adverse impact on the environment and compromise the health and living conditions of the residents of the area. There is merit in both grounds however, the EPA did not consider any of the aspects of running a controlled or semi controlled poultry shed which will impact the environment. In terms of the information provided by the Respondents, poultry farms are a source of odor and smell as well as flies, rodent and other pests. These can give rise to diseases such as cholera, typhoid, malaria and dengue. Furthermore improper disposal of waste water can pollute the water and soil. The proponent of a project must provide a detailed dead bird management plan which should not adversely impact the environment. Unfortunately both the site reports relied upon failed to consider these aspects which are essential for the establishment of a poultry farm. The close proximity of the poultry farm from human settlement is a cause of great concern. Poultry facilities are undoubtedly a source of odor and smell which adversely affects the life and health of the people living in the vicinity. Flies, rodents and other pests are an additional menace to the local area, its health and well being. Their presence is mainly related to the manner in which the feed is managed and stored for which proper areas must be made and control mechanisms put in place to avoid flies and other pests. Furthermore water pollution and use of pesticides will damage the surface water and ground water and give rise to water borne diseases. Other serious impacts on the environment are the disposal of waste water and dead birds. Both issues call for proper measures to be adopted to ensure minimum impact on the environment. Under the circumstances the EPA must in the first instance look at the impact a project has on the environment, before it considers the cost of the project. In such cases Section 12 of the Act is clear that the object of the assessment reports is to ascertain whether there is an adverse impact on the environment. This being mandatory in nature cannot be avoided.

1. In the case cited at Ms. Imrana Tiwana and others v. Province of Punjab and others (2015 CLD 983), a Full Bench of this Court held:

EIA is nature’s first man-made check post, nothing adverse to the environment is allowed to pass through. It is for this reason, that environmental assessment is an onerous function. It is through the tool of EIA that EPA gets to regulate and protect the environment and as a result the life, health, dignity and well being of the people who inhabit the environment. Environmental Assessment is, therefore, a substantive exercise as every step in this process cautiously guards the fundamental rights of the people. Review of EIA is not inter parties or an adversarial exercise but are inquisitorial proceeding carried out under the public gaze and open to public scrutiny. The review process is incomplete without effective public participation and technical advice of the experts.

In this case the Petitioner commenced construction of his project without an approval from the EPA. The EPA made two site visits but failed to consider the nature of the project and its impact on the environment and instead recommended in a cursory manner, that measures be adopted to prevent an adverse impact on the environment. This direction was given without any mention of the probable causes of the impact on the environment. In this regard a bare review of the Poultry Act reveals that the establishment of a poultry farm has a direct bearing on the environment and therefore will impact the environment. Sections 12, 13, 14 and 15 set out the requirements for establishment of a poultry farm and call for bio- security measures, poultry waste management and reporting in case of poultry disease. All these requirements are directly related to the well being of the local inhabitants and the environment. These requirements directly impact the environment, hence the Petitioner was required to file an EIA prior to the construction of his project.

1. Furthermore, in this case the distance of the Petitioner’s poultry farm is 100 meters from a human settlement which is in contravention to the requirement of Section 12 of the Poultry Act which clearly stipulates that the poultry farm must be 500 meters from human settlements. This ground in itself was sufficient to restrain the construction of the poultry farm of the Petitioner as it is in contravention to the law. In such a situation, there are no remedial measures which can be adopted as the poultry farm is in close proximity to human settlement putting the health of the residents to risk and polluting the environment.

2. The other ground urged by the counsel for the Petitioner is with respect to the jurisdiction of the Environmental Tribunal on proceeding with the complaint of Respondent No. 4. Section 21 of the Act provides for the jurisdiction and powers of the Environmental Tribunal. As per Section 21 an Environmental Tribunal can take cognizance of any offence under Section 17(1) on a complaint filed by the Provincial Agency or an aggrieved person, who has given notice of not less than 30 days to the Provincial Agency of the alleged contravention and his intention to complain before the Environmental Tribunal. Section 17(1) provides for the penalties imposed if a person contravenes any provisions of Section 11, 12, 13 or 16 or any other order issued thereunder. In this case the contravention alleged is of Section 12 and the requirement of filing an IEE or EIA. In fact the Petitioner did not obtain any approvals from the Environmental Protection Agency or the relevant authority, to carry out commercial/industrial activity in an agriculture area. Respondent No. 4 issued notice to the Director General, Punjab Environmental Protection Agency, Lahore clearly informing him that he will be filing a complaint before the Environmental Tribunal for redressal of his grievance. The complaint was then filed on 23.5.2017. Therefore as per Section 21 of the Act, the Environmental Tribunal has jurisdiction to hear a complaint of an aggrieved person who has issued notice, as required, to the EPA.

3. Under the circumstances no case for interference is made out. Petition is dismissed.

(Z.I.S.) Petition dismissed

PLJ 2018 Lahore 434

Present: Jawad Hassan, J.

AAMIR TUFAIL CHAUDHARY--Petitioner

versus

GOVERNMENT OF PUNJAB and 2 others--Respondents

W.P. No. 109335 of 2017, decided on 3.1.2018.

Constitution of Pakistan, 1973--

----Arts. 4, 25 & 199--Recruitment to Post of Deputy District Public Prosecutor--Visually impaired and blind candidate--Provincial council for rehabilitation of disabled persons--Re-Examination by Medical Board--Vested right--Principle of locus poententiae--petitioner is an advocate High Court and is visually impaired and blind--petitioner applied for post of Deputy District Public Prosecutor, against two posts of disabled persons, petitioner cleared all tests and stood at Serial No 1 in list of successful candidates--After medical examination, name of petitioner was recommended, but prosecution department did not issue appointment letter to petitioner on ground of disability--petitioner contended that action of department is based on mala fide just to deprive petitioner from his fundamental right, that a vested right has been accrued in favor of petitioner.--Validity--It is evident that in advertisement two seats were reserved for disable persons--petitioner after passing all tests was declared successful candidate in disable quota and duly recommended alongwith other candidates--Recommendations of Commission were subject to passing such medical test of candidates as may be required under rules--Condition was that disable person has to (i) reappear before Special Medical Board (ii) who should re-verify his/her disability and (iii) determine suitability to perform his/her job related duties/functions--Subsequently, petitioner was issued offer letter mentioning clause-xi that appointment is subject to verification of your antecedents from Local Police/Special Branch and subject to clearance of medical board--In pursuance of which petitioner submitted his acceptance letter--It is clear from record that Special Medical Board was constituted in pursuance of letter issued to Medical Superintendent, Services Hospital, Lahore which conducted his medical examination with finding that “adjusted against disable quota”--Said board prepared report--It is very much apparent from said letter that request was made therein that Special Medical Board may be constituted for medical examination of officer at earliest and report regarding his fitness be submitted to this Department before his joining as Deputy District Public Prosecutor (BS-18) in Public Prosecution Department, which was duly conducted in favour of petitioner; meaning thereby that except report of said Special Medical Board nothing was required before joining of petitioner as DDPP--petitioner has attached with petition copy of disability certificate--Thereafter he got conducted his medical examination from Special Medical Board--respondents issued letters after a considerable delay of about 9 months which smells mala fide on part of respondents and as counter blast of litigation--This clearly shows that respondents were judicially estopped from writing letters again because already specific instructions for constitution of Special Medical Board were issued--It can safely be held that a vested right has been accrued in favour of petitioner which cannot be deviated from by respondents--Furthermore, petitioner filed representation when he was declined appointment which was dismissed vide impugned order--Perusal of impugned order reflects that above facts have not been taken into consideration by respondents while deciding representation, as such impugned order is liable to be set aside--Petition allowed.

[Pp. 438, 439, 440 & 441] A, B, C, D & E

Barrister Haris Azmat, Barrister Maryam Hayat, Mr. Muhammad Bilal Ramzan, Mr. Ali Sindhu & Mr. Khursheed Nawaz Bangash, Advocates for Petitioners.

Mr. Abdul Sammad, Additioal Prosecutor-General for Respondents.

Mr. Nawazish Ali, Director Prosecution Department.

Mr. Junaid Safdar, Branch Officer PPSC.

Date of hearing: 3.01.2018

Judgment

Through the instant Constitutional petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the “Constitution”), the Petitioner has made the following prayers:

“(i) Set aside the Impugned Order;

(ii) Direct the Respondents to issue appointment letter to the Petitioner and appoint him for the job post;

(iii) Restrain the Respondents from appointing someone else to the job post;

(iv) Any other relief deemed appropriate may also be granted.”

1. The brief facts revealed from the petition are that the Petitioner is an Advocate of High Court and is visually impaired and blind. The Petitioner is registered with Provincial Council for Rehabilitation of Disabled Persons. He has also been issued with a disability certificate from the said Department. In pursuance of an advertisement for the post of Deputy District Public Prosecutor (DDPP) issued by the Respondent No. 2 on 03.01.2016 in the Department of the Respondent No. 3 reserving two posts for disabled persons, the Petitioner applied in disable quota and cleared all the tests and stood at Sr. No. 1 in the list of the successful candidates. Subsequently, the Petitioner also passed the interview and his name was included in the list of disable candidates at Sr. No. 14. The Respondent No. 2 also issued letter dated 18.05.2016 recommending the names of all the successful candidates including the Petitioner in which a condition was imposed by the Respondent No. 2 that all the disabled candidates must be required to appear before a Special Medical Board to re-examination their disability. Thereafter, the Respondent No. 2 also issued another letter dated 09.11.2016 recommending the name of the Petitioner against disable quota. However, despite repeated requests the Petitioner was not issued appointment letter whereas all the other selected candidates were issued joining letters.

2. Feeling aggrieved thereby the Petitioner filed W.P. No. 27195/2016 which was withdrawn by the Petitioner on the undertaking given by the Respondents to appoint the Petitioner. Thereafter, an offer letter was issued to the Petitioner on 21.12.2016 imposing condition as mentioned in letter dated 18.05.2016 to get a clearance from Medical Board. Subsequently, the Respondents also wrote a letter dated 26.12.2016 to the Petitioner for his re-examination before the Special Medical Board to determine his disability and suitability against any suitable post. In pursuance of which the Petitioner appeared before the Special Medical Board, constituted on the instructions of the Respondents comprising six senior doctors including eye specialist, which unanimously gave a report dated 04.01.2017 that the Petitioner be adjusted against the disable quota in the Prosecution Department. But on refusal to be appointed the Petitioner filed a representation on 06.07.2017 which was decided by the Respondent No. 3 through impugned order dated 17.10.2017, on the directions of this Court passed in W.P. No. 64050/2017 vide order dated 30.08.2017. Hence, this petition.

3. Learned counsel for the Petitioner submitted that the impugned order is misconceived and against the actual facts of the matter; that in view of condition mentioned in letters dated 18.05.2016 and 21.12.2016 issued by the Respondents, the Medical Board has already cleared the Petitioner through report dated 04.01.2017 whereas directing the Petitioner to appear before the Special Medical Board thereafter for re-examination is based on mala fide; that the said report of the Medical Board has never been challenged by the Respondents; that the impugned order is based on mala fide just to deprive the Petitioner from his fundamental right; that a vested right has been accrued in favour of the Petitioner and the Respondents cannot deviate from the same; that a discriminatory attitude is being adopted towards the case of the Petitioner; that all the citizens are equal before the law and are entitled to equal protection of law; that discrimination against any person on the basis of disability is a violation of the inherent dignity and worth of a human being; that after issuance of offer letter to the Petitioner and fulfilling all its requirements the Respondents are now estopped by their words and conduct; that under the principle of locus poenitentiae the Respondents cannot deny the Petitioner their right of appointment against the said post. To fortify his contentions, the learned counsel for the Petitioner has placed reliance on the case titled Hafiz Junaid Mahmood Versus Government of Punjab and others (PLD 2017 Lahore 1), Muhammad Yousaf and another v. Chairman Federal Public Service Commission and 4 others (PLD 2017 Lahore 406), Bashir Ahmed Solangi v. Chief Secretary, Government of Sindh, Karachi and 2 others (2004 SCMR 1864), Mst. Basharat Jehan v. Director General (2015 SCMR 1418), Mst. Saima Hameed v. Executive District Officer (Health) Pakpattan Sharif and 2 others (2011 PLC (C.S) 351), Zakir Muneer v. Executive District Officer (Health) Abbottabgad and 3 others (2011 PLC (C.S.) 1651), Munawar Hassan v. Chief Secretary, Government of Balochistan and 3 others (2017 PLC (C.S.) 81) & Jawad Ali and others v. Superintendent Jail and others (2017 PLC (C.S.) 587).

4. On the other hand, learned counsel for the Respondents vehemently controverted the arguments advanced by the learned counsel for the Petitioner and submitted that the impugned order has rightly been passed; that no discrimination has been made to the Petitioner rather the Petitioner was required to appear before the Special Medical Board for re-verification of his disability and suitability; that the earlier Board was not a Special Medial Board for re-verification of the Petitioner’s disability and determination of suitability to perform his job related duties/functions; that in the earlier Board which was not a Special Medical Board, there was no finding regarding suitability to perform his job related duties/functions; that the merit list or offer letter do not create any vested right in favour of the Petitioner; that inspite of repeated letters dated 22.08.2017 and 13.09.2017, the Petitioner did not appear before the Special Medical Board which is a pre-condition, as such he is not entitled to be issued appointment letter; that even now if the Petitioner appears before the Special Medical Board, the Respondents may deal with him in accordance with law.

5. Arguments pro and con heard and record perused.

6. From the record it is evident that in the advertisement two seats were reserved for disable persons. The Petitioner after passing all the tests was declared successful candidate in disable quota and duly recommended alongwith other candidates, as per letter dated 18.05.2016. The recommendations of the Punjab Public Service Commission (the “Commission”) were subject to passing such medical test of the candidates as may be required under the Rules. As per paragraph 8 of the said letter the recommendation of the Commission is subject to the condition that in case of disabled candidate, he/she should reappear before special medical board who should re-verify his/her disability and determine suitability to perform his/her job related duties/functions. Meaning thereby that the condition was that the disable person has to (i) reappear before Special Medical Board (ii) who should re-verify his/her disability and (iii) determine suitability to perform his/her job related duties/functions. Subsequently, the Petitioner was issued offer letter dated 21.12.2016 mentioning clause-xi that the appointment is subject to verification of your antecedents from Local Police/Special Branch and subject to clearance of medical board. In pursuance of which the Petitioner submitted his acceptance letter mentioning therein that with due respect I have the honour to submit that I accept the offer of appointment as Deputy District Public Prosecutor (BS-18) in accordance with the terms and conditions contained in Letter No. SO(C)PPD/7-4/2014(Vol-III) dated 21.12.2016. The Petitioner has placed on record letter dated 26.12.2016 through C.M. No. 3/2017, written by the Respondent No. 3 to the Medical Superintendent, Services Hospital, Lahore requesting as under:

“It is, therefore, requested that special Medical Board may be constituted for medical examination of the officer at the earliest and report regarding his fitness be submitted to this Department before his joining as Deputy District Public Prosecutor (BS-18) in Public Prosecution Department.”

1. It is clear from the record that the Special Medical Board was constituted in pursuance of letter dated 26.12.2016 written by the Respondent No. 3 to the Medical Superintendent, Services Hospital, Lahore which conducted his medical examination with the finding that “adjusted against disable quota”. The said Board prepared report on 04.01.2017. It is very much apparent from the said letter that the request was made therein that Special Medical Board may be constituted for medical examination of the officer at the earliest and report regarding his fitness be submitted to this Department before his joining as Deputy District Public Prosecutor (BS-18) in Public Prosecution Department, which was duly conducted in favour of the Petitioner; meaning thereby that except the report of the said special medical board (dated 04.01.2017) nothing was required before joining of the Petitioner as DDPP.

2. The record also reveals that the Petitioner has attached with the petition copy of disability certificate as Annexure-B. Thereafter he got conducted his medical examination from the Special Medical Board constituted in pursuance of letter dated 26.12.2016 of the Respondents. The contention of the learned counsel for the Respondents that the Medical Superintendent Services Hospital, Lahore was issued letters dated 22.08.2017 and thereafter dated 13.09.2017 for re-examination of the Petitioner by the Special Medical Board to determine his suitability to perform his/her job related duties/functions but the Petitioner did not appear before the said Board, as such his representation was dismissed, is not instructive. Because, the earlier Special Medical Board was constituted in pursuance of letter dated 26.12.2016 and thereafter when the Petitioner was not appointed and he started litigation the Respondents issued the said letters dated 22.08.2017 and 13.09.2017 after a considerable delay of about 9 months which smells mala fide on the part of the Respondents and as counter blast of litigation. This clearly shows that the Respondents were judicially estopped from writing the letters again because already on 26.12.2016 specific instructions for constitution of Special Medical Board were issued. Reliance in this regard can be placed on the case titled JDW Sugar Mills LTD. and others v. Province of Punjab and others (PLD 2017 Lahore 68) wherein it has been held as under:

“Fundamental duty of Court to protect the integrity of the judicial process and a party could not approbate and reprobate at the same time. When a party took an inconsistent position in the same case or in a prior case, the principle of judicial estoppel should be applied. Judicial estoppel was an equitable doctrine, which precluded a party from taking inconsistent positions before the Court and protected the integrity of the judicial system and not of the litigant. Principle of judicial estoppel sought to ensure respect for judicial proceedings and to avoid inconsistency and abuse of process. Under the doctrine of judicial estoppel, Court could stop a party from taking up contradictory stances if it was clearly inconsistent with the previous position taken by that party before another Court. Application of judicial estoppel depended upon the facts and circumstances of each case and when a party put forth a position, as a matter of fact in one case and was successful in such an assertion, then that party was estopped from asserting a different position on the same facts in a second case. Party, who was to be estopped in the second case had to be the same party in the earlier case meaning thereby the party is the same in both cases. Issue for which the party was estopped from asserting its facts must have had some nexus in both proceedings and it was imperative that such equitable principle be applied so that a judicial process functions properly and effectively. Litigants must approach the Court in a truthful manner especially if the litigant party was the government. Party could always vigorously assert its position, but could not misrepresent the facts in order to gain some advantage in the process. When a party had formally asserted a certain version of the facts in litigation, he or she could not later change those facts because the initial version no longer suits him or her. For application of the principle of judicial estoppel, the Court must ascertain that a party had asserted a contradictory position before another Court which position was accepted by that Court. Party’s later position must be clearly inconsistent with its earlier position, and the Courts should inquire whether the party had succeeded in persuading a Court to accept its earlier position and it had to be determined whether the party seeking to assert the inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. Party’s change in its factual or legal position threatened to produce inconsistent decisions by the Courts and therefore, the doctrine of judicial estoppel was necessary to protect the integrity of the Court from the harm caused when a litigant engaged in cynical gamesmanship, achieving success on one position yet arguing a different position in another case to satisfy an exigency of the moment. Allowing a litigant to adopt contradictory positions in different Courts would mean that one Court was misled or perhaps defrauded.”

1. From the above, it can safely be held that a vested right has been accrued in favour of the Petitioner which cannot be deviated from by the Respondents. Furthermore, the Petitioner filed representation when he was declined appointment which was dismissed vide the impugned order. The perusal of the impugned order reflects that the above facts have not been taken into consideration by the Respondents while deciding the representation, as such the impugned order is liable to be set aside.

2. This Court recently passed judgment in a similar issue in Muhammad Yousaf’s case supra in which it has been held as under:

“Fundamental rights under the Constitution do not distinguish between a person with or without disabilities. It recognizes the inherent and inalienable dignity of all human beings as the foundation of freedom, justice and peace. Right to life and right to dignity are the epicenters of our constitutional architecture. Right to life recognizes the importance of accessibility to physical, social, economic and cultural environment, to health and education and to information and communication. Such a right enables persons with disabilities to fully enjoy all human rights and fundamental freedoms. Every human being has the inherent right to life and to ensure its effective enjoyment, this includes persons with disabilities, at par with the others. Right to life and right to dignity are deeply interwoven”

1. Moreover, this Court in Hafiz Junai Mahmood case supra has held that this constitutional construct creates an obligation on the State and other institutions of the State to make all possible endeavours to mainstream persons with different abilities and to embrace the diversity in the society. The State and its institutions are under a constitutional obligation to go the extra mile and ensure, within the means available, that person with disabilities get reasonable accommodation in order to enjoy their fundamental rights in the same manner as enjoyed by other citizens of Pakistan. It is for the State and its institutions to provide the architecture, the structure, the assistive and adaptive technology, the system, the equipment and the facilitative support to persons with disabilities, so they can actualize their constitutional rights and freedom. In the present case, the department should have considered the possibility of providing necessary technical and human support to ensure that the petitioner was able to perform as an educator and was not discriminated on the ground of disability.

2. Pursuant to the Office letter dated 21.12.2016 a vested right has been created in favour of the Petitioner which now cannot be taken away by not issuing the appointment letter. It is also submitted by the learned counsel for the Petitioner that the Petitioner was selected for the post of Assistant Director Legal in the Office of Anti-Corruption Establishment Punjab on disability quota as well but he did not join the same because he was assured by the Respondents that he will be issued an appointment letter by them. It is settled principle of law that once a decisive step has been taken by the relevant authority the same cannot be retracted since it has vested valuable rights. The offer letter was issued to the Petitioner and the Petitioner in consequence whereof fulfilled all the terms and conditions of the offer letter by having his degrees verified and having a fresh medical examination. The Respondents under the principle of locus poenitentiae cannot deny the Petitioner the post as valuable rights had accrued to the Petitioner and the same could not be recalled.

3. In another case titled Bashir Ahmed Solangi v. Chief Secretary, Government of Sindh, Karachi and 2 others (2004 SCMR 1864) it has been held by the Hon’ble Supreme Court of Pakistan that it is settled principle of law that if inconsequence to an order passed by an authority competent to pass such an order, certain rights are created in, favour of a person, the said order cannot be subsequently undone or withdrawn. The authority being responsible of passing of an order creating certain rights would not be legally justified to take a turn and retrace the steps to undo the said order on the ground that it was passed in violation of rules or was a wrong order.

4. Moreover, in similar case Mst. Basharat Jehan supra it has been held that once a person is appointed after fulfilling all the codal formalities, appointment letter is issued, it was held that a vested right is created and appointment letter could not be withdrawn. Reliance is also placed on the case titled Mst. Saima Hameed v. Executive District Officer (Health) Pakpattan Sharif and 2 others (2011 PLC (C.S) 351), Zakir Muneer v. Executive District Officer (Health) Abbottabad and 3 others (2011 PLC (C.S.) 1651), Munawar Hassan v. Chief Secretary, Government of Balochistan and 3 others (2017 PLC (C.S.) 81) & Jawad Ali and others v. Superintendent Jail and others (2017 PLC (C.S.) 587).

5. On the touchstone of the above discussion, I am of the firmed view that the impugned order has been passed against the actual facts and is misconceived. Resultantly, the same is hereby set aside and the instant petition is allowed. The Respondents are directed to allow the Petitioner to submit his joining into service as DDPP within ten days from the receipt of certified copy of this judgment with intimation to the Deputy Registrar (Judicial) of this Court.

(Z.I.S.) Petition allowed

PLJ 2018 Lahore 443 (DB)

Present: Mrs. Ayesha A. Malik and Jawad Hassan, JJ.

PAKISTAN AGRICULTURAL STORAGE AND SERVICES CORPORATION--Appellant

versus

MUHAMMAD AKRAM and 31 others--Respondents

I.C.A. No. 361 of 2017, decided on 18.1.2018.

Law Reforms Ordinance, 1972 (XII of 1972)--

----S. 3(1)(2)--Intra Court appeal--Due process of law--Passco Employees Service (Efficiency & Discipline) Regulations 2007--Advertisement to public post--Contractual appointments--Allegations of Sham and unfair selection process--Respondents were appointed on contract basis, subsequently their appointments were extended on contract basis--Department scratching entire recruitment process on direction of Prime Minister alleging irregularity & illegality--Termination of services--Single Judge of High Court nullifying termination orders--Challenge in Appeal--Appellant contended that institution does not fall within definition of “person”, as such, writ petition was not maintainable--Validity--Bare reading of termination order reveals that neither any show cause notice has been issued to respondents nor any opportunity of personal hearing has been afforded to them before passing same rather, it has been observed therein that in compliance of inquiry report, contract employees stands ceased to be employees of PASSCO with immediate effect--Impugned order was passed solely relying upon inquiry report which shows that Inquiry Committee interviewed concerned officers of PASSCO--Inquiry Committee also interviewed Ex-President of All Pakistan PASSCO Staff Union (CBA) (Complainant) as well as present President of CBA to have a clear idea regarding illegalities in recruitment process--Whole inquiry proceedings show that respondents were not heard--Moreover, Inquiry Committee concluded its findings to effect that owing to these illegalities and irregularities Committee has reached to conclusion that Formal Inquiry may be conducted under PASSCO Employees Service (Efficiency & Disciplinary) Regulations, 2007 to fix responsibility against defaulting officers as well as selected candidates--But record reveals that Respondents were ousted through impugned order without adopting proper procedure as set down in Inquiry Report viz: PASSCO Employees Service (Efficiency & Disciplinary) Regulations, 2007--Termination order infringed fundamental rights of respondents guaranteed under Article 4 of Constitution as to enjoy protection of law and to be treated in accordance with law is inalienable right of every citizen--It is a developed jurisprudence that High Court cannot interfere into contractual matters yet in this case evidently, neither respondents were provided opportunity of fair trial, particularly when there is serious allegation against them, nor required procedure as advised in Inquiry Report was adopted to proceed against them--Respondents should not have been terminated with a single stroke of pen rather in due course of law as suggested in Inquiry Report i.e. under Regulations--Appellant passed order for termination of respondents but it did not adopt proper procedure as contained in Inquiry Report strictly in accordance with Regulations--Action of Appellant against respondents is itself contradictory and against principle of natural justice--ICA was dismissed. [Pp. 446 & 447] A & B

Ms. Tabinda Islam, Advocate for Appellant.

Mr. Abid Saqi & Mr. Nabeel Javed Kahloon, Advocates for Respondents.

Ms. Rabbiya Bajwa, Advocate for the Staff Union.

Date of hearing: 18.1.2018

Judgment

C.M. No. 2/12017

Through this Application, filed under Order I Rule 10, CPC, the Applicants seek permission to be impleaded as party to the Appeal. Learned counsel for the Applicant has relied upon the case titled Basharat Ali etc. v Muhammad Anwar etc. (PLJ 2011 SC 27), Asad Khan Mengal and others v. Muhammad Afzal Shouq and others (2010 SCMR 970) and Muhammad Shahban v. Falak Sher and others (2007 SCMR 882).

In view of above, the Application is allowed and the Applicants are made party to the Appeal as Respondents.

Main Case

Jawad Hassan, J.--Through this single judgment we intend to decide the instant Intra Court Appeal as well as I.C.A. No. 362/2017 titled “Pakistan Agricultural Storage and Services Corporation Ltd. v. Col. (R) Ghafoor Arshad etc.” through which the validity of order dated 7.3.2017 passed by the learned Single Judge in W.P. No. 21953/2016 whereby the writ Petitions of the Respondents No. 1 to 30 were allowed, has been challenged.

1. Brief facts of the case are that in pursuance of the advertisement made by the Appellant in the newspaper on 09.04.2013, the Respondents No. 1 to 30 were appointed by the Selection Board constituted by the Appellant. The appointment letters to the Respondents No. 1 to 30 were issued in different dates in May 2013. Subsequently, the said Board extended the contract period of the Respondents No. 1 to 30. The Staff Union of the Appellant (the Union) filed a complaint before the Appellant that the entire process for the appointment of the Respondents No. 1 to 30 was not carried out in transparent manner, hence Board of the Appellant conducted a fact finding inquiry which was concluded on 08.11.2013 with the findings that the correct procedure was followed for appointment of the Respondents No. 1 to 30 as per law and policies. The Union again approached different forums against the recruitment process of the Respondents No. 1 to 30 and on the directions of the Prime Minister, the Appellant reopened the inquiry. Whereupon the inquiry report dated 27.05.2016 was submitted with the recommendation that the MD and GM (HR) being competent authority for the recruitment may be proceeded against under the relevant rules and the recruitment process of the Respondents No. 1 to 30 was declared to be based on irregularities and illegalities. Hence, vide order dated 02.06.2016 the Respondents No. 1 to 30 were declared ceased to be the employees of the Appellant with immediate effect. The Respondents No. 1 to 30 filed writ petitions there-against which was allowed. Hence these Appeals.

2. Learned counsel for the Appellant inter alia submitted that the impugned order is against law and facts and liable to be set aside; that infact vide order dated 02.06.2016 the Respondents No. 1 to 30 alongwith other employees’ contract already stood expired were laid off from the strength of the Appellant; that as the Appellant does not fall within the definition of ‘person’ therefore, the writ petitions were not maintainable; that the learned Single Judge has failed to appreciate the fact that the relationship between the Appellant and the Respondents No. 1 to 30 is that of master and servant; that the rules of the Appellant are non-statutory in nature; that the services of the Respondents No. 1 to 30 were contractual in nature therefore, despite the remedy of writ petitions, the Respondents No. 1 to 30 had the alternate remedy by filing civil suits. Learned counsel for the Appellant has placed reliance on the case titled Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another (PLD 2010 SC 483), Brig (R) Sakhi Marjan, CEO, PESCO, Peshawar v. Managing Director PEPCO, Lahore and others (2009 SCMR 708) and Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others (PLD 2011 SC 132).

3. On the other hand learned counsel for the Respondents No. 1 to 30 vehemently controverted the arguments advanced by the learned counsel for the Appellant and prayed for dismissal of the Appeal. Learned counsel in support of his arguments has placed reliance on the case titled Muhammad Rafi and another v. Federation of Pakistan and others (2016 SCMR 2146) and Government of the Punjab through Chief Secretary and others v. Aamir Junaid and others (2015 SCMR 74).

4. We have heard the arguments of both the sides and perused the record.

5. The bare reading of the order dated 02.06.2016 reveals that neither any show cause notice has been issued to the Respondents No. 1 to 30 nor any opportunity of personal hearing has been afforded to them before passing the same rather, it has been observed therein that in compliance of the inquiry report from M/o NFS&R No. 1-13/2013 FS dated 27.05.2016 and directions contained therein, the contract employees (list attached) stands ceased to be the employees of PASSCO with immediate effect. The impugned order was passed solely relying upon the inquiry report which shows that the Inquiry Committee interviewed the concerned Officers of PASSCO, President (then GM HR). The Inquiry Committee also interviewed the Ex-President of All Pakistan PASSCO Staff Union (CBA) (Complainant) as well as the present President of the CBA to have a clear idea regarding illegalities in the recruitment process. The whole inquiry proceedings show that the Respondents No. 1 to 30 were not heard. Moreover, the Inquiry Committee concluded its findings to the effect that owing to these illegalities and irregularities the Committee has reached to the conclusion that Formal Inquiry may be conducted under PASSCO Employees Service (Efficiency & Disciplinary) Regulations, 2007 (the “Regulations”) to fix the responsibility against the defaulting officers as well as the selected candidates. But the record reveals that the Respondents No. 1 to 30 were ousted through the impugned order dated 2.6.2016 without adopting the proper procedure as set down in the Inquiry Report viz: PASSCO Employees Service (Efficiency & Disciplinary) Regulations, 2007. Consequently, the order dated 2.6.2016 infringed the fundamental rights of the Respondents No. 1 to 30 guaranteed under Article 4 of the Constitution as to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen.

6. From the above, it is very much clear that since there are serious allegations against the Respondents No. 1 to 30 and their Officers for committing illegalities and irregularities in the appointment of the Respondents No. 1 to 30, therefore, they should have been afforded an opportunity of fair trial and personal hearing. But no personal hearing was given to the Respondents No. 1 to 30 before passing the order dated 2.6.2016. Although it is a developed jurisprudence by the superior Courts that this Court cannot interfere into the contractual matters yet in this case evidently, neither the Respondents No. 1 to 30 were provided opportunity of fair trial, particularly when there is serious allegation against them, nor the required procedure as advised in the Inquiry Report was adopted to proceed against them. The Respondents No. 1 to 30 should not have been terminated with a single stroke of pen rather in due course of law as suggested in the Inquiry Report i.e. under the Regulations. Furthermore, the Appellant passed the impugned order dated 2.6.2016 for termination of the Respondents No. 1 to 30 but it did not adopt the proper procedure as contained in the Inquiry Report i.e. formal inquiry against the Respondents No. 1 to 30 alongwith their Officers strictly in accordance with the Regulations. Therefore, the action of the Appellant against the Respondents No. 1 to 30 is itself contradictory and against the principle of natural justice.

7. As such, the learned Single Judge has rightly held in the impugned order that passing the order dated 2.6.2016 without any reasoning and in absence of opportunity of personal hearing, there is violation of natural justice and the Respondents No. 1 to 30 have been deprived of their fundamental right of fair trial and due process guaranteed under Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 (the “Constitution”). Recently, the Hon’ble Supreme Court of Pakistan in case titled Pakistan Defence Officers Housing Authority v. Mrs. Itrat Sajjad Khan and others (2017 SCMR 2010) has held as under:

“However, the question which escaped the attention of the High Court and needs our consideration is as to whether Rule 8(b)(1) of the Service Rules framed by the appellant in 2008 for their employees which authorizes the Administrator to dispense with the services of an employee by giving him one month’s notice or a month’s pay in lieu thereof without assigning any reason or providing an opportunity of hearing is violative of the principle of natural justice, which always has

been treated as violation of law. The said rule further appears to be against the principles of public policy which requires the public functionaries to maintain transparency and to exercise their powers in good faith in the public interest and not on the basis of personal likes or dislikes or on the basis of whims and fancies and, therefore, it needs to be examined as to whether such rule could be allowed to be retained in the service rules (though non-statutory) of the appellant a statutory body.”

1. Reliance can also be placed on the case titled Muhammad Ashraf Tiwana and others v. Pakistan and others (2013 SCMR 1159) wherein it was held that to sum up the discussion in this part, when we read the Act in the light of principles elaborated repeatedly in our precedents, it becomes clear that the SECP cannot simply be terminating the services of its employees at its whims and pleasure, without having recourse to valid reasons. It can only terminate an employment when it has reasons to do so which are fair and just and advance the purposes of the Act. Both law and public policy require this. The judgments cited by the learned counsel for the Appellant cannot be relied upon as each and every case has its own facts and circumstances, as such distinguishable from the case in hand.

2. We, therefore, agree with the findings of the learned Single Judge and do not see any illegality or perversity in the impugned order which has been passed in accordance with law and does not warrant any interference by this Court; consequently, the impugned order is upheld and the instant Appeal as well as ICA No. 362/2017, being devoid of any merit, are hereby dismissed.

(Z.I.S.) ICA dismissed

PLJ 2018 Lahore 448

Present: Syed Mansoor Ali Shah, C.J.

Prof. Dr. ZAFAR IQBAL--Petitioner

versus

PROVINCE OF PUNJAB, etc.--Respondents

W.P. No. 114962 of 2017, decided on 16.1.2018.

Constitution of Pakistan, 1973--

----Arts. 4, 10-A & 199--Post of Vice-Chancellor, University of Agricultural Faisalabad--Specialized search committee--Expert panel not properly constituted--Short listing of panel of three candidates--Re-Advertisement of post--Petitioner applied for post of Vice-Chancellor pursuant of an advertisement--Petitioner contended that process adopted for appointment of Vice-Chancellor is not according to law laid down by High Court, newly constituted search committee should have advertised post of Vice-Chancellor and earlier advertisement made by university prior to constitution of search committee cannot be relied upon--Validity--University of Agriculture, Faisalabad set up a specialized search committee, comprising subject/field expert--Substantive part of process is scrutiny by search committee and not act of advertisement, unless and until, it is shown that advertisement is deficient in material particulars--A Subject/Field expert qualifies to be on search committee, if he can establish his expertise in specialized subject--Subject/field expert requires to hold highest degree in subject and must also have substantial and direct experience in subject or field--An expert is different from a generalist--Nominated Expert is a celebrated economist and has numerous scholastic achievements to his credit, he does not hold a degree in Agriculture--His doctorate is in development economics, which is a branch of economics which deals with economic aspects of development process in low income countries--Its focus is not only on methods of promoting economic development, economic growth and structural change but also on improving potential for mass of population--This does not strictly pass for a degree in Agriculture--Resume of nominated expert does not show mainstream or direct involvement in agriculture--His doctoral thesis on “impact of agriculture growth on agrarian structure of Pakistan” was in year 1980 and since then, resume does not refer to any substantial, mainstream or direct work on Agriculture--Subject or field expert must hold highest academic degree in subject and also must have highest academic degree in subject/field--Nominating expert, who is otherwise a leading economist of country, does not qualify to be subject/field expert in Agriculture, so as to sit in judgment over selection process of a vice chancellor of university of Agriculture Faisalabad--Constitution of Search Committee and short listing of panel of three candidates declared invalid--Petition was allowed.

[Pp. 456, 457 & 458] A, B ,C, D & E

Mr. Muhammad Ahsan Bhoon, Advocate, Malik Muhammad Awais Khalid, Advocate in connected matter for Petitioner.

Mr. Anwaar Hussain, Additional Advocate General, Punjab.

Ms. Asma Jahangir, Advocate for Applicants (in CM. No. 4/2017).

Mr. Saad Rasool, Advocate assisted by Shan Saeed Ghumman,Advocate for Applicants.

Mr. Irshad Ali, Law Officer, Agriculture Department.

Dr. Ghazanfar Ali Khan, Additional Secretary, Agriculture Punjab.

Muhammad Aslam, Assistant Registrar, University of Agriculture, Faisalabad.

Mirza Haseeb Baig, Assistant Registrar, Pir Mehr Ali Shah, Arid Agriculture University.

Mr. Ishtiaq Ahmad, Section Officer (Universities)/DS (QEC) Higher Education Department.

Date of hearing: 16.1.2018

Judgment

This judgment shall decide the instant case, as well as, connected matters bearing W.P. No. 112839/2017, W.P. No. 113006/2017 and W.P. No. 113014/2017 as all the cases involve common questions of law and facts.

1. Brief facts are that the petitioner applied for the post of Vice-Chancellor, University of Agricultural, Faisalabad, pursuant to an advertisement dated 23.08.2016. The grievance of the petitioner is that the process adopted for appointment of the Vice-Chancellor is not according to the law laid down by this Court in Punjab Higher Education Commission v. Dr. Aurangzeb Alamgir and others (PLD 2017 Lahore 489), in as much as, the entire process for the appointment of Vice-Chancellor ought to have been initiated after the constitution of the Search Committee as per the aforesaid judgment.

2. Learned counsel for the petitioner submits that Search Committee in this case was admittedly constituted on 18.08.2017, however, the process of advertisement for the appointment of Vice-Chancellor was initiated on 23.08.2016. He contends that fresh advertisement had to take place under the supervision of the Search Committee as envisaged in the aforesaid judgment. His second contention is that the Search Committee for the purpose of specialized universities as in the present case has to have subject expert and the appointment of Dr. Akmal Hussain as an agricultural expert on the Search Committee is illegal because Dr. Akmal Hussain has no experience relating to agriculture. He prays that fresh Selection Committee be constituted in the light of aforesaid judgment of this Court and the process of appointment be re-initiated.

3. Learned law officer alongwith Departmental Representative submit that aforesaid reported judgment of this Court has been complied with in letter and spirit, despite the fact that the aforesaid judgment was not passed in the case of the instant University. He submits that the principles settled in the said judgment have been followed and Search Committee as per the mandate of the judgment was constituted on 18.08.2017 including subject specialist in Agriculture i.e., Dr. Akmal Hussain. They submit that domestic and international advertisements were put out in August, 2016 and as a result 59 candidates have applied for the post of Vice-Chancellor including the petitioner. All the candidates have been interviewed by the Search Committee and the names of the three shortlisted candidates has been put up before the Chief Minister, for the selection of one candidate, as the Vice-Chancellor and awaits the decision of this Court to finalize the same.

4. Learned Law Officer has placed on record the resume of Dr. Akmal Hussain to show that he has extensive experience in the field of agriculture.

5. Ms. Asma Jahangir, Advocate for the applicant in CM. No. 4/2017, one of the prospective candidates for the post of Vice-Chancellor supports the contentions of the learned Law Officer.

6. I have heard the parties and gone through the record of the case.

7. The mainstay of the argument of the petitioner is that directions given in Punjab Higher Education Commission case by a Division Bench of this Court have not been complied with, inasmuch as, the newly constituted Search Committee should have advertised the post of Vice-Chancellor and the earlier advertisement made by the University prior to constitution of the Search Committee cannot be relied upon. They relied on para 41 of the aforesaid judgment which is reproduced hereunder:

“41. The qualifications, experience, procedure and criteria determined by the Government and followed by the Search Committee shows substantial compliance of the law. The HEC Guidelines developed under the HEC Ordinance were strictly followed by the Search Committee. In future the Government is directed to consider these Guidelines or any other minimum standards framed by HEC under the law and as a matter of process include them as part of the Notification under Section 14(4) of the Act. We are, however, not inclined to interfere and put the efforts of the Search Committee at naught just on the pretext that the criteria provided in the notification does not incorporate the above guidelines. We are satisfied that these Guidelines were fully complied with and followed by the Search Committee. For the future, we direct the Government to ensure that before the next selection and appointment of a Vice-Chancellor in any public sector university, notification under Section 14(4) must carry in detail the entire process and criteria to be followed by the Search Committee.

During the course of the hearing, HED has presented the following procedure for streamlining the procedure of the Search Committee in future.

PROCEDURE AND CRITERIA TO BE FOLLOWED BY THE SEARCH COMMITTEE:

Search Committee shall oversee the entire process of selection of Vice-Chancellor and follow the following procedure and criteria:

(i) Preparation and approval of required advertisement to be published by the Department concerned in national or international press, as the case may be, for the post of Vice-Chancellor in accordance with the required qualification, experience and other requirements notified by the Government in official Gazette.

(ii) Preparation of proforma and formula for short-listing of candidates in accordance with approved quantifiable criteria of the Government.

(iii) Short-listing of candidates in accordance with prescribed proforma and formula.

(iv) Conduct interviews of the short-listed candidates in accordance with the criteria notified by the Government for the interviews.

(v) Search Committee will ensure that adequate time is give to each candidate appearing for the interview and each candidate is treated fairly without any bias or discrimination.

(vi) After the interview of each candidate, the convener shall invite the opinion of each member. The Convener shall take the average of all members’ score which is then assigned to each candidate on the basis of performance in the interview.

(vii) In case of any difference of opinion, the Convener shall ask each member to explain their view point and efforts will be made to arrive at a consensus. In rare cases where consensus is not possible, majority view point shall be considered for final allocation of interview score.

(viii) The Search Committee shall recommend to the Government, in alphabetical order, a panel of three persons who, in its opinion, are suitable for the appointment as Vice-Chancellor.

(ix) Each member of the Search Committee will disclose before the start of the interviews that he/she has no conflict of interest in assessing any candidate.

(x) The Search Committee shall maintain a strict level of confidentiality to protect the privacy of the candidates and to reserve the integrity of the search process.”

Government is directed to include this process in the future Notification under Section 14(4) of the Act.”

The second contention of the learned counsel for the petitioner is that the Search Committee has not been constituted in accordance with the aforesaid judgment, inasmuch as, the subject/field expert has not been correctly selected. It is submitted that Dr. Akmal Hussian does not qualify as a subject expert in Agriculture.

1. Punjab Higher Education Commission case lays down selection process of the members of the Search Committee for the appointment of Vice-Chancellor in the following manner:

“47. During the course of the hearing HED and PHEC have frankly made suggestions to further improve the selection process of the members of the Search Committee in the following manner:

Suggestions of HED

i. Government appoints a Search Committee for selection of Vice-Chancellors for the public sector universities.

ii. There are five members of the Committee. There are three non-official members with strong credentials in building/managing academic institutions and are outstanding academics or senior executives with experience of selecting leaders in the corporate sector and two ex-Officio Members comprising Chairperson Punjab Higher Education Commission and Secretary Higher Education Department.

iii. The decision about non-official members rests with the Government which ensures that each member enjoys impeccable integrity and character.

iv. Mandate of the Search Committee is to oversee the entire process of selection of Vice-Chancellors.

v. The Committee recommends a panel of three persons for each university. The panel is recommended in alphabetical order.

It has further been observed that most members of the Search Committee are time tested and enjoy impeccable character and integrity; hence most of the time, Search Committee appears uniform in its composition. The Committee catered to educational needs of each university and recommended such candidates to the Government for appointment which then brought reformatory changes in university culture.

(a) Search Committee shall comprise of not less than three and not more than five members. However, Committee so constituted may co-opt a maximum of two subject/field experts if so required.

(b) The Search Committee shall comprise of three non-official members with impcachable character and integrity and two ex-officio members.

(c) Secretary of the concerned Government Department shall be the ex-officio member and Secretary of the Committee.

(d) Convener and Members of the Search Committee shall be persons of eminence having credible experience in Policy development, institution building, management and governance, research and development and are outstanding academics or senior executives with experience of selecting leaders in public and corporate sector.

(e) The co-opted subject/field experts, preferably PhDs, should possess demonstrated experience in teaching and research and through understanding of issues and challenges of higher education sector.

(f) The Department concerned shall identify a pool of professionals with above-mentioned attributes with the help of Punjab Higher Education Commission and seek their willingness to serve on the Search Committee.

(g) The Department concerned shall recommend a panel containing eight names to the Government for consideration and nomination of not less than three and not more than five members on the Search Committee.

(h) The Government shall constitute Search Committee separately for each University.

Suggestions of PHEC

Responsibilities of Specialized Search Committees:

i. Proactively reach out by email, letter and telephone to peers, subject matter experts, international organizations and Pakistani mission abroad for nominations of qualified potential candidates

ii. Prepare a separate announcement for print and electronic media for each university (national/ international) keeping in view unique requirements

iii. Review and assess all applications/nominations using the agreed upon evaluation criteria, notified by the Chancellor for short-listing candidates and conducting interviews

iv. Recommend to the Chancellor a panel of three persons, in alphabetical order, who in its opinion are suitable for appointment as the Vice-Chancellor

v. Maintain a strict level of confidentiality to protect the privacy of the candidates and to preserve the integrity of the search process

1. The PHEC will serve as the Secretariat for the Search Committees and will facilitate it in the execution of its responsibilities including specialized announcements, short-listing of eligible candidates and the interview process for all the position of Vice-Chancellors in Punjab. PHEC’s Act provides mandate for all public sector HEIs and its composition of Commission members includes Secretaries of Agriculture, Health, Higher Education and Finance Departments.

Currently, there are 11 position of Vice-Chancellor to be filled in 2017. (Annex-A)

1. Proposed panels for Chairpersons and expert members to be co-opted for the specialized Search Committees (IT/CS, Medical/Health, Agriculture, Women, and General) are placed at Annex B. The Specialized Search Committees will be constituted and notified by the Chancellor, separately for each institution according to its category, comprising members approved by the Chief Minister from amongst the proposed panels or any other persons he deems fit.

2. A short-listing and evaluation criteria for the position of Vice-Chancellor in a public sector university taking into account the assessment criteria developed by the Federal HEC and the previously announced criteria of the Government of the Punjab is placed at Annex C.

3. The summary is submitted to the Chief Minister for his perusal and approval of the composition of the Specialized Search Committees and the short-listing and evaluation criteria for the position of Vice-Chancellor in public sector universities of Punjab.

We, therefore, direct the Higher Education Department, Government of the Punjab to consider the above recommendations.”

It is an admitted position that in pursuance to the above judgment, University of Agriculture, Faisalabad vide notification dated 18.08.2017 set up a Specialized Search Committee, comprising, inter alia, subject/field expert namely Dr. Akmal Hussain.

1. As far as the earlier national and international advertisements for the post of Vice-Chancellor dated 23.08.2016 are concerned, I see no illegality in relying on this process, as long as, the candidature of the applicants is processed by the new Search Committee. The substantive part of the process is the scrutiny by the Search Committee and not the act of advertisement, unless and until it is shown that the advertisement was deficient in material particulars. The contention of the petitioner also loses its significance when the petitioner is also a part of the pool of applicants who applied pursuant to the said advertisement. I am, therefore, not inclined to interfere in the appointment process of the Vice-Chancellor on this score.

2. The second contention whether Dr. Akmal Hussain passes as a subject/ field expert requires some deliberation. What is a subject expert? Expert is a person with a high degree of skill in or knowledge of a certain subject[1] or having extensive skill or knowledge in a particular field.[2] Para 47 (a) and (e) of the aforesaid judgment provide as under:

“(a) Search Committee shall comprise of not less than three and not more than five members. However, Committee so constituted may co-opt a maximum of two subject/field experts if so required.

(e) The co-opted subject/field experts, preferably PhDs, should possess demonstrated experience in teaching and research and through understanding of issues and challenges of higher education sector.” (emphasis supplied)

A subject/field expert qualifies to be on a Search Committee, if he can establish his expertise in the specialized subject. Subject/field expert requires to hold the highest degree (preferably Doctorate) in the subject and must also have substantial and direct experience in the subject or field. An expert is different from a generalist.

1. I have gone through the resume of Dr. Akmal Hussain placed on the record by the University. While Dr. Hussain is a celebrated economist and has numerous scholastic achievements to his credit, he does not hold a degree in Agriculture. His Doctorate is in Development economics, which is a branch of economics which deals with economic aspects of the development process in low-income countries. Its focus is not only on methods of promoting economic development, economic growth and structural change but also on improving the potential for the mass of the population, for example, through health, education and workplace conditions, whether through public or private channels.[3] This does not strictly pass for a degree in Agriculture, inspite of the thesis on Impact of Agriculture Growth on the Agrarian Structure of Pakistan.

2. The second qualification is to have substantial and direct experience in the subject/field. The resume of Dr. Hussain does not show mainstream or direct involvement in Agriculture. His doctoral thesis on Impact of Agriculture Growth on the Agrarian Structure of Pakistan was in the year 1980 and since then the resume does not refer to any substantial, mainstream or direct work on Agriculture. Subject or field expert must hold the highest academic degree in the subject and also must have to his credit substantial, direct and contemporary experience in the subject/field. I am afraid, Dr. Hussain, who is otherwise a leading economist of the country, does not qualify to be subject/field expert in Agriculture, so as to sit in judgment over the selection process of a Vice-Chancellor of the University of Agriculture, Faisalabad.

13A. For the above reasons the constitution of the Search Committee to the extent of the subject/field expert is declared to be invalid. As a result the shortlisting of a panel of three candidates is also set aside. Government is directed to constitute a new Search Committee in line with the above definition of a subject/field expert and in the manner provided in the aforesaid judgment (mentioned hereunder). The pool of names tabulated in pursuance to the earlier advertisement shall be put through the new Search Committee, as directed in the aforesaid judgment, only if the new Search Committee is satisfied and approves the earlier advertisement. In case the Search Committee is not satisfied with the earlier advertisement, the Search Committee is free to restart the process of advertisement according to the directions give in the Punjab Higher Education Commission case.

1. The process of constituting a Search Committee is mentioned in para 47 of the aforesaid judgment in the following manner and must be adhered to while constituting the new Search Committee:--

“We, therefore, direct the Higher Education Department, Government of the Punjab to consider the above recommendations and the following improvements in order to crease out wrinkles in the current process;

i. Under Section 14(3) of the Act, the process of appointment of the members of the Search Committee be brought out in the public domain. The Government can draw wisdom for the mechanism of appointment of the Members of Search and Scrutiny Committee constituted under the Khyber Pakhtunkhwa Ehtesab Commission Act, 2014. Which provides as follows:

1. Constitution of the Search and Scrutiny Committee.--

(1) The first Search and Scrutiny Committee constituted under Section 7, shall administer the process of the constitution and appointment of subsequent Search and Scrutiny Committee and Commissioners respectively.

(2) Whenever any seat or position is laying vacant in the Search and Scrutiny Committee or where a position of Commissioner is vacant, the Search and Scrutiny Committee shall fill the position according to the criteria prescribed under this Act.

(3) The Search and Scrutiny Committee shall comprise five (05) members of high moral integrity, repute and stature, and at least one of whom shall be a female:

Provided that no person presently in service of Government or the office bearer of a political party shall be a member of the Search and Scrutiny Committee, unless such 9 person resigns one (1) year prior from such service or party office, as the case may be, at the time of appointment:

(4) A person shall not be appointed as member of Search and Scrutiny Committee unless he:

(a) is a citizen of Pakistan;

(b) is the permanent resident of Khyber Pakhtunkhwa Province;

(c) is an individual with reputation of high moral integrity and competency;

(d) is sagacious, righteous, honest and a person with a good character;

(e) is not less than forty (40) years and more than seventy-five (75) years of age during the year of selection; and

(f) declare his assets as per law.

(5) Except for members of the first Search and Scrutiny Committee, who shall be appointed through procedure prescribed in Section 7, the Search and Scrutiny Committee shall be responsible for initiating the process for appointment of successor member or members of Search and Scrutiny Committee six (6) months prior to end of tenure of members of the Search and Scrutiny Committee or immediately upon creation of a vacancy, as the case may be, and the process for nomination of Commissioners prescribed in section 8, shall apply mutatis mutandis to nomination and confirmation of members for the Search and Scrutiny Committee.

(6) Members of the Search and Scrutiny Committee shall elect one amongst them as Chair, who shall discharge administrative responsibilities in relation to functioning of the Search and Scrutiny Committee in consultation with the members, and in case of any disagreement decisions will be reached by majority vote.

(7) The Search and Scrutiny Committee may meet as often as necessary for the effective performance of its functions and two thirds of the members shall constitute a quorum for a meeting.

(8) Members of the Search and Scrutiny Committee shall serve for one non-extendable term of four (04) years on an honorary basis and shall not be remunerated for their work:

Provided that all expenses related to functioning of the Search and Scrutiny Committee shall be borne by the Commission, and the Commission shall also provide secretarial staff to the Search and Scrutiny Committee to assist its functioning.

(9) A member of the Search and Scrutiny Committee may, by writing under his hand addressed to the Governor, resign from his position.

(10) A member of the Search and Scrutiny Committee shall not be removed unless by three-fourth majority vote of members of the Legislative Committee on the ground of misconduct or for physical or mental incapacity upon such declaration being made by a Medical Board constituted by Government:

Provided that the Legislative Committee shall afford such member the right to be heard prior to voting on his removal.

1. Appointment of the members of the first Search and Scrutiny Committee.--

(1) After the commencement of this Act, Government, within fifteen (15) days, shall nominate candidates as provided in sub-section (3) of Section 6, at least one of whom shall be a female, and send such list to Secretary and simultaneously publicly disclose the list of recommended candidates for scrutiny inviting comments and objections from the public against such nominees to be sent directly to Secretary within a period of six (06) days.

(2) Within seven (07) days of receipt of the list of nominees for the Search and Scrutiny Committee, the Secretary shall circulate to members of the Legislative Committee the list of all nominated candidates together with public comments and objections received in relation to such nominees.

(3) Within seven (07) days of receipt of the nomination by members of the Legislative Committee, and in view of the public comments and objections received in relation to such nominees, the Legislative Committee shall confirm/reject the nominees by simple majority of the total membership:

Provided that if the Legislative Committee neither confirms a nominee nor rejects him, such nominee shall be deemed to have been confirmed.

(4) If a nomination is rejected by the Legislative Committee, it shall communicate its decision to Government and Government shall nominate another candidate within seven (07) days of such rejection and resubmit the name of such candidate to the Legislative Committee in accordance with the procedure hereinabove prescribed.

(5) Not later than one (01) day of the confirmation or deemed confirmation of nominees, the Secretary, shall send the names of the nominees confirmed or deemed to have been confirmed to the Governor for appointment:

Provided that if the Governor fails to make such appointments within a period of ten (10) days of

receipt of the list of nominated candidates, such nominated candidates shall be deemed to have appointed and Government shall issue notification accordingly.

(6) The provisions of sub-sections (6), (7), (8), (9) and (10) of Section 6 shall apply mutatis mutandis to first Search and Scrutiny Committee, appointed under this section.”

1. Punjab Government is directed to expedite the process by ensuring that the Search Committee is re-constituted within a fortnight from the receipt of this judgment and shall also conclude the remaining process of appointment at the earliest.

2. This case, as well as, petitions mentioned in Para 1 of this judgment are allowed in the above terms, with no order as to costs.

(Z.I.S.) Petition allowed

[1]. American Heritage Dictionary of the English Language. 5th Edition-2016

[2]. Collins English Dictionary-Complete and Unabridged, 12 Edition - 2014.

[3]. Bell, Clive (1987). “development economics,” The New Palgrave: A Dictionary of Economics, v. I, pp. 818. 825.

PLJ 2018 Lahore 462

Present: Syed Mansoor Ali Shah, C.J.

Chodri ASIF KHOKHAR etc.--Petitioners

versus

FEDERATION OF PAKISTAN, etc.--Respondents

W.P. No. 8199 of 2017, heard on 23.1.2018.

Constitution of Pakistan, 1973--

----Arts. 4, 10-A, 25, 154 & 199--Quo warranto--Public Interest--Water and Power Development Authority Act, 1958, Ss. 3(2), 4(1)(2), 5, 6, 8, 11, 17 18, 22 & 28--Appointments of Chairman Wapda, Member (Water), Member (Finance) & Advisor projects made without any advertisement or due process--Preamble to Act signifies that legislature of nascent State enacted Act because it was “expedient to provide for unified and co-ordinated development of water and power resources of Pakistan”--Section 3 of Act constitutes WAPDA to carry out purposes of Act--Section 3(2) further ordains that WAPDA shall be a body corporate, shall be entitled to acquire, hold and dispose of property, shall have perpetual succession and a common seal and shall be sui juris--Section 4(1) lays down that Authority shall consist of a Chairman and not more than three Members appointed by Federal Government while Section 4 (2) of Act provides that tenure of Chairman shall be five years and that of a Member shall be three years--Section 5 empowers Federal Government to prescribe salary, allowances and other conditions of service of Chairman and Members--Section 6 provides for mechanisms for removal of Chairman or Members--Section 8 delineates its powers and functions while Section 11, inter alia, ordains that Authority shall have control over underground water resources and power houses and grids--Sections 17 and 18 make provision for terms and conditions of service of servants and staff of Authority--Section 22 constitutes a Fund for Authority and empowers it to utilize same to meet charges in connection with its functions under Act--Section 28 lays down that accounts of Authority shall be audited every year by Auditor General of Pakistan in such manner as may be prescribed by Government--Act reveals that legislature intended to establish a distinct entity with specialized competence to have progressive and efficient management of water and power resources--Legislature unequivocally established WAPDA as a distinct statutory body outside fold of a Governmental Department energized with flexibility and initiative of a private enterprise--Legislative object of having a unified and coordinated development of water and power resources can only be materialized if distinctness and independence of WAPDA is kept intact--In addition, modern literature on subject suggests that corporatization whereby government units are transformed into statutory, semi-autonomous and autonomous corporations, with independent legal status and managerial freedom, is a globally recognized phenomenon--Primary objective of this corporatization is achievement of operational efficiency by means of creating some distance between government owners and public managers--This distance aims to ease interference of politicians in managerial decisions and allow for managerial freedom that are different from those found in traditional public administration--Equity, transparency, quality of workplace, sustainability, solidarity, public ethos and transferability are normative criteria for evaluation of corporatization in a given setup--Under Article 154 of Constitution it is Council of Common Interest that is to formulate and regulate policies in relation to matters in Part-II of Federal Legislative List and to exercise supervision and control over related institutions--WAPDA falls under Entry 3 of Part-II of Federal Legislative List--Therefore, CCI is to formulate and regulate policies relating to WAPDA and also exercise its supervision and control--Policies relating to recruitment of Chairman and Members of WAPDA have to be developed in association with CCI in order to build an institution that is pillared on Federal Principle. [Pp. 467, 468, 469, 472 & 473] A, B, C, D & H

Constitution of Pakistan, 1973--

----Arts. 4, 10-A, 25 & 199- Quo Warranto--Public Interest--Wapda Act 1958--Appointments of Chairman Wapda, Member (Water), Member (Finance) & Advisor Projects made without any advertisement or due process--Eligibility criteria violated--Arbitrary & whimsical--Abuse of authority by Prime Minister--Discretionary powers of Prime Minister--Principle of Good Governance--Constitutional norms & preamble discussed--Petitioner contended that WAPDA is statutory authority, is responsible for governing water and power sectors in country--Contends that Prime Minister has been making appointments in WAPDA in arbitrary, capricious and whimsical manner without any objective criteria and transparency--Preamble to our Constitution places principles of equality of status, of opportunity and social and economic justice to be one of cornerstones of our governance framework--This prembular resolve is inextricably intertwined with building strong institutions, as weak institutions undermine country’s prospects for growth--Effective, accountable and inclusive institutions can only be conceived if universal values of openness, fairness, objectivity and transparency are adhered to in selection/appointment processes to key posts of public institutions--Absence of a palpably transparent and certain process for appointment of Chairman and Members of WAPDA indubitably mars effectiveness and independence of such a strategically important public institution--Therefore, need for having a process of appointment to these substantial posts which ensures transparency and inclusiveness cannot be overemphasized--Petition was allowed.

[Pp. 469 & 470] E & F

Constitution of Pakistan, 1973--

----Arts. 4, 10-A, 25 & 199--Water and Power Development Authority Act, 1958--Public interest litigation--Appointments of Chairman Wapda without any advertisement or due process--Eligibility criteria violated--Arbitrary & whimsical--Abuse of authority by Prime Minister--Discretionary powers of Prime Minister--Principle of best out of best--Public sector corporation--Short listing procedure stated--In addition to the above core principles, the appointment procedure in a public sector corporation must have the following eight elements in order to select the best of the best:

i. A job analysis leading to a written statement of the duties of the job (the job description) and the competences that the jobholder will need (the competency framework or person specification);

ii. An advertisement disseminated to eligible groups, - including a summary of the job description;

iii. A standard application form;

iv. A scoring scheme based on the person specification;

v. A short-listing procedure to reduce applications, if necessary, to a manageable number;

vi. A final selection procedure based, again, on the person specification and including a panel interview;

vii. An appointment procedure based on the scoring scheme; and

viii. Notification of results to both successful and unsuccessful candidates. [P. 472] G

Syed Mujib-ul-Hassan, Advocate for Petitioners.

Mr. Nasar Ahmed, Deputy Attorney General for Pakistan.

M/s. Ahmar Bilal Soofi, Ghulam Ali Raza and Daud Aziz Khokhar, Advocates for Respondent Nos. 3 & 4.

Mr. Saad Rasool, Advocate for Respondent Nos. 5-9.

Judge Mohsin Mumtaz, Civil Judge and Research Associate at LHCRC for Research assistance.

Date of hearing: 23.1.2018

Judgment

Petitioners[1] have called into question the appointment of Chairman, Water and Power Development Authority (“WAPDA” or “the Authority”) (Respondent No. 3), the handing over of additional charge of the post of Member Water (WAPDA) to Respondent No. 5, that of Member Finance (WAPDA) to Respondent No. 6 and the appointment of Respondent No. 7 as Advisor to WAPDA Projects Implementation, WAPDA.

1. Learned counsel for the petitioners submits that WAPDA being a statutory authority established under The Pakistan Water and Power Development Authority Act, 1958 (“the Act”) is responsible for governing the water and power sectors in the country. He further submits that power to appoint and to determine salary, allowances and other terms and conditions of service of the Chairman and Members, WAPDA rests with the Respondent No. 1 by virtue of sections 4 and 5 of the Act, respectively. He argues that Respondent No. 1 has been making appointments to key posts of WADPA in an arbitrary, capricious and whimsical manner without any objective criteria and transparency. The petitioners also allege that Respondent No. 1 has made appointments of Respondent Nos. 4 to 7 to key posts of WAPDA in colorful exercise of power and for extraneous considerations. He adds that these appointments are against the public interest, in as much as, these posts were never advertised, as a result, there was no pool of eligible candidates. He submits that the public at large have been deprived of the best workforce possessing the requisite qualifications, skills and experience which could have been employed against these posts. It has also been submitted that the additional charge of Member Water (WAPDA) and Member Finance (WAPDA) has been handed over to Respondents Nos. 5 and 6, respectively, in violation of the commandments of the Constitution and the law which dispel adhoc appointments to such important posts. It has also been argued that by reason of this blatant illegality all functions carried out by Respondents Nos. 5 & 6 as Members Water and Finance (WAPDA), respectively, are of no legal effect and they are also liable to restore the benefits they have derived being on such positions. The petitioners have prayed, inter alia, that the appointments of Respondent Nos. 4 to 7 be declared to have been made against the Constitution and the law and as such void and of no legal effect.

2. On the other hand, learned counsel for Respondents Nos. 3 & 4 has principally placed reliance on the Act and the Water and Power Development Authority (Chairman & Members) (Conditions of Service) Rules, 1982 (“the Rules”) to contend that issuance of public advertisement, establishment of Selection Committee or interviewing by a panel are alien to the Act and/or the Rules. He has further submitted that the appointment of Chairman WAPDA has been made by the Prime Minister (Respondent No. 2) while exercising his discretion reasonably and in accordance with the objectives of the Act and the Rules. It has been pointed out that appointment of Chairman WAPDA had been made in accordance with long standing departmental practice which had never been successfully challenged before any Court of law. It has further been contended that the jurisprudence developed by the superior Courts mandating public advertisement and other such requirements is not applicable to the appointment of Chairman WAPDA because the said jurisprudence pre-supposes existence of statutory sanction behind such requirements which is not the case with the appointment of Chairman WAPDA. The learned counsel went on to submit that WAPDA is performing functions of the Federal Government which in turn is acting under Section 4 of the Act through its best suited nominee and as such questioning the appointment of Chairman WAPDA tantamounts to interference in the policy domain of Federal Government which is not permissible under the law. He also submitted that the appointment of Chairman WAPDA was made by the Federal Government having regard to the credentials of Respondent No. 4 and his deep understanding of the relevant areas needed for this strategically important post.

3. The learned counsel further argued that the petitioners are seeking issuance of writ of quo warranto which is an equitable remedy and as such empowers the Court to look into the conduct of the petitioners. In this context, he pointed out that Petitioner No. 2 is a habitual complainant and has always tried to hamper the smooth functioning of WAPDA by entangling it and its officers in frivolous litigation and that the object behind filing of the instant petition was just to settle personal score as Petitioner No. 2 could not cope with the progressive approach of Respondent No. 4.

4. Learned counsel for Respondents Nos. 5 to 9 and learned Deputy Attorney General for Pakistan largely adopted the submissions made by the learned counsel for Respondents Nos. 3 and 4.

5. I have heard the arguments of the parties and have gone through the law on the subject.

Legislative Scheme

1. The Water and Power Development Authority Act, 1958 (W.P. Act XXXI of 1958) was promulgated on 24th April, 1958. The preamble to the Act signifies that the legislature of nascent State enacted the Act because it was “expedient to provide for the unified and co-ordinated development of the water and power resources of Pakistan”. Section 3 of the Act constitutes WAPDA to carry out the purposes of the Act. Section 3(2) further ordains that WAPDA shall be a body corporate, shall be entitled to acquire, hold and dispose of property, shall have perpetual succession and a common seal and shall be sui juris. Section 4(1) lays down that the Authority shall consist of a Chairman and not more than three Members appointed by the Federal Government while Section 4 (2) of the Act provides that the tenure of the Chairman shall be five years and that of a Member shall be three years. Section 5 empowers the Federal Government to prescribe the salary, allowances and other conditions of service of the Chairman and the Members. Section 6 provides for the mechanisms for removal of Chairman or Members. Section 8 delineates its powers and functions while Section 11, inter alia, ordains that the Authority shall have control over underground water resources and power houses and grids. Sections 17 and 18 make provision for terms and conditions of service of servants and staff of the Authority. Section 22 constitutes a Fund for the Authority and empowers it to utilize the same to meet the charges in connection with its functions under the Act. Section 28 lays down that the accounts of the Authority shall be audited every year by the Auditor General of Pakistan in such manner as may be prescribed by the Government.

WAPDA--An Independent and distinct statutory body

1. The Act reveals that the legislature intended to establish a distinct entity with specialized competence to have progressive and efficient management of water and power resources. This is further re-affirmed from the Statement of Objects and Reasons[2] of the Act which state as under:

“In relation to the needs of its vast areas, West Pakistan has limited resources of water. The effective and rational utilization of the available supplies is, therefore, an imperative economic necessity. To ensure the fullest coordination and the optimum exploitation in the national interest of the water resources of this region such a policy must evidently aim at the development of these resources on a unified and multi-purpose basis. The main elements of multi-purpose development are irrigation, flood control, hydro-electric power generation, navigation, etc. To achieve the most economical results by a power system, it is also essential that hydro and thermal power are properly integrated into one system. For this purpose it has been considered necessary to set up a unitary authority in the form of a statutory body outside the Government Departments. The Authority will have the flexibility and initiative of private enterprise and will be entrusted with sufficient powers to carry out the task entrusted to it.

1. To achieve this purpose the West Pakistan Water and Power Development Authority Ordinance, 1958 was promulgated on 10th February 1958.

2. The Bill seeks to continue the provisions of this Ordinance.” (emphasissupplied)

3. The legislature unequivocally established WAPDA as a distinct statutory body outside the fold of a governmental department energized with the flexibility and initiative of a private enterprise. The legislative object of having a unified and coordinated development of water and power resources can only be materialized if the distinctness and independence of WAPDA is kept intact. Perhaps this was the reason which prompted a five member bench of the august Supreme Court of Pakistan[3] to observe:

“13. From the above analysis it is seen that although WAPDA’s affairs to some extent are controlled by the government but for all practical purposes it is an independent entity and authorized to carry out the business of utilization of water and power resources of the country and to generate electricity and in this connection has been given a freehand.”

1. In addition, modern literature on the subject suggests that corporatization whereby government units are transformed into statutory, semi-autonomous and autonomous corporations, with independent legal status and managerial freedom, is a globally recognized phenomenon. The primary objective of this corporatization is the achievement of operational efficiency by means of creating some distance between government owners and public managers. This distance aims to ease the interference of politicians in managerial decisions and allow for managerial freedom that are different from those found in traditional public administration. Equity, transparency, quality of the workplace, sustainability, solidarity, public ethos and transferability are the normative criteria for evaluation of corporatization in a given setup.[4]

The process of appointment in public sector corporations

1. The preamble to our Constitution places principles of equality of status, of opportunity and social and economic justice to be one of the cornerstones of our governance framework. “[S]o that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity”. This prembular resolve is inextricably intertwined with building strong institutions, as weak institutions undermine country’s prospects for growth. Effective, accountable and inclusive institutions can only be conceived if the universal values of openness, fairness, objectivity and transparency are adhered to in selection/appointment processes to the key posts of public institutions. In Mushtaq Ahmad Mohal and others v. The Honourable Lahore High Court, Lahore and others (1997 SCMR 1043), Ajmal Mian, J. speaking for the Court observed as under:--

“17. We reiterate that the appointments to various posts by the Federal Government, Provincial Governments, Statutory Bodies and other Public Authorities, either initial or ad hoc or regular, without inviting applications from the public through the press, is violative of Article 18 read with Article 2A of the Constitution, which has incorporated the Preamble to the Constitution as part of the same and which inter alia enjoins equality of opportunity and guarantees for creation of an egalitarian society through a new order, which objective cannot be achieved unless every citizen equally placed or situated is treated alike and is provided equal opportunity to compete inter alia for the posts in aforesaid Government set-ups/institutions.”

The absence of a palpably transparent and certain process for the appointment of Chairman and Members of WAPDA indubitably mars the effectiveness and independence of such a strategically important public institution. Therefore, the need for having a process of appointment to these substantial posts which ensures transparency and inclusiveness cannot be overemphasized.

1. From time to time, the superior Courts of this country have envisaged the following principles to be kept in mind by the policymakers while envisioning the appointments to public offices:

• All appointments made to public institutions must be based on a process that is palpably and tangibly fair and within the parameters of applicable rules, regulations and bye-laws Syed Mubashir Raza Jaffri and others v. Employees Old-Age Benefits Institutions (EOBl) through President of Board, Board of Trustees and others (2014 SCMR 949).

• There has to be a process which ensures that the widest possible pool of qualified candidates is available to the Government. From this pool, through a transparent selection process, appointments can be made. Randomly entertaining CVs or seeking nominations from arbitrarily selected consultees do not meet the requirement. The requirement can be achieved by open advertisement i.e. inviting applications through Press from all those who are eligible, deserving and desirous or through the auspices of talent scouts who have the needed expertise and who can keep the confidentiality Muhammad Ashraf Tiwana and others v. Pakistan and others (2013 SCMR 1159) and Government of N.W.F.P. through Secretary, Forest Department, Peshawar and others v. Muhammad Tufail Khan (PLD 2004 SC 313).

• Autonomy of Regulators and other Public Bodies is only possible when appointments to key positions are made in a demonstrably transparent manner Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 SC 132).

• The integral link between good governance and a strong and honest bureaucracy can only come about if appointments are based on a clear merit criterion as opposed to favoritism and nepotism Syed Mubashir Raza Jaffri and others v. Employees Old-Age Benefits Institutions (EOBI) through President of Board, Board of Trustees and others (2014 SCMR 949).

• Whenever there are statutory provisions or rules or regulations which govern the matter of appointments, the same must be followed, honestly and scrupulously Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others (PLD 2013 SC 195).

• Where there are no explicit rules governing the appointment process, and appointments are to be made in the exercise of discretionary powers, such discretion must be employed in a structured, fair, even, just and reasonable manner and in the public interest and not whimsically or arbitrarily Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others (PLD 2013 SC 195) and Ghulam Rasool v. Government of Pakistan through Secretary, Establishment Division Islamabad and others (PLD 2015 SC 6).

• The Courts are duty bound to judicially review the integrity of the selection process adopted for appointments to public offices to ensure that the requirements of law have been met. However, they will not engage in any exhaustive or full-fledged assessment of the merits of appointee nor would seek to substitute their own opinion for that of the Executive Muhammad Ashraf Tiwana and others v. Pakistan and others (2013 SCMR 1159) and Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 SC 132).

As mentioned earlier, above are the core principles that must be honoured while devising any procedure for appointment to public office.

1. In addition to the above core principles, the appointment procedure in a public sector corporation must have the following eight elements[5] in order to select the best of the best:

i. A job analysis leading to a written statement of the duties of the job (the job description) and the competences that the jobholder will need (the competency framework or person specification);

ii. An advertisement disseminated to eligible groups, - including a summary of the job description;

iii. A standard application form;

iv. A scoring scheme based on the person specification;

v. A short-listing procedure to reduce applications, if necessary, to a manageable number;

vi. A final selection procedure based, again, on the person specification and including a panel interview;

vii. An appointment procedure based on the scoring scheme; and

viii. Notification of results to both successful and unsuccessful candidates.

Council of Common Interest

1. Under Article 154 of the Constitution it is the Council of Common Interest (CCI) that is to formulate and regulate policies in relation to matters in Part-II of the Federal Legislative List and to exercise supervision and control over related institutions. WAPDA falls under Entry 3 of Part-II of the Federal Legislative List. Therefore, CCI is to formulate and regulate policies relating to WAPDA and also exercise its supervision and control. The policies relating to recruitment of the Chairman and Members of WAPDA have to be developed in association with the CCI in order to build an institution that is pillared on the Federal Principle. Reliance is placed on Punjab Higher Education Commission v. Dr. Aurangzeb Alamsir. etc. (PLD 2017 Lahore 489).

2. Learned counsel for WAPDA and the learned DAG[6] frankly admitted that such a process must be put in place. They submit that since 1958, as many as, 22 Chairmen of WAPDA have been appointed by the Federal Government without any structured process, however, they undertake to make all the future appointments to the above posts according the principles laid down in this judgment. Learned Counsel for the Federation and WAPDA submit that they have already started the process in the case of one of the Members, whose term is coming to a close. They undertake to notify an open, structured and transparent process in place so that the next appointments fully meet the requirement of this judgment.

3. In view of the above categorical commitment on the part of the Federal Government and WAPDA to follow the instant judgment in letter and spirit and considering that this would help actualize the statutory objective of the Act and will be a step forward in the national and public interest, learned counsel for the petitioners submits that he is satisfied with the undertaking given by the Federal Government and WAPDA if future appointments in WAPDA are strictly in the light of this judgment. He, however, reserves his right to approach this Court in separate proceedings if he wishes to challenge the appointment of the Chairman and the Members of WAPDA on any other ground than the process of appointment discussed in this judgment.

4. This judgment is based on the consent of the parties. Federal Government and WAPDA shall ensure that future appointment of Chairman and its Members are strictly in accordance with the principles settled in this judgment and will ensure that the

relevant recruitment process is put in place in consultation with CCI within six months from today if not earlier. Before parting with the judgment I wish to acknowledge the wonderful assistance rendered by Judge Mohsin Mumtaz, Research Associate, LHCRC.

1. This petition is allowed in the above terms.

(Z.I.S.) Petition allowed

[1]. Petitioner No. 1, per para No. 9 of the petition, is a practicing advocate and a human rights activist whilst Petitioner No. 2 is a serving Superintending Engineer (Civil) in WAPDA.

[2]. Published in the Gazette of West Pakistan (Extraordinary), dated 26th March, 1958, pp. 411-412

[3]. Per Muhammad Ather Saeed, J in Central Board of Revenue, Islamabad and another v. WAPDA and another, PLD 2014 S.C 766

[4]. David A. McDonald, ‘Rethinking Corporatization and Public Services in the Global South’, 2014, Zed Books, London available at URL:

https://books.google.com.pk/books?id--=luZiDgAAQBAJ&pg=PT132&lpg=PT132&dq=corporatization+government+united+ nations&source=bl&ot s=BHAU9fhOg-

&sig=YfhgrPQJ28YGmUGFKqnCpj6Ek3I&h1=en&sa=X&ved=oahUKEwjipffeoJzXAhXnBcAKHeCuBjoQ6AEIMDAC#v=onepage&q=coporatization%20government%20united%20nations&f=false

[5]. ‘Unlocking the Human Potential for Public Sector Performance’, World Public Sector Report 2005, Department of Economic and Social Affairs, United Nations, New York, 2005. URL:

http://unpanl.un.org/intradoc/groups/public/documents/UN/UNPAN021616.pdf

[6]. Mr. Nasar Ahmed, DAG, submits that this personal view on the subject is different but as a DAG on instructions he agrees with the principles laid down for recruitment of the Chairman and Members of WAPDA.

PLJ 2018 Lahore 474

Present: Malik Shahzad Ahmad Khan, J.

Mst. ALIA SEHAR--Petitioner

versus

STATION HOUSE OFFICER POLICE STATION MUREED WALA DISTRICT FAISALABAD and 4 others--Respondents

W.P. No. 152452 of 2018, decided on 31.1.2018.

Constitution of Pakistan, 1973--

----Arts. 4, 10-A & 199--Criminal Procedure Code, (V of 1898), S 22-A & 22-B & 491--Custody of minors--Illegal & improper custody--Habeas corpus--Right of hizanat--Mental sickness of minors mother--Respondent an advocate exerting influence in proceedings--Petitioner, mother of minors filed petition before ASJ, upon which minors were handed over to her--Non-implementation of orders--Petitioner contended that she is real mother of minors and her petition had been accepted by ASJ, but respondent along with other members of bar did not allow implementation of said order--Respondent contended that petitioner is psycho patient, minors are school going, as such, welfare of minors lie with respondent--Determination--Petitioner is real mother of minors--First right of Hizanat in respect of minors lies with petitioner--Habeas Corpus filed by petitioner was accepted--Respondent along with other members of bar did not allow implementation of order passed by ASJ--Neither fact of mental sickness of petitioner nor any FIR was lodged regarding alleged attack of petitioner on father of respondent--Petition allowed. [Pp. 478 & 479] A & B

Naziha Ghazali vs. The State and another 2011 SCMR 1782 ref.

Rana Rashid Akram Khan, Advocate for Petitioner.

Ch. Iftikhar Iqbal Ahmad, Astt.A.G.

M/s. Ch. Amin Javed, Ch. Asif Shahzada, Amir Shahzad Anjum, Afzaal Aslam Khan Lodhi and Dilbar Hameed Ball, Advocates with Respondent No. 2.

Date of hearing: 31.1.2018.

Order

Through this single order, I intend to decide the instant Writ Petition No. 152452-H of 2018, as well as, connected Writ Petition No. 155237 of 2018, as both these petitions have arisen out of the same order dated 16.01.2018 passed by the learned Addl. Sessions Judge, Samundari District Faisalabad, whereby the minor children of the petitioner, namely, Basham Fatima aged about 06 years, Yashfa Fatima aged about 05 years and Abdullah aged about 03 years were directed to be handed over to their mother Mst. Alia Sahar (petitioner). The petitioner of Writ Petition No. 152452 of 2018, namely, Mst. Alia Sahar shall hereinafter be called as the petitioner, whereas, Mushtaq Ahmad, Respondent No. 2 of the said petition, shall hereinafter be called as the respondent. Learned Addl. Sessions Judge, Samundari vide the abovementioned order dated 16.01.2018 directed that the abovementioned minors be handed over to their mother (Mst. Alia Sahar petitioner) and Writ Petition No. 152452 of 2018 has been filed by Mst. Alia Sehar on the ground that inspite of the abovementioned order of learned Addl. Sessions Judge, Samundari, the minors were not handed over to her as the respondent is an Advocate, whereas, Writ Petition No. 155237 of 2018 has been filed by Mushtaq Ahmad respondent (petitioner of the said Writ Petition) to challenge the legality of abovementioned order dated 16.01.2018 of the learned Addl. Sessions Judge, Samundari.

1. As per brief facts of the present case, Mst. Alia Sehar petitioner was married with Mushtaq respondent and from the said wedlock, the abovementioned minors were borne. As per claim of the petitioner, she was ousted by the respondent from his house ten days prior to the filing of her habeas petition in the Court of learned Addl. Sessions Judge, Samundari, which was filed on 04.01.2018. On 02.01.2018, the respondent forcibly snatched the minors from her custody, whereupon, she filed the abovementioned habeas petition for the recovery of her minor children which was accepted vide order dated 16.01.2018 passed by the learned Addl. Sessions Judge, Samundari and all the minors were directed to be handed over to the petitioner. Mushtaq Ahmad respondent is a practicing Advocate in the local Bar therefore, the aforementioned order of the learned Addl. Sessions Judge, Samundari could not be implemented. Mst. Alia Sehar petitioner has now filed the instant petition before this Court on the ground that despite the abovementioned order of the learned Addl. Sessions Judge, Samundari, the minors were not handed over to her and they are still in illegal/improper custody of Mushtaq Ahmad respondent. On the other hand, Mushtaq Ahmad respondent has also filed the abovementioned connected Writ Petition No. 155237 of 2018 whereby he has challenged the legality of the abovementioned order dated 16.01.2018 passed by the learned Addl. Sessions Judge, Samundari.

2. It is contended by learned counsel for Mst. Alia Sehar petitioner that the petitioner is real mother of the minors and her habeas petition has already been accepted by the learned Addl. Sessions Judge, Samundari vide order dated 16.01.2018 whereby the minors were directed to be handed over to the petitioner but as Mushtaq Ahmad respondent is a practicing Advocate at Tehsil Courts Samundari therefore, he along with other members of the Bar did not allow the implementation of the aforementioned order; that the respondent thereafter, filed a guardian petition in the Court of learned Guardian Judge, Samundari on 18.01.2018 in order to frustrate the aforementioned order of the learned Addl. Sessions Judge, Samundari; that the respondent concealed the fact in his guardian petition regarding the acceptance of habeas petition filed by the petitioner and he simply stated in his aforementioned petition that the habeas petition filed by the petitioner in the Court of learned Addl. Sessions Judge, Samundari has already been decided; that the respondent has now advanced another claim that the petitioner is mentally sick, whereas, no such allegation was leveled by the respondent in his divorce deed; that the respondent did not challenge the order of the learned Addl. Sessions Judge, Samundari dated 16.01.2018 and when the petitioner filed her Writ Petition before this Court then the respondent has filed the abovementioned connected Writ Petition which speaks malafide of the respondent; that although an interim stay has been granted by the learned Guardian Judge in favour of the respondent but the said interim stay has malafidely been obtained ex-parte by the respondent in order to illegally deprive the petitioner from her minor children; that after the impugned order passed by the learned Addl. Sessions Judge, Samundari, the custody of the minors with the respondent is illegal and improper therefore, this petition may be accepted and the minors may be handed over to the petitioner.

3. On the other hand, it is contended by learned counsel for the respondent that Mushtaq Ahmad respondent is real father of the minors therefore, custody of the minors with the abovementioned respondent is neither illegal nor improper; that the petitioner is a psycho patient and it will not be in the welfare of the minors to hand over their custody to the petitioner; that on 28.11.2017, the petitioner attacked upon the father of the respondent with the help of ‘Churri’ and caused injury to him and a medical report in this respect is also available on the record; that the petitioner has not approached the Court with clean hands because the petitioner has alleged that the petitioner was ousted by the respondent about ten days prior to the filing of her habeas petition in the Court of learned Addl. Sessions Judge, Samundari which was filed on 04.01.2018 and thereafter, the minors were snatched from her custody on 02.01.2018 but through the school certificates of the minors it is established that the minors were throughout under the custody of Respondent No. 2 and they were also appearing in the school during the days when the petitioner was allegedly ousted by the respondent; that if the minors are handed over to the petitioner then it will not be in their welfare because in that case their studies will be disturbed; that the respondent has already filed a guardian petition before the learned Guardian Judge, Samundari and interim stay in favour of the respondent has also been issued on 18.01.2018; that keeping in view the abovementioned facts, Writ Petition filed by Mst. Alia Sehar petitioner may be dismissed and Writ Petition filed by the respondent may be accepted while setting-aside the impugned order dated 16.01.2018 passed by the learned Addl. Sessions Judge, Samundari. In support of his contentions, learned counsel for the respondent has placed reliance on the cases reported as ‘Naziha Ghazali vs. The State and another’ (2001 SCMR 1782), ‘Tanvir Hussain vs. Station House Officer, Police Station Safdarabad, District Sheikhupura and 5 others’ (PLD 2011 Lahore 516), ‘Mst. Seema vs. Aftab Ahmed and others’ (2013 YLR 583), ‘Mst. Zohra Hilal vs. Noor Sakht Shah and others’ (2009 MLD 258), ‘Mst. Nadia Perveen vs. Mst. Almas Noreen and others’ (PLD 2012 Supreme Court 758) & ‘Mrs. Rania Ibrahim Qureshi vs District & Sessions Judge, Abbotabad and 2 others’ (2011 PCr.L.J. 1594) .

4. Arguments heard. Record perused.

5. The petitioner is real mother of the minors, namely, Basham Fatima aged about 06 years, Yashfa Fatima aged about 05 years and Abdullah aged about 03 years. The first right of ‘hazanat’ in respect of the abovementioned minors lies with the petitioner. Habeas petition filed by the petitioner in the Court of learned Addl. Sessions Judge, Samundari for the recovery and interim custody of the minors was accepted vide order dated 16.01.2018. As Mushtaq Ahmad respondent is a practicing Advocate at Tehsil Courts, Samundari therefore, he along with his other colleagues (members of the Tehsil Bar, Samundari) did not allow the implementation of the abovementioned order of the learned Addl. Sessions Judge, Samundari and he forcibly kept the minors with him. The said respondent instead of challenging the aforementioned order of the learned Addl. Sessions Judge, Samundari before the High Court, initially filed a guardian petition in the Court of learned Guardian Judge, Samundari on 18.01.2018 and through concealment of the facts that the learned Addl. Sessions Judge, Samundari has already passed an order for handing over the custody of the minors to the petitioner and by simply stating that the habeas petition filed by the petitioner has been decided by the learned Addl. Sessions Judge, Samundari, he (respondent ) obtained an interim stay order in his favour on 18.01.2018 from the learned Guardian Judge, Samundari. The Writ Petition of the petitioner i.e. Writ Petition No. 152452 of 2018 was filed before this Court on 24.01.2018 and notice in the said petition was issued to the respondent on 25.01.2018 for 26.01.2018. On 26.01.2018, Mushtaq Ahmad respondent appeared before this Court along with his learned counsel but he did not produce the minors before this Court and sought an adjournment in order to produce the minors before the Court and the case was adjourned for 31.01.2018. In the meanwhile, the respondent filed the abovementioned connected Writ Petition No. 155237 of 2018 in this Court on 29.01.2018. It is therefore, evident that Mushtaq Ahmad respondent has malafidely filed the abovementioned connected Writ Petition in order to frustrate Writ Petition No. 152452 of 2018, filed by Mst. Alia Sehar petitioner. Although learned counsel for the respondent alleged that the petitioner is a psycho patient and she earlier attacked upon the father of the respondent on 28.11.2017 and injured him but neither the aforementioned fact of mental sickness of the petitioner has been mentioned by the respondent in divorce deed of the parties nor any FIR was lodged regarding the abovementioned alleged attack of the petitioner on the father of the respondent. As mentioned earlier, the respondent obtained an interim stay from the learned Guardian Judge, Samundari on 18.01.2018 without specifying in his guardian petition that the learned Addl. Sessions Judge, Samundari has already directed that the custody of the minors be handed over to the petitioner vide order dated 16.01.2018 and he simply mentioned in his guardian petition that the habeas petition filed by the petitioner has already been decided by the learned Addl. Sessions Judge, Samundari. Respondent has malafidely obtained the aforementioned ex-parte interim stay order dated 18.01.2018 from the learned Guardian Judge, Samundari therefore, the said order has no bearing on the merits of the instant constitutional petitions. Reliance in this respect may be placed on the case of ‘Shaukat Masih vs. Mst. Farhat Parkash and others’ (2015 SCMR 731). Although it has been claimed by the respondent that the minors were throughout under his custody and the claim of the petitioner that they were forcibly snatched on 02.01.2018 has been falsified by the school certificates of the minors, wherein their attendance has been marked in the relevant record but it is noteworthy that the petitioner claimed in her petition under Section 491 of Cr.P.C, which was filed by the petitioner in the Court of learned Addl. Sessions Judge. Samundari on 04.01.2018, that about ten days prior to the filing of the said petition, she was expelled by the respondent from his house and later on, the minors were forcibly snatched from her custody on 02.01.2018. During the period of expulsion of the petitioner from the house of the respondent, which comes to the last week of December, 2017, there were admittedly winter vacation in the school therefore, there is no substance in the argument of learned counsel for the respondent that the minors throughout remained under the custody of the respondent and the said fact is established from the attendance of the minors in their schools at the relevant time. It is also noteworthy that the respondent in his Writ Petition No. 155237 of 2018 has filed the school certificates of the minors in order to establish that the minors were under his custody during the period of desertion of the petitioner but the school certificates produced by the respondent have been issued by a private school and as such, the same are easily procurable. Moreover, there is contradiction in the name of school of the minors on different school documents. In the school certificate of the minor Basham Fatima and Yashfa Fatima, the name of school is written as ‘New AFAQ School for Boys and Girls’, whereas, in fee slips of the said minors, the name of school has been mentioned as ‘New AFAQ Higher Secondary School, Samundari’. The genuineness of the said documents is still to be proved by the respondent in a guardian petition. The petitioner cannot be deprived from the interim custody of her minor children on the basis of such documents. In the case of ‘Naziha Ghazali vs. The State and another’ (2011 SCMR 1782), cited by learned counsel for the respondent, habeas petition was filed by the mother after 5/6 months of the alleged unlawful removal of the minors from her custody, whereas, in the instant case, habeas petition was filed by the petitioner in the Court of learned Addl. Sessions Judge, Samundari within a period of two days from the date of unlawful removal of the minors from her custody. Similarly facts of the remaining judgments cited by learned counsel for the respondent are distinguishable from the facts of the present case.

6. In the light of above discussion, Writ Petition No. 152452 of 2018, filed by the petitioner, is accepted and the custody of the minors, namely, Basham Fatima aged about 06 years, Yashfa Fatima aged about 05 years and Abdullah aged about 03 years is directed to be handed over to Mst. Alia Sehar petitioner, whereas, Writ Petition No. 155237 of 2018 filed by Mushtaq Ahmad respondent against the order dated 16.01.2018 passed by the learned Addl. Sessions Judge, Samundari, is hereby dismissed in limine.

7. It is however, clarified that the observations made in this order are tentative in nature and shall not cause prejudice to the case of either party in guardian petition, pending before the learned Guardian Judge, Samundari and the same shall be decided by the concerned guardian Judge on its own merits keeping in view the welfare of the minors.

(Z.I.S.) Petition accepted

PLJ 2018 Lahore 481

Present: Syed Mansoor Ali Shah, C.J.

ASGHAR LEGHARI--Petitioner

versus

FEDERATION OF PAKISTAN, etc.--Respondents

W.P. No. 25501 of 2015, heard on 25.1.2018.

Pakistan Climate Change Act, 2017--

----National Climate Change Policy, 2012--Public interest litigation--Environmental justice--Constitutional mandate stated--Climate change commission--Doctrine of public trust & sustainable development--Frame work--Jurisdiction & recommendations--Promulgation of Pakistan Climate Charge Act--Challenge to--Petitioner is an agriculturist, has approached this Court as a citizen for enforcement of his fundamental rights, pleads that overwhelming majority of scientists, experts, and professional scientific organizations related to earth sciences agree that there is sufficient evidence that climate change is for real--Challenge to--Climate system is a highly complex system consisting of atmosphere, hydrosphere, cryosphere, land surface and biosphere, and interactions between them--Petitioner contends that in order to address threat of climate change, National Climate Change Policy 2012 and framework for implementation of climate change policy has been announced by Ministry of Climate Change, Government of Pakistan, however, no implementation on ground has taken place--In order to implement National Climate Change Policy, Federal Government has come up with Framework for Implementation of Climate Change Policy (2014-2030) which, inter-alia, sets four time-frames for implementation of Policy--In view of Pakistan’s high vulnerability to adverse impacts of climate change, in particular extreme events, adaptation effort is focus of Policy and Framework--Vulnerabilities of various sectors to climate change have been highlighted and appropriate adaptation actions spelled out--These cover actions to address issues in various sectors such as water, agriculture, forestry, coastal areas, biodiversity, health and other vulnerable ecosystems--Notwithstanding fact that Pakistan’s contribution to global greenhouse gas emissions is very small, its role as a responsible member of global community in combating climate change has been highlighted by giving due importance to mitigation efforts in sectors such as energy, forestry, transport, industries, urban planning, agriculture and livestock--Framework for Implementation of Policy has been developed not as an end in itself, but rather a catalyst for mainstreaming climate change concerns into decision making that will create enabling conditions for integrated climate compatible development processes--It is, therefore, not a stand-alone document, but rather an integral and synergistic complement to future planning in country--Framework is a “living document”--Goal of Policy is to ensure that climate change is mainstreamed in economically and socially vulnerable sectors of economy and to steer Pakistan towards climate resilient development--Climate Change Commission was constituted to ensure that concerned Ministries, as well as, concerned Departments take charge of matter so that Province, as well as, Country moves towards climate resilient development--According to report submitted by Commission almost 66.11% of priority items of Framework have been completed due to effort made by Commission--During pendency of this petition Federal Government has promulgated “Pakistan Climate Change Act, 2017”, which was gazetted on April, 3, 2017 and establishes Pakistan Climate Change Authority. [Pp. 485, 489, 504] A, B, C, D, E, F, J & K

Constitution of Pakistan, 1973--

----Arts. 9, 14 & 199--Fundamental rights--Environmental principles--Assessment of environmental impact--Pre-continuancy principle--Generational--Equity--Doctrine of public interest--Constitution of climate commission--Frame work and protection--Climate Change is a defining challenge of our time and has led to dramatic alterations in our planet’s climate system--For Pakistan, these climatic variations have primarily resulted in heavy floods and droughts, raising serious concerns regarding water and food security--On a legal and constitutional plane this is clarion call for protection of fundamental rights of citizens of Pakistan, in particular, vulnerable and weak segments of society who are unable to approach High Court--Fundamental rights, like right to life, which includes right to a healthy and clean environment and right to human dignity read with constitutional principles of democracy, equality, social, economic and political justice include within their ambit and commitment, international environmental principles of sustainable development, precautionary principle, environmental impact assessment, inter and intergenerational equity and public trust doctrine--Environment and its protection has taken a centre stage in scheme of our constitutional rights--Existing environmental jurisprudence has to be fashioned to meet needs of something more urgent and overpowering i.e., Climate Change--As no substantial work has been done to implement Framework by Government, and realizing that its effective and immediate implementation is necessary for protection and safeguard of fundamental rights of people, High Court constituted Climate Change Commission. [Pp. 492] G, H & I

Jurisprudence--

----Terms & Phrases--”Environmental Justice”, “Climate Justice” & “Water Justice”, enumerated--On a jurisprudential plane, a judge today must be conscious and alive to the beauty and magnificence of nature, the interconnectedness of life systems on this planet and the interdependence of ecosystems--From Environmental Justice, which was largely localized and limited to our own ecosystems and biodiversity, we have moved on to Climate Justice--Our environmental jurisprudence from Shehla Zia case to Imrana Tiwana case (referred to above) has weaved our constitutional values and fundamental rights with the international environmental principles--The environmental issues brought to our Courts were local geographical issues, be it air pollution, urban planning, water scarcity, deforestation or noise pollution--Being a local issue, evolution of environmental justice over these years revolved around the national and provincial environmental laws, fundamental rights and principles of international environmental laws--The solutions entailed penalties and shifting or stoppage of polluting industries based on a precautionary approach leading to the recognition of the Environmental Impact Assessment (EIA)--Enter Climate Change--With this the construct of Environmental Justice requires reconsideration--Climate Justice links human rights and development to achieve a human-centered approach, safeguarding the rights of the most vulnerable people and sharing the burdens and benefits of climate change and its impacts equitably and fairly--Climate justice is informed by science, responds to science and acknowledges the need for equitable stewardship of the world’s resources--The instant case adds a new dimension to the rich jurisprudence on environmental justice in our country--Climate Change has moved the debate from a linear local environmental issue to a more complex global problem--In this context of climate change, the identity of the polluter is not clearly ascertainable and by and large falls outside the national jurisdiction--Who is to be penalized and who is to be restrained? On the global platform the remedies are adaptation or mitigation--In case of Pakistan, adaptation is largely the way forward--Adaptation is a response to global warming and climate change, that seeks to reduce the vulnerability of social and biological systems to relatively sudden change and thus offset the effects of global warming--Adaptation is especially important in developing countries since these countries are predicted to bear the brunt of the effects of global warming--Adaptation is the capacity and potential for humans to adapt (called adaptive capacity) and is unevenly distributed across different regions and populations, and developing countries generally have less capacity to adapt--Mitigation consists of actions to limit the magnitude or rate of long-term climate change--Climate change mitigation generally involves reductions in human (anthropogenic) emissions of greenhouse gases (GHGs)--Mitigation may also be achieved by increasing the capacity of carbon sinks, e.g., through reforestation--Mitigation policies can substantially reduce the risks associated with human-induced global warming--In the context of Pakistan, the impending water crisis are accelerated by the impact of climate change on the hydrological cycle--The availability of water resources to satisfy the demands of society and those of the environment is a crisis of governance and justice--Water is life--Water is a human right and all people should have access to clean and affordable water--Water has interconnectedness with people and resources and is a commons that should be held in public trust--This brings us to Water Justice, a sub-concept of Climate Justice--Water justice refers to the access of individuals to clean water--More specifically, the access of individuals to clean water for survival (drinking, fishing, etc.) and recreational purposes as a human right--Water justice demands that all communities be able to access and manage water for beneficial uses, including drinking, waste removal, cultural and spiritual practices, reliance on the wildlife it sustains, and enjoyment for recreational purposes--Right to life and Right to human dignity under Articles 9 and 14 of the Constitution protect and realise human rights in general, and the human right to water and sanitation in particular--In adjudicating water and water-related cases, we have to be mindful of the essential and inseparable connection of water with the environment, land and other ecosystems--Climate Justice and Water Justice go hand in hand and are rooted in Articles 9 and 14 of our Constitution and stand firmly on our preambluar constitutional values of social and economic justice. [Pp. 504, 505 & 506] L, M & N

M/s. Mansoor Usman Awan, Shehzeen Abdullah and Hussain Ibraheem Muhammad, Advocates for Petitioner.

Mr. Nasar Ahmad, D.A.G. for Pakistan, Ms. Hina Hafeezullah Ishaq, Assistant Attorney General for Pakistan, Mr. Anwaar Hussain, Additional Advocate General, Punjab, Dr. Parvez Hassan, Chairman, Climate Change Commission, Ms. Saima A. Khawaja, Advocate/Member, Climate Change Commission, Dr. Muhammad Javed, Director Irrigation Department, Government of the Punjab, Dr. Qazi Tallat M. Siddiqui, Deputy Energy Advisor (Civil)/DS(W), Ministry of Water Resources, Islamabad, Mr. M. Irfan Tariq, D.G. Ministry of Climate Change, Islamabad, Nisar Ahmad, Director (PDM-II), Ministry of Inter Provincial Coordination, Cabinet Block, Islamabad.

Dates of hearing: 31.08.2015, 04.09.2015, 14.09.2015, 05.10.2015, 26.10.2015, 18.11.2015, 07.12.2015, 18.01.2016, 29.02.2016, 29.03.2016, 16.05.2016, 24.05.2016, 05.09.2016, 22.09.2016, 16.11.2016, 14.12.2016, 16.01.2017, 23.01.2017, 28.02.2017, 12.05.2017, 24.05.2017, 12.07.2017, 17.07.2017, 06.09.2017, 26.10.2017, 04.12.2017, 07.12.2017 and 25.01.2018.

Climate change is one of the greatest threats to human rights of our generation, posing a serious risk to the fundamental rights to life, health, food and an adequate standard of living of individuals and communities across the world.

Achim Steiner[1] UNEP Executive Director

Judgment

The petitioner, who is an agriculturist, has approached this Court as a citizen for the enforcement of his fundamental rights. He submits that overwhelming majority of scientists, experts, and professional scientific organizations related to earth sciences agree that there is sufficient evidence that climate change is for real. He submits that no one can deny the devastating impact of increase in frequency and intensity of climate extremes. Further, most of the experts agree that the major cause is human activities, which include a complex interaction with the natural environment coupled with social and economic changes that are increasing the greenhouse gases (GHG) in the atmosphere, which are increasing global temperature and in turn causing climate change.

1. The climate system is a highly complex system consisting of the atmosphere, the hydrosphere, the cryosphere, the land surface and the biosphere, and the interactions between them. He submits that for Pakistan, climate change is no longer a distant threat. We are already feeling and experiencing its impacts across the country and the region. The country experienced devastating floods during the last three years. These changes come with far reaching consequences and real economic costs.

2. Learned counsel for the petitioner submits that in order to address the threat of climate change, the National Climate Change Policy, 2012 (“Policy”) and the Framework for Implementation of Climate Change Policy (2014-2030) (“Framework”) has been announced by the Ministry of Climate Change, Government of Pakistan, however, no implementation on the ground has taken place. He fears that in the absence of any strategy by the Government to conserve water or move to heat resilient crops, he will not be able to sustain his livelihood. He submits that inaction on the part of Ministry of Climate Change and other Ministries and Departments in not implementing the Framework, offends his fundamental rights, in particular, Articles 9 and 14 of the Constitution besides the constitutional principles of social and economic justice. He submits that international environmental principles like the doctrine of public trust, sustainable development, precautionary principle and intergenerational equity form part of the abovementioned fundamental rights also stand offended. Reliance is placed on Ms. Imrana Tiwana and others v. Province of Punjab and others (PLD 2015 Lahore 522) and Ms. Shehla Zia and others v. WAPDA (PLD 1994 SC 693).

3. The Court treated this environmental public interest petition as a rolling review or a continuing mandamus and considering it to be a writ of kalikasan[2], as they call it in Philippines, the Court proceeded in an inquisitorial manner by summoning the following parties for assistance:

Federal Government.

i. Cabinet Division, Government of Pakistan.

ii. Ministry of Finance, Revenue and Planning and Development.

iii. Ministry of Foreign Affairs

iv. Ministry of Inter-Provisional Coordination.

v. Ministry of Law and Justice

vi. Ministry of Climate Change.

vii. Ministry of National Food Security and Research.

viii. Ministry of Water and Power.

ix. Irrigation Department.

x. National Disaster Management Authority (NDMA).

Provincial Government.

i. Agricultural Department.

ii. Environment Protection Department/EPA.

iii. Food Department.

iv. Forestry, Wildlife and Fisheries Department.

v. Health Department.

vi. Housing, Urban Development and Public Health Engineering Department.

vii. Planning and Development Department.

viii. Irrigation Department.

ix. Law and Parliamentary Affairs Department.

x. Disaster Management Department (DMD).

1. The above Ministries and Departments alongwith their focal persons rendered full assistance and filed their respective replies. The National Climate Change Policy, 2010 provides as under:--

2. Goal

To ensure that climate change is mainstreamed in the economically and socially vulnerable sectors of the economy and to steer Pakistan towards climate resilient development.

1. Policy Objectives

The main objectives of Pakistan’s Climate Change Policy include:--

1. To pursue sustained economic growth by appropriately addressing the challenges of climate change;

2. To integrate climate change policy with other inter-related national policies;

3. To focus on pro-poor gender sensitive adaptation while also promoting mitigation to the extent possible in a cost-effective manner;

4. To ensure water security, food security and energy security of the country in the face of the challenges posed by climate change;

5. To minimize the risks arising from the expected increase in frequency and intensity of extreme weather events such as floods, droughts and tropical storms;

6. To strengthen inter-ministerial decision making and coordination mechanisms on climate change;

7. To facilitate effective use of the opportunities, particularly financial, available both nationally and internationally;

8. To foster the development of appropriate economic incentives to encourage public and private sector investment in adaptation measures;

9. To enhance the awareness, skill and institutional capacity of relevant stakeholders;

10. To promote conservation of natural resources and long term sustainability.

11. Pakistan’s Vulnerability to Climate Change Threats

The important climate change threats to Pakistan are:--

1. Considerable increase in the frequency and intensity of extreme weather events, coupled with erratic monsoon rains causing frequent and intense floods and droughts;

2. Projected recession of the Hindu Kush-Karakoram-Himalayan (HKH) glaciers due to global warming and carbon soot deposits from trans-boundary pollution sources, threatening water inflows into the Indus River System (IRS);

3. Increased siltation of major dams caused by more frequent and intense floods;

4. Rising temperatures resulting in enhanced heat and water-stressed conditions, particularly in arid and semi-arid regions, leading to reduced agricultural productivity;

5. Further decrease in the already scanty forest cover, from too rapid change in climatic conditions to allow natural migration of adversely affected plant species;

6. Increased intrusion of saline water in the Indus delta, adversely affecting coastal agriculture, mangroves and the breeding grounds of fish;

7. Threat to coastal areas due to projected sea level rise and increased cyclonic activity due to higher sea surface temperatures;

8. Increased stress between upper riparian and lower riparian regions in relation to sharing of water resources;

9. Increased health risks and climate change induced migration.

The above threats lead to major survival concerns for Pakistan, particularly in relation to the country’s water security, food security and energy security.

1. Climate Change Adaptation

Pakistan makes a tiny contribution to total global greenhouse gas (GHG) emissions (among the lowest in the world) but it is among the countries most vulnerable to climate change, and it has very low technical and financial capacity to adapt to its adverse impacts. For Pakistan to continue on a development path to achieve the goals articulated in the Planning Commission’s Vision 2030 document, it is imperative to prepare the ground to enable it to face this new challenge. While Pakistan is working on a strategy that seeks to conserve energy, improve energy efficiency and optimize fuel mix to support global efforts for reduction in GHG emissions, the more immediate and pressing task is to prepare itself for adaptation to climate change. Only by devising and implementing appropriate adaptation measures will it be possible to ensure water, food and energy security for the country as well as to minimize the impact of natural disasters on human life, health and property.

4.1. Water Resources

Water resources are inextricably linked with climate; this is why the projected climate change has such serious implications for Pakistan’s water resources. Freshwater resources in Pakistan are based on snow and glacier-melt and monsoon rains, both highly sensitive to climate change. Country specific climate change projections strongly suggest the following future trends in Pakistan: decrease in glacier volume and snow cover leading to alterations in the seasonal flow pattern of the Indus River System (IRS); increased annual flows for a few decades followed by decline in flows in subsequent years; increase in the formation and outburst of glacial lakes; higher frequency and intensity of extreme climate events coupled with irregular monsoon rains causing frequent floods and droughts; and greater demand on water due to higher evapotranspiration rates at elevated temperatures.

These trends will have a significant impact on the spatial and temporal distribution of water resources on both annual and inter-annual basis in the country. This will further exacerbate the already difficult situation of a water- stressed country facing demand increases due to population growth and increasing economic activity.

1. In order to implement the National Climate Change Policy, Federal Government has come up with the Framework for Implementation of Climate Change Policy (2014-2030) which, inter-alia, sets four time-frames for implementation of the Policy in the following manner:--

Priority Actions (PA): within 2-years

Short term Actions (SA): within 5-years

Medium term Actions (MA): within 10 years

Long term Actions (LA): within 20-years

1. In view of Pakistan’s high vulnerability to adverse impacts of climate change, in particular extreme events, adaptation effort is the focus of the Policy and the Framework. The vulnerabilities of various sectors to climate change have been highlighted and appropriate adaptation actions spelled out. These cover actions to address issues in various sectors such as water, agriculture, forestry, coastal areas, biodiversity, health and other vulnerable ecosystems. Notwithstanding the fact that Pakistan’s contribution to global greenhouse gas emissions is very small, its role as a responsible member of the global community in combating climate change has been highlighted by giving due importance to mitigation efforts in sectors such as energy, forestry, transport, industries, urban planning, agriculture and livestock.

2. The Framework for Implementation of the Policy has been developed not as an end in itself, but rather a catalyst for mainstreaming climate change concerns into decision making that will create enabling conditions for integrated climate compatible development processes. It is, therefore, not a stand-alone document, but rather an integral and synergistic complement to future planning in the country. The Framework is a “living document”. The goal of the Policy is to ensure that climate change is mainstreamed in the economically and socially vulnerable sectors of the economy and to steer Pakistan towards climate resilient development.

3. The Framework provides adaptation actions for various sectors in the following manner:--

Water Sector: Adaptation Actions:

Pakistan is an agricultural country. Therefore water is an essential resource for sustained economic growth as well as human survival. Water, which is one of the most important national resource is increasingly becoming a scarce natural resource. Presently agriculture sector is using 93% domestic sector 5% and industrial sector 2% of water resources. Our Indus Basin Irrigation System (IBIS) is the world’s largest contiguous irrigation system. Water resources are inextricably linked with climate; hence, the projected climate change has serious implications for Pakistan’s water resources. The freshwater resources in Pakistan are mainly based on snow and glacier melt and monsoon rains, both being highly sensitive to climate change. Pakistan has moved from a water affluent country to water stressed country. In 1947, per capita water availability was 5000 cubic meter, which has currently decreased to around 1000 cubic meter, and projected to decrease to 800 cubic meter per capita by the year 2025. The country-specific climate projections strongly suggest the following future trends in Pakistan: decrease in the glacier volume and snow cover leading to alterations in the seasonal flow pattern of IRS; increase in the formation and burst of glacial lakes; higher frequency and intensity of extreme climate events coupled with irregular monsoon rains causing frequent floods and droughts; greater demand of water due to increased evapotranspiration rates at elevated temperatures.

Agriculture and Livestock: Adaptation Actions:

Agriculture sector is the life line and the single largest sector of Pakistan’s economy. It contributes 21% to the GDP, employs 45% of the labour force and contributes about 70% to the export earnings. Agriculture in Pakistan is greatly affected by short term climate variability and could be harmed significantly by long-term climate change.

The country is broadly divided into the following 10 agro-ecological zones based on physiographic, climate, soil type and agricultural land use.

1. Indus delta; II. Southern irrigated plain; III. Sandy desert; IV. Northern irrigated plain vs. Barani (Rain feed areas); VI. Wet Mountains; VII. Northern dry mountains; VIII. Western dry mountains; IX. Dry western Plateau; X. Sulaiman Piedmont.

Shortening length of growing period:

The duration of crop growth cycle is related to temperature; an increase in temperature will speed up crop growth and shorten the duration between sowing and harvesting. This shortening could have an adverse effect on productivity of crops and fodder for livestock.

Changes in river flows:

The Indus River System gets about 80% water from the Hindu-Kush-Himalaya glaciers. Increasing atmospheric temperatures are expected to increase glacier melt. IPCC (2007) projected that glacier melt in Himalayas would cause increased rivers flows during the next few decades and then followed by decreased river flows, as the glaciers recede.

Increased crop evapotranspiration:

Increased atmospheric temperature would cause higher water evaporation from soil and from plant leaves. These higher evapotranspiration losses would mean that plants would need more water to maintain optimum growth.

Land Degradation:

The deterioration of productive agricultural land areas due to water logging and salinity is causing major threat to food security in the country. Soil erosion due to water and wind is universally recognized as a serious threat to productive agriculture land areas. Water and wind erosion is the direct consequence of climatic parameters of high intensity rainfall, wind-velocity and higher temperatures. The northern mountainous region suffers from unfavourable soil and moisture regime, thereby causing soil erosion. Similarly arid regions of Punjab (Cholistan), Sindh (Tharparker) and Balochistan (Chaghi Desert and sandy coastal areas) are affected by wind-erosion.

Extreme Weather Events:

According to IPCC (2007), the frequency and intensity of extreme weather events, such as floods, heavy precipitation events, droughts, cyclones etc. are expected to increase in future. Such extreme events can also affect food security.

Livestock Sector:

Since the agriculture and livestock sector are heavily dependent on the vagaries of nature, it is highly vulnerable to climate change phenomena. Climate change will impact food security of the country mainly through reduced crop productivity, adverse impact on livestock health and increased agricultural production losses because of extreme weather events. This will necessitate the agriculture and livestock sectors, particularly in rain-fed areas, to adapt to these climatic changes.

Forestry Sector:

Generally most of the forests in Pakistan are prone to the threats of changing climate in the form of changes in species composition, disease and insect attacks, more frequent forest fires, and shifting habitats due to unfavourable climatic conditions. Further research is required to investigate the real and specific climate change threats to each forest type so as to undertake realistic adaptation measures.

1. Petitioner submits that the most immediate and serious threat to Pakistan is that of water, food and energy security. It is submitted that priority items under the Framework have not been complied with and no action has been taken by the respective Governments or authorities to develop adaptative capacity and resilience to address climate change.

2. Climate Change is a defining challenge of our time and has led to dramatic alterations in our planet’s climate system. For Pakistan, these climatic variations have primarily resulted in heavy floods and droughts, raising serious concerns regarding water and food security. On a legal and constitutional plane this is clarion call for the protection of fundamental rights of the citizens of Pakistan, in particular, the vulnerable and weak segments of the society who are unable to approach this Court.

3. Fundamental rights, like the right to life (Article 9) which includes the right to a healthy and clean environment and right to human dignity (Article 14) read with constitutional principles of democracy, equality, social, economic and political justice include within their ambit and commitment, the international environmental principles of sustainable development, precautionary principle, environmental impact assessment, inter and intra-generational equity and public trust doctrine. Environment and its protection has taken a center stage in the scheme of our constitutional rights. It appears that we have to move on. The existing environmental jurisprudence has to be fashioned to meet the needs of something more urgent and overpowering i.e., Climate Change.

4. As no substantial work has been done to implement the Framework by the Government, and realizing that its effective and immediate implementation is necessary for the protection and safeguard of the fundamental rights of the people, this Court constituted Climate Change Commission (“CCC”) vide order dated 14.09.2015 in the following manner:-

I. CONSTITUTION OF CLIMATE CHANGE COMMISSION

“Climate Change Commission” is hereby constituted under Order XXVI, CPC, comprising the following members:-

| | | | | --- | --- | --- | | 1. | Dr. Parvez Hassan, Advocate, PAAF Building, second floor Kashmir Egerton Road, Lahore | Chairman | | 2. | Secretary, Ministry of Climate Change. | Member | | 3. | Secretary, Ministry of Water and Power. | Member | | 4. | Secretary, Ministry of Finance, Revenue and Planning and Development. | Member | | 5. | Director General, National Disaster Management Authority. | Member | | 6. | Director General, International Organization/Climate Change at the Ministry of Foreign Affairs (nominated by the Foreign Secretary). | Member | | 7. | Secretary, Irrigation Department, Government of the Punjab. | Member | | 8. | Secretary, Agriculture Department, Government of the Punjab. | Member | | 9. | Secretary, Food Department, Government of the Punjab. | Member | | 10. | Secretary, Forest Department, Government of the Punjab. | Member | | 11. | Secretary, Health Department, Government of the Punjab. | Member | | 12. | Director, Provincial Disaster Management Authority. | Member | | 13. | Secretary, Environment Protection Department, Government of the Punjab. | Member | | 14. | Mr. Ali Tauqeer Sheikh, CEO and National Program Director, LEAD, Pakistan, LEAD House, F-7, Markaz Islamabad. | Member | | 15. | Mr. Hamad Naqi, Director General, WWF, Lahore. | Member | | 16. | Mr. Mehmood Akhtar Cheema, Manager, Islamabad Program Office, IUCN. | Member | | 17. | Mr. Abid Solehri, CEO, SDPI. | Member | | 18. | Ms. Saima Amin Khawaja, Advocate, 78-B, Mozang Road, Lahore. | Member | | 19. | Mr. Anwaar Hussain, Assistant Advocate General, Punjab. | Member | | 20. | Mr. Mansoor Usman Awan, Advocate, Counsel for the petitioner. | Member | | 21. | Irfan Tariq, D.G. (Environment), Ministry of Climate Change, Islamabad. | Secretary |

II. TERMS OF REFERENCE OF CLIMATE CHANGE COMMISSION:--

Objective/Terms of Reference:

(a) Effective implementation of National Climate Change Policy, 2012 (“NCCP”) and the Framework for Implementation of Climate Change Policy (2014-2030) [“Framework”]

III. POWER OF THE COMMISSION

(a) The above Commission shall enjoy the powers under Order 26 of the CPC in order to achieve the objective of the Commission.

(b) The Commission shall have the power to co-opt any person/expert, at any stage.

(c) The Commission can seek assistance of any Federal or Provincial Government Ministries/Department by approaching the concerned Ministries/Departments in writing and the concerned Ministries/Departments are hereby directed to render full assistance to the Commission in respect of the above Terms of Reference.

IV. QUORUM OF THE COMMISSION

The quorum of the Commission shall be five which shall include the Chairman.

V. SECRETARIAT OF THE COMMISSION:

The secretariat of the Commission shall be housed at the Ministry of Climate Change, Islamabad, however, venue of the meeting will be decided by the Chairman.

VI. EXPENSES OF THE COMMISSION:

(a) Secretarial expenses of the Commission shall be borne by the Ministry of Climate Change.

(b) The Commission may approach this Court at any stage to seek appropriate orders for facilitation of their work.

VII. INTERIM REPORT

The Commission shall file interim reports as and when directed by this Court.

1. During the course of hearing Strategy 4.2 of the Framework regarding “legislating and implementing the draft National Water Policy to address the water related vulnerabilities induced by climate change.” Actions 4.2.1 and 4.2.2 therein provide as follows:--

| | | --- | | 4.2.1 Ensure that water related vulnerabilities induced by climate change are part of “National Policy”. 4.2.2 Ensure the expeditious approval of draft “National Water Policy” and its implementation. |

1. Water has become Pakistan’s number one development and governance issue. Our per capita water availability has diminished from about 1,500 to nearly 1,000 cubic meters, owing to fast-growing population. In a recent article on economic growth Ali Tauqeer Sheikh, CEO, LEAD Pakistan writes as follows:

“We will need to lay foundations for the blue economy. We will need water to fuel our economy, create water jobs, invest in water efficient technologies, create water markets for water savings and systems. It is critical for Pakistan to make water the central plank of our development agenda, if we are to meet our SDGs targets.... Climate change poses a more serious threat to Pakistan’s water supply than India’s. India cannot stop Pakistan’s water beyond a certain number of days even if it wanted to. At the risk of international isolation it can suddenly release water in some of our rivers and cause damage, or deny water to some crops by exploiting timing. These issues can be handled by our water diplomats. But climate change poses more existential challenges. The changing monsoon pattern is making water supply erratic. It has started reaching the upper reaches of our Himalayan ranges and parts of Balochistan not traditionally covered by monsoon rains. Karachi and other coastal areas have begun to receive more frequent warnings about cyclones. Changes in rain patterns raise questions about food security and the need to invest in climate-smart agriculture. While we have a greater incidence of hydro-metrological droughts in parts of Balochistan, Punjab and Sindh, urban and rural flooding is becoming a recurrent phenomenon. In fact, torrential rains in the Jammu region and the upper reaches of the Kabul river basin have flooded Sialkot in Punjab and Nowshera in KP, drawing attention to emerging transboundary risks. As the glaciers recede, we face the threat of permanent reduction in our water lifeline.”[3]

1. The Chairman, Climate Change Commission placed on record Supplemental Report dated 24.02.2017 making the following recommendations:--

| | | --- | | Recommendations “The Commission recommends that the Secretary P&DD should submit plans for initiation of remaining about 100 Pas and also compile a quarterly report on completion of work on ongoing 144 PAs. Priority Projects in ADP 2016-2017: Since the last submission, the Commission has helped some GOPb departments prioritize 15 ‘climate smart’ projects of which 13 were finally approved by P&DD for inclusion in the ADP 2016-2017. The Commission learnt that the financial value of these projects was relatively miniscule in percentage terms of the total development budget of the province. The Commission recommends that in the next FY, this number should ramp up substantially and that this allocation should include specific budget lines for social and softer components-and not just he infrastructural investments. The Commission, if requested by the Departments will be pleased to review and guide on selected projects. Framework for Developing and Assessing Climate-Smart Projects under Annual Development Plans: The Commission learnt that there was no shared definition of ‘climate smart’ or ‘climate compatible’ projects that was used by the departments. Therefore, there was a great deal of variance in the quality, consistency even climate relevance (adaptation or mitigation) of these projects. The officers developing | | projects in GOPb’s various departments needed a guidance tool or a framework for developing climate compatible projects in future. The Framework for Developing and Assessing Climate-Smart Projects under Annual Development Plans was approved at the 9th meeting of the Commission will fill that void now. Further, the Commission was requested to develop some core material that could facilitate implementation of the Framework and could also be used for the capacity building of the concerned officers. Such material has been developed and ready to be used. The Commission recommends that, starting from FY 2017-2018, the Framework should be used for designing and developing projects for ADB, at least for some projects by selected provincial departments. For this purpose, the Commission recommends that (1) a high level Committee be constituted to oversee the earnest implementation of the Framework, (2) Secretary P&DD and MOCC initiate capacity building of concerned officers of CC Focal Points in GOPb departments and other concerned officers. Accessing International Climate Finance & Linkages with NDCs: The Commission learnt that the GOP’s capacity to access international climate finance needed substantial strengthening in order to fast track climate related investments/projects. The Commission has developed 12 recommendations for GOP to access international climate finance and recommends the MOCC to work with P&DD in order to develop projects and access international finance. The Commission recommends that all climate related investments/projects in the province should be specifically linked with Pakistan’s NDC commitments and their implementation at the provincial levels. Moving forward, the Commission recommends the following steps:-- I. The Framework for Developing and Assessing Climate-Smart Projects under Annual Development Plans be used/piloted by each GOPb department to develop their requests for ADB allocations. The preparations for the next | | ADP have just begun and the timing is perfect. If requested, the Commission can assist with capacity building of the concerned officers in the province. II. Each GOPb Departments should develop its plans of action, giving a list of priority projects/areas of investment. The Commission can assist them in developing their plans of action and determine their strategic priorities for the next 2-3 year’s ADPs. III. P&DD needs to develop a template/criteria that could guide the decisions on the requests from the departments. The Commission can work with the officers at the P&DD develop such a template and operationalize for the next years’ ADP.” Considering that these recommendations are an outcome of the deliberations of the Commission, which includes members of the Government, therefore, I make these recommendations part of this order and direct the concerned Ministries/Departments of Federal, as well as, Provincial Governments to implement the same. |

1. As recorded in order dated 06.09.2017 the matter regarding formulation of the National Water Policy was taken up by Council of Common Interest (CCI) in its meeting held on 25.08.2017 wherein CCI considered the matter and it was decided that the matter be placed before the Ministry of Water Resources to re-examine the Policy and resubmit the same in the next CCI meeting.

2. The Chairman has submitted its report today i.e., 25.01.2018, which is reproduced for ready reference:--

| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | | CLIMATE CHANGE COMMISSION SUPPLEMENTAL REPORT ON IMPLEMENTATION OF PRIORITY ACTIONS 24 January 2018 A. Background Note In its Final Report dated 16 January 2016 to the Lahore High Court, the commission had reported on the progress in the implementation of the PAs upto 31 December 2015. On the review of the Final Report, the Lahore High Court ordered, on 18 January 2016, that the “Commission is additionally tasked to look into the short term actions under the Framework and come up with a workable and achievable timetable for the same.” A Supplemental Report was submitted on the order of the Lahore High Court dated 18 January 2016. It included the Reports of six (6) Working Groups, giving an update on their actions on the Priority Actions. Overall, of the 242 Priority Areas given in FCCPI, the 6 Working Groups reported progress on 144 PAs and that is about 60 percent of the total Priority Areas. The progress on 144 PAs is uneven and at various stages of progress, and many will need more time and resources for completion. Summary of Progress This report is follow up to the last supplemental report and summarizes progress against Priority Actions till 31st December 2017. All working groups were requested to share update on progress in various sectors against Priority Actions. The following Working Groups submitted revised reporting in January 2018: 1. Working Group on Water 2. Working Group on Wildlife, Forestry and Biodiversity 3. Working Group on Coastal and Marine Areas Several new projects and initiatives were reported by the Working Groups especially in the Wildlife, Forestry and Biodiversity sectors. Yet no additional Priority Areas were addressed by any of the sectors as compared to previous reporting. Actions Triggered by the Climate Change Commission • There are a total of 735 actions suggested in the Framework, out of which 242 are Priority Actions, 380 Short Term, 108 Medium Term and only 5 are Long Term Actions. • The Climate Change Commission was given the mandate to report on the Priority Actions under the assumptions that these will trigger subsequent attainment of Short, Medium and Long Term Actions. • The report submitted indicates progress on 144 PAs and that is about 60 percent of the total Priority Areas. The progress on PAs remains uneven and at various stages of progress, and many will need more time and resources for completion. • No completion report on any of the Priority Actions was requested/submitted. However as Priority Actions come to closure, it will be useful for departments to maintain catalogue of completed PAs along with any progress on Short, Medium and Long Term Actions. • The Commission triggered climate action in the province of Punjab at several levels. It was beyond the ambit of the Commission to compile full catalogue of actions instigated by its influence. However it will be useful for stakeholders if such a report is compiled. Some key actions triggered by the Commission are: i. Designation of climate change focal points in all provincial line departments and their capacity building by LEAD Pakistan in Islamabad to enable integration of Climate Change in provincial development plans and growth strategies. ii. Two training workshops organized by LEAD Pakistan at PDD Lahore engaging senior and operational staff to enable climate smart evaluation of projects. iii. Framework for Design and Evaluation of Climate Smart Projects was developed and approved by the Commission members for piloting and testing by PDD Punjab in future. iv. Draft Climate Change Policy and Draft Water Policy of Punjab developed and awaiting approval of provincial cabinet. v. For the preparation of provincial Climate Change Policy, several background studies and infographics were developed. B. Summary of Supplemental Report | | | | | | --- | --- | --- | --- | | Total Priority Actions (PA) in FCCPI | PA covered in Working Group reports | PA addressed in Working Group Reports | % Priority Actions addressed | | 242 | 188 | 160 | 66.11% | | | | | | | | --- | --- | --- | --- | --- | | No | SECTORS | Priority Actions in FCCPI | Progress Reported by WG | % PAs addressed by WGs | | 01 | Coastal & Marine Areas | 08 | 07 | 87.5% | | 02 | Agriculture & Livestock | 47 | 34 | 72.3% | | 03 | Forestry | 30 | 30 | 100% | | 04 | Biodiversity | 04 | 04 | 100% | | 05 | Wetlands | 06 | 06 | 100% | | 06 | Energy | 22 | 18 | 81.81% | | 07 | Disaster Management | 29 | 25 | 86.20% | | 08 | Water | 42 | 36 | 85.71% | | Total | | 188 | 160 | 85% | Here is the breakdown on PAs from each of the six (6) Working Groups: Forest, Biodiversity and Wildlife | | | | | --- | --- | --- | | # | Categories | Priority Actions | | 1 | Policy/law making and implementation | 10 | | 2 | Enabling Environment | 7 | | 3 | Institutional strengthening and capacity building | 9 | | 4 | Awareness | 5 | | 5 | Assessment/Research | 3 | | 6 | Infrastructure/Technology Implementation | 6 | | TOTAL | | 40 | Disaster Management Working Group | | | | | --- | --- | --- | | # | Categories | Priority Actions | | 1 | Policy/law making and implementation | 03 | | 2 | Enabling Environment | 03 | | 3 | Institutional strengthening and capacity building | 07 | | 4 | Awareness | 03 | | 5 | Assessment/Research | 08 | | 6 | Infrastructure/Technology Implementation | 05 | | Total | | 29 | Energy | | | | | --- | --- | --- | | # | Categories | Priority Actions | | 1 | Policy/ law making and implementation | 05 | | 2 | Enabling Environment | 06 | | 3 | Institutional Strengthening and Capacity Building | 04 | | 4 | Awareness | 03 | | 5 | Assessment/ Research | 02 | | 6 | Infrastructure/ Technology Implementation | 02 | | Total | | 22 | Coastal and Marine Areas | | | | | --- | --- | --- | | No | Categories | Priority Actions | | 1. | Policy/ law making and implementation | 00 | | 2. | Enabling Environment | 01 | | 3. | Institutional Strengthening and Capacity Building | 02 | | 4. | Awareness | 00 | | 5. | Assessment/ Research | 03 | | 6. | Infrastructure/Technology Implementation | 00 | | Total | | 06 | Agriculture & Livestock | | | | | --- | --- | --- | | No | Categories | Priority Actions | | 1 | Policy/ law making and implementation | 05 | | 2 | Enabling Environment | 03 | | 3 | Institutional Strengthening and Capacity Building | 08 | | 4 | Awareness | 08 | | 5 | Assessment/ Research | 11 | | 6 | Infrastructure/ Technology Implementation | 12 | | Total | | 47 | Water | | | | | --- | --- | --- | | No | Categories | PA Actions | | 1 | Policy/ law making and implementation | 13 | | 2 | Enabling Environment | 4 | | 3 | Institutional Strengthening and Capacity Building | 4 | | 4 | Awareness | 4 | | 5 | Assessment/ Research | 29 | | 6 | Infrastructure/ Technology Implementation | 26 | Accumulatively, each category has PA for each Working Group, as shown in the table below. | | | | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | --- | | No | Categories | Water | Agriculture | Coastal & Marine | Engery | Forest, biodiversierty & Wildlife | Disaster Mgmt | Total | | 1 | Policy/Law making and implementation | 13 | 03 | 0 | 5 | 10 | 3 | 34 | | 2 | Enabling Environment | 4 | 04 | 1 | 6 | 7 | 3 | 25 | | 3 | Institutional Strengthening and Capacity Building | 4 | 05 | 2 | 4 | 9 | 7 | 31 | | 4 | Awareness | 4 | 02 | 0 | 3 | 5 | 3 | 17 | | 5 | Assessment/Research | 29 | 11 | 3 | 2 | 3 | 8 | 56 | | 6 | Infrastructure/ Technology Implementation | 26 | 09 | 0 | 2 | 6 | 5 | 48 | | Total | | 80 | 34 | 6 | 22 | 40 | 29 | 211 | |

1. Climate Change Commission was constituted to ensure that the concerned Ministries, as well as, concerned Departments take charge of the matter so that the Province, as well as, the Country moves towards climate resilient development. According to the report submitted by the Commission almost 66.11% of the priority items of the Framework have been completed due to effort made by the Commission. The Chairman submits that the Commission has achieved its goals and now the matters should be left to the respective Governments to take forward. It is also pointed out that during the pendency of this petition the Federal Government has promulgated “Pakistan Climate Change Act, 2017” (“Act”), which was gazetted on April, 3, 2017 and establishes Pakistan Climate Change Authority. He proposes that in order to move forward, it is best if the Federal Government is directed to give effect to the aforesaid Act and further implement the Framework. I tend to agree with the Chairman of the CCC. Commissions constituted by our Courts have played multiple roles, especially commissions constituted to address environmental concerns. In this case the Commission has been the driving force in sensitizing the Governments and other stakeholders regarding gravity and importance of climate change. The Commission has been a platform for discussion and planning regarding climate change and has materially assisted in developing human capacity to face the challenges of climate change under the auspices of the members of the Commission, in particular LEAD Pakistan. It is only because of the able stewardship of the Chairman, Dr. Parvez Hassan and the untiring and passionate efforts of the Members of the Commission that 66.11% of priority actions under the Framework have been successfully implemented.

Environmental Justice

1. On a jurisprudential plane, a judge today must be conscious and alive to the beauty and magnificence of nature, the interconnectedness of life systems on this planet and the interdependence of ecosystems. From Environmental Justice, which was largely localized and limited to our own ecosystems and biodiversity, we have moved on to Climate Justice. Our environmental jurisprudence from Shehla Zia case to Imrana Tiwana case (referred to above) has weaved our constitutional values and fundamental rights with the international environmental principles. The environmental issues brought to our Courts were local geographical issues, be it air pollution, urban planning, water scarcity, deforestation or noise pollution. Being a local issue, evolution of environmental justice over these years revolved around the national and provincial environmental laws, fundamental rights and principles of international environmental laws. The solutions entailed penalties and shifting or stoppage of polluting industries based on a precautionary approach leading to the recognition of the Environmental Impact Assessment (EIA).

Climate Justice

1. Enter Climate Change. With this the construct of Environmental Justice requires reconsideration. Climate Justice links human rights and development to achieve a human-centered approach, safeguarding the rights of the most vulnerable people and sharing the burdens and benefits of climate change and its impacts equitably and fairly. Climate justice is informed by science, responds to science and acknowledges the need for equitable stewardship of the world’s resources[4]. The instant case adds a new dimension to the rich jurisprudence on environmental justice in our country. Climate Change has moved the debate from a linear local environmental issue to a more complex global problem. In this context of climate change, the identity of the polluter is not clearly ascertainable and by and large falls outside the national jurisdiction. Who is to be penalized and who is to be restrained? On the global platform the remedies are adaptation or mitigation. In case of Pakistan, adaptation is largely the way forward. Adaptation is a response to global warming and climate change, that seeks to reduce the vulnerability of social and biological systems to relatively sudden change and thus offset the effects of global warming.[5] Adaptation is especially important in developing countries since these countries are predicted to bear the brunt of the effects of global warming.[6] Adaptation is the capacity and potential for humans to adapt (called adaptive capacity) and is unevenly distributed across different regions and populations, and developing countries generally have less capacity to adapt. Mitigation consists of actions to limit the magnitude or rate of long-term climate change. Climate change mitigation generally involves reductions in human (anthropogenic) emissions of greenhouse gases (GHGs). Mitigation may also be achieved by increasing the capacity of carbon sinks, e.g., through reforestation. Mitigation policies can substantially reduce the risks associated with human-induced global warming.[7]

2. Adaptation, as a strategy engages many stakeholders, which hitherto were not part of the environmental dialogue. Climate Justice, therefore, moves beyond the construct of environmental justice. It has to embrace multiple new dimensions like Health Security, Food Security, Energy Security, Water Security, Human Displacement, Human Trafficking and Disasters Management within its fold. Climate Justice covers agriculture, health, food, building approvals, industrial licenses, technology, infrastructural work, human resource, human and climate trafficking, disaster preparedness, health, etc. While mitigation can still be addressed with environmental justice, adaptation can only be addressed through Climate Justice, where the Courts help build adaptative capacity and climate resilience by engaging with multiple stakeholders.

Water Justice

1. In the context of Pakistan, the impending water crisis are accelerated by the impact of climate change on the hydrological cycle. The availability of water resources to satisfy the demands of society and those of the environment is a crisis of governance and justice. Water is life. Water is a human right and all people should have access to clean and affordable water. Water has interconnectedness with people and resources and is a commons that should be held in public trust. This brings us to Water Justice, a sub-concept of Climate Justice. Water justice refers to the access of individuals to clean water. More specifically, the access of individuals to clean water for survival (drinking, fishing, etc.) and recreational purposes as a human right. Water justice demands that all communities be able to access and manage water for beneficial uses, including drinking, waste removal, cultural and spiritual practices, reliance on the wildlife it sustains, and enjoyment for recreational purposes. Right to life and Right to human dignity under Articles 9 and 14 of the Constitution protect and realise human rights in general, and the human right to water and sanitation in particular. In adjudicating water and water-related cases, we have to be mindful of the essential and inseparable connection of water with the environment, land and other ecosystems. Climate Justice and Water Justice go hand in hand and are rooted in Articles 9 and 14 of our Constitution and stand firmly on our preambluar constitutional values of social and economic justice.

Dissolution of the Climate Change Commission

1. The submissions made by the Chairman of CCC regarding passing future responsibility of implementing the Framework to the Government is accepted. The Climate Change Commission after rendering a remarkable public and pro bono service, is hereby dissolved. The constitution and working of the Commission has resulted in developing a valuable resource on climate change which can be useful for the Government in the years to come. The respective Governments have to still implement the Framework, formulate the National Water Policy and ensure that the new Act is actualized and given effect to in letter and spirit. These objectives are critical for sustainable development and for the safeguard and protection of the fundamental rights of the people of Pakistan.

Standing Committee on Climate Change

1. In order to facilitate the working of the Federal Government, Ministry of Climate Change, Provincial Government, Planning and Development Department, as well as, CCI, the Court hereby constitutes a Standing Committee on Climate Change, which will act as a link between the Court and the Executive and will render assistance to the above mentioned Governments and Agencies in order to ensure that the Policy and the Framework continue to be implemented. The Federal and Provincial Governments and the CCI shall engage, entertain and consider the suggestions and proposals made by the Standing Committee.

2. The Members of the Standing Committee shall be as follows:--

| | | | | --- | --- | --- | | 1. | Dr. Parvez Hassan, Advocate, Climate Expert. | Chairperson | | 2. | Advocate General, Punjab | Member | | 3. | Secretary Climate Change, Ministry of Climate Change, Islamabad. | Member | | 4. | Chairman, Planning & Development Department, Government of the Punjab. | Member | | 5. | Mr. Ali Tauqeer Sh., CEO & National Program Director, LEAD, Pakistan. | Member | | 6. | Ms. Saima Amin Khawaja, Advocate/ Environmentalist 78-B, Mozang Road, Lahore. | Member |

1. In the light of above, these proceedings stand concluded. I, do not wish to dispose of the petition, but instead, consign it to the record, so that the Standing Committee can approach this Court for appropriate order for the enforcement of the fundamental rights of the people in the context of climate change, if and when required. If any such application is filed, the case shall be revived and fixed before any Green Bench as per the Case Management Plan.

(Z.I.S.) Order accordingly

[1]. Human Rights and Climate Change - UNEP- 2015

[2]. a legal remedy designed for the protection of one’s constitutional right to a healthy environment.

[3]. The fuel of economic growth by Ali Tauqeer Sheikh, CEO, LEAD Pakistan, Dawn, March 22nd 2016.

[4]. Mary Robinson Foundation- Climate Justice.

[5]. “UNFCCC Glossary of Climate Change Acronyms”

[6]. Cole, Daniel A. “Climate Change, Adaptation, and Development”, 26 UCLA J. ENVTL, L. & POL’Y 1, 3(2008).

[7]. Fourth Assessment Report of the InterGovernmental Panel on Climate Change, 2007

PLJ 2018 Lahore 508

Present: Syed Mansoor Ali Shah, C.J.

Barrister ASFANDYAR KHAN TAREEN, etc.--Petitioners

versus

GOVT. OF PUNJAB, etc.--Respondents

W.P. No. 29131 of 2017, heard on 16.1.2018.

Constitution of Pakistan, 1973--

----Arts. 4, 14, 25 & 199--Disabled Persons (Employment & Rehabilitation) Ordinance, 1981--Public interest litigation--Disabled persons--Judicial review of legislation--Violation of human dignity--Petitioner has challenged use of words “disabled”, “physically handicapped” and “mentally retarted” mentioned in Disabled Persons (Employment & Rehabilitation) Ordinance, 1981 on ground that they are violative of fundamental rights of persons with disabilities, in particular, right to life, right to dignity and right of non-discrimination--Contends that Constitution of Pakistan 1973 does not distinguish between a person and a person with disabilities--Validity--Use of terms or words like “disabled”, “physically handicapped” and “mentally retarded” characterize and label a person on basis of an impairment, which negates reasonable accommodation as they deny persons with disabilities enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms--These words also amount to discrimination on basis of disabilities as they have effect of impairing or nullifying recognition, enjoyment or exercise of persons with disabilities, on an equal basis with others, of all human rights and fundamental freedoms--These words, labels and characterization seriously offend right to be a person thereby infringing constitutional guarantees like right to life, right to human dignity and right to non-discrimination of persons with disabilities, thereby violating Articles 9, 14 and 25 of Constitution--Use of outdated language and words to describe people with disabilities helps to continue old stereotypes--Being aware of words we choose when we communicate is first step toward correcting injustice--These portrayals led to unwanted sympathy, or worse, pity toward individuals with disabilities--Respect and acceptance is what people with disabilities would rather have--By carefully choosing our words, we can make a tremendous difference in lives of other youth with disabilities--Using respectful language can dramatically change our communities for better words under challenge have been rebuffed and looked down upon by civilized world--It is more humane to use term: persons with disabilities or persons with different abilities--Keeping words like “disabled,” “physically handicapped”and “mentally retarded” in the statue would recurringly impair and offend human dignity of persons with different abilities. Learned DAG and Law Officer representing the Federal and Provincial Government both support the contention of the petitioners and submit that these words ought to be struck down from the Ordinance--Petition allowed. [P. 524 & 525] E, F & G

Constitution of Pakistan, 1973--

----Arts. 4, 14, 25 & 199--Public Interest Litigation--Disabled Persons (Employment & Rehabilitation) Ordinance, 1981--Disabled Persons--Defined--Significance Stated & Highlighted-- A disability is what someone has, not what someone is--A disability is an umbrella term, covering impairments, activity limitations, and participation restrictions--An impairment is a problem in body function or structure; an activity limitation is a difficulty encountered by an individual in executing a task or action; while a participation restriction is a problem experienced by an individual in involvement in life situations--Disability is thus not just a health problem--It is a complex phenomenon, reflecting interaction between features of a person’s body and features of society in which he or she lives. [P. 513] A

Constitution of Pakistan, 1973--

----Arts. 4, 14, 25 & 199--Public Interest Litigation--Disabled Persons (Employment & Rehabilitation) Ordinance, 1981--Persons with and without disabilities--Significance Stated & Highlighted--Notions Stated--Disability is a situation which is faced by an individual in the absence of social, environmental, medical, economic and human services--Disability is always situational, and its etiology is therefore both environmental and individual--The first thing that comes to mind when labelling someone as ‘disabled’ is the action itself--People should not be labelled as anything, least of all disabled--When someone is diagnosed with a condition (like autism), they aren’t autistic, they have autism--Who they are as a person is not impacted by a medical condition and it surely doesn’t contribute to their identity--The term disabled has not been favoured in recent times with several alternatives cropping up--One of these is seeing more favour than others is ‘differently abled’--This term is inclusive and offers an equal platform to those who fall under it--People with mental or physical conditions are differently abled because they possess a unique set of abilities and perspectives--Everybody has ability and everybody matters, it’s all about acknowledging it--‘Differently abled’ doesn’t hide the fact that your loved one has been diagnosed with a condition, but continues to empower them despite it--Oftentimes, differently abled people see what we can’t, hear what we can’t and think what we can’t--This makes their ability different - not inferior, not superior - just different--The term differently abled recognizes talent and value in everybody and treats them equally--While mental conditions like autism can affect certain everyday functions, it need not stop them from enjoying a fulfilling, enriched and loved life--Many differently abled people are known to flourish and rejoice in life with the right opportunity, support and love--“People-first” or “person-first” language is a way of describing disability that involves putting the word “person” or “people” before the word “disability” or the name of a disability, rather than placing the disability first and using it as an adjective--Some examples of people-first language might include saying “person with a disability,” “woman with cerebral palsy,” and “man with an intellectual disability.” The purpose of people-first language is to promote the idea that someone’s disability label is just a disability label--not the defining characteristic of the entire individual--Differently abled is a phrase used because it supposedly humanizes disabled people by focusing on our abilities rather than on our impairments--On the other hand terms like “disabled”, “physically handicapped” and “mentally retarded” are hurtful and offensive.

[Pp. 513 & 514] B

Constitution of Pakistan, 1973--

----Arts. 4, 14, 25 & 199--Public interest litigation--Disabled Persons (Employment & Rehabilitation) Ordinance, 1981--Disabled persons--Convention on rights of disables--International Law--Charter of United Nations recognizes inherent dignity and worth and equal and inalienable rights of all members of human family as foundation of freedom, justice and peace in world--Universal Declaration of Human Rights and International Covenants on Human Rights, has proclaimed and agreed that everyone is entitled to all rights and freedoms set forth therein, without distinction of any kind--Convention reaffirms universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms and need for persons with disabilities to be guaranteed their full enjoyment without discrimination--That disability is an evolving concept and that disability results from interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others--Discrimination against any person on basis of disability is a violation of inherent dignity and worth of human person--promotion of full enjoyment by persons with disabilities of their human rights and fundamental freedoms results in their enhanced sense of belonging and in significant advances in human, social and economic development of society--It is critical for persons with disabilities to have individual autonomy and independence, including freedom to make their own choices--Children with disabilities should have full enjoyment of all human rights and fundamental freedoms on an equal basis with other children--Persons with disability should have access to physical, social, economic and cultural environment, to health and education and to information and communication, in enabling them to fully enjoy all human rights and fundamental freedoms--Fundamental principles of Convention provide respect for inherent dignity, individual autonomy including freedom to make one’s own choices, independence of persons, nondiscrimination, full and effective participation and inclusion in society, respect for difference and acceptance of persons with disabilities, human diversity and humanity, equality of opportunity, accessibility, equality between men and women and respect for right of children with disabilities to preserve their identities--Every person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others. [Pp. 520 & 521] C & D

Petitioner No. 1 in person.

Mr. Nasar Ahmad, D.A.G. for Pakistan, Ms. Hina Hafeezullah Ishaq, Assistant Attorney General for Pakistan, Mr. Anwaar Hussain, Additional Advocate General Punjab, Mr. Tariq Ismail, Litigation Officer, Social Welfare Department.

Date of hearing: 16.1.2018.

Judgment

“O you who believe! Let not one people deride another; it may be that they are better than them.”

(Al-Quran-49:11)[1]

Through this public interest petition, the petitioners have challenged the use of words “disabled”, “physically handicapped” and “mentally retarded” mentioned in The Disabled Persons (Employment and Rehabilitation) Ordinance, 1981 (“Ordinance”) on the ground that they are violative of fundamental rights of persons with disabilities- in particular, right to life, right to dignity and right to non-discrimination under Articles 9, 14 & 25 of the Constitution of Islamic Republic of Pakistan, 1973.

Arguments

1. Arguing for the petitioners, Petitioner No. 1, who is a Barrister and an advocate of this Court, submits that our Constitution does not distinguish between a person and a person with disabilities. He submits that correct word to describe all categories of persons is the word person and the definition of person under the Ordinance can describe the mental and physical impairments, if any, to explain the applicability of the Ordinance. He prays that terms and words like “disabled”, “physically handicapped” and “mentally retarded” be struck down as being unconstitutional. He further submits that under the doctrine of severance, the deletion of the above words does not affect the scope, operability and enforceability of the Ordinance. In support of the above contentions, he placed reliance on Hiral P. Harsora and others v. Kusum Narottamdas Harsora and others (2016) 10 SCC 165), Shahid Pervaiz v. Eiaz Ahmad and others (2017 SCMR 206) and R.M.D. Chamarbaugwalla and another v. Union of India and another (AIR 1957 S.C. 628). On the question that the aforesaid words violate fundamental rights, he placed reliance on Hafiz Junaid Mahmood v. Government of Punjab and others (PLD 2017 Lahore 1). He has also placed reliance on the UN Conventions of the Rights of Persons with Disabilities (“CRPD”).

2. Mr. Nasar Ahmad, Deputy Attorney General for Pakistan and Ms. Hina Hafeezullah Ishaq, Assistant Attorney General for Pakistan submit that they support the contentions of the petitioners and the words under challenge are violative of human dignity and are liable to be struck down. They further submit that under Article 199 (1) (c) read with Article 7 of the Constitution, direction can be issued to the Parliament to ensure that as a consequence of striking down the words in question in the Ordinance, other laws be also examined and any such words appearing in any other legislation may also be corrected. They submit that directions may also be issued to the Executive Branch of the State not to use these words in any executive orders, notifications or directives.

3. Mr. Anwaar Hussain, learned Law Officer submits that Government is already conscious of the offensive nature of the word “mentally retarded” and has started using the word “persons with different abilities” in place of Disabled Person, or “Mentally Retarded Person”. He also supports the contentions of the petitioners and has placed reliance on the judgment Hafiz Junaid Mahmood v. Government of Punjab and others (PLD 2017 Lahore 1).

OPINION OF THE COURT

1. I have heard the parties and have gone through the record of the case. The question that requires determination is whether words/terms like “disabled”, “physically handicapped” and “mentally retarded” provided in the Ordinance are unconstitutional and as a consequence, are to be struck down from the statute?

Disability and its meanings:

1. In Hafiz Junaid’s case[2] I have discussed the concept of disability in the following manner: “Disability means lacking one or more physical powers, such as the ability to walk or to coordinate one’s movements, as from the effects of a disease or accident, or through mental impairment. According to the UN Convention on the Rights of Persons with Disabilities (“CRPD” or “Convention”) ratified by Pakistan in 2011, persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which interaction with various barriers may hinder their full and effective participation in society on an equal basis with others. Disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others.”

2. A disability is what someone has, not what someone is. A disability is an umbrella term, covering impairments, activity limitations, and participation restrictions. An impairment is a problem in body function or structure; an activity limitation is a difficulty encountered by an individual in executing a task or action; while a participation restriction is a problem experienced by an individual in involvement in life situations. Disability is thus not just a health problem. It is a complex phenomenon, reflecting the interaction between features of a person’s body and features of the society in which he or she lives.

Disabled person versus person with disabilities or different abilities

1. Disability is a situation which is faced by an individual in the absence of social, environmental, medical, economic and human services. Disability is always situational, and its etiology is therefore both environmental and individual. The first thing that comes to mind when labelling someone as ‘disabled’ is the action itself. People should not be labelled as anything, least of all disabled. When someone is diagnosed with a condition (like autism), they aren’t autistic, they have autism. Who they are as a person is not impacted by a medical condition and it surely doesn’t contribute to their identity. The term disabled has not been favoured in recent times with several alternatives cropping up. One of these is seeing more favour than others is ‘differently abled’. This term is inclusive and offers an equal platform to those who fall under it. People with mental or physical conditions are differently abled because they possess a unique set of abilities and perspectives. Everybody has ability and everybody matters, it’s all about acknowledging it. ‘Differently abled’ doesn’t hide the fact that your loved one has been diagnosed with a condition, but continues to empower them despite it. Oftentimes, differently abled people see what we can’t, hear what we can’t and think what we can’t. This makes their ability different - not inferior, not superior - just different. The term differently abled recognizes talent and value in everybody and treats them equally. While mental conditions like autism can affect certain everyday functions, it need not stop them from enjoying a fulfilling, enriched and loved life. Many differently abled people are known to flourish and rejoice in life with the right opportunity, support and love.[3] “People-first” or “person-first” language is a way of describing disability that involves putting the word “person” or “people” before the word “disability” or the name of a disability, rather than placing the disability first and using it as an adjective. Some examples of people-first language might include saying “person with a disability,” “woman with cerebral palsy,” and “man with an intellectual disability.” The purpose of people-first language is to promote the idea that someone’s disability label is just a disability label--not the defining characteristic of the entire individual.[4] Differently abled is a phrase used because it supposedly humanizes disabled people by focusing on our abilities rather than on our impairments. On the other hand terms like “disabled”, “physically handicapped” and “mentally retarded” are hurtful and offensive.

Disability and Dignity

1. Internationally, rights of persons with disabilities are provided in the Convention on the Rights of Persons with Disabilities and Optional Protocol (CRPD), to which Pakistan is a signatory. Relevant extracts of the Convention are as follows:

“CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES

Preamble

The States Parties to the present Convention, (a) Recalling the principles proclaimed in the Charter of the United Nations which recognize the inherent dignity and worth and the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world, (b) Recognizing that the United Nations, in the Universal Declaration of Human Rights and in the International Covenants on Human Rights, has proclaimed and agreed that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, (c) Re-affirming the universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms and the need for persons with disabilities to be guaranteed their full enjoyment without discrimination, (d) ...

(e) Recognizing that disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others, (f) ...

(g) Emphasizing the importance of mainstreaming disability issues as an integral part of relevant strategies of sustainable development, (h) Recognizing also that discrimination against any person on the basis of disability is a violation of the inherent dignity and worth of the human person, (i) Recognizing further the diversity of persons with disabilities, (j) Recognizing the need to promote and protect the human rights of all persons with disabilities, including those who require more intensive support, (k) Concerned that, despite these various instruments and undertakings, persons with disabilities continue to face barriers in their participation as equal members of society and violations of their human rights in all parts of the world, (l) Recognizing the importance of international cooperation for improving the living conditions of persons with disabilities in every country, particularly in developing countries, (m) Recognizing the valued existing and potential contributions made by persons with disabilities to the overall well-being and diversity of their communities, and that the promotion of the full enjoyment by persons with disabilities of their human rights and fundamental freedoms and of full participation by persons with disabilities will result in their enhanced sense of belonging and in significant advances in the human, social and economic development of society and the eradication of poverty, (n) Recognizing the importance for persons with disabilities of their individual autonomy and independence, including the freedom to make their own choices, (o) Considering that persons with disabilities should have the opportunity to be actively involved in decision-making processes about policies and programmes, including those directly concerning them, (p) Concerned about the difficult conditions faced by persons with disabilities who are subject to multiple or aggravated forms of discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national, ethnic, indigenous or social origin, property, birth, age or other status, (q) Recognizing that women and girls with disabilities are often at greater risk, both within and outside the home, of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, (r) Recognizing that children with disabilities should have full enjoyment of all human rights and fundamental freedoms on an equal basis with other children, and recalling obligations to that end undertaken by States Parties to the Convention on the Rights of the Child, (s) Emphasizing the need to incorporate a gender perspective in all efforts to promote the full enjoyment of human rights and fundamental freedoms by persons with disabilities, (t) Highlighting the fact that the majority of persons with disabilities live in conditions of poverty, and in this regard recognizing the critical need to address the negative impact of poverty on persons with disabilities, (u) Bearing in mind that conditions of peace and security based on full respect for the purposes and principles contained in the Charter of the United Nations and observance of applicable human rights instruments are indispensable for the full protection of persons with disabilities, in particular during armed conflicts and foreign occupation, (v) Recognizing the importance of accessibility to the physical, social, economic and cultural environment, to health and education and to information and communication, in enabling persons with disabilities to fully enjoy all human rights and fundamental freedoms, (w) Realizing that the individual, having duties to other individuals and to the community to which he or she belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the International Bill of Human Rights, (x) Convinced that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State, and that persons with disabilities and their family members should receive the necessary protection and assistance to enable families to contribute towards the full and equal enjoyment of the rights of persons with disabilities, (y) Convinced that a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities will make a significant contribution to redressing the profound social disadvantage of persons with disabilities and promote their participation in the civil, political, economic, social and cultural spheres with equal opportunities, in both developing and developed countries, Article 1 Purpose

The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.

Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.

Article 2 ...

Article 3 General principles

The principles of the present Convention shall be:

(a) Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;

(b) Non-discrimination;

(c) Full and effective participation and inclusion in society;

(d) Respect for difference and acceptance of persons with disabilities human diversity and humanity;

(e) Equality of opportunity;

(f) Accessibility;

(g) Equality between men and women;

(h) Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.

Article 4 ...

Article 5 Equality and non-discrimination

1. States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.

2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.

3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.

4. Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention.

Articles 6 to 9 ...

Article 10 Right to life

States Parties reaffirm that every human being has the inherent right to life and shall take all necessary measures to ensure its effective enjoyment by persons with disabilities on an equal basis with others.

Article 11 ...

Article 12 Equal recognition before the law

1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.

2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.

3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.

4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.

5. Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.

Article 13 Access to justice

1. States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.

2. In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff.

Article 14 Liberty and security of person

1. States Parties shall ensure that persons with disabilities, on an equal basis with others:

(a) Enjoy the right to liberty and security of person;

(b) Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.

1. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention, including by provision of reasonable accommodation.

Articles 15 & 16 ...

Article 17 Protecting the integrity of the person.

Every person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others.”

1. The above shows that the Charter of the United Nations recognizes the inherent dignity and worth and the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world. The Universal Declaration of Human Rights and the International Covenants on Human Rights, has proclaimed and agreed that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind. The Convention reaffirms the universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms and the need for persons with disabilities to be guaranteed their full enjoyment without discrimination. That disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others. Discrimination against any person on the basis of disability is a violation of the inherent dignity and worth of the human person. The promotion of the full enjoyment by persons with disabilities of their human rights and fundamental freedoms results in their enhanced sense of belonging and in significant advances in the human, social and economic development of society. It is critical for persons with disabilities to have individual autonomy and independence, including the freedom to make their own choices. Children with disabilities should have full enjoyment of all human rights and fundamental freedoms on an equal basis with other children. Persons with disability should have access to physical, social, economic and cultural environment, to health and education and to information and communication, in enabling them to fully enjoy all human rights and fundamental freedoms.

2. The fundamental principles of the Convention provide respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, independence of persons, non-discrimination, full and effective participation and inclusion in society, respect for difference and acceptance of persons with disabilities, human diversity and humanity, equality of opportunity, accessibility, equality between men and women and respect for the right of children with disabilities to preserve their identities. Every person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others.

3. In Hafiz Junaid’s[5] case this Court held:

“16. Our Constitution is prefaced by timeless and immutable constitutional values, which reflect the will and resolve of the people of Pakistan. These preambular constitutional values provide that principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be observed. Wherein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality. These constitutional values, inter alia, flow into fundamental rights, like the right to life (Article 9), the right to dignity (Article 14) and the right to equality (Article 25) making our Constitution evergreen, organic and a living document.

1. Our Constitution, as a whole, does not distinguish between a person with or without disabilities. It recognizes inherent dignity of a human being, equal and inalienable rights of all the people as the foundation of freedom, justice and peace. Every person is entitled to all the rights and freedoms set forth therein, without distinction of any kind. Our Constitution embodies universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms. It applies equally to persons with disabilities, guaranteeing them full enjoyment of their fundamental rights without discrimination. The triangular construct of the right to life, dignity and equality under the Constitution provides a robust platform for mainstreaming persons with disabilities.”

2. Dignity has its roots in the simple idea that justice consists of the refusal to turn away from suffering.[6] Most central of all human rights is the right to dignity. Dignity unites the other human rights into a whole. The right to dignity reflects the ‘recognition that a human being is a free agent, who develops his body and mind as he wishes, and the social framework to which he is connected and on which he depends. Human dignity is therefore the freedom of the individual to shape an individual identity. It is the autonomy of the individual will. It is the freedom of choice. Human dignity is infringed if a person’s life or physical or mental welfare is harmed[7].

Reasonable Accommodation

1. The Convention provides that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law. The State shall take all appropriate steps to ensure that reasonable accommodation is provided. Reasonable accommodation is defined under the Convention to mean necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms. While “Discrimination on the basis of disability” means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation.

2. In Hafiz Junaid’s case the need for reasonable accommodation under CRPD was given a constitutional underpinning, a requirement that flows from the fundamental rights guaranteed under the Constitution in the following manner:--

“19. Right to life and right to dignity are the epicenters of our constitutional architecture. Right to life recognizes the importance of accessibility to physical, social, economic and cultural environment, to health and education and to information and communication. Such a right enables persons with disabilities to fully enjoy all human rights and fundamental freedoms. Every human being has the inherent right to life and to ensure its effective enjoyment, this includes persons with disabilities, at par with the others. Right to life and right to dignity are deeply interwoven. “The purpose of the constitutional right to human dignity is to realize the constitutional value of human dignity. Thus its purpose is to realize a person’s humanity. The dignity of a human being is his free will; the freedom to shape his life and fulfill himself. It is a person’s freedom to write his life story.” Right to life and dignity of a person with disabilities can only be realized if the State and its institutions take steps to provide reasonable accommodation that will facilitate and ensure that the person with disabilities can enjoy life with honour and dignity like others in the society. (emphasis supplied)

1. The Constitution abhors discrimination and holds that all citizens are equal before law and are entitled to equal protection of law. Inherent in Article 25 is the recognition that discrimination against any person on the basis of disability is a violation of the inherent dignity and worth of a human being. Article 25 of the Constitution promotes inclusiveness, effective participation and recognizes human diversity in a society. Non-discrimination as a fundamental right, guarantees elimination of discrimination at all levels and, therefore, mandates that reasonable accommodation be provided by the State and other institutions, to actualize this constitutional goal and avoid exclusion of persons with disabilities from effective participation in the society. “There should be a full recognition of the fact that persons with disability are integral part of the community, equal in dignity and entitled to enjoy the same human rights and freedoms as others.” Our Constitution promotes and protects the human rights of all persons inclusive of persons with disabilities. The constitutional values of social, economic and political justice recognize free choice and individual autonomy for all. Our Constitution is a living document and provides a bold and a passionate constitutional support for persons with disabilities.

2. This constitutional construct creates an obligation on the State and other institutions of the State to make all possible endeavours to mainstream persons with different abilities and to embrace the diversity in the society. The State and its institutions are under a constitutional obligation to go the extra mile and ensure, within the means available, that person with disabilities get reasonable accommodation in order to enjoy their fundamental rights in the same manner as enjoyed by other citizens of Pakistan. (emphasis supplied)

3. The use of the terms or words like “disabled”, “physically handicapped” and “mentally retarded” characterize and label a person on the basis of an impairment, which negates reasonable accommodation as they deny persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms. These words also amount to discrimination on the basis of disabilities as they have the effect of impairing or nullifying the recognition, enjoyment or exercise of persons with disabilities, on an equal basis with others, of all human rights and fundamental freedoms. These words, labels and characterization seriously offend the right to be a person thereby infringing constitutional guarantees like right to life, right to human dignity and right to non-discrimination of persons with disabilities, thereby violating Articles 9, 14 and 25 of the Constitution.

4. The use of outdated language and words to describe people with disabilities helps to continue old stereotypes. Being aware of the words we choose when we communicate is the first step toward correcting injustice. These portrayals led to unwanted sympathy, or worse, pity toward individuals with disabilities. Respect and acceptance is what people with disabilities would rather have. By carefully choosing our words, we can make a tremendous difference in the lives of other youth with disabilities. Using respectful language can dramatically change our communities for the better.[8] The words under challenge have been rebuffed and looked down upon by the civilized world. It is more humane to use the term: persons with disabilities or persons with different abilities. This is the practice outside Pakistan.

United States of America

• Rehabilitation Act, 1973

• Section 504 of the Rehabilitation Act, 1973 was designed to ensure that any program or activity receiving federal financial assistance does not discriminate on the basis of disability.

A “person with a disability” is defined as any person who

(1) has a physical or mental impairment that substantially limits one or more major life activities, (2) has record of such an impairment, or

(3) is regarded as having such an impairment. Major life activities include walking, seeing, hearing, speaking, breathing, learning, working, caring for oneself, and performing manual tasks.

• Americans with Disabilities Act, 1990

• “no otherwise qualified individual with a disability shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity of a public entity.”

UK

• Disability Discrimination Act, 1995

• Defines disability as “a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities “

Australia

• Disability Discrimination Act, 1992

• Purpose of enactment, inter alia, “to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community”

India

• Rights of Persons with Disabilities Act, 2016

• Enacted to give effect to international obligations under the CRPD.

• Keeping words like “disabled,” “physically handicapped” and “mentally retarded” in the statue would recurringly impair and offend human dignity of persons with different abilities. Learned DAG and Law Officer representing the Federal and Provincial Government both support the contention of the petitioners and submit that these words ought to be struck down from the Ordinance.

• The words disabled persons appear 34 times in the Ordinance, other than in the title of the Ordinance, while “physically handicapped” and “mentally retarded” appear once in the definition of disabled person in Section 2(c) of the Ordinance. Removal of these offensive words from the Ordinance does not affect the scope, extent, operability or enforceability of the Ordinance. Therefore, applying the Doctrine of Severance, the words “disabled”, “physically handicapped” and “mentally retarded” are declared to be violative of Articles 9, 14 and 25 of the Constitution and hence unconstitutional and illegal. The constitutionally compliant definition of the disabled person will be read as follows:

“disabled person” means a person who, on account of injury, disease or congenital deformity, is handicapped for undertaking any gainful profession or employment in order to earn his livelihood, and includes a person who is blind, deaf physically handicapped or mentally retarded;

While the title of the Ordinance will be read as:

Disabled Persons (Employment and Rehabilitation) Ordinance, 1981.

Reliance is placed on Hiral P. Harsora and others v. Kusum Narottamdas Harsora and others (2016) 10 SCC 165), Shahid Pervaiz v. Ejaz Ahmad and others (2017 SCMR 206) R.M.D. Chamarbaugwalla and another v. Union of India and another (AIR 1957 S.C. 628), The Corporation of Calcutta v. Calcutta Tramways Co. Ltd, (AIR 1964 SC 1279), Satyawati Sharma v. Union of India and another (2008) 5 SCC 287).

1. In addition to the above the Federal Government, as well as, the Government of the Punjab is directed to discontinue the use of these words in official correspondence, directives, notifications and circulars and shift to persons with disabilities or persons with different abilities.

2. Office will dispatch a copy of this judgment to the Ministry of Parliamentary Affairs, Islamabad to ensure the reprint of the Ordinance in compliance with this judgment under Article 199(1)(c) of the Constitution, in order to uphold the right to life and human dignity of persons with different abilities in our country.

3. This writ petition is allowed in the above terms with no orders as to costs.

(Z.I.S.) Petition allowed

[1]. Translation: The Study of Quran Seyyed Hossein Nasr.

[2]. Hafiz Junaid Mahmood v. Government of Punjab and others. PLD 2017 Lahore 1

[3]. http://www.apd-india.org/blog/i-am-differently-abled-not-disabled-0

[4]. Syracuse University Disability Cultural Center (DCC). An Introductory Guide to Disability Language and Empowerment

[5]. Hafiz Junaid Mahmood v. Government of Punjab and others. PLD 2017 Lahore 1

[6]. Stu Woolman - The Architecture of Dignity. The Dignity Jurisprudence of the Constitutional Court of South Africa. Vol-1, p.73

[7]. Aharon Barak - The Judge in a Democracy. Pp. 85-86

[8]. http://www.fvkasa.org/resources/files/history-nyln-language.pdf

PLJ 2018 Lahore 527

Present: Muhammad Farrukh Irfan Khan, J.

HASSAN through his legal heirs--Petitioners

versus

AMEER through his legal heirs etc.--Respondents

C.R. No. 2982 of 2011, decided on 3.2.2017.

Pleading--

----Scope--Evidence beyond framed issues--Question of--Whether non-framing of proper issues was fatal for rendering judgment--Validity--Pleadings made in plaint by plaintiffs was categorically denied by defendants in their written statement and parties were fully aware of subject matter of controversy between them and admittedly Trial Court did not prevent any party to lead evidence beyond framed issues, therefore, in these circumstances non-framing of proper issue was inconsequential. [P. 530] A

Fazal Muhammad Bhatti and another vs. Mst. Saeeda Akhtar and 2 others 1993 SCMR 2018, rel.

Framing of Issue--

----Scope of--Exchange mutation--No issue was framed--Validity--Controversial facts--None of parties made request for framing of proper issues at trial stage nor learned Trial Court restrained them to lead evidence beyond scope of issues framed, therefore, in my considered view evidence lead by parties was in line with controversial facts and sufficient to resolve dispute and non-framing of proper issues was not fatal. [P. 530] B

Mutation--

----Inheritance of estate of deceased--Issueless--Legal heirs--Beneficiary of mutation--Under law he has to prove legality and validity of said mutation but scanning of his evidence makes it abundantly clear that he failed to discharge burden of issue. [P. 531] C

Pleadings--

----Scope of--It is settled principle of law that evidence recorded beyond pleadings of parties cannot be taken into consideration. [P. 531] D

Exchange of mutation--

----Scope of--Market value of agricultural land--Documentary evidence--Merely on assertion of Defendant No. 1 it could not be assumed that price of house was equal to exchanged land. [P. 531] E

Exchange of Mutation--

----Scope of--Evidentiary value of--Beyond pleadings--Ingredients of transaction--Validity--House which was exchanged in lieu of agricultural land through disputed mutation was also owned by deceased, therefore, most important ingredient of transaction i.e. consideration is missing in impugned mutation as such same cannot be allowed to remain intact. [P. 532] F

Mr. Waqar-ul-Hassan Butt, Advocate for Petitioners.

M/s. Naved Sheharyar Sh. and Bashir Ahmad Mirza, Advocates for Respondents.

Date of hearing: 3.2.2017.

Order

Original parties to the suit have expired and they are now represented through their legal heirs in this civil revision. The present petitioners represented the plaintiff while the respondents are the legal heirs of the defendants.

1. Briefly the facts of the case are that the plaintiff filed a suit for declaration alleging therein that his real brother namely Dari was owner of agricultural land measuring 131K and a house measuring 14M fully described in head note of the plaint. He died issueless leaving behind the plaintiff and Defendants No. 2 and 3 as his legal heirs and they were entitled to inherit the estate of the deceased according to their respective shares and that the exchange Mutation No. 2203 dated 05.07.1982 allegedly executed by the deceased in favour of Defendant No. 1 was illegal, without consideration, based on fraud, misrepresentation and as such have no effect on rights of the plaintiff and was liable to be cancelled. A decree of partition of the disputed house was also sought for in the plaint.

2. The defendants contested the suit by filing written statement. They alleged that deceased Dari in his life time with his free consent has alienated the disputed property to Defendant No. 1 through impugned exchange mutation and since then he is in possession over the disputed property. Out of divergent pleadings of the parties, learned Trial Court framed necessary issues, recorded evidence of both the parties and decreed the suit of the plaintiff vide judgment dated 29.04.1992. Being aggrieved the defendants filed appeal before the learned Addl. District Judge who vide impugned judgment and decree dated 04.04.1994 while accepting appeal of the defendants, dismissed the suit of the plaintiff. This judgment and decree is under attack in this civil revision.

3. Learned counsel for the plaintiff contends that the learned Appellate Court erred in law while passing the impugned judgment and decree; that the plaintiff through cogent and reliable evidence has proved that the mutation in question is based on fraud and without consideration; that the parties were fully conscious of the dispute between them and they adduced evidence accordingly, therefore, non-framing of proper issue was not fatal; that the conclusion arrived at by the learned Appellate Court that Defendants No. 2 & 3 did not support the plaintiff which suggests that exchange mutation factually took place is erroneous inasumuch as the learned Appellate Court has failed to take into consideration that Defendants No. 2 & 3 are also the beneficiary of the disputed exchange mutation; that Defendant No. 1 is the son of Defendant No. 2 and son-in-law of Defendant No. 3, therefore, they were supposed to support the alleged exchange mutation; that the house which was allegedly exchanged by Defendant No. 1 with the agricultural land of deceased Dari was also owned by the said deceased; that there was no evidence available on record price of the agricultural land was equal to the house; that the conclusion arrived at by the learned Appellate Court is the result of mis-reading and non-reading of the evidence; that Defendant No. 1 is beneficiary of the alleged exchange mutation, therefore, he had to prove that the same was validly executed by the deceased but he miserably failed to prove so; that the learned Trial Court after appreciating the evidence in its true perspective had rightly decreed the suit of the plaintiff which has illegally been dismissed by the learned Appellate Court; that the conclusion arrived at by the learned Appellate Court is erroneous in law and is liable to be set-aside.

4. On the converse, learned counsel for the defendants submits that the impugned judgment and decree of the learned Appellate Court is well reasoned; that the learned Trial Court had not framed proper issues and the decision rendered by the said Court was beyond the issues in controversy as such the same was rightly set-aside by the learned Appellate Court; that the plaintiff could not prove that at the time of execution of exchange mutation, deceased Dari was on death bed; that the deceased without any coercion had alienated the agricultural land in favour of Defendant No. 1 in lieu of house which was of equal value and no fraud was committed with the deceased; that other legal heirs of the deceased did not support version of the plaintiff, therefore, the learned Appellate Court has rightly passed the impugned judgment and decree which needs no interference by this Court in its revisional jurisdiction.

5. I have heard the arguments advanced by the learned counsel for the parties and gone through the record.

6. First of all I would like to dilate upon the point whether non-framing of proper issues in the case in hand was fatal for rendering the judgment. It is evident from the record that the pleadings made in the plaint by the plaintiffs was categorically denied by the defendants in their written statement and the parties were fully aware of the subject matter of the controversy between them and admittedly the Trial Court did not prevent any party to lead evidence beyond the framed issues, therefore, in these circumstances non-framing of proper issue was inconsequential. Reliance is placed on case reported as Fazal Muhammad Bhatti and another vs. Mst. Saeeda Akhtar and 2 others (1993 SCMR 2018) wherein it has been held as under:

“The pleadings and the issues as originally framed show that the parties were fully aware what was the subject-matter of controversy and what evidence was to be lead by each one. The Court did not prevent the parties from leading evidence at the trial with regard to the defects in the gift. The non-framing of a specific issue in such circumstances is inconsequential.”

1. Similarly, in case reported as Muhammad and 9 others vs. Hasham Ali (PLD 2003 Supreme Court 271) the Hon’ble Apex Court has observed as under:--

“It is settled principle of law that if on a question of fact a specific issue required to be framed in the light of the pleading of the parties was not framed but the parties have produced evidence on the controversial question of fact, the decision can be legally rendered on such question without framing the issue. In the present case it is an admitted position that none of the parties at any stage of the proceedings made any request either for an amendment in the pleadings or for framing the additional issue despite the fact that main contest between the parties related to the nature of transaction whether a sale or mortgage.”

1. In the instant case no doubt no issue with regard to the validity of disputed exchange mutation was framed but both the parties were well cognizant of the dispute and they produced their respective evidence on the controversial facts. None of the parties made request for framing of proper issues at the trial stage nor the learned Trial Court restrained them to lead evidence beyond the scope of issues framed, therefore, in my considered view the evidence lead by the parties was in line with the controversial facts and sufficient to resolve the dispute and non-framing of proper issues was not fatal.

2. Now coming to the merits of the case. The controversy revolves around inheritance of the estate of the deceased Dari. It is an admitted fact that the deceased was issueless and plaintiff and Defendants No. 2 & 3 were his only legal heirs but through the disputed mutation the entire property was transferred in favour of Defendant No. 1 who is maternal nephew of the deceased. Defendant No. 1 was the beneficiary of the disputed mutation, therefore, under the law he has to prove the legality and validity of the said mutation but scanning of his evidence makes it abundantly clear that he failed to discharge the burden of the issue. Defendant No. 1 while appearing in the witness-box deposed that at the time of exchange mutation Haider s/o Noor was present who is alive but strangely he did not examine the said witness as such he intentionally withheld the best evidence. The only witness produced by Defendant No. 1 in this respect was Shana who while appearing in the witness-box as DW-1 did not utter even a single word as to whether he was present at the time of execution of the alleged exchange mutation. Furthermore, from the testimony of the said witness it transpires that the house which was allegedly exchanged with the agricultural land was also owned by the deceased Dari, who had alienated the same in favour of Rasoolan (wife of Defendant No. 1). It can thus safely be concluded that the disputed mutation was without consideration and was executed just to deprive the plaintiff from his lawful share. The learned Appellate Court non-suited the plaintiff on two counts. Firstly, it was of the view that other legal heirs of deceased Dari i.e. Defendant No. 2 & 3 did not object to the disputed mutation rather they supported the stance of Defendant No. 1 but while holding so the learned Appellate Court did not consider the relationship of Defendant No. 1 with the said defendants. Defendant No. 2 was real mother of Defendant No. 1 while Defendant No. 3 is his maternal aunt as well as mother-in-law, therefore, in view of this relationship it could not be expected from them to oppose the disputed mutation of which their son and son in law is the beneficiary. Secondly, the learned Appellate Court while referring to the statement of DW-1 held that price of the exchanged house and the agricultural land was equal but there is no such deposition on the part of DW-1. Although Defendant No. 1/DW-2 deposed in this regard but no such plea was taken by him in his written statement. It is settled principle of law that the evidence recorded beyond the pleadings of the parties cannot be taken into consideration. Furthermore, no documentary evidence such as market value of the agricultural land and that of the house was produced, therefore, merely on the assertion of Defendant No. 1 it could not be assumed that price of the house was equal to the exchanged land.

3. The learned Appellate Court while justifying the disputed exchange mutation was of the view that relationship of deceased Dari was strained with the plaintiff but this observation of the learned Appellate Court is beyond the pleadings. No such stance was taken by the defendants in their written statement, therefore, any evidence recorded beyond the pleadings lost its evidentiary value. It has been established on record that the house which was exchanged in lieu of the agricultural land through the disputed mutation was also owned by the deceased, therefore, most important ingredient of transaction i.e. consideration is missing in the impugned mutation as such the same cannot be allowed to remain intact. The learned Trial Court after due appreciation of the evidence in its true perspective had rightly decreed the suit of the plaintiff which has been set-aside by the learned Appellate Court on erroneous assumptions and suppositions as such the conclusion arrived at by the said Court cannot be allowed to remain intact.

4. In view of the above discussion, this civil revision is allowed and consequently the impugned judgment and decree of the learned Appellate Court dated 04.04.1994 is se-aside and that of the learned Trial Court dated 29.04.1992 is restored. No order as to costs.

(Y.A.) C.R. allowed

PLJ 2018 Lahore 532 (DB) [Multan Bench Multan]

Present: Shams Mehmood Mirza and Abdul Sattar, JJ.

PRINCIPAL GOVERNMENT COLLEGE OF TECHNICAL TRAINING INSTITUTE--Appellant

versus

SABIR HUSSAIN and others--Respondents

I.C.A. No. 294 of 2016, heard on 14.2.2017.

Law Reforms Ordinance, 1972 (XII of 1972)--

----S. 3, Punjab Civil Servant (Appointment and Conditions) Service Rules, 1974, S. 17-A--Punjab Technical Education and vocational training Authority Act, 2010, Ss. 21 & 23--Punjab Technical Education and Vocational Training Authority Rules, 2011--Constitution of Pakistan, 1973, Art. 199--Appointment as sweeper--Contract basis--Application for converting appointment on regular basis as civil servant--Rejected--Question of--Whether employees of TEWTA are civil servant or not--Challenge to--TEVTA was regulated by Punjab Technical Education and Vocational Training Authority Act, 2010 under terms of which it is a body corporate and is managed by a chairperson and fifteen members--It was further stated that TEVTA has framed its own service regulations for its employees/ and being a statutory corporation Respondent No. 1 could not have been ordered to be regularized as a civil servant--TEVTA under terms of its Act prescribes terms and conditions of employment of officers and other employees--In terms of Section 21 of Act employees of TEVTA are public servants--Punjab Technical Education and Vocational Training Authority Rules, 2011 have been framed under Section 23 of Act which stipulates that TEVTA shall formulate its own service regulations for its employees--Various provisions of TEVTA Act and Rules framed thereunder clearly demonstrate that employees of TEVTA are not civil servants as they are governed by their own service regulations and, therefore, Rule 17-A of Punjab Civil Servant (Appointment and Conditions) Service Rules, 1974 has no applicability on TEVTA employees--Petition allowed. [Pp. 534 & 535] A & B

Munawar Hussain Bukhari v. Appellate Authority/Tribunal Alipur District Muzaffargarh and others 2016 SCMR 1087 ref.

Malik Amjad Mushtaq, Advocate for Appellant.

Malik Ali Muhammad Dhol and Malik Muhammad Bashir Lakhaser, Asstt.A.G. for Respondents.

Date of hearing: 14.2.2017.

Judgment

Shams Mehmood Mirza, J.--This order shall decide the present appeal as well as ICA No. 295 of 2016 as common questions of law are involved in both the appeals.

1. This intra Court appeal filed under Section 3 of the Law Reforms Ordinance, 1972 seeks to challenge order dated 03.06.2016 passed by the learned Single Judge in Chambers in C.M. No. 3283 of 2016 whereby order dated 18.04.2016 through which Writ Petition No. 16799 of 2016 was decided was modified.

2. Facts of the case are that Respondent No. 1 was appointed as sweeper attendant by Technical Education .and Vocational Training Authority (TEVTA) on contract basis on 31.05.2011 after the death of his father who was also a sweeper in Government College Commerce, DG Khan. Respondent No. 1 approached TEVTA for converting his appointment on regular basis as a civil servant. As the needful was not done, the petitioner filed the writ petition which was allowed on 18.04.2016. The operative part of the said order reads as under:

The petitioner should not be sufferer on account of the lapses on the part of the authorities. His appointment made vide Letter No. GCT/DGK/ 2011/1688, dated 13.05.2011 is ordered to be restored with its full force and the petitioner will be deemed to be in service as sweeper on the strength of office order dated 31.05.2011.

Subsequently Respondent No. 1 filed CM No. 3283 of 2016 for correction of order dated 18.04.2016 which application was allowed on 03.06.2016 and the operative part of order dated 18.04.2016 was modified as under:

His appointment made vide Letter No. GCT/DGK/ 2011/1688, dated 13.05.2011 is ordered to be restored with its full force and the petitioner will be deemed to be in service as sweeper on the strength of office order dated 31.05.2011 as a civil servant on regular basis.

1. Learned counsel for the appellant submitted that TEVTA challenged order dated 18.04.2016 in the present appeal but was giving up the said challenge as Respondent No. 1 has since been regularized in terms of Notification dated 11.03.2016. He, however, submitted that the modification of order dated 18.04.2016 made on 03.06.2016 was not tenable in as much as TEVTA was regulated by the Punjab Technical Education and Vocational Training Authority Act, 2010 under the terms of which it is a body corporate and is managed by a chairperson and fifteen members. It was further stated that TEVTA has framed its own service regulations for its employees and being a statutory corporation Respondent No. 1 could not have been ordered to be regularized as a civil servant.

2. Learned counsel appearing on behalf of Respondent No. 1 controverted the stance of the appellant’s counsel and submitted that Respondent No. 1 was appointed in terms of Rule 17-A of Punjab Civil Servant (Appointment and Conditions) Service Rules, 1974. He furthermore drew the attention of this Court towards orders whereby this Court in various writ petitions ordered for appointment of persons in TEVTA in terms of Rule 17-A of Punjab Civil Servant (Appointment and Conditions) Service Rules, 1974. It was also submitted that these persons were then appointed by treating them as civil servants.

3. Arguments heard and record perused.

4. It is an admitted fact that TEVTA is statutory body. The question, therefore, which requires determination is whether the employees of TEVTA are civil servants or not, TEVTA under the terms of its Act prescribes the terms and conditions of the employment of the officers and the other employees. In terms of Section 21 of the Act the employees of TEVTA are public servants. Punjab Technical Education and Vocational Training Authority Rules, 2011 have been framed under Section 23 of the Act which stipulates that the TEVTA shall formulate its own service regulations for its employees. The various provisions of TEVTA Act and the Rules framed thereunder clearly demonstrate that the employees of TEVTA are not civil servants as they are governed by their own service regulations and, therefore, Rule 17-A of Punjab Civil Servant (Appointment and Conditions) Service Rules, 1974 has no applicability to its employees.

5. The Hon’ble Supreme Court in a judgment reported as Munawar Hussain Bukhari v. Appellate Authority/Tribunal Alipur District Muzaffargarh and others 2016 SCMR 1087 has held that the employees of the statutory corporations are not “civil servants” and do not come within the purview of Civil Servant Act, 1973 or Services Tribunal Act, 1973. A similar view was earlier expressed by the Hon’ble Supreme Court in a land mark judgment reported as Muhammad Mubeen-us-Salam v. Federation of Pakistan through Secretary, Ministroy of Defence and others PLD 2006 Supreme Court 602. There is, therefore, no doubt that Respondent No. 1 being an employee of TEVTA was not a civil servant and could not be appointed as such. The fact that some other persons were termed as civil servants while being employed in TEVTA cannot persuade this Court to hold that the employees of TEVTA are civil servants in view of the law clearly laid down by the Hon’ble Supreme Court in the two aforementioned judgments.

6. The learned Single Judge in Chambers, therefore, fell in error in passing order dated 03.06.2016 whereby order dated 18.04.2016 was modified to the extent that service of Respondent No. 1 was ordered to be regularized as civil servant.

7. This appeal is accordingly allowed and order dated 3.6.2016 is set aside.

(Y.A.) Appeal allowed

PLJ 2018 Lahore 536 [Multan Bench Multan]

Present: Shams Mehmood Mirza, J.

MUHAMMAD SHAHZAD--Petitioner

versus

TEVTA and others--Respondents

W.P. No. 391 of 2017, decided on 9.2.2017.

PunjabCivil Servant (Appointment and Conditions) Service Rules, 1974--

----R. 17-A--Punjab Technical Education and Vocational Training Authority Act, 2010, Ss. 21 & 23--Punjab Technical Education and Vocational Training Authority Rules, 2011--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Application for appointment--Reject--Transfer of commerce Institutions from TEVTA to Higher Education Department--Anomly committee was constituted--Application of--Service Regulations--TEVTA is regulated by Punjab Technical Education and Vocational Training Authority Act, 2010 (Act) under terms whereof it is a body corporate and is managed by a chairperson and fifteen members--TEVTA under terms of its Act prescribes terms and conditions of employment of officers and other employees--In terms of Section 21 of Act, employees of TEVTA are public servants--Under Section 23 of Act, Punjab Technical Education and Vocational Training Authority Rules, 2011 have been framed which stipulate that TEVTA shall formulate its own service regulations for its employees--Various provisions of TEVTA Act and Rules framed thereunder that employees of TEVTA are governed by their own service regulations and that Rule 17-A of Punjab Civil Servant (Appointment and Conditions) Service Rules, 1974 has no applicability to its employees--Petition dismissed.

[Pp. 537 & 538] A & B

Mian Muhammad Akram, Advocate for Petitioner.

Mr. Aziz-ur-Rehman Khan, Asstt. A.G. and Mr. Amjad Mushtaq, Advocatefor Respondent alongwith Manager L.O. TEVTA.

Mr. Muhammad Khalid, Respondent No. 7.

Date of hearing: 9.2.2017.

Order

Through this writ petition a direction has been sought from this Court to appoint a Chowkidar under Section 17-A of Punjab Civil Servant (Appointment and Conditions) Service Rules, 1974.

1. Facts of the case as stated in the petition are that the petitioner’s father was appointed as Chowkidar (BS-1) at Government Commercial Training Institution, Okara, which was working under Technical Education and Vocational Training Authority (TEVTA). He died on 01.07.2016 while being posted at Government Technical Training Institute Boys, Khanewal Road, Vehari. It was stated that vide Notification dated 23.08.2016, the petitioner’s father was shown to have been transferred from Government Technical Training Institute Boys, Khanewal Road, Vehari to Higher Education Department, Punjab although he had already died by that time. It was further stated that pension of the petitioner’s father was also being received from TEVTA. When the petitioner filed the application under Rule 17-A of Punjab Civil Servant (Appointment and Conditions) Service Rules, 1974 with TEVTA the said application was rejected on the ground that the petitioner’s father was not the employee of TEVTA at the time of his death.

2. Report and parawise comments have been submitted by the respondents in which the stance of the petitioner has been controverted. It was stated that vide Notification dated 31.07.2012, the Commerce Institutions were transferred from TEVTA to Higher Education Department and thereafter an anomaly committee was constituted which decided to transfer all the commerce employees working under TEVTA on the basis of their first joining. The petitioner’s father earlier filed Writ Petition No. 11177 of 2012 wherein Notification dated 31.07.2012 was suspended but the matter was subsequently disposed of and the case of the petitioner’s father was sent to the anomaly committee. The anomaly committee in its meeting passed the transfer order of the petitioner’s father on 23.08.2016 but he had already passed away on 01.07.2016. It was thus contended that the petitioner cannot be granted employment in TEVTA.

3. Even if the petitioner’s father is assumed to be an employee of TEVTA at the time of his death, the petitioner’s right to claim employment under Rule 17-A of Punjab Civil Servant (Appointment and Conditions) Service Rules, 1974 cannot be accepted. TEVTA is regulated by the Punjab Technical Education and Vocational Training Authority Act, 2010 (the Act) under the terms whereof it is a body corporate and is managed by a chairperson and fifteen members. TEVTA under the terms of its Act prescribes the terms and conditions of the employment of the officers and the other employees. In terms of Section 21 of the Act, the employees of TEVTA are public servants. Under Section 23 of the Act, Punjab Technical Education and Vocational Training Authority Rules, 2011 have been framed which

stipulate that the TEVTA shall formulate its own service regulations for its employees.

1. It is thus clear from the various provisions of TEVTA Act and the Rules framed thereunder that the employees of TEVTA are governed by their own service regulations and that Rule 17-A of Punjab Civil Servant (Appointment and Conditions) Service Rules, 1974 has no applicability to its employees. In the circumstances, the petitioner’s application for seeking appointment as Chowkidar was rightly rejected by TEVTA.

2. This writ petition being devoid of any merit is accordingly dismissed.

(Y.A.) Petition dismissed

PLJ 2018 Lahore 538 [Bahawalpur Bench Bahawalpur]

Present: Tariq Iftikhar Ahmad, J.

GHULAM HAIDER--Petitioner

versus

GHULAM QADIR--Respondent

C.R. No. 19-D of 2017, decided on 8.12.2017.

Benami Transaction Prohibition Act, 2016--

----Ss. 7 & 8(a)--Ingredients of Benami--(i) Source of consideration (ii) From whose custody original title deed and other document came in evidence (iii) Whose in possession of suit property (iv) Motive for Benami transaction--Except possession petitioner has miserably failed to prove rest of ingredients--Essentially to have relief under plea of “Benami” petitioner had to prove all requirements--Civil revision dismissed. [P. 542] A, B & C

Muhammad Sajjad Hussain v. Muhammad Anwar Hussain (1991 SCMR 703) and Ghulam Murtaza v. Mst. Asia Bibi and others (PLD 2010 SC 569)

Civil Procedure Code 1908 (V of 1908)--

----S. 115--Scope of--Jurisdiction--Concurrent findings--This Court has to see error committed by Courts below, if any, so far as exercise of jurisdiction is concerned or to have acted in matter while deciding same illegality or with material irregularity but dispute utmost care and caution, this Court has failed to find any such element in judgments of both Courts below--Civil revision was dismissed.

[P. ] C

Mr. Jamal Abdul Nasir, Advocate for Petitioner.

Mr. Muhammad Asif Mehmood Pirzada, Advocate for Respondent.

Date of hearing: 8.12.2017.

Judgment

This revision petition is directed against the judgments and decrees rendered by the learned Courts below dated 23.01.2013 and 01.12.2016, respectively whereby suit filed by Ghulam Haider-petitioner for declaration has concurrently been dismissed.

1. Both the parties to this civil revision who are real brothers filed suits against each other. Present petitioner filed suit titled “Ghulam Haider v. Ghulam Qadir” for declaration whereas the respondent filed suit for possession titled “Ghulam Qadir v. Ghulam Haider etc.”. Both the suits were consolidated and through consolidated judgments and decrees, as mentioned earlier, the suit filed by present petitioner was dismissed concurrently whereas suit filed by the respondent stood decreed.

2. Brief, facts of the case are that the petitioner filed a suit for declaration alongwith perpetual injunction qua the disputed house, the detail of which is described in the headnote of the plaint, against the respondent alleging therein the he is younger brother of the respondent and is a heavy duty driver by profession and being attached with said business of transport had sufficient source of income whereas the respondent was a bank clerk who stood retired. It was further alleged that as the parties had blood relations, therefore, due to mutual trust the parties by spending equal amount purchased the suit plot and constructed the house over it. It was also alleged in Para No. 3 of the plaint that the work qua purchase and construction of the suit house was done by the petitioner and the respondent being literate person got Mutation No. 18 sanctioned and sale-deed dated 23.10.1995 was also got registered in his name but the same was ‘Benami’ transaction. Further averred that the parties were residing in the suit house for more than 10 years alongwith their families. It was also alleged that due to grown up of the children of the parties, the petitioner asked the respondent to get the disputed house transferred in his name to the extent of his share but he refused to do so prompting the petitioner to file the suit.

While controverting the assertions made in the plaint by the petitioner, respondent has contested the suit by contending that he is owner of suit land/house through registered sale-deed No. 487, dated 18.09.1995 and he is retired National Bank employee and during his service in the above bank, he purchased seven marlas plot through auction in the year 1988 and 1/3rd price of the above plot was deposited by him on 10.12.1988 and thereafter he got prepared plan and sanctioned for construction of the house from TMA, Liaqatpur and in order to raise his construction mortgaged the said plot in the name of bank and obtained loan, thereafter started to raise construction on the disputed plot. The respondent also got installed electricity meter as well as PTCL telephone and kept on paying property tax; in the meanwhile the house was constructed and he shifted in upper story of the above said house and the lower portion was rented out to various people and about 5/6 years prior to the filing of suit the petitioner who is real brother of the respondent requested him to shift in the lower portion of the disputed house whereupon the respondent agreed to give the said portion on rent to the petitioner who paid monthly rent for two months to the respondent @ Rs. 2500/- per month but subsequently stopped paying rent. Thereafter, differences arose between the parties and the respondent filed a complainant under illegal dispossession Act in the Court of competent jurisdiction which was dismissed on the ground that the possession was not obtained forcibly and civil suit is pending, so, thereafter the petitioner was asked time and again to vacate the said portion of the house but they refused to do so.

1. Learned counsel for the petitioner contends that the impugned order and judgment rendered by both the learned Courts below are against the law and facts, void, ab-initio, based upon surmises and conjectures. Further contends that the impugned order and judgment are result of misreading and non-reading of evidence and the Courts below have acted in the matter arbitrarily without applying its judicious mind and as such the same are liable to be set aside.

2. I have heard learned counsel for the petitioner at a considerable length and perused the record appended with this civil revision.

3. In order to prove his case, the respondent produced Muhammad Sadiq, brother-in-law of both the petitioner and the respondent (PW-1) and respondent himself appeared as (PW-2). Apart from oral evidence, the respondent has also produced documentary evidence in shape of Sarwark Kalan of auction of the disputed house/plot (Ex.P1), attested copy of Sharait Neelam (Ex.P2), Fard Neelam (Ex.P3), attested copy of sale-deed (Ex.P4), attested copy of mortgaged deed (Ex.P5), attested copy of Fard Taqseem of disputed plot i.e. Plot No. 122-C-4 (Ex.P6), attested copy of Mutation No. 690 sanctioned on 29.07.2010 (Ex.P7), original bill of water supply (Ex.P9), original receipt of telephone (Ex.P10), original electricity bills (Ex.P11 & P12), plan of lower portion of the disputed house (Ex.P13) and plan of upper portion (Ex.P14) to corroborate his version.

In rebuttal, the petitioner got examined Muhammad Hussain (DW-1), Abdul Aziz (DW-02) and he himself appeared as (DW-3) in support of his claim. However, the petitioner has placed on record receipt of National Bank (Ex.D1), attested copy of complaint and order passed thereupon by the learned Additional Sessions Judge Liaqatpur dated 07.05.2009 (Ex.D2), attested copy of judgment dated 15.09.2008 handed down by the learned Magistrate, Liaqatpur in FIR No. 625 of 2008 (Ex.D3), attested copy of application for adjournment alongwith order dated 06.09.2012 in FIR 625/08 (Ex.PD4) and attested copy of judgment delivered by Magistrate 1st Class, Liaqatpur in case FIR No. 580 of 2008 (Ex.D5).

1. So far as the documentary evidence produced by the petitioner in support of his case is concerned, I am afraid it does not provide any support to claim of the petitioner with regard to his share or in the ownership of the disputed house. All these documents have no nexus at all with the disputed property.

2. I have minutely gone through the evidence got examined by the respondent. The respondent while appearing as (PW-2) deposed each and every detail of the house/plot in dispute (from purchase and till construction). Perusal of the statement of Muhammad Sadiq (PW-1) who is brother-in-law of both the petitioner and the respondent. While appearing in the witness-box (PW-1) has supported each and every limb of the claim of the respondent. He is star witness as he is brother of wives of both the parties (petitioner and respondent), who categorically stated that the petitioner does not have any concern, whatsoever, with the plot/house in disputed. He was put to a lengthy cross-examination by the petitioner but remained unable to bring on record any material adverse to the interest of the respondent. Even otherwise, the documentary evidence adduced by the respondent i.e. (Ex.P1 to Ex.P14) by itself is sufficient to prove the claim of the respondent so far as ownership of the house in dispute is concerned. The petitioner has miserably failed to produce any document in rebuttal.

3. Perusal of the record reveals that the petitioner has also raised plea of ‘Benami’ in the plaint against the respondent but has failed to provide an iota of evidence in support of said plea. According to the dictum laid down by the Superior Courts, in order to claim relief on the above-said pretext the petitioner has to prove the following ingredients of ‘Benami:

(i) source of consideration;

(ii) from whose custody the original title deed and other document came in evidence;

(iii) who is in possession of the suit property; and

(iv) motive for the Benami transaction.

Careful perusal of the record reveals that except possession the petitioner has miserably failed to prove rest of the ingredients. Essentially to have relief under the plea of ‘Benami’ the petitioner had to prove all the requirements. Reliance in this behalf is placed on “Muhammad Sajjad Hussain v. Muhammad Anwar Hussain” (1991 SCMR 703) and “Ghulam Murtaza v. Mst. Asia Bibi and others” (PLD 2010 SC 569).

1. Under Section 115 of The Code of Civil Procedure, 1908, this Court has to see the error committed by the learned Courts below, if any, so far as exercise of jurisdiction is concerned or to have acted in the matter while deciding the same illegally or with material irregularity but despite utmost care and caution, this Court has failed to find any such element in the judgments of both the learned Courts below.

2. No misreading or non-reading has been pointed out either by learned counsel for the petitioner.

3. In view of above, present civil revision has no merits and as such stands dismissed but without any order as to costs.

(Y.A.) C.R. dismissed

PLJ 2018 Lahore 543 [Multan Bench Multan]

Present: Shahid Karim, J.

MUHAMMAD NAWAZ KHAN--Petitioner

versus

ELECTION COMMISSION OF PAKISTAN, etc.--Respondents

W.P. No. 8675 of 2014, decided on 15.3.2017.

Constitution of Pakistan, 1973--

----Arts. 62(i)(f) & 199(1)(b)(ii)--Constitutional Petition--Filling of nomination papers--Educational qualification--Controversy in equivalence certificate--Criminal proceedings--Proclaimed offender--Question of--(i) Whether order passed by member Election Commission on 12.12.2015 and affirmed on 13.10.2016 could be deemed as such a declaration so as to code this Court in its constitutional jurisdiction to hold that Respondent No. 6 was not qualified to be elected or chosen as a member of parliament (ii) Whether Respondent No. 6 can be hold liable to be in possession of a certificate purportedly issued by IBCC--Determination--There is no misdeclaration and Respondent No. 6 did not think it right to rely upon certificate issued by IBCC as there was doubt created with regard to its authenticity or otherwise--No contradiction, therefore, has crept in nomination papers for general elections, 2013 as also there is no contradiction with nomination papers filed in year 2005 for local Government elections--Respondent No. 6 was declared as proclaimed offender is sufficient itself to show that Respondent No. 6 did not have knowledge regarding proceedings in complaint filed against him and thus it was otiose to expect Respondent No. 6 to mention said fact in column relating to criminal cases against a candidate--Thus, nothing turns on this aspect of matter and no disqualification can be visited upon Respondent No. 6 on this basis--It is evident that facts regarding his educational qualification were generally known and on its basis his election to a local council had been voided by Member Election Commission in 2005--Despite that, voters returned him as their representative in elections held thereafter and will of voters cannot be brushed under carpet at whim of a person--No doubt Courts act as gatekeepers but not to extent so as to superimpose their will for that of voters whose mandate is entitled to respect in a representative democracy--Petition was dismissed.

[Pp. 549 & 550] A, B & C

M/s. Saghir Ahmad and Jamshed Hayat, Advocates for Petitioners.

M/s. Rana Muhammad Asif Saeed, Tahir Mehmood, Syed Muhammad Ali Gillani and Malik Kashif Rafique Rajwana, Advocates for Respondents.

Date of hearing: 8.3.2017.

Judgment

This is a petition under Article 199(i)(b)(ii) of the Constitution of Islamic Republic of Pakistan, 1973 (“the Constitution”) and requires the Respondent No. 6 Malik Abdul Ghaffar Dogar to show under what authority of law he claims to hold the office of Member of the National Assembly (M.N.A) from N.A 148. The Respondent No. 6 was declared to be elected by a notification issued by the Election Commission of Pakistan on 5.6.2013, which has been attached with this petition as Annexure ‘B’.

1. This order shall also decide connected petition W.P No. 11847 of 2016 which involves identical issues and lays a similar challenge.

2. The Respondent No. 6 filed nomination papers as a candidate for N.A 148 and in the column relating to educational qualification the following was mentioned:

"دینی تعلیم میٹرک"

1. This, according to the learned counsel for the petitioners, runs counter to the educational qualification which has been reflected in the earlier nomination papers, a reference to which shall be made shortly. The second ground of attack in the petition to the qualification of the Respondent No. 6 to hold the public office of M.N.A from N.A 148 is that in the column relating to a declaration whether any criminal cases were pending against the candidate, the Respondent No. 6 failed to mention the fact regarding criminal proceedings in respect of a criminal complaint which was pending against him and in which he had been declared as absconder on 26.10.2011. These are the twin grounds on the basis of which the petitioner has invited this Court to declare that the Respondent No. 6 is disqualified from being elected or chosen as a Member of the Majlis-e-Shoora (the Parliament). The provision of law which has been invoked in aid by the learned counsel for the petitioner is Article 62 (1)(f) of Constitution. The said provision of the Constitution is reproduced as under:

“Article 62(1)(f): he is sagacious, righteous, non-profligate, honest and amen, there being no declaration to the contrary by a Court of law.”

1. As a prefatory, the facts which have been brought forth by the learned counsel for the petitioner in order to lend support to the submissions made with regard to mis-declaration of educational qualification shall be adverted to. The learned counsel for the petitioner makes a reference to Annexure ‘C’ which is a copy of the nomination papers which were filed on 20.07.2005 with regard to the Election for Union Council 72, Shah Rukn-e-Alam Town, Multan. In the column relating to the educational qualification, it has been mentioned that:--

"ایم اے عربی اسلامیات"

1. The documents relating to the respondent’s qualification and the degrees obtained from the institutions have also been attached with this petition and which have not been denied by the learned counsel for the Respondent No. 6. In a nub, the documents mention the Respondent No. 6 to have obtained the degree in Islamic Studies. The entire controversy revolves around a certificate, of equivalence purportedly issued by the Inter Board Committee of Chairmen dated 9.1.2006. The certificate purports to be an equivalence of qualification and according to which the qualification obtained by the Respondent No. 6 is ‘Shahadata Matric in Arabic Language’ from Ittehadul Madaris Al-Arabia Pakistan, Jamia Qasamia D.I Khan in 1997. The equivalence certificate represents the said qualification to be equivalent to Matriculation in Pakistan. This certificate was allegedly issued by Inter Board Committee of Chairman. The Respondent No. 6 was elected as the Chairman of U.C 72, Shah Rukn-e-Alam Town, Multan. The election was called in question and a finding was rendered by the Member Election Commission in the following terms:--

“4. Today the petitioner has submitted the original Sanad on the reverse of which an attestation stamps has been affixed by an administrative Officer of the Inter Board Committee of Chairman. This stamp cannot be treated as an equivalence certificate to treat the respondent as a Matriculate. Therefore, in view of the judgment of the Hon’ble Supreme Court of Pakistan dated 16.8.2005 recorded in CPLA Nos.I569-L, I579-L, I597-L, I600-L, I622-L and I624-L of 2005, it is held that the petitioner was not qualified in terms of the aforesaid provisions to contest the election.

1. Accordingly the seat of Nazim as well as Niab Nazim Union Council No. 72, Doomra Tehsil Saddar Multan District Multan are declared to have fallen vacant. The Election Commission may proceed to hold fresh election on the above two seats in due course.”

2. A review petition was filed by the Respondent No. 6 which too was disposed of as under:--

“3. On the last date of hearing learned counsel for the respondents placed on record a Letter No. IBCC/D.M/2006-1/4692 dated 16.2.2006 stating that the aforesaid equivalence certificate relied upon by the present petitioners was not issued by the IBCC and, therefore, it was fake.

1. No one for the petitioners has turned up to controvert the said letter dated 16.2.2006 issued by Inter Board Committee of Chairman. Accordingly, no case for review of the order dated 12.12.2005 is made out. With this the interim relief allowed on 23.12.2005 shall also stand withdrawn.”

2. It can be seen from the reading of two orders, reproduced above, that in the order dated 12.12.2005 an original Sanad was produced before the Member Election Commission on the reverse side of which was an attestation stamp sought to be affixed by an administrative officer of the IBCC. It was simply held that the stamp could not be treated as an equivalence certificate to hold the respondent as a Matriculate and, therefore, the Member Election Commission held that the petitioner was not qualified in terms of the provisions of law to contest the election and the seat was declared to be vacant.

3. In the review petition filed by the Respondent No. 6, the petition was rejected on the ground that an equivalence certificate had been produced and alleged to be issued by IBCC, which was dated 9.1.2006 whereas the IBCC in its letter dated 16.2.2006 had filed a report with the Member Election Commission to the effect that the certificate relied upon by the Respondent No. 6 was not issued by the IBCC. It was specifically mentioned in Paragraph No. 4 that none of the petitioners had turned up to controvert the said letter dated 16.2.2006 issued by IBCC and, therefore, no case for review of the order dated 12.12.2005 was made out.

4. As explicated from the documents relating to the order passed by the Member Election Commission and the refusal of the said Member to rely upon the certificate produced by the Respondent No. 6 as also the denial by the IBCC with regard to the fact that the certificate had been issued by it and that it was a forged document formulates the nub of the argument of the learned counsel for the petitioner with regard to this ground. Precisely, the learned counsel for the petitioner contends that the Respondent No. 6 ought to be declared as disqualified since he had made a declaration which was contrary to the earlier declaration made in the previous nomination papers as also that he had produced a forged document before the Member Election Commission and thus he was not a Sadiq and Amin within the contemplation of Article 62(I)(f). Firstly, the controversy will have to be seen in its proper perspective. By the mandate of Article 62(I)(f), there has to be a declaration by a Court of law with regard to the fact that a person was not sagacious, righteous, non-profligate, honest or amen in order for a Court to hold that a person was not qualified to be elected or chosen as member of Parliament. The question thus arises as to whether the order passed, by the Member Election Commission on 12.12.2005 and affirmed on 13.10.2006 could be deemed as such a declaration so as to enable this Court in its constitutional jurisdiction to hold that the Respondent No. 6 was not qualified to be elected or chosen as a member of Parliament.

5. The Respondent No. 6 contested the election for U.C 72, Doomra Tehsil Saddar Multan after being de-seated on account of the order passed by the Member Election Commission. The same objection was taken against the Respondent No. 6 and was not considered while permitting the Respondent No. 6 to contest the election which, in fact, he contested and was declared as successful. The Respondent No. 6 once again contested the General Elections of 2013 as a candidate from N.A 148 (which is in issue in the instant petition) and submitted his nomination papers. Once again, a challenge was laid to the candidature of the Respondent No. 6 on precisely the same basis and in appeal the Division Bench of this Court did not consider the order passed by the Election Commission as a disqualification so as to bar the Respondent No. 6 from contesting the elections. It, therefore, follows that on subsequent occasion the Courts have not taken the order passed by the Member Election Commission to be a declaration within the contemplation of Article 62 (I)(f) of the Constitution. This, in my opinion, is for good cause and proceeds on the correct analysis of the facts of the case and the law applicable thereto.

6. At the time when the original order was passed by the Member Election Commission on 12.12.2005, the certificate issued by IBCC was not before the Member Election Commission and no finding was rendered with regard thereto. That certificate is dated 9.1.2006 and was produced at the time of the passing of the order on 13.10.2006 when the review application was dismissed. Suffice to say that the petitioner was not present on that date of hearing and, therefore, could not controvert the letter dated 16.2.2006 issued by the IBCC. He was, therefore, not afforded an opportunity at the relevant time of the passing of the order dated 13.10.2006 and in any case no finding was handed down by the Member Election Commission on whether the certificate produced by the Respondent No. 6 was forged or authentic as also what was the position of that certificate in view of the letter dated 16.2.2006 issued by the IBCC. Therefore, the entire matter remained inconclusive and there was no determination at all that the Respondent No. 6 was not sagacious, righteous or honest. The orders passed by the Election Commission can hardly be considered as a determination by a Court of law within the contemplation of Article 62(I)(f) of the Constitution.

7. This brings us to the real issue which is engaged in these petitions. The Respondent No. 6 claims to have possession of an equivalence certificate issued by the IBCC. The learned counsel for the respondents contends that the said certificate was given to the Respondent No. 6 by the institution from which the Respondent No. 6 claims to have qualified and undertaken his academic studies. He does not represent that the said certification was issued to him directly by the IBCC. Therefore, the real question which begs an answer is whether the Respondent No. 6 can be held liable to be in possession of a certificate purportedly issued by the IBCC if the said certificate was provided to him by the institute of his studies rather than by the office of the IBCC directly. This issue takes the entire matter into the realm of disputed and controversial facts for which evidence needs to be taken down and the said issue can be resolved by awarding an opportunity to the parties to produce their witnesses. Such a course has not been adopted in any Court of law and, therefore, the entire issue remains open to all sorts of speculation. No reliance can, therefore, be placed on this ground of attack in support of disqualification to be rendered on the basis of Article 62 (I)(f) of the Constitution. It follows, therefore, that the Respondent No. 6 may have acted in good faith and may not be held liable for producing a certificate which ultimately turned out to be forged and fabricated. It may be that the said certificate was fabricated by the institution from which it was obtained by the Respondent No. 6 and this possibility cannot be ruled out. It would thus be iniquitous to hold the Respondent No. 6 culpable at this point of time and this is precisely why a declaration has been required by the provisions of Article 62(I)(f) of the Constitution.

8. Notwithstanding the above, a glance at the nomination papers filed by the Respondent No. 6 for the general elections, 2013 would show that the educational qualification has been mentioned by the Respondent No. 6 as religious studies and Matriculation. There is no contradiction in my opinion in the educational qualification mentioned for the general elections 2013 and the earlier one mentioned in the nomination papers for the local Government elections held in 2005. In 2005, the Respondent No. 6 mentioned his educational qualification as M.A Arabic/ Islamiyat. In the nomination papers for general elections 2013 it has simply been mentioned as religious studies as well as Matriculation. It is quite understandable that the Respondent No. 6 mentioned die educational qualification as simply religious studies instead of writing M.A Arabic/ Islamiyat on account of the controversy which came to surround the certificate issued by the IBCC. In my opinion, there is no mis-declaration in this regard and the Respondent No. 6 did not think it right to rely upon that certificate as there was doubt created with regard to its authenticity or otherwise. No contradiction, therefore, has crept in the nomination papers for general elections, 2013 as also there is no contradiction with the nomination papers filed in the year 2005 for local Government elections. Until the matter relating to the certificate was settled, the Respondent No. 6 was quite right in refusing to rely upon it and to mention his educational qualification as M.A Arabic/ Islamiyat. The Respondent No. 6 has also mentioned Matriculation as his qualification and this is on the basis of the certificate issued by the Board of Secondary Education, Karachi dated 24.8.2006 and in respect of examination of Annual, 2006. The genuineness and authenticity of this certification has not been called in question by the petitioner and no exception can be taken to the mention of the educational qualification with regard to this certificate by the Respondent No. 6 in the nomination papers.

9. As regards the other ground taken by the petitioner for seeking a disqualification of the Respondent No. 6, regarding the failure to mention the criminal cases against him in the relevant column of the nomination papers, it has been urged that a criminal complaint had been filed against the Respondent No. 6 in which summons were issued by the judicial magistrate, Multan.Vide order dated 26.10.2011 the Respondent No. 6 was declared as proclaimed offender. The mere fact that the Respondent No. 6 was declared as proclaimed offender is sufficient itself to show that the Respondent No. 6 did not have knowledge regarding the proceedings in the complaint filed against him and thus it was otiose to expect the Respondent No. 6 to mention the said fact in the column relating to criminal cases against a candidate. Thus, nothing turns on this aspect of the matter and no disqualification can be visited upon the Respondent No. 6 on this basis.

10. The learned counsel for the Respondent No. 6 has taken threshold objections regarding the maintainability of these petitions on the ground of laches as also on the basis of Article 225 of the Constitution. It has also been contended that a person who has a personal motive and grudge against the member of the Parliament cannot maintain a petition of the nature which is under adjudication. This rule has been recognized by the Supreme Court of Pakistan as far back as in Aziz-ur-Rehman Ch. v. M. Nasir-ud-Din & others (PLD 1965 SC 236) and reiterated in Dr. Kamal Husain v. Muhammad Sirajul Islam (PLD 1969 SC 42). The good faith element and motive in bringing the petition are important safeguards against vexatious and pernicious petitions which are intended for personal gains rather than as a bona fide attempt at exorcising the constituency or to act as a public spirited whistle blowers. It seems, from the documents produced on record, that the petitioner in W.P No. 8675 of 2014 has a personal score to settle. In an application for seeking bail filed by him with respect to FIR No. 375 of 2013, the petitioner alleged that the Respondent No. 6 had been instrumental in the registration of the criminal case against him. Thus personal bias and animosity cannot be ruled out as the underlying and real course for filing of the instant petition.

11. A petition of this nature has the ultimate aim of deseating an elected representative of a constituency and must be viewed with circumspection by the Courts. From the narration of facts it is evident that the facts regarding his educational qualification were generally known and on its basis his election to a local council had been voided by the Member Election Commission in 2005. Despite that, the voters returned him as their representative in elections held thereafter and the will of the voters cannot be brushed under the carpet at the whim of a person. No doubt the Courts act as gatekeepers but not to the extent so as to superimpose their will for that of the voters whose mandate is entitled to respect in a representative democracy.

12. Under similar facts, the observations in Rana Aftab Ahmad Khan v. Muhammad Ajmal and another (PLD 2010 SC 1066) by the Supreme Court of Pakistan will be relevant. It was held that:

13. We have considered the above and are constrained to hold that the constitutional jurisdiction (reference Article 199) of the High Court in all the cases cannot be invoked as a matter of right, course or routine, rather such jurisdiction has certain circumventions which the Court is required to keep in view while exercising its extraordinary discretionary powers, as the conditions mentioned in Article 199 of the Constitution are obviously meant for the purposes of regulation of the Courts jurisdiction and the availability of “other remedy” is one of such limitations. When the petitioner has no explanation to offer, as to why the “other remedy”, which is a definite one in nature; is time bound and is, specifically designed and prescribed by the legislature keeping into consideration time constraints in the election process, but has not been availed for any good reason, by the petitioner...”

“12. Resultantly, in the circumstances of the case, the High Court had rightly refused to interfere in its constitutional jurisdiction, when an appropriate, efficacious and adequate alternate remedy available to the petitioner has not been availed by him without any justification. The High Court in such like cases is not bound to issue the writ, especially when there was no material on record to eminently and conclusively establish the inherent lack (as shall be explained in succeeding part of this judgment while dilating on another point) of respondent’s qualification so that he could be hit by Article 62(f) of the Constitution. It may be pertinent to mention here that to hold a person lacking honesty, being not, Sagacious, righteous, Ameen and non-profligate, in other words is to declare him a fraud, cheat and dishonest, etc. which shall be a stigma on his face entailing great immense, and innumerable legal and social consequences and repercussions; this to our mind shall not be justified without there being an adjudication made by the Court of competent jurisdiction to hold him carrying such a “vice”. In this connection reference can be made to the judgment of this Court reported as Dr. Mobashir Hassan and others v. Federation of Pakistan and others (PLD SC 265), in which it has been held “if a person involved in corruption and corrupt practices has been finally adjudged to be so, then on the basis of such final judgment his candidature on the touchstone of Art.62(f) of the Constitution could be adjudged to the effect whether he was sagacious, righteous, non-profligate, honest or Ameen”. This means that the declaration, determination and adjudication of a person falling within the mischief of the noted Article by appropriate forum is a pre-requisite. Such determination in appropriate cases can also be possible though the medium of Retuning Officer or the

appeal arising therefrom, but it can hardly be agreed if it should be straight away done in the Writ Jurisdiction when there is a factual controversy involved.”

1. The above observations perhaps were a catalyst in bringing about an amendment in Article 62 of the Constitution in laying down a declaration to the contrary by a Court of law as a precondition.

2. The counsels for both the parties have relied upon a cluster of case law which is not required to be dilated upon in view of the peculiar facts adumbrated.

3. In view of the above, these petitions are without merit and are, therefore, dismissed.

(Y.A.) Petitions dismissed

PLJ 2018 Lahore 552

Present: Ibad-ur-Rehman Lodhi, J.

MUHAMMAD GOHAR QAYYUM--Petitioner

versus

MUHAMMAD USMAN and others--Respondents

C.R. No. 75611 of 2017, decided on 3.10.2017.

Civil Procedure Code, 1908 (V of 1908)--

----O.VII R. 11--Suit for permanent injunction--Rejected--Appeal--Dismissed--Unauthorised possession production of forged document--Initiation of criminal proceedings--Challenge to--Trial court has further proceeded to order for initiation of criminal proceedings against plaintiff/present petitioner particularly for production of forged document treating same as genuine one--When confronted, learned counsel for petitioner has admitted that in order to get said criminal proceedings quashed, independent proceedings have been initiated by plaintiff--When such criminal proceedings have separately been challenged, same has no relevance with present civil revision petition. [P. 553] A

Civil Procedure Code, 1908 (V of 1908)--

----O.VII R. 11--Rejection of plaint--Courts below have rightly rejected plaint by invoking provisions of Order VII Rule 11 C.P.C. and in doing so, both courts have committed no illegality or irregularity warranting interference by this Court in its revisional jurisdiction--Petition dismissed. [P. 553] B

Mr. Amir Shahzad Anjum, Advocate for Petitioner.

Date of hearing: 3.10.2017.

Order

The plaint of the suit for permanent injunction filed by the present petitioner was rejected by the learned trial Court on 20.02.2017 under the provisions of Order VII Rule 11 C.P.C.

Feeling aggrieved, the petitioner preferred an appeal, which was also dismissed by the learned Additional District Judge, Samundri vide impugned judgment and decree dated 29.04.2017.

1. Admittedly, the property for which injunction was sought by the plaintiff was State land and possession over the said property was unauthorized. In support of claim of the plaint, a Jamabandi, was produced before the Court, which on suspicion, was referred to Revenue Authorities and a report was received to the effect that it was a forged document.

Learned counsel for the petitioner after admission to the effect that it was a State land has submitted that the injunction was sought on the strength of longstanding possession over the property by the predecessor-in-interest of the petitioner.

The concept of adverse possession is no more recognized under the law.

A further grievance has been raised by the petitioner to the effect that in addition to rejection of plaint, the learned trial Court has further proceeded to order for initiation of criminal proceedings against the plaintiff/present petitioner particularly for production of forged document treating the same as genuine one. When confronted, learned counsel for the petitioner has admitted that in order to get the said criminal proceedings quashed, independent proceedings have been initiated by the plaintiff. When such criminal proceedings have separately been challenged, the same has no relevance with the present civil revision petition.

1. The courts below have rightly rejected the plaint by invoking provisions of Order VII Rule 11 C.P.C. and in doing so, both the courts have committed no illegality or irregularity warranting interference by this Court in its revisional jurisdiction.

2. Resultantly, having no substance, this petition is dismissed.

(M.M.R.) Petition dismissed

PLJ 2018 Lahore 554 (DB)

Present: Mamoon Rashid Sheikh and Abdul Rahman Aurangzeb, JJ.

ZARAI TARAQIAT BANK LTD.--Appellant

versus

FAIZ BAKHSH--Respondent

R.F.A. No. 49 of 2015, decided on 10.10.2017.

Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--

----Ss. 22, 24(2)(9) & 10(1)--Limitation Act, 1908 (IX of 1908), S. 3--Finance facilities--Property mortgaged--Suit for recovery of--Outstanding amounts--Ex-parte proceedings--Limitation--No application for condonation of delay--dismissed--challenge to--It is settled law that where a suit is instituted after expiration of the prescribed period of limitation and exemption from such period of limitation is claimed then the plaint is required to show the ground on which such exemption is sought--It is further settled law that under the provisions of Section 24(2) of the FIO a suit for recovery filed under Section 9 of the FIO may be entertained by the Banking Court after the expiry of period of limitation if the plaintiff is successful in satisfying the Banking Court that it had sufficient cause for not filing the suit within the period of limitation--Banking Court appears to have applied Section 3, ibid., however, at the same time it has failed to take note of the fact that the question of limitation in the appellant’s suits was a mixed question of law and facts--Appeals were accepted. [Pp. 556 & 557] A, B & C

Syed Shahid Hussain, Advocate for Appellant.

Nemo for Respondent.

Date of hearing: 10.10.2017.

Judgment

Mamoon Rashid Sheikh, J.--Through this single judgment we propose to decide the instant appeal (RFA No. 49/2015) and RFAs No. 50/2015, 51/2015 and 53/2015 as common questions of law and facts arise therein.

1. All the appeals have been filed under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the FIO), and are directed against the judgments and decrees passed by the learned Banking Court No. II, Multan, whereby the appellant-bank’s four (4) separate suits, against the respondents, have been dismissed The instant appeal (RFA No. 49/2015) is directed against the judgment and decree, dated 29.09.2014, RFA No. 50/2015 is directed against the judgment and decree, dated 23.10.2014, RFA No. 51/2015 is directed against the judgment and decree, dated 23.10.2014 and RFA No. 53/2015 is directed against the judgment and decree, dated 22.09.2014.

2. The respondents in all the appeals did not enter appearance despite publication of notices. As a consequence, ex parte proceedings were initiated against them on the last date of hearing (02.10.2017). The appeals have been repeatedly called today. All the respondents remain unrepresented. Ex parte arguments of the learned counsel for the appellant have consequently been heard.

3. The facts relevant for the present purposes are to the effect that the respondents in all the appeals are customers of the appellant. The respondents applied for and obtained finance facilities from the appellant. The respondents secured the finance facilities by, inter alia, creating mortgages on their respective properties. All the respondents defaulted in repaying the finance facilities, hence, the appellant filed four (4) separate suits for recovery, of the outstanding amounts, against the respondents. All the respondents failed to enter appearance despite, service of notices through ordinary modes and publication of notices in two national dailies. Consequently, ex parte proceedings were initiated against the respondents. Ex parte arguments were heard. However, the appellant’s suits were dismissed through the impugned judgments and decrees, on the sole ground of limitation. The learned Banking Court held that under the provisions of Article 132 of the First Schedule to the Limitation Act, 1908, the limitation for filing the suits was twelve (12) years. The suits were, however, filed by the appellant beyond the prescribed period of limitation and no application for condonation of delay had been filed in any of the suits.

4. The learned counsel for the appellant submits that the learned Banking Court erred in law in dismissing the appellant’s suits through the impugned judgments and decrees. Submits that the impugned judgments and decrees have been passed against the facts and law of the case. They are based on conjectures and surmises.

5. Further submits that under Section 10(1) of the FIO it was mandatory upon the learned Banking Court to give an opportunity to the appellant to further document the suit.

6. Contends that the point of limitation in all the suits was a mixed question of law and facts which could not have been decided without recording of evidence. The learned Banking Court, however, failed to give an opportunity to the appellant to lead evidence on the question of limitation, therefore, the learned Banking Court erred in law.

7. Lastly refers to Section 24 of the FIO, which reads as under:

“24. Application of the Limitation Act, 1908 (Act IX of 1908).--

(1) Save as otherwise provided in this Ordinance, the provisions of the Limitation Act, 1908 (Act IX of 1908) shall apply to all cases instituted or filed in a Banking Court after the coming into force of this Ordinance.

(2) A suit under Section 9 may be entertained by a Banking Court after the period of limitation prescribed therefore, if the plaintiff satisfies the Banking Court that he had sufficient cause for not filing the suit within such period.”

Contends that under sub-section (2) of Section 24 it was mandatory for the learned Banking Court to have provided an opportunity to the appellant to satisfy the Banking Court that the appellant had sufficient cause for not filing the suits within the period of limitation.

1. We have considered the arguments of the learned counsel for the appellant and have also gone through the impugned judgments and decrees. We have also examined the record of all the appeals. We find that the judgments in all the suits are identical in nature. Indeed, they appear to be cyclostyle copies with the minor variation of party names and the detail of the sanction letter of the finance facility of each respondent and the date of repayment of the finance facility.

2. As observed above, the appellant’s suits were dismissed on the sole ground of limitation. It is settled law that where a suit is instituted after expiration of the prescribed period of limitation and exemption from such period of limitation is claimed then the plaint is required to show the ground on which such exemption is sought. Reference in this regard is made to Order VII, Rule 6, of the CPC.

3. It is further settled law that under the provisions of Section 24(2) of the FIO a suit for recovery filed under Section 9 of the FIO may be entertained by the Banking Court after the expiry of period of limitation if the plaintiff is successful in satisfying the Banking Court that it had sufficient cause for not filing the suit within the period of limitation.

4. In view of the above position of law the point of limitation, therefore, becomes a mixed question of law and facts. Reliance in this regard is placed on the judgment reported as Union Bank Ltd. through Attorney vs. Messrs B.R.R. International Modaraba and 8 others (2009 CLD 1656).

5. It is further settled law that when a suit is instituted then under Section 3 of the Limitation Act, 1908, it is mandatory upon the Court to check if the suit has been filed within the period of limitation, even though the question of limitation has not been set up as a defence. In the instant case, the learned Banking Court appears to have applied Section 3, ibid., however, at the same time it has failed to take note of the fact that the question of limitation in the appellant’s suits was a mixed question of law and facts. Moreover, the provisions of Section 24(2) of the FIO made it incumbent upon the learned Banking Court to require the appellant to satisfy the Banking Court that the appellant had sufficient cause for not filing the suits within the period of limitation. No such opportunity appears to have been provided to the appellant in either of the suite. We, therefore, find that the learned Banking Court has erred in law.

6. Under the circumstances, we accept the appeals and set aside all the impugned judgments and decrees and remand the cases to the learned Banking Court No. II, Multan, for decision afresh. The suits of the appellant shall be deemed to be pending and shall be decided, in accordance with the afore-referred law.

7. The appellant is directed to appear before the learned Banking Court No. II Multan, on 01.11.2017, without further notice. The office is directed to remit the record of the suits to the said Court, forthwith.

8. Order accordingly.

There is no order as to costs.

(M.M.R.) Appeals accepted

PLJ 2018 Lahore 558

Present: Muhammad Sajid Mehmood Sethi, J.

M/s. ZEPHYR MANUFACTURING AND TRADING COMPANY through Managing Director--Petitioner

versus

GHULAM MUHAMMAD and another--Respondents

W.P. No. 1112 of 2017, decided on 22.1.2018.

Workmen Compensation Act, 1923--

----Schedule III--Mining Industry--Constitution of Pakistan, 1973, Art. 199--Workman attrating occupational disease claim of compensation “Pulmonary Kock” Disease not falling in Schedule of Statute Workman contracted a serious lungs namely “Pulmonary Kock”, as per recommendations of medical board was declared unfit for service--Commissioner dismissed Workman’s application compensation--Labour Appellate Tribunal held workman entitled for compensation remanded matter to commissioner for decision afresh--Challenge before High Court--During Employment, workman contracted a serious lungs disease namely “pulmonary kock” and he was declared unfit for service--Workman tendered claim of compensation, but same was declined with plea that said name of specific disease is not included in occupational diseases relating to workmen serving in mining industry--Right to health and medical care to protect one’s health and vigour, while in service or post retirement, is a fundamental right of a worker to make his life meaningful and purposeful with dignity of person--Compelling necessity to work in an industry for bread wining for himself and his dependents should not be at cost of health and vigour of workman--Right to health includes right to live in a clean, hygienic and safe environment--Clean surroundings lead to healthy body and healthy mind--But unfortunately, many employees work in dangerous, risky and unhygienic environment--Every state has an obligation and duty to provide at least minimum condition ensuring human dignity--When workers are engaged in such hazardous and risky jobs, then responsibility and duty on state is double fold--Necessity for constant supervision and to drive to mitigate harmful effects on the workers is of extreme importance--Petition was dismissed. [Pp. 560 & 563] A & B

Mackinnon Mackenzie & Co. Private Ltd. v. Smt. Habiba Eusoof Karbelkar (1967 ACJ 188).

Mr. Imran Zahid Khan, Advocate for Petitioner.

Malik Faiz Rasool Sangha, Advocate for Respondents.

Mr. Sheraz Zaka,Advocate/Amicus Curiae.

Date of hearing: 9.11.2017.

Judgment

Petitioner-company is aggrieved of judgment dated 25.10.2016, passed by learned Chairman, Labour Appellate Tribunal, Lahore (“Labour Appellate Tribunal”), whereby appeal filed by Respondent No. 1 was accepted, judgment dated 09.06.2016, passed by Workmen’s Compensation Commissioner for Mines Sargodha Region, Khushab (“the Commissioner”) was set aside and matter was remanded to determine compensation of Respondent No. 1 in the light of his claim.

1. Brief facts of the case are that Respondent No. 1 filed application seeking compensation before the Commissioner, which was contested by petitioner-company by filing written reply. The Commissioner, after recording oral as well as documentary evidence of the parties, dismissed the application of Respondent No. 1, vide judgment dated 09.06.2016. Feeling aggrieved, Respondent No. 1 assailed said decision in appeal before learned Labour Appellate Tribunal, which was accepted, judgment dated 09.06.2016, passed by the Commissioner was set aside and matter was remanded to him,vide judgment dated 25.10.2016. Hence, this constitutional petition.

2. Learned counsel for petitioner-company submits that no opportunity of hearing was provided to it before passing the impugned judgment. He adds that application of Respondent No. 1 was barred by limitation for more than 03-years. In the end, he submits that impugned decision is not sustainable in the eye of law.

3. On the other hand, learned counsel for Respondent No. 1 defends the impugned judgment and submits that learned counsel for petitioner-company has failed to point out any illegality or legal infirmity in the same, which is liable to be upheld.

4. Learned Amicus Curiae submits that though “pulmonary kock” is not included in Schedule III of the Workmen’s Compensation Act, 1923 (“the Act of 1923”) but a similar lungs occupational disease “silicosis” attracting from any process involving the grinding, cleaning, fitting, casting and crushing of stones is included in the said Schedule. He adds that disease of Respondent No. 1 may be treated at par with “silicosis” and petitioner-company is obliged to make compensation to Respondent No. 1. He further submits that this Court can alternatively direct the Provincial Government to make appropriate legislative measures to include “pulmonary kock” in the said Schedule. He argues that even otherwise, Respondent No. 1 being worker in air-compressed conditions, is entitled to receive compensation. He contends that due to failure in implementing safety regulations and inefficient performance of the stakeholders concerned, inside story of the coal mines is very tragic in our country and directions may be issued by this Court to enforce the provisions of the Act of 1923 in its true perspective.

5. Arguments heard and available record perused.

6. The operative part of impugned judgment is reproduced hereunder:

“8. This Tribunal scanned the record of the file and observed that the appellant had been working in the Mines in compressed air and due to conditions the appellant suffered with Pulmonary Kock’s. This disease fall in Schedule III Part-A of Workmen’s Compensation Act and the respondent employer is liable under Section 3(2) of the Act to pay compensation to the appellant.

1. As discussed above, this appeal succeed and accepted. The impugned order dated 09.06.2016 passed by Workmen’s Compensation Commissioner for Mines Sargodha Region Khushab is set aside and case is remanded back to the learned Commissioner to determine the compensation of appellant in the light of his claim.”

2. Examination of available record shows that Respondent No. 1 had been working in petitioner-company / a mining industry. During employment, Respondent No. 1 contracted a serious lungs disease namely “pulmonary kock” and as per recommendations of the Medical Board, he was declared unfit for service. Whereupon, he tendered claim of compensation as per provisions of the Act of 1923 but the same was declined with the plea that said name of specific disease is not included in the occupational diseases relating to the workmen serving in mining industry.

SCHEDULE III

[SEE SECTION 3]

LIST OF OCCUPATIONAL DISEASES

| | | | --- | --- | | Occupational disease | Employment |

PART A

| | | | --- | --- | | Anthrax | Any employment-- (a) involving the handling of wool, hair, bristles or animal carcasses or parts of such carcasses, including hides, hoofs and horns; or (b) in connection with animals infected with anthrax; or (c) involving the loading, unloading or transport of any merchandise. | | Compressed air illness or its sequelae. | Any process carried on in compressed air. | | Poisoning by lead tetra-ethyl. | Any process involving the use of lead tetra-ethyl. | | Poisoning by nitrous fumes. | Any process involving exposure to nitrous fumes. |

PART B

| | | | --- | --- | | Lead poisoning or its sequelae [excluding poisoning by lead tetra-ethyl]. | Any process involving the use of lead [or any of its preparations or compounds except lead tetra-ethyl]. | | Phosphorous poisoning or its sequelae | Any process involving the use of phosphorus or its preparations or compounds. | | Mercury poisoning or its sequelae. | Any process involving the use of mercury or its preparations or compounds. | | Poisoning by benzene and its homologues, or the sequelae of such poisoning. | Handling benzene or any of its homologues and any process in the manufacture or involving the use benzene or any of its homologues. | | Chrome ulceration or its sequelae. | Any process involving the use of chromic acid or bichromate of ammonium, potassium or sodium, or their preparations. | | Arsenical poisoning or its sequelae. | Any process involving the production, liberation or utilization of arsenic or its compounds. | | Pathological manifestations due to-- (a) radium and other radio-active substances; (b) X-rays. | Any process involving exposure to the action of radium, radio-active substances, or X-rays. | | Primary epitheliomatous cancer of the skin. | Any process involving the handling or use of tar, pitch, bitumen, mineral oil, paraffin, or the compounds, products or residues of these substances. | | Silicosis | Any process involving the grinding, cleaning, fitting, casting and crushing of stones. |

1. Learned Labour Appellate Tribunal observed that Respondent No. 1 had been working in the Mines in compressed air owing to which he suffered with Pulmonary Kock and thus entitled to receive compensation.

2. The above observations of learned Appellate Tribunal are further fortified by some case law from Indian Jurisprudence. In the case of Mackinnon Mackenzie & Co. Private Ltd. v. Smt. Habiba Eusoof Karbelkar (1967 ACJ 188), the deceased was working as an employee on a ship. He complained of chest pain and breathlessness while on voyage. Upon medical check up, it was found that he had heart trouble. He was allowed to be repatriated to his country but while he was on his way back he died on account of coronary thrombosis. The disease was found to be chronic but it was found that it was aggravated by strenuous duty of 12 hours per day and due to strain the employee had died. Therefore, it was held that said cause of strenuous duty of 12 hours per day was found to be strictly attributable to the specific injury suffered.

3. Similarly, in the case of Sharbati Devi and another v. Haryana Roadways, Sirsa Depot (F.A.O. No. 769 of 1989), the Punjab-Haryana High Court has observed as under:

“Besides the statement of AW-1 Sharbati Devi, who has categorically stated that her deceased husband has contracted

disease of TB during the course of employment of 17 years as a driver, Dr. Gulab who appeared as AW-2, stated in the cross-examination that a driver could also suffer from disease of TB because if any passenger in the bus, which is generally over crowded is suffering from that disease, then there are chances of driver also contracting the same due to exertion. No evidence to the contrary has been produced by the respondent by examining any doctor.”

1. Needless to observe here that right to health and medical care to protect one’s health and vigour, while in service or post-retirement, is a fundamental right of a worker to make his life meaningful and purposeful with dignity of person. The compelling necessity to work in an industry for bread-winning for himself and his dependents should not be at the cost of health and vigour of the workman. Right to health includes right to live in a clean, hygienic and safe environment. Clean surroundings lead to healthy body and healthy mind. But, unfortunately, many employees work in dangerous, risky and unhygienic environment. Every State has an obligation and duty to provide at least the minimum condition ensuring human dignity. But when workers are engaged in such hazardous and risky jobs, then the responsibility and duty on the State is double-fold. Necessity for constant supervision and to the drive to mitigate the harmful effects on the workers is of extreme importance.

2. Learned counsel for petitioner has failed to point out any illegality or legal infirmity in the impugned judgment calling interference by this Court in the exercise of constitutional jurisdiction.

3. In view of the above, instant petition, being devoid of any merit, is hereby dismissed with no order as to costs.

(Y.A.) Petition dismissed

PLJ 2018 Lahore 563

Present: Ali Baqar Najafi, J.

Syed ASGHAR ABBAS NAQVI, etc.--Appellants

Versus

Syed QASWAR ABBAS, etc.--Respondents

Election Appeal No. 43 of 2016, decided on 5.12.2017.

Punjab Local Government Act, 2013--

----S. 46--Filing of nomination papers--Declaration of result--Returned candidates--Election petition--Accepted--Order of repolling--Application for re-counting of votes--Accepted--Appointment of local commission--Maintainability--Submission of report by local commission--No objection on report by both parties--Declaration of election void--Challenge to--Findings of Election Tribunal could not be entirely based on report of local commission particularly after framing of issues when case was fixed for evidence--Report of local commission might have added to reasons which may be given by presiding officer to reach his conclusion--It is not denied by parties that none of officials from Election Commission was summoned--It is not case of respondent that appellant have committed certain acts directly with narration of particular facts resulting into maneuving of votes--Appeal was allowed. [P. 568] A

Mr. Muhammad Ramzan Khalid Joiya, Advocate for Appellants.

Syed Muhammad Jaffar Tayyar, Advocate for Respondents.

Date of hearing: 14.11.2017.

Order

This election appeal under Section 46 of the Punjab Local Government Act, 2013 is directed against order dated 07.12.2016 passed by the Election Tribunal, Multan whereby the election petition filed by Respondents No. 1 and 2 was accepted and the election of the appellants was declared void and re-polling was ordered in U.C No. 76, Muzaffarabad, Multan.

1. Brief facts giving rise, to the filing of this appeal are that appellants being in the panel of chairman and Vice-Chairman jointly filed their nomination paper’s for contesting the local bodies elections in U.C. No. 76 Muzaffarabad, Multan. Against the said seats, Respondents No. 1 and 2 also filed their nomination papers. After scrutiny of the nomination papers the elections were conducted and the appellants were declared as returned candidates. However, feeling aggrieved of the results, the said respondents filed an election petition before the Election Tribunal, Multan in which appellants appeared and contested, issues were framed and before recording of evidence Respondents No. 1 and 2 filed an application for re-counting of ballot papers and on 29.06.2016 the said application was accepted and Mr. Muhammad Siddique, ® District & Sessions Judge, was appointed as local commissioner for re-counting of the ballot papers. This order was assailed in W.P. No. 10376 of 2016 by the appellants which was dismissed on 14.07.2016 as non-maintainable, since no constitutional petition lied against an interim order passed by the Election Tribunal. The appellants joined the re-counting proceedings before the local commission who submitted his report on 18.07.2016 before the Election Tribunal. Both the parties did not raise any objection on the report of the local commission as according to the appellants re-counting did not matter much. The grievance is that despite the fact that local commission did not change the factual situation relevant for the results, the Election Tribunal vide impugned order dated 07.12.2016 declared the election of the appellants as void and ordered for re-polling in the constituency, hence this appeal.

2. Learned counsel for the appellants submits that election bags of Polling Station No. 5 (Government Boys Elementary School, Muzaffarabad) went missing yet the re-counting was conducted without probing and fixing the responsibility. Adds that local commission was only authorized to re-count the ballot papers but it proceeded beyond his mandate when he preferred to even check the seals and overall conditions of the polling bags on the basis of which Election Tribunal declared the whole election as void. He also submits that the appellants obtained 2463 votes at the time of election whereas Respondents No. 1 and 2 obtained 2187 votes but the local commission proceeded to re-count the votes in the absence of said polling bags of Polling Station No. 5. He also submits that without recording of evidence the Election Tribunal had wrongly accepted the election petition. He further submits that even by excluding the bags of Polling Station No. 5, the appellants were successful by 195 votes and that while physically carrying of polling bags from one place to another their seals might have been broken, and that the protection of the poling bags was the responsibility of Election Commission’s officials. The appellants in no way played any negative role. Places reliance upon Jam Madad Ali versus Asghar Ali Junejo (2016 SCMR 251) and order dated 10.11.2016 passed in Civil Appeal No. 823 & 974 of 2014 titled “Usman Dar etc. versus Khawaja Muhammad Asif etc.” and prays for the acceptance of the appeal.

3. Conversely, learned counsel for Respondents No. 1 and 2 submits that the impugned order is a balanced order and was rightly passed in the facts on record and that by not raising any objections on the report of the local commission, the appellants have conceded to its findings. Adds that there was no need to record any further evidence after when the report was submitted before the Election Tribunal exposing the illegalities committed for the benefit of the appellants. Places reliance upon Muhammad Tariq Chaudhry versus Khalid Ahmad and 7 others (2007 MLD 1725), Sharjeel Khan and another versus Additional District & Sessions Judge, Kot Addu and 2 others (2006 CLD 1842), Muhammad Naeem Kasi and another versus Abdul Latif and 7 others (2005 SCMR 1699), Sheikh Iftikhar-ud-Din and another versus District Judge, Bahawalpur Exercising Powers Of Election Tribunal For Union Council Of District Lodhran and 8 others (2002 SCMR 1523), Ch. Muhammad Ashraf Warraich and another versus Muhammad Nasir Cheema and others (2016 SCMR 998), Kala Khan and another versus Qadir Bakhsh (1998 CLC 1861), Messrs United Bank Limited versus Bashir Engineering Industries and others (1996 MLD 729), Qaiser Hameed and another versus Ch. Ijaz Ahmed and 8 others (2007 MLD 1210) and Jam Madad Ali versus Asghar Ali Junejo (2016 SCMR 251).

4. Arguments heard. File perused.

5. After hearing the learned counsel for the parties and perusing the available record, it is noted that election petition was filed by the respondents in which the objections were filed by the appellants whereafter the following issues were framed on 27.04.2016 and the case was fixed for evidence on 11.05.2016.

ISSUES.

1. Whether this election petition is not maintainable as the same is based on wrong assumptions. (OPR)

2. Whether the petitioners have not come to.

3. Whether this election petition is not maintainable due to mis-joinder of necessary parties. (OPR)

4. Whether the Respondents No. 1 and 2 obtained the result & success in their favour on the basis of their political influence and due to reason that they got prepared polling scheme as they wished. (OPR)

5. Whether no ballot papers in the election were shown as rejected if so its effect (OPP)

6. Whether the ballot papers which had double stamps and cutting were counted in favour of Respondents No. 1 and 2 unlawfully. (OPP)

7. Whether the result of success of Respondents No. 1 and 2 was outcome of illegal and malpractice. (OPP)

8. Whether the petitioners are winning candidate instead of the Respondents No. 1 and 2. (OPP)

9. Whether the notification of the Election Commission of Pakistan dated 21.12.2015 to the extent of Respondents No. 1 and 2 is liable to be declared void being illegal. (OPP)

10. Relief.

On 19.05.2016 respondent filed an application for re-counting/re-examination which was contested by the appellants through their written reply dated 02.06.2016. On 29.06.2016, said application was allowed on merits after hearing the parties and Mr. Muhammad Siddique, ® District & Session & Judge, was appointed as local commission for re-counting and verification (Jaanch Partaal) of the elections and the report was required to be submitted on 19.07.2016. Consequently, the report was submitted in which no objections were filed. It was total 10 Polling Stations, seals of the bags from 6 Polling Stations were broken whereas the election bags of Polling Station No. 5 (Government Boys Elementary School, Muzaffarabad) was lost and could not be located. It was also observed that prior to the re-counting the votes of the appellants was 276 more than that of the respondents and that even after re-counting the appellants had 195 votes more than that of the respondent.

1. Election Tribunal is fully empowered to nullify any elections on the basis that it was based upon malpractice. The respondent has been raising objections regarding the transparency and malpractices during the said elections. In the application for re-counting the reply was submitted by the appellants contesting the same and after submission of the report of the local commission no objection was raised owing to the fact that appellants still procured more votes than the respondent. The argument of the learned counsel for the appellants that in that situation evidence was required to be recorded and that non-appearance of the local commission and non-summoning of the officer of the Election Commission the responsibility of not protecting the polling bags cannot be fixed is convincing primarily for the reasons that Election Tribunal is fully empowered and therefore in this case is bound to record evidence. The minimum criteria or the essential pre-requisites for satisfying the conscience of the Court or Tribunal for permitting a re-counting was that there should be a specific allegation of tampering, manipulation and manoeuvering in very specific terms alongwith the necessary details and prima facie material supporting such allegations and that it should not be used for roving inquiry to fish out the material for reversing the election. In a reported judgment i.e. Civil Appeals No. 823 & 947 of 2014 titled “Usman Dar etc. versus Khawaja Muhammad Asif etc.” it has been held that once the election material had been delivered to the election authority or an agency designated by it for safe custody of the polling bags after completion of the election process, consolidation and announcement of the result, the requirement of law is presumed to have been fulfilled. Any subsequent events could not have materially affected the result of election so as to form the basis to set aside the election as a whole. Furthermore, without clear and irrefutable evidence connecting the appellants to damage allegedly caused to the record, he cannot be held responsible. Even otherwise, the result after re-counting of the available record the appellants had a lead of 195 votes which could not reverse the result of election.

2. In the present case, I am of the view that findings of the Election Tribunal could not be entirely based on the report of the local commission particularly after framing of issues when the case was fixed for evidence. The report of the local commission might have added to the reason which may be given by the learned Presiding Officer to reach his conclusion. It is not denied by the parties that none of officials from Election commission was summoned. It is not the case of the respondent that appellants have committed certain acts directly with narration of particular facts resulting into manoeuvering of the votes. The precise details of malpractice have also not been mentioned in the election petition therefore, in the facts and circumstances it would be appropriate that while allowing this appeal the case should be remanded to the election Tribunal where the evidence may be recorded to see the effect of missing bags of polling Station No. 5 (Government Boys Elementary School. Muzaffarabad) and also of broken strips of other polling bags and non-filing of objections on the report of the local commission as well as his non-appearance.

3. order accordingly.

(Y.A.) Appeal allowed

PLJ 2018 Lahore 568

Present: Mrs. Ayesha A. Malik, J.

AHSIN ARSHAD etc.--Petitioners

versus

ADVOCATE GENERAL, PUNJAB etc.--Respondents

W.P. No. 30737 of 2012, decided on 3.11.2017.

Mental Health Ordinance, 2001--

----Ss. 29, 30, 33, 36 & 37--Mental disorder--Application for appointment of a manager of property--Declined--Territorial Jurisdiction--Residence of mental disorder person in abroad--Question of--Whether consent of under Section 29 of Ordinance is a substantive function ii. Whether applicant must reside within jurisdiction of Court of protection--Challenge to--Consent sought for under Section 29 of Ordinance is limited to three aspects, first to ensure that mentally disordered person and relatives who seek guardianship/managership reside within jurisdiction of Court of Protection, secondly that there is a mentally disordered person for whose property an application under Section 32 or 33 has been made and finally that relatives of such person have moved application--It is a settled law that language of statute must be given meaning which is consistent with objectives of Ordinance. Ordinance under review was promulgated to protect mentally disordered persons and their property--Under circumstances Court of Protection is required to constantly manage affairs of property and to supervise care of mentally disordered person. This can only be done if mentally disordered person and guardian or manager reside within jurisdiction of Court of Protection--Petition was dismissed. [Pp. 572 & 573] A, B & C

Mr. Muhammad Iqbal Awan, Advocate for Petitioners.

Mr. Anwaar Hussain, Addl. AG. for Respondents.

Date of hearing: 3.11.2017.

Judgment

Through this petition, the Petitioners have impugned letter dated 1.11.2012 issued by Respondent No. 1, Advocate General, Punjab, Lahore whereby permission sought under Section 29 of the Mental Health Ordinance, 2001 (“Ordinance”) was declined.

1. The instant petition is filed through special attorney Muhammad Arshad Parwaiz, who is the father of the Petitioners. The mother of the Petitioners Naghmana Akhtar is statedly suffering from mental disorder and she is unable to take care of herself and her property. Consequently the Petitioners seek appointment of a manager of the property of Naghmana Akhtar under the Ordinance. In this regard, the Petitioners filed an application under Section 29 of the Ordinance before Respondent No. 1 seeking his consent, which application was rejected on the ground that Naghmana Akhtar did not reside within the territorial jurisdiction of the Court of Protection. Learned counsel for the Petitioners argued that the consent required under Section 29 of the Ordinance is a clerical function and the Respondent No. 1 is not allowed to seek the presence of the Petitioners or their mother for the purposes of giving his consent. He argued that in doing so he has usurped the jurisdiction of the Court of Protection. Learned counsel further argued that the Court of Protection as per Section 30 of the Ordinance may decide whether it requires the attendance and examination of any person including the person with mental disorder and this power lies exclusively with the Court of Protection and not the Advocate General’s Office. Learned counsel further argued that the mother of the Petitioners cannot travel, therefore cannot come to Pakistan. Moreover the Petitioners are entitled to take care of her property, hence they seek permission to be appointed as manager of her property under Section 33 of the Ordinance so that they can manage the affairs of the property. Learned counsel concluded that while permanent residence of the Petitioners is in Pakistan, currently they live in New York, hence the impugned order is illegal.

2. On behalf of the Respondents, Mr. Anwaar Hussain, Additional AG argued that the “consent” required under Section 29 of the Ordinance is not a clerical or post office function. It is a substantive function, in order to ensure that the objectives of the Ordinance are achieved. He argued that a mentally disordered person who does not reside within the jurisdiction of the Court of Protection cannot be given consent under Section 29 of the Ordinance. He further argued that the “consent” under Section 29 of the Ordinance is meaningful consent whereby the office of Respondent No. 1 is to ensure that prima facie there is a mentally disordered person, who resides within the jurisdiction of the Court of Protection. Further that the applicant seeking to be appointed manager under Section 33 of the Ordinance is a relative who also resides within the jurisdiction of the Court of Protection. He explained that since neither of the parties have presented themselves before the Respondent No. 1 nor do they reside within the jurisdiction of the Court of Protection, the application of the Petitioners was turned down.

3. Heard and record perused.

4. The issue before the Court is the role of the Advocate General’s Office under Section 29 of the Ordinance. The stated Section reads as follows:

Whenever any person is possessed of property and is alleged to be mentally disordered, the Court of Protection, within whose jurisdiction such person is residing may, upon application by any of his relatives, having obtained consent in writing of the Advocate General of the Province concerned, by order direct an inquiry for the purpose of ascertaining whether such person is mentally disordered and incapable of managing himself, his property and his affairs.

In terms of this Section if a person applies to be appointed as manager under Section 33 of the Ordinance, an application must be made before the Advocate General’s Office seeking his consent to file the application before the Court of Protection. If a person is alleged to be mentally disordered, the Advocate General’s Office must satisfy itself that there is a mentally disordered person, residing within the jurisdiction of the Court of Protection for whose property, a manager is sought to be appointed under Section 33 of the Ordinance. As per the Section, it is only upon receipt of this “consent” that the application can be placed before the Court of Protection. The question that arises in this case is whether consent under Section 29 of the Ordinance is a substantive function and whether the applicant must reside within the jurisdiction of the Court of Protection.

1. The preamble of the Ordinance provides that it is an Ordinance relating to mentally disordered persons with respect to their care and treatment and the management of their property. Chapter vs. of the Ordinance deals with judicial proceedings for appointment of guardian of person and manager of the property of the mentally disordered by the Court of Protection. The proceedings are regulated by Sections 30 and 31 of the Ordinance, in terms whereof the Court may require the alleged mentally disordered person to attend the proceedings in order to check the mental capacity and condition of that person. The Court can also call for personal examination of such person and inquire in the matter in order to ascertain whether that person is capable of managing his or her affairs or whether a guardian is required under Section 32 of the Ordinance. In order to achieve this purpose the presence of the mentally disordered person is necessary. The office of the Advocate General’s Office, at the time of issuance of his consent, ensures that the mentally disordered person as well as the relatives who have applied for guardianship or managership are available to present themselves before the Court of Protection. The legislature in its wisdom created a first level of inquiry through the Advocate General’s Office to ensure on the genuineness of the application as well as the fact that prima facie there is a case to be placed before the Court of Protection. This heightened protection is given to protect a person who cannot coherently protect his or her rights or property. It is, therefore, a substantive function carried out by the Advocate General of the Province to protect the person alleged to be mentally disordered and to protect his or her property. If this function is considered to be a ministerial function, the mandate of the law, which essentially is to protect mentally disordered persons and their property would be defeated.

2. Furthermore the consent sought under Section 29 of the Ordinance means that the Advocate General’s Office has to agree that the pre-requisites of Section 29 are satisfied. The word “consent” means to agree to do something, hence the Advocate General’s Office has to agree that the application under Section 29 of the Ordinance may be filed. The requirement of giving his consent therefore cannot be considered mechanical as it requires some degree of probe and reasoning before acceptance of the request for filing the application. In this regard, the consent sought for under Section 29 of the Ordinance is limited to three aspects, first to ensure that the mentally disordered person and the relatives who seek guardianship/ managership reside within the jurisdiction of the Court of Protection, secondly that there is a mentally disordered person for whose property an application under Section 32 or 33 has been made and finally that the relatives of such person have moved the application. The Advocate General’s Office has to satisfy himself on all elements before he can agree to the filing of such an application. This means that he has to in the first instance ensure that the mentally disordered person and the applicant reside within the jurisdiction of the Court of Protection.

3. It is a settled law that the language of statute must be given meaning which is consistent with the objectives of the Ordinance. The Ordinance under review was promulgated to protect mentally disordered persons and their property. The purpose of the consent given by the Advocate General’s Office therefore is a meaningful function which is clear from a bare reading of Section 29 of the Ordinance and which is in furtherance of the protection given under the Ordinance. The Court of Protection has to administer the property of a mentally disordered person which requires constant monitoring and supervision. Section 36 of the Ordinance requires the manager to seek permission of the Court with reference to the property of the mentally disordered person. Section 37 of the Ordinance requires the manager to furnish an inventory of all immovable property, all assets and other moveable property to the Court of Protection. It also provides that all transactions with reference to the property of the mentally disordered person shall be through an authorized bank approved by the Court. The Court of Protection fixes all fees and expenses to be paid, releases payment for treatment of the mentally disordered person and supervises the investment of his or her assets. Under the circumstances the Court of Protection is required to constantly manage the affairs of the property and to supervise the care of the mentally disordered person. This can only be done if the

mentally disordered person and the guardian or manager reside within the jurisdiction of the Court of Protection. Therefore the consent required by the Advocate General’s Office ensures that the guardian or manager and the mentally disordered person are residing within the jurisdiction of the Court of Protection so that both can be regularly supervised and monitored. In this case, since neither the mentally disordered person nor the proposed manager reside within the jurisdiction of the Court of Protection, the application was rightly dismissed.

1. In view of the aforesaid, no case for interference is made out. The instant petition is dismissed.

(Y.A.) Petition dismissed

PLJ 2018 Lahore 573

Present: Atir Mahmood, J.

FARKHANDA BIBI etc.--Petitioners

versus

MUHAMMAD MUNIR etc.--Respondents

Civil Revision No. 3123 of 2015, heard on 23.10.2017.

Specific Relief Act, 1877 (I of 1877)--

----S. 42--Civil Procedure Code, 1908 (V of 1908)--Suit for declaration--Dismissed--Appeal dismissed--Question of--Whether sale transaction by predecessor of parties in favour of his son was a benami transaction--Consent findings--Revisional Jurisdiction--It is evident from registered sale-deed that at time of sale-deed, Raheem Bakhsh had been retired from service of Station Master--It appears that Raheem Bakhsh, after his retirement from service, purchased suit property with amount of his pension/gratuity--When Raheem Bakhsh was purchasing property from his own declared funds/money, there was no need to hide purchase from any one or purchase same in name of his minor son as a benami transaction--Even if it is presumed that property was being purchased through some black money, then, transaction would not have been in name of immediate legal heir of Raheem Bakhsh rather in name of some other relative or friend--Being father of Defendant No. 1, it was right of Raheem Bakhsh to secure future of his only son which he could not be deprived from by any law of land--There are concurrent findings against petitioners which are immune from interference by this Court in its revisional jurisdiction unless there is some gross illegality floating on their surface--Learned counsel for petitioners has miserably failed to point out any such illegality--No interference is warranted--Civil Revision dismissed.

[Pp. 578 & 579] A & D

Onus to prove--

----Benami Transcation--Onus to prove that impugned transaction was a benami transaction could not be discharged by plaintiffs which leads me to conclusion that disputed transaction was not a benami transaction rather property was knowingly and deliberately purchased by predecessor of parties in favour of his only minor son due to love and affection. [P. 579] B

Barred by Time--

----Question of--Whether suit was barred by time--Suit property was undisputedly purchased by predecessor of parties namely Raheem Bakhsh in 1940 in name of Defendant No. 1. Raheem Bakhsh remained alive till 1967, according to version taken in plaint by plaintiffs themselves, but Raheem Bakhsh in his lifetime neither made any effort to get suit property in his name nor challenged same before any appropriate forum--Furthermore, plaintiffs have admitted in plaint that Defendant No. 1 alienated some land through mutation of gift No. 239 attested on 12.03.1973 in favour of her real sisters namely Mst. Jameel and Mst. Surriyya Jabeen and at that time, he promised that each and every legal heirs will get his/her share from property of Raheem Bakhsh--Meaning thereby, they, at least in 1973, were aware that suit property was in name of Defendant No. 1--Mother of plaintiffs in whose shoe plaintiffs has stepped into was alive at that time and remained alive till 2000 but she never challenged disputed transaction in her life time--Even, plaintiffs have challenged disputed transaction after eight years of death of their mother, therefore, suit, in my considered opinion, was badly barred by time and was liable to be dismissed on this score alone. [P. 579] C

Mr. Ahmad Waheed Khan, Mr. Ali Masood Hayat, & Mr. Muslim Abbas,Advocates for Petitioners.

Mr. Naveed Shahryar Sheikh, Ms. Humaira Bashir Chaudhury, Mr. Talat Farooq Sheikh & Ms. Ayesha Jabeen, Advocates for Respondents.

Date of hearing: 23.10.2017

Judgment

Brief facts of the case are that on 28.11.2008, the petitioners-plaintiffs filed a suit for declaration with permanent injunction with the averments that the predecessor of the parties namely Raheem Bukhsh was employee in Railway Department as a Station Master; that he purchased land measuring 542 kanals 3 marlas as Benami in the name of his minor/infant son Muhammad Munir vide Sale-Deed No. 594 registered on 08.04.1940 and the fact about the minority of said Muhammad Munir is evident from the contents of the above said sale-deed; that accordingly, on 29.06.1942, mutation of sale Bearing No. 69 was sanctioned in result of above said sale-deed in the name of Muhammad Munir; that the suit property remained in the sole possession of the predecessor of the parties till 1954; that throughout this period, Muhammad Munir was just a benamidar; that motive for getting the sale-deed registered in the name of Defendant No. 1 i.e. minor son was Government service of Raheem Bukhsh; that Raheem Bukhsh was owner of agricultural as well as residential land measuring about 200 kanals in Chak Kacha Paka Tehsil Patoki District Kasoor and he purchased agricultural as well as residential land measuring about 184 kanals in Village Aaggian Wasoo Tehsil and District Lahore and sale-deed was got registered as Benami in the name of his relative namely Hassan Din; that regarding the said land, a case was filed by Muhammad Munir to get declared the sale-deed as Benami which was afterward compromised by Muhammad Munir after receiving money; that Raheem Bukhsh in his life time again sold property to his son Muhammad Munir in the presence of close relatives/family members; that the real mother of the plaintiffs and daughter of Raheem Bakhsh namely Zuhra Begum alongwith legal heirs were entitled to their legal share in all the property owned by the said Raheem Bukhsh in all the three villages i.e. Chak No. 39/UCC Tehsil Ferozewala District Sheikhupura, Saggian Wasoo and Chak No. 43 Kacha Paka Tehsil Patoki District Lahore; that the suit property situated in Chak No. 39/UCC Tehsil Ferozewala District Sheikhupura was only purchased in the name of Defendant No. 1 Muhammad Munir as Benami as at that time he was minor having no source/purchasing power and total consideration amount was paid by Raheem Bukhsh; that in 1949, the real mother of Defendants No. 1, 2 & 4 died and afterwards, the maternal grand parents of Defendants No. 1, 2 and 4 took them away from the custody of their real father Raheem Bukhsh because all of them were infants/children; that in 1954, maternal grandfather namely Muhammad Hussain of Defendant No. 1 pretending himself as guardian and putting undue influence on Defendant No. 1 and with mala fide intention got mortgaged the suit property in favour of his own son namely Muhammad Akhtar; that afterwards in 1960, the predecessor of the parties namely Raheem Bukhsh in result of an accident lost his eye sight; that during the above-mentioned period Raheem Buksh tried to receive his children back and to redeem the suit property from Muhammad Akhtar which was later on redeemed in 1973; that Defendant No. 1 after attaining the age of maturity continuously kept the property under encumbrances illegally with malafide intention inspite of having no exclusive title of the suit property and he was just as a trustee; that after the death of Raheem Bukhsh in 1967 Benamidar Muhammad Munir being just as a trustee of the suit property did not deliver the proper share of said property to the legal heirs of Raheem Bukshh; that Defendant No. 1 with the connivance of revenue employees by misrepresentation and concealment of facts deprived Defendants No. 2, 4 and mother of plaintiffs from their legal share in the suit property; that later on Muhammad Munir Defendant No. 1 vide oral mutation of hiba No. 239 attested on 12.03.1973 alienated the land measuring 141 kanals 4 marlas in the name of Defendant No. 4 Suraya Jabeen (deceased) Defendant No. 2 Jameela Begum in lieu of satisfying their shares in the property situated in village Saggian Wasoo and Chak No. 43 Kacha Paka Teshil and District Lahore and Defendant No. 1 promised Defendant No. 4 that he is bound to transfer the legal share to all legal heirs of Raheem Bukhsh in the property situated in Chak No. 39/UCC, Tehsil Ferozewala, District Sheikhupura and that will be transferred in their names accordingly; that since mother of plaintiffs namely Zuhra Begum was step sister of Defendant No. 1, she was totally deprived from her 1/5th legal share in the whole property, specifically in the suit property situated in Chak No. 39/UCC, Tehsil Ferozewala District Sheikhupura; that Defendant No. 1 neither disclosed the suit property as well as the other property situated in other revenue estates nor the transactions in respect of the above mentioned property were disclosed to Zuhra Begum, mother of the plaintiffs till her death with malafide intention; that 8 months ago, the plaintiffs came to know that Defendant No. 1, Muhammad Munir with the connivance of Defendant No. 2, Jameela Begum had secretly alienated the land measuring 217 kanals 15 marlas, fully described in para 7 of the plaint, in order to deprive the plaintiffs and other legal heirs from their lawful rights; that the plaintiffs are owners of 1/5th share in the property illegally and fictitiously owned by Defendants No. 1 to 3 situated in Chak No. 39/UCC, Tehsil Ferozewala District Sheikhupura; that sale-deed No. 594 dated 08.04.1940 and in result of that, Mutation No. 69 attested on 29.06.1940 in the name of Defendant No. 1 is a benami transaction and the above-said sale-deed mutation and afterwards entries in the revenue record to the extent of suit property are illegal and fictitious; that all the entries in the revenue record regarding ownership of Defendants No. 1 to 3 are illegal, based on malafide and fraud as such, these are inoperative upon the rights of the plaintiffs and liable to cancellation and the plaintiffs are entitled to land/property according to their legal share; that Defendants No. 1 to 3 have flatly refused to admit the claim of the plaintiffs and are bent upon to alienate the suit property, therefore, they be restrained to do so.

1. Summons were issued. Defendant No. 2 was proceeded against ex parte whereas Defendants No. 1 & 3 contested the suit by filing written statement. Out of divergent pleadings of the parties, issues were framed. Evidence led by the parties was recorded whereafter learned trial Court proceeded to dismiss the suit vide judgment and decree dated 16.04.2013. The petitioners-plaintiffs feeling dissatisfied preferred appeal which was also dismissed by learned lower appellate Courtvide judgment and decree dated 03.09.2015. Hence this civil revision has been filed by the petitioners-plaintiffs.

2. Learned counsel for the petitioners inter alia contends that the judgments and decrees of learned Courts below are against law and fact; that the learned Courts below have failed to apply their judicious mind; that the evidence of the parties has not been appreciated in its true perspective; that the plaintiffs being legal heirs of predecessor of the parties namely Raheem Bukhsh are entitled to their legal share in the property left by him; that the defendants have committed fraud and got transferred the property in their names in connivance of the revenue officials, therefore, the revenue entries showing ownership of the defendants over the suit property be struck down; that the instant civil revision be allowed, the impugned judgments and decrees be set aside and the suit of the petitioners-plaintiffs be decreed as prayed for. He has relied upon the law laid down in cases titled Mst. Farida Malid and others v. Dr. Khalida Malik and others (1998 SCMR 816) and Mst. Asia Bibi v. Dr. Asif Ali Khan and others (PLD 2011 SC 829).

3. On the other hand, learned counsel for the respondents has vehemently opposed this civil revision and fully supported the impugned judgments and decrees. He has placed reliance on the dictums laid down in cases titled Ghulam Murtaza v. Mst. Asia Bibi and other (PLD 2010 SC 569), Muhammad Nawaz Minhas and others v. Mst. Surriya Sabir Minhas and others (2009 SCMR 124), Muhammad Sher and another v. Muhammad Sher and others (1986 SCMR 1592) and Chuttal Khan Chachar v. Mst. Shahida Rani and another (2009 CLC 324 Karachi).

4. Arguments of learned counsel for the parties have been heard and record also perused.

5. The debatable points in this case are (i) as to whether the sale transaction by predecessor of the parties namely Raheem Bakhsh in favour of Defendant No. 1 Muhammad Munir was a benami transaction and (ii) as to whether the suit was barred by time.

6. There are certain ingredients of benami transaction including motive, consideration, possession of the property and possession of the original title document.

7. The benami transaction was alleged by the plaintiffs and the onus to prove the same was also put upon them. Admittedly, the suit property was purchased by Raheem Bakhsh vide registered sale-deed No. 594 dated 08.04.1940 in the name of his minor son-Defendant No. 1 Muhammad Munir. The motive as set up by the plaintiffs in the plaint is that their predecessor was a Government servant employed as Station Master in Pakistan Railways, therefore, he, in order to save himself from certain prospective inquiries, avoided to purchase the suit property in his name and preferred to purchase the suit property in the name of his minor son Muhammad Munir. It is evident from the registered sale-deed that at the time of the sale-deed, Raheem Bakhsh had been retired from the service of Station Master. It appears that Raheem Bakhsh, after his retirement from service, purchased the suit property with the amount of his pension/gratuity. When Raheem Bakhsh was purchasing the property from his own declared funds/money, there was no need to hide the purchase from any one or purchase the same in the name of his minor son as a benami transaction. Even if it is presumed that the property was being purchased through some black money, then, the transaction would not have been in the name of immediate legal heir of Raheem Bakhsh rather in the name of some other relative or friend. Being father of Defendant No. 1, it was right of Raheem Bakhsh to secure future of his only son which he could not be deprived from by any law of the land. Undeniably, Defendant No. 1, at the time of the sale-deed, was a child having no source of income and the consideration amount was undoubtedly paid by predecessor of the parties. But mere infancy or childhood of Defendant No. 1 does not make the sale transaction in his favour a benami transaction. The Hon’ble Supreme Court in case reported as Ghulam Murtaza Versus Mst. Asia Bibi and others (PLD 2010 SC 569) has gone one step ahead to hold that once a sale transaction is made by father in favour of his minor child, he himself has no right to challenge the same. So far as possession of the suit property is concerned, it is candidly admitted by the plaintiffs that the same, after death of Raheem Bakhsh, has always been remained with Defendant No. 1. No party has brought on record the original title documents of the suit property on record, rather certified copies of the same after obtaining from the revenue department have been put on file. In the circumstances, the onus to prove that the impugned transaction was a benami transaction could not be discharged by the plaintiffs which leads me to the conclusion that the disputed transaction was not a benami transaction rather the property was knowingly and deliberately purchased by predecessor of the parties in favour of his only minor son due to love and affection.

8. The other debatable point in this case is as to whether the suit was barred by time. The suit property was undisputedly purchased by predecessor of the parties namely Raheem Bakhsh in 1940 in the name of Defendant No. 1. Raheem Bakhsh remained alive till 1967, according to version taken in the plaint by the plaintiffs themselves, but Raheem Bakhsh in his lifetime neither made any effort to get the suit property in his name nor challenged the same before any appropriate forum. Furthermore, the plaintiffs have admitted in the plaint that Defendant No. 1 alienated some land through mutation of gift No. 239 attested on 12.03.1973 in favour of her real sisters namely Mst. Jameel and Mst. Surriyya Jabeen and at that time, he promised that each and every legal heirs will get his/her share from the property of Raheem Bakhsh. Meaning thereby, they, at least in 1973, were aware that the suit property was in the name of Defendant No. 1. The mother of the plaintiffs in whose shoe the plaintiffs has stepped into was alive at that time and remained alive till 2000 but she never challenged the disputed transaction in her life time. Even, the plaintiffs have challenged the disputed transaction after eight years of death of their mother, therefore, the suit, in my considered opinion, was badly barred by time and was liable to be dismissed on this score alone.

9. There are concurrent findings against the petitioners which are immune from interference by this Court in its revisional jurisdiction unless there is some gross illegality floating on their surface. Learned counsel for the petitioners has miserably failed to point out any such illegality. No interference is warranted.

10. For what has been discussed above, this civil revision is bereft of any force which is accordingly dismissed.

(M.M.R.) C.R. dismissed.

PLJ 2018 Lahore 580 (FB)

Present: Amin-ud-Din Khan, Shams Mehmood Mirza and Muzamil Akhtar Shabir, JJ.

M/s. QADOOS BROTHERS POULTRY FARMS--Petitioner

versus

JUDGE BANKING COURT NO.1 GUJRANWALA etc.--Respondents

W.P. No. 155 of 2015, heard on 17.5.2017.

Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--

----S. 22(1)--Final Order--Suit for recovery--Dismissing of due to non-prosecution--Question of--Whether order dismissal of suit for non-prosecution amounts to final order--Determination--Expression “final order” has neither been defined in Ordinance nor in CPC and has been a source of considerable controversy. [P. 585] A

Interlocutory--

----Scope--Where an order decides only a particular aspect or issue involved in a case or some intervening matter, it shall be termed as interlocutory order. [P. 585] B

Final Order--

----Scope of--True import and scope of term “final order” was not explored by Courts and no effort was made to deal with true character of an order dismissing of suit for non- prosecution.

[P. 591] C

Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--

----S. 21--Dismissal of suit for non-prosecution--Remedy of appeal--Validity--Now Section 27 of Ordinance by its terms simply debars Court or any other authority from altering or reviewing any proceeding, judgment, decree, sentence or order of a Banking Court except for correction of clerical and arithmetical mistakes in orders.

[P. 591] D

Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--

----Ss. 2, 7(2), 22 & 27--Civil Procedure Code, (V of 1908), O.IX R. 9--Suit for recovery--Dismissed for non prosecution--Challenging of order--Jurisdiction--CPC has granted power to Courts to dismiss for non-prosecution any suit in which plaintiff does not appear and has also provided a remedy to delinquent plaintiff to approach Court for recall of said order in case he was prevented by sufficient cause from appearing on appointed date--Such an order and remedy provided in CPC relate purely to procedure and do not entail any adjudication by Court of rights of parties--In this view of matter, it cannot be said that order dismissing suit for non-prosecution comes within definition of “final order” as contemplated by Section 22 of Ordinance. bar contained in Section 27 read with Section 22 of Ordinance, therefore, cannot have any application for excluding powers that inheres in banking Court to make use of provision of Order IX Rule 9 CPC for recalling of an order dismissing suit for non-prosecution. [P. 592] E

Civil Procedure Code, 1908 (V of 1908)--

----O.IX, R. 9--Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001), Ss. 2 & 22--Power for dismissing a suit for non-prosecution--Recalled of order--Banking Court by any cannon of construction would also retain power to recall said order by virtue of provisions of contained in CPC for that purpose. [P. 593] F

Muhammad Anwar and another vs. National Bank of Pakistan2013 CLD 2012, ref.

Interlocutory Orders--

----Scope of--Right of appeal--Legislature intended to restrict right to appeal which is otherwise available against interlocutory orders under CPC--It is a generally accepted position of law that filing of interlocutory applications in a suit under Ordinance is barred pending decision of leave application, save in exceptional circumstances. [Pp. 593 & 594] G & H

Interlocutory Orders--

----Right of appeal--Right of appeal is available in circumstances where order/judgment/decree finally determines substantive rights of parties. [P. 594] I

Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--

----Ss. 2 & 27--Civil Procedure Code, (V of 1908), O. IX, R--Suit for recovery--Dismissal for non-prosecution--Restoration of suit--Jurisdiction--An order through which suit or application for leave to defend is dismissed for non-prosecution does not fall in either of two categories of orders--On a proper construction, it is an intermediate order which falls in between two--Banking Court as defined in Ordinance has necessary power and jurisdiction to allow an application to restore suit/application for leave to defend dismissed for non-prosecution on sufficient grounds being shown for non-appearance of counsel/party in terms of Order IX Rule 9 CPC--Petition was accordingly dismissed. [P. 594] J & K

Mr. Tariq Mehmood Bhatti, Advocate for Petitioner.

M/s. Ashar Elahi, and Muhammad Adnan Kazmi, Advocates on behalf of Faysal Bank for Respondents.

Dates of hearing: 3, 9 & 17.5.2017.

Judgment

Shams Mehmood Mirza, J.--This Bench was constituted to render judgment, inter alia, on the question whether the banking Court as defined in Section 2 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the Ordinance) has the jurisdiction to restore a suit which was dismissed for non-prosecution.

This judgment shall also decide the following cases as similar question of law has been raised therein:--

(1) FAO No. 99 of 2017

(2) FAO No. 23693 of 2017

(3) CM No. 68-B of 2017 in COS No. 44 of 2013

1. For facility of reference order dated 14.03.2017 passed by a learned Division Bench of this Court requesting the Hon’ble Chief Justice to form a full bench is reproduced hereunder:

First legal question involved in this case is whether Banking Court has jurisdiction to restore the suit which was dismissed for non-prosecution. Secondly whether restoration of suit by Banking Court will be in exercise of independent power under Order IX Rule 9, CPC or it will amount to review which is specifically barred under Section 27 of the Financial Institutions (Recovery of Finances) Ordinance, 2001.

1. We have noted that there are conflicting views of the learned Division Benches of this Court on these propositions of law. In unreported judgments delivered by this Court in FAO No. 455/2013 titled HBL vs. Youhan Sports etc. followed in FAO No. 06/2017 titled Ghulam Haider vs. Punjab Provincial Cooperative Bank etc., the view is that restoration of suit will amount to review of the order, therefore, such power is not available with the Banking Court. However, in the judgments reported in MCB Bank Limited vs. Messrs Baiga Paints through Proprietor and 3 others (2008 CLD 341), United Bank Limited vs. Messrs Khawaja Radio House through Proprietor and 2 others (2004 CLD 1609) and Standard Chartered Bank (Pakistan) Limited vs. Arshad Ali and another (2014 CLD 191), the view expressed by Division Benches of this Court is that Banking Court can restore the suit which was dismissed for non-prosecution.

2. In view of above conflicting views on the same issue, it is appropriate that in line with law laid down by august Supreme Court, in Multiline Associates vs. Ardeshir Cowasjee and 2 others (PLD 1995 SC 423), matter be referred to Hon’ble Chief Justice for constitution of Full Bench of this Court to set this controversy to rest. The office will do the needful.

3. It is apparent from the aforementioned order that the view expressed by some judgments was that the banking Court had the necessary jurisdiction to restore the suit, dismissed for non-prosecution, in terms of Order X Rule 9 of the Code of Civil Procedure 1908 (CPC) whereas the opinions rendered in FAO No. 455 of 2013 titled HBL v. Youhan Sports etc and FAO No. 6 of 2017 titled Ghulam Haider v. Punjab Provincial Cooperative Bank etc stated that the order for dismissal of a suit for non-prosecution is a final order against which only an appeal under Section 22 of the Ordinance can be filed.

4. Apart from hearing the arguments from the learned counsel for the parties, this Court also appointed Mr. Imran Aziz, Advocate as amicus curiae. Mr. Muhammad Imran Malik, Advocate was also asked to render assistance to the Court on the issue pending determination before this Bench. Both the learned counsels rendered valuable assistance to the Court.

5. Section 7 of the Ordinance stipulates that the banking Court in the exercise of its civil jurisdiction shall have all power available to a civil Court under CPC. By virtue of Section 7(2) of the Ordinance, the banking Court is bound to follow the procedure provided in the Ordinance and where the Ordinance is silent, the procedure provided for in CPC shall prevail.

6. The suits under the Ordinance are instituted in terms of Section 9 of the Ordinance relating to default in fulfillment of any obligation with regard to finance. Under Section 9 (5) of the Ordinance, summons are required to be issued in all the modes prescribed therein. A defendant is required to file his application for leave to defend within a period of 30 days from the date of receipt of summons through any one of the prescribed modes by virtue of Section 10(1) of the Ordinance. In case of default by a defendant in obtaining leave to defend, the allegations of fact contained in the suit are deemed to be admitted and the banking Court is required to pass a decree in favour of the plaintiff on the basis thereof or such other material as the banking Court may require in the interest of justice. It is furthermore provided in Section 10(6) of the Ordinance that if a defendant fails to comply with the requirements prescribed in sub-sections (3), (4) and (5), the application for leave to defend is liable to be dismissed.

7. Section 10(8) of the Ordinance requires the banking Court to grant leave to defend to the defendants if on the consideration of the contents of the plaint and reply thereto and the questions of fact arising therefrom require evidence to be recorded.

8. In regard to the question on which determination is required to be made by this full bench, there are two conflicting views by two different learned Division Benches of this Court as well as the view expressed by the learned Sindh High Court. Judgment reported as Messrs Makran Fisheries (Pvt.) Limited v. Platinum Co. (2006 CLD 52) is rendered by the learned Sindh High Court whereas two different learned Division Benches of this Court rendered judgments in FAO No. 455 of 2013 titled HBL v. Youhan Sports etc and FAO No. 6 of 2017 titled Ghulam Haider v. Punjab Provincial Cooperative Bank etc to hold that an order dismissing a suit for non-prosecution is a final order which cannot be set aside by the banking Court in view of the bar contained in Section 27 of the Ordinance and that the only remedy available to the aggrieved party is to file appeal under Section 22 of the Ordinance. On the other end of the spectrum there are a number of judgments rendered by this Court as well as by the learned Sindh High Court, which shall be adverted to in the later part of this judgment, which hold that an application for restoration of the suit can be filed under the provisions of CPC.

9. The discussion ought to start from Section 22 (1) and Section 27 of the Ordinance, which provisions are at the heart of the controversy. These provisions read as under:

10. Appeal.--(1) Subject to sub-section (2), any person aggrieved by any judgment, decree, sentence, or final order passed by a Banking Court may, within thirty days of such judgment, decree, sentence or final order prefer an appeal to the High Court.

11. Finality of order.--Subject to the provisions of Section 22, no Court or other authority shall revise or review or call, or permit to be called, into question any proceeding, judgment, decree, sentence or order of a Banking Court or the legality or propriety of anything done or intended to be done by the Banking Court in exercise of jurisdiction under this Ordinance:

Provided that the Banking Court may, on its own accord or on application of any party, and with notice to the other party or, as the case may be, to both the parties, correct any clerical or typographical mistake in any judgment, decree, sentence or order passed by it.

1. The pertinent question that requires consideration is whether the order dismissing the suit for non-prosecution amounts to “final order” coming within the scope of Section 22(1) of the Ordinance. The expression “final order” has neither been defined in the Ordinance nor in CPC and has been a source of considerable controversy. The survey of case law from various jurisdictions indicates that a judgment or order is deemed “final” if it completely disposes of the action or proceeding reserving no further questions for future determination or at least terminates a particular stage of the same action. A final order, therefore, will be passed when the Court consciously applies its mind to the merit of the case for deciding the particular issue brought before it. On the other hand, if the order simply decides ancillary and incidental matters leaving substantial proceedings yet to be decided for decision of the case on merits, the order shall be “interlocutory” in character. In other words, where an order decides only a particular aspect or issue involved in a case or some intervening matter, it shall be termed as interlocutory order.

2. Interlocutory orders can be classified to be falling in two categories. They can be passed on applications filed for regulating the procedural aspects of the suit designed as a step towards the final decision. The Court may pass a variety of orders, in a pending case, for summoning of witnesses, discovery, production and inspection of documents, issue of a commission for examination of witnesses, fixing a date of hearing and the admissibility of a document or the relevancy of a question. These orders by their very nature relate to the regulation of procedure and are steps taken by a Court for final adjudication of the case. Interlocutory orders, however, are also passed on applications seeking provisional remedies in incidental proceedings for making the judgment effective if and when it is passed. The instance of such an order was given by Arnold White, C.J., in T.V. Tuljaram Row vs M.K.R.V. Alagappa Chettiar (1912) ILR 35 Mad 1.

I think, too, an order on an independent proceeding which is ancillary to the suit (not instituted as a step towards judgment but with a view to render the judgment effective if obtained) e.g., an order on an application for an interim injunction, or for the appointment of a receiver is a ‘judgment’ within the meaning of the clause.

Some other instances of the interlocutory orders, which are interim in nature, are mentioned in Section 94 of CPC.

1. The famous case of Pakistan Fisheries Limited, Karachi and others v. United Bank Limited PLD 1993 SC 109 was concerned with the availability of the remedy of revision against an order conditionally granting leave to defend passed under the provisions of the Banking Companies (Recovery of Loans) Ordinance, 1979. The proviso to Section 12 of the Ordinance stipulated that “Provided that no appeal shall lie from an interlocutory order which does not dispose of the entire case before the Special Court.” Although the expression “case decided” was in issue in the said judgment and the observations made therein will have to be seen in the light thereof, the following description of interlocutory order given therein is still quite apposite.

For the purposes of the Ordinance, an interlocutory order may be described as the order which is incidental to or a step in aid of the final decision of the suit.

1. The judgments from Indian jurisdiction show that the Courts have developed the following tests for determining whether an order is final or interlocutory (see Jarnail Singh v. State of Rajasthan 1991 (1) WLN 476).

(1) Was the order made upon an application such that a decision in favour of the either party would determine the main dispute?

(2) Was it made upon an application upon which the main dispute could have been decided?

(3) Does the order as made determine the dispute?

(4) If the order in question is reserved would the action have to go on?

1. On this rather ticklish question, the judgments from English jurisdiction fall into two categories. The first approach looks at the order passed to ascertain whether it has conclusively and finally determined the proceedings. In case the proceedings are finally concluded, the order is treated as final and not as interlocutory [see White v. Brunton (1984) QB 570 and Shubrook v. Tufnell (1882) 9 QBD 621]. In the second category, the application which led to the passing of the order is looked at to see if it could have led to an order finally disposing of the matter or on rejection the matter would have continued. In the former case, the order would be final whereas in the latter case it would be interlocutory [see Salaman v. Warner (1891) 1 QB 734]. Be that as it may, the distinction between final and interlocutory orders continues to bedevil the Courts and the legal practitioners alike. Lord Denning in Salter Rex & Company v. Ghosh(1971) 2 QB 597 stated the dilemma facing Courts in the following words.

The question of final or interlocutory is so uncertain that the only thing for practitioners to do is to look up the practice books to see what has been decided on the point. Most orders have now been the subject of decision. If a new case should arise, we must do the best we can with it. There is no other way.

1. Halsbury’s Laws of England (3rd Edition) states the difference between final and interlocutory as under:

... a judgment or order may be final for one purpose and interlocutory for another, or final as to part and interlocutory as to part. The meaning of the two words must therefore be considered separately in relation to the particular purpose for which it is required.

It was furthermore stated therein that:

An order which does not deal with the final rights of the parties, but either (1) is made before judgment, and gives no final decision on the matters in dispute, but is merely on a matter of procedure, or (2) is made after judgment, and merely directs how the declaration of right already given in the final judgment, are to be worked out, is termed “interlocutory”. An interlocutory order, though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals.

1. In Corpus Juris Secundum, the distinction between final judgment and interlocutory judgment is described on the following terms:

A final judgment is one which disposes of the cause both as to the subject-matter and the parties as far as the Court has power to dispose it of, while interlocutory judgment is one which reserves or leaves some further question or direction for future determination.... Generally, however, a final judgment is one which disposes of the cause both as to the subject-matter and the parties as far as the Court has power to dispose of it, while an interlocutory judgment is one which does not so dispose of the cause, but reserves or leaves some further question or direction for future determination.... The term ‘interlocutory judgment’ is, however, a convenient one to indicate the determination of steps or proceedings in a cause preliminary to final judgment, and in such sense the term is in constant and general use even in code states.”

1. In the case of V.C. Shukla v. State through CBI AIR 1980 SC 962, the Indian Supreme Court after relying upon various texts held as under:

We have, therefore, first to determine the natural meaning of the expression ‘interlocutory order.’ To begin with, in order to construe the term ‘interlocutory’, it has to be construed in contradistinction to or in contrast with a final order. We are fortified by a passage appearing in the Supreme Court Practice, 1976 (Vol. I. p. 853) where it is said that an interlocutory order is to be contrasted with a final order, referring to the decision of Salaman v. Warner (1891) 1 QB 734. In other words, the words ‘not a final order’ must necessarily mean an interlocutory order or an intermediate order. That this is so was pointed out by Untwalia J. speaking for the Court in the case of Madhu Limaye v. State of Maharashtra, as follows:

‘Ordinarily and generally the expression ‘interlocutory order’ has been understood and taken to mean as a converse of the term, final orders’.

This view is consistent with the 1903 judgment of Justice Alverstone in Bozson v. Altrincham Urban Council [1903] 1 K.B. 547

It seems to me that the real test for determining this question ought to be this: does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order.

1. Similarly in Godfrey Waterhouse v. Robert John Waterhouse[2013] NZCA 151, the distinction between interlocutory order and final order was given in the following terms:

Third, as a matter of principle, a High Court decision, including one made on an interlocutory application, that constitutes a final disposition of the rights of the parties would not ordinarily be considered to be an interlocutory decision. A decision determining the rights of the parties and bringing a proceeding or claim to an end, in whole or in part, is a final decision in that respect as far as the parties are concerned, whether or not there has been a full hearing on the merits. It is a final judgment of the High Court against which, in the absence of any other restriction, the unsuccessful party would expect to have a general right of appeal to this Court. On the other hand, a High Court interlocutory decision is ordinarily understood to be a decision made in the course of a proceeding leading to or facilitating the hearing of the claim and its ultimate disposition following the hearing. An interlocutory decision would not normally be understood as one that finally determines the rights of the parties and brings the proceeding to an end.

1. The afore-mentioned judgments bring out the following essential features of an interlocutory order:--

(a) The expression interlocutory order refers to all orders passed by the Court in between the initiation of the trial up to its final conclusion relating to intervening procedural matters necessary for the progress of the suit and on collateral issues concerning the main cause.

(b) Interlocutory order does not finally decide the right of the parties or brings the trial to an end but only concerns the determination and adjudication of incidental and ancillary issues. Such an order, however, is conclusive as to the (subordinate) matters which it deals.

(c) Interlocutory orders may also be categorized as those deciding incidental proceedings for making effective the judgment that is ultimately to be passed.

The concept of interlocutory order has to be viewed in contradistinction to a final order. Thus any order which is not final would be an interlocutory order. The incidents, character and nature of interlocutory order as demonstrated by the judgments referred to above provide sufficient guidelines to interpret the scope of final order as used in Section 22 of the Ordinance.

1. Having laid down the contextual framework of the distinction between the final order and interlocutory order, we can proceed to look at the reasons offered by the two Division bench judgments holding that the order for dismissal of the suit for non-prosecution is a final order. In FAO No. 455 of 2013 titled “M/s. Habib Bank Limited v. Youhan Sports etc”, a learned Division bench of this Court was faced with a case in which the appellant bank’s suit was dismissed for non-prosecution and so was the application for its restoration. The appellant bank then filed another application for restoration which was dismissed. The learned Division bench while referring to the definition of “final order” in Blacks law dictionary held as under:

The upshot of the reference made to Section 27, Section 22 and the term “final order” is that once an application filed by the appellant was dismissed. It would not be restored by the Banking Court as it amounted to terminate the action itself and the appellant could have only filed an appeal under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 as after passing of the order of dismissal the learned Single Judge in Chambers was divested of powers in terms of Section 27 of the Financial Institutions (Recovery of Finances) Ordinance, 2001.

It was further held in the said judgment that:

We are of the view that Section 27 of Financial Institutions (Recovery of Finances) Ordinance, 2001 provides for finality of orders passed by the Banking Court and has been made subject to Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 which manifests that the final order of the Banking Court is appealable under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001.

Similarly, in the judgment reported as Messrs Makran Fisheries (Pvt.) Limited v. Platinum Co. 2006 CLD 52, the facts of the case were that the plaintiff filed a suit before the banking Court, which suit was dismissed for non-prosecution. The plaintiff thereafter filed an application under Order IX Rule 9 CPC for recalling of the said order. The learned Judge hearing the matter dismissed the application for restoration by making reference to Sections 22 and 27 of the Ordinance. It was held thus:

In the present case, by order dated 7-12-2004, the Court has finally disposed of the suit as dismissed for non-prosecution. As such after passing such order, the suit is no more pending before the Banking Court. Hence, it is a final order in respect of the parties concerning the suit. Therefore, the same should have been challenged before the Appellate Court and not before this Court.

The perusal of these judgments shows that the true import and scope of the term “final order” was not explored by the Courts and no effort was made to deal with the true character of an order dismissing the suit for non- prosecution.

1. It was held in the afore-mentioned judgments that only the remedy of appeal is available against the order dismissing the suit for non-prosecution and reliance upon Section 27 of the Ordinance was placed in arriving at this conclusion. Now Section 27 of the Ordinance by its terms simply debars the Court or any other authority from altering or reviewing any proceeding, judgment, decree, sentence or order of a Banking Court except for correction of clerical and arithmetical mistakes in the orders. The question, however, remains whether the order dismissing the suit for non-prosecution can be termed as a final order. The jurisprudence developed in our jurisdiction has long made a distinction between a review application and an application seeking recall of an order. In the former case, the right must be conferred by the statute and the Court is required to consider whether there was an error apparent on the face of the record whereas in the latter case the Court does not delve into the merits but recalls the order on the ground that it was passed in the absence of the party affected by it. In Messrs Baghpotee Services (Private) Limited and others v. Messrs Allied Bank of Pakistan Ltd. 2001 CLC 1363, a learned Division bench of Sindh High Court rightly held that:

……….we are of the considered opinion that there is a clear distinction between review of an earlier order and recalling one passed on account of non-appearance of a party. In the former the merits of an earlier order are considered but in the latter only the cause of non-appearance is to be taken into consideration. In the former case the power must be conferred by statute but in the latter it stems from the principles of natural justice required to be read into every law. The former is excluded by Section 27 but the latter continues to remain available.

Similarly, in a judgment rendered by a learned Division bench of this Court reported as Awan Electronics (Pvt.) Limited v. National Bank of Pakistan 2005 CLD 1660, while dealing a similar situation it was observed thus:

We are afraid, this is not a case of review rather for setting aside ex parte decree, and the appellants, on showing “sufficient cause” for their non-appearance, could seek its setting aside. Thus, if the provisions of Section 12 of the Act, were not applicable, the Court should have exercised its powers under Order IX, Rule 13, C.P.C., which by virtue of Section 7(2) of the Act, was duly applicable.

Likewise, a learned Division bench of this Court in Rab Nawaz Shahid and 3 others v. Bank of Khyber etc 2007 CLD 1236 once again refused to accept the argument that the banking Court does not retain the power to restore the suit/application for leave to defend dismissed for non-prosecution. It was held “Learned counsel for Respondent No. 1 has not been able to show as to under what provision of the Banking Ordinance, the Court proceed to pass an order for the dismissal of the PLAs. When asked, he submitted that under inherent jurisdiction. If that being so, obviously the Court has the inherent powers to restore the application also….”

1. The order passed by a Court dismissing the suit for non-prosecution partakes the character of an intermediate order which relates to the procedure and not to the substance of the dispute involved in case. By its very nature, it does not finally dispose of the rights of the parties on merits and it also does not deal with ancillary and incidental matters. CPC has granted power to the Courts to dismiss for non-prosecution any suit in which the plaintiff does not appear and has also provided a remedy to the delinquent plaintiff to approach the Court for recall of the said order in case he was prevented by sufficient cause from appearing on the appointed date. Such an order and the remedy provided in CPC relate purely to the procedure and do not entail any adjudication by the Court of the rights of the parties. In this view of the matter, it cannot be said that the order dismissing the suit for non-prosecution comes within the definition of “final order” as contemplated by Section 22 of the Ordinance. The bar contained in Section 27 read with Section 22 of the Ordinance, therefore, cannot have any application for excluding the powers that inheres in the banking Court to make use of the provision of Order IX Rule 9, CPC for recalling of an order dismissing the suit for non-prosecution.

2. There is another way of looking at the proposition in issue. The source of power for dismissing a suit for non-prosecution admittedly is not located in the Ordinance. The banking Court necessarily has to fall back on the provisions of Order IX, CPC for passing the order for dismissing the suit for non-prosecution. If that is so, the banking Court by any cannon of construction would also retain the power to recall the said order by virtue of the provisions of contained in CPC for that purpose. This was the reasoning on the basis of which scores of judgments passed by the Courts allowed applications seeking recall of orders for dismissal of the suit (see Muhammad Anwar and another v. National Bank of Pakistan (DB) 2013 CLD 2102).

3. The legislature while providing the remedy of appeal against a variety of orders in Section 22 of the Ordinance has nevertheless placed a bar on the availability of appeal in relation to interlocutory orders. This bar is not without purpose. In Messrs Ahmad Autos and another v. Allied Bank of Pakistan Limited PLD 1990 SC 497, while stating the object and purpose behind promulgation of Banking Companies (Recovery of Loans) Ordinance, 1979, it was stated as follows:

It is a matter of common knowledge that defaulter borrowers in suits brought against them particularly by the financial institutions used to delay the disposal of suits by avoiding service of the summons. In order to expedite the disposal of the suits to be brought by the Banking Companies the Ordinance was promulgated, which contains special provisions and which inter alia provide that a suit brought by a Banking Company for the recovery of loan is to be tried in summary manner under Order XXXVII.

These observations clearly show that speedy disposal of the trial of banking cases was one of main objectives for enacting the Ordinance and also the banking laws that were enacted previously. The interpretation of the provision of the Ordinance must necessarily involve elimination of all possible eventualities through which the trial of the suit is delayed. The text of Section 22 and the purpose for which the Ordinance was promulgated clearly show that the legislature intended to restrict the right to appeal which is otherwise available against interlocutory orders under CPC. The object appears to be to secure the expeditious completion of the interlocutory stages of a case

and to curtail delays in its ultimate disposition. It is a generally accepted position of law that filing of interlocutory applications in a suit under the Ordinance is barred pending decision of the leave application, save in exceptional circumstances. In any event, all interlocutory orders generally subsume in the final judgment and are thus appealable (see Section 105, CPC). This is one more reason for circumscribing the right of appeal against interlocutory orders. Conversely, the right of appeal is available in circumstances where the order/judgment/decree finally determines substantive rights of the parties. The term “final order” appearing in Section 22 of the Ordinance should therefore be interpreted in a manner that is consistent with the purpose, context and principle for which the Ordinance was promulgated. An order through which the suit or the application for leave to defend is dismissed for non-prosecution does not fall in either of the two categories of orders. On a proper construction, it is an intermediate order which falls in between the two. By following the rule of harmonious construction, we are of the opinion that the bar contained in Section 27 of the Ordinance is not applicable to such kind of intermediate orders.

1. We, therefore, hold that the banking Court as defined in the Ordinance has the necessary power and jurisdiction to allow an application to restore the suit/application for leave to defend dismissed for non-prosecution on sufficient grounds being shown for non-appearance of the counsel/party in terms of Order IX Rule 9, CPC. This writ petition is accordingly dismissed.

(M.M.R.) Petition dismissed

PLJ 2018 Lahore 594

Present: Shams Mehmood Mirza, J.

GEPCO etc.--Petitioners

versus

PAKISTAN TELEVISION CORPORATION Ltd. etc.--Respondents

W.P. No. 6224 of 2017, decided on 12.2.2018.

Electricity Act, 1910 (IX of 1910)--

----S. 36(3)--Decision of Electric Inspector--Dispute between consumer and licensee--Question of--Competent forum to hear appeal against decision of electric inspector--Determination--Petition was dismissed. [P. 598] A

National Electric and Power Regulatory Authority Act, 1997 (IX of 1997)--

----Scope of--Policy objective and purposes in relation to its promulgation were to create an independent, autonomous regulatory agency for improving efficiency of electric power services and for protecting interests of investor, operator and consumer.

[P. 601] B

Punjab(Establishment and Powers of Office of Inspection) Order, 2005--

----S. 2(iii)--Violation--Definition--Violation means any act or omission contrary to any of distribution companies with respect to metering, billing, collection of tariff and other connected matter. [P. 602] C

National Electric and Power Regulatory Authority Act, 1997 (IX of 1997)--

----S. 38-1(a), 2(1)--Electricity Act, 1910, S. 36--Electric inspector--Billing and Collection of tariff--Dispute between consumer and distributer--Determination--Competent forum to hear appeal against decision of electric inspector--Jurisdiction--Any person appointed under Section 36 of electricity Act, 1910 and conferred with powers of office of inspection under Section 38(1) of NEPRA Act--Section 4 of order of 2005 clinches issue as according said provision, jurisdiction now vests with office of inspection to entertain, hear and decided complaints. [P. 602] D

National Electric and Power Regulatory Authority Act, 1997 (IX of 1997)--

----S. 38(3)--Bill and collection of tariff--Electric Inspector--Dispute between consumer and licensee--Electric inspector--Grant of powers--Appellate forum complaints by aggrieved persons, consumer on licensee concerning disputes with regard to metering, billing, and collection of tariff and other connected matters shall be dealt with by office of inspection in terms of Section 38 of NEPRA Act and not by electric inspector acting under Section 26 of electricity Act, 1910--There should, therefore, remain no doubt that all complaints in regard to disputes of metering, billing, and collection of tariff and other connected matters shall be dealt with by office of inspection in terms of Section 38 of NEPRA Act and not by electric inspector acting under Section 26 of Electricity Act, 1910--There should, therefore, remains no doubt that all complaints in regard to disputes of metering, billing, and collection to tariff and other connected matters are to be filled before and decided upon by office of inspection--Any person aggrieved by an order/decision of provincial office of inspection may within thirty days of receipt of order file an appeal before authority (NEPRA) in prescribed manner. [Pp. 603 & 604] E & F

Limitation Act, 1908 (IX of 1908)--

----S. 14--Punjab (Establishment and Powers of office of inspection Order, 2005--S. 10--NEPRA Act, 1997--S. 38(3)--Constitution of Pakistan, 1973 Art. 199--Order of NEPRA--Condonation--Appeal before advisory Board--Appeal was filed after delay of 71 days--It rightly came to conclusion on strength of Section 10 of Order of 2005, that appeal before advisory board ought to have been filed within a period of 30 days whereas petitioner field said appeal after a delay of 71 days without any explanation petitioner, therefore, failed to make out any case for condonation under Section 14 of Limitation Act, 1908--NEPRA thus rightly rejected appeal filed by petitioner--After promulgation of order of 2005, decision rendered on a complaint field before, electric inspector shall be treated to have been given by provincial office of inspection and that appeal against decision of electric inspector/provincial office of inspection after enactment of sub-section 3 of Section 38 of NEPRA Act shall lie before authority as defined in NEPRA Act--Petition accordingly dismissed. [P. 605] G & H

Mr. Aurangzeb Mirza, Advocate for Petitioner (in WP No. 6224 of 2017).

Mian Muhammad Javed, Advocate for Petitioner (in WP No. 5035 of 2017).

Mian Muhammad Mudassar Bodla, Advocate for Petitioner (in WP No. 31335 of 2012).

Mr. Imran Aziz Khan, Deputy Attorney General for Pakistan.

Mr. Umer Sharif, Advocate for NEPRA.

M/s. Salman Mansoor & Ahmed Qayyum Advocates for Respondents.

Date of hearing: 6.11.2017

Order

This order shall decide the present writ petition as well as Writ Petition No. 5035 of 2017 and Writ Petition No. 31335 of 2012 on account of common question of law involved in all these writ petitions.

1. The critical question requiring determination is the identity of the proper appellate forum competent to hear appeal against the decision of the Electric Inspector.

2. The facts of the present case are that the petitioner challenged order dated 30.04.2012 passed by the Electric Inspector by filing an appeal before the Advisory Board constituted under Section 35 of the Electricity Act, 1910. It is the case of the petitioner that the record of the appeal was misplaced in the Advisory Board. On discovery of the record, the same was returned to the petitioner advising it to file the appeal before National Electric & Power Regulatory Authority (NEPRA) in terms of Section 38(3) of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (NEPRA Act). The appeal filed by the petitioner was dismissed by NEPRA by holding it to be time barred.

3. In Writ Petition No. 5035 of 2017, the Electric Inspector passed his decision on 07.01.2012 against which appeal was filed before the Advisory Board on 02.04.2012. The petitioner was advised through letter dated 26.01.2016 to file its appeal before NEPRA under Section 38(3) of the NEPRA Act as the record of its appeal was not available with Advisory Board.

4. In Writ Petition No. 31335 of 2012, order dated 18.07.2012 passed by the Electric Inspector was challenged before the Advisory Board on 31.07.2012, which by a majority decision dismissed the said appeal and directed the petitioner to file the appeal under Section 38(3) of the NEPRA Act.

5. Learned counsel for the petitioner in Writ Petition No. 6224 of 2017 referred to order dated 02.12.2016 passed by the Appellate Board of NEPRA through which the petitioner’s appeal was dismissed. It was stated that the said appeal was dismissed on the assumption that the petitioner filed its appeal before the Advisory Board beyond the time limit of 30 days. Learned counsel stated that the time frame within which an appeal could be preferred before the Advisory Board is 90 days in terms of Rule 37 of the 1964 Rules. It was thus contended that the Appellate Board of NEPRA fell in error in dismissing the petitioner’s appeal. It was furthermore stated by the counsel that the petitioner by way of abundant caution had also filed an application under Section 14 of the Limitation Act, 1908 along with its appeal before NEPRA, the contents whereof were not taken into account by the Appellate Board of NEPRA. The learned counsels in the other two writ petitions stated that the complaints were filed by the consumers before the Electric Inspector under the provisions of Electricity Act, 1910 and, therefore, the appeal against the decision could only lie before the Advisory Board. It was furthermore submitted that under the NEPRA Act, it is the Provincial Office of Inspection created by the respective Provincial Governments which adjudicates upon the disputes whereas under the Electricity Act, 1910 the Electric Inspector is the authority for adjudication of disputes. It was thus contended that where Electric Inspector exercising powers under Section 26 of Electricity Act, 1910 passes the decision, the same can only be challenged before Advisory Board and not before NEPRA. The learned counsels for the respondents, on the other hand, took the position that after the promulgation of sub-section (3) of Section 38 of NEPRA Act, the appeal against the decision of Electric Inspector could not be filed before the Advisory Board.

6. Arguments heard and record perused.

7. Section 26(6) of the Electricity Act, 1910 deals with the disputes between consumers and a licensee over electricity meters and grants power unto the Electric Inspector to resolve the same. The said provision reads as under:

Where any difference or dispute arises between a licensee and a consumer as to whether any meter, maximum demand indicator or other measuring apparatus is or is not correct the matter shall be decided, upon the application of either party, by an Electric Inspector, within a period of ninety days from the date of receipt of such application, after affording the parties and opportunity of being heard, and where the meter, maximum demand indicator or other measuring apparatus has, in the opinion of an Electric Inspector, ceased to be correct, the Electric Inspector shall estimate the amount of energy supplied to the consumer or the electrical quantity contained in the supply, during such time as the meter, indicator or apparatus has not, in the opinion of the Electric Inspector, been correct; and where the Electric Inspector, fails to decide the matter of difference or dispute within the said period or where either the licensee of the consumer decline to accept the decision of the Electric Inspector, the matter shall be referred to the Provincial Government whose decision shall be final:

Provided that, before either a licensee or a consumer applies to the Electric Inspector under this sub-section, he shall give to the other party not less than seven days’ notice of this intention to do so.

The appeal by any aggrieved person against the decision of the Electric Inspector can be instituted before the Advisory Board under the provisions of Section 36(3) of the Electricity Act.

1. Section 38 of the NEPRA Act also provides a mechanism for determination of disputes between the consumers and the distributors. The said provision reads as under:

2. Provincial offices of inspection.--(1) Each Provincial Government shall--

(a) establish offices of inspection that shall be empowered to--

(i) enforce compliance with distribution companies’ instructions respecting metering, billing, electricity consumption charges and decision of cases of theft of energy; and

(ii) make determination in respect of disputes over metering, billing and collection of tariff and such powers may be conferred on the Electric Inspectors appointed by the Provincial Government under Section 36 of the Electricity Act, 1910 (Act IX of 1910), exercisable, in addition to their duties under the said Act.

(b) Establish procedures whereby distribution companies and consumers may bring violations of the instructions in respect of metering, billing and collection of tariff and other connected matters before the office of inspection; and

(c) Enforce penalties determined, by the Provincial Government for any such violation.

(2) …………………………………………………………………

(3) Any person aggrieved by any decision or order of the Provincial Office of Inspection may, within thirty days of the receipt of the order, prefer an appeal to the Authority in the prescribed manner and the Authority shall decide such appeal within sixty days.

1. The two enactments i.e. Electricity Act, 1910 and NEPRA Act continue to exist side by side providing two different appellate fora to hear appeals against the orders of the Electric Inspector and the Provincial Office of Inspection. Both enactments are special laws. In a similar situation, this Court while rendering judgment in Writ Petition No. 6940 of 2013 titled “S.M. Food Makers and others v. Sui Northern Gas Pipelines etc” held as follows:

It is by now well settled that the general rule to be followed in case of conflict between two statutes is that the later abrogates the earlier one. In Ajay Kumar Banerjee and others v. Union of India and Others AIR 1984 SC 1130, the Indian Supreme Court laid down the following two tests for ascertaining where a prior special law would yield to a later general law.

(i) The two are inconsistent with each other

(ii) There is some express reference in the later to the earlier enactment.

If either of these two conditions is fulfilled, the later law, even though general, would prevail.

From the text and the decisions, four tests are deducible and these are: (i) The legislature has the undoubted right to alter a law already promulgated through subsequent legislation, (ii) A special law may be altered or repealed by a later general law by an express provision, (iii) A later general law will override a prior special law if the two are so repugnant to each other that they cannot co-exist even though no express provision in that behalf is found in the general law, and (iv) It is only in the absence of a provision to the contrary and of a clear inconsistency that a special law will remain wholly unaffected by a later general law.

1. In Ashok Marketing Limited v. Punjab National Bank (1990) 4 SCC 406, the Indian Supreme Court after taking into account a number of judgments on the interpretation of statutes held as follows:

The principle which emerges from these decisions is that in the case of inconsistency between the provisions of two enactments, both of which can be regarded as special in nature, the conflict has to be resolved by reference to the purpose and policy underlying the two enactments and the clear intendment conveyed by the language of the relevant provisions therein.

1. The Electricity Act, 1910 created the basic framework for electric supply industry and envisaged growth of the electricity industry through private licensees. It created the legal framework to lay down the wires and other works relating to the supply of electricity. In line with the policy of deregulating and reforming the power sector, the Government of Pakistan bifurcated the power wing of WAPDA into separate generation, transmission and distribution companies. The details of the deregulation of power sector do not form part of this judgment and are not necessary for determination of the issue involved in these writ petitions. Suffice it to state that electricity is now being distributed to the consumers by various Distribution Companies (DISCOs). Along with these developments, the Federation enacted NEPRA Act, the reading whereof shows that the main responsibilities of NEPRA are to issue licenses for generation, transmission and distribution of electric power; to establish and enforce standards to ensure quality and safety of operation and supply of electric power to consumers; and to determine tariffs for generation, transmission and distribution of electric power. It is furthermore clear from the reading of the NEPRA Act that the policy objective and purposes in relation to its promulgation were to create an independent, autonomous regulatory agency for improving the efficiency of electric power services and for protecting the interests of the investor, the operator and the consumer. DISCOs, which are now charged with the duty to supply electricity to the consumers are directly regulated by and come within the purview of NEPRA Act. NEPRA Act particularly puts in place a dispute resolution regime in regard to the disputes the consumers had with their distributors.

2. Under Section 26(6) of the Electricity Act, 1910, the ambit and scope of dispute is confined only to the electricity meters/other measuring apparatuses while the scope of Section 38 of NEPRA Act is much wider in comparison. Section 38 of the NEPRA Act empowers the Provincial Office of Inspection not only to enforce compliance of the instructions of the distribution companies regarding metering, billing, electricity consumption charges and decision of cases of theft of energy but also requires it to make determination in respect of disputes over metering, billing and collection of tariff. Not only this, Section 38 furthermore commands that the Provincial Office of Inspection and its powers can be conferred on the Electric Inspector appointed by the Provincial Governments under the Electricity Act, 1910. The argument that any decision on the dispute rendered by the Electric Inspector can only be challenged before the Advisory Board in terms of the Section 36 (3) of the Electricity Act, 1910 thus loses all force and is not valid.

3. The reading of the NEPRA Act quite clearly demonstrates that the dispute resolution mechanism provided in Electricity Act, 1910 has now been replaced by NEPRA Act, which law is later in time and is also much wider in its scope as it encompasses disputes over metering, billing and collection of tariff. Electricity now exclusively being the Federal subject, any dispute in regard thereto between distribution companies and their consumers will necessarily has to be adjudicated upon by the Provincial Office of Inspection as per the dictate of NEPRA Act. The tests laid down in the judgment rendered in S.M. Food Makers case with regard to the purpose and policy underlying the two special laws are clearly satisfied in the present case to hold that the dispute resolution mechanism specified in NEPRA Act displaced the one provided through Section 26 of the Electricity Act, 1910.

4. In order to give effect to the mandate of sub-section (1) of Section 38 of the NEPRA Act, the Government of Punjab, Irrigation and Power Department through Notification dated 19.04.2005 issued in pursuance of sub-section (1) of Section 38 of the NEPRA Act promulgated the Punjab (Establishment and Powers of Office of Inspection) Order, 2005 (the Order of 2005). Section 3 of the Order of 2005 created the Office of Inspection with the powers to deal with and to pass orders on the complaints in respect of metering, billing and collection of tariff and other connected matters under the NEPRA Act. The definition of “Violation” as contained in Section 2(viii) of the Order is also worth noting which stipulates that the violation means any act or omission contrary to any of the instructions of the distribution companies with respect to metering, billing, collection of tariff and other connected matters. These expression are identical to the ones used in Section 38(1)(a)(ii) of NEPRA Act. The Order of 2005 defined the “Electric Inspector” to mean any person appointed under Section 36 of the Electricity Act, 1910 and conferred with the powers of Office of Inspection under Section 38(1) of the NEPRA Act. Section 4 of the Order of 2005 clinches the issue as according the said provision, the jurisdiction now vests with the Office of Inspection to entertain, hear and decide the complaints. The said provision reads as under.

Filing of Complaint.

(1) An aggrieved person, consumer or a licensee shall file separate complaints for each violation, which shall contain full name and address of the complainant, the grounds of the complaint and the name and address of the violator.

(2) The complaint shall be duly signed by the complainant or his authorized representative shall be supported by a summary of evidence giving brief facts/data and any documentary evidence alongwith such number of envelopes bearing postal stamps as may, from time to time, be directed by the Office of Inspection and the statement of the complainant shall be verified by an affidavit.

(3) The complaint shall be lodged with the Office of Inspection during office hours along with such number of copies as the Office of Inspection may, from time to time, direct and each set of the complaint shall be complete in all respect.

(4) The contents of the complaint shall be examined by the Office of Inspection so as to satisfy itself of the conformity thereof with the procedure mentioned above.

(5) In case the complaint is not in accordance with the aforementioned procedure, the Office of Inspection, shall return the complaint to the complainant within three days of filling thereof with the direction to rectify the defect, if any and made the complaint afresh in accordance with the above mentioned procedure:

Provided that the complaint shall be returned for one time only and where it is re-filed it shall not be rejected on the ground of any defect without giving the complainant an opportunity of rectifying the defect within the time specified by the Office of Inspection.

(6) Where the complaint is found to be inconformity with the above mentioned procedure, the filing of the complaint shall be acknowledged, stamped, entered into a register maintained for the purpose and assigned a number and date thereto.

(7) All proceedings in respect of a complaint shall ordinarily be held at the office of Inspection or any other place as may be directed by the office of inspection. (Emphasis supplied)

The combined reading of various provisions of the Order of 2005 and particularly Section 4 unambiguously brings out the fact that complaints by aggrieved person, consumer or licensee concerning disputes with regard to metering, billing and collection of tariff and other connected matters shall be dealt with by the Office of Inspection in terms of Section 38 of the NEPRA Act and not by the Electric Inspector acting under Section 26 of the Electricity Act, 1910. There should, therefore, remain no doubt that all the complaints in regard to disputes of metering, billing and collection of tariff and other connected matters are to be filed before and decided upon by the Office of Inspection. It is furthermore apparent that the Electric Inspector constituted under Electricity Act, 1910 has been conferred with the powers of Office of Inspection.

1. Prior to the passing of the Eighteenth amendment in the Constitution, electricity was placed in the concurrent list. With the introduction of Eighteenth Amendment through Constitution (Eighteenth Amendment) Act, 2010, the concurrent list was abolished and electricity was placed at Entry 4 of Part II of the Fourth Schedule whereafter it became exclusively a Federal subject. No doubt, an appeal is provided against the final order passed by the Office of Inspection before the Government of Punjab in terms of Section 10 of the Order of 2005. However, sub-section (3) of Section 38 of the NEPRA Act was brought on the statute through Regulation of Generation, Transmission and Distribution of Electric Power (Amendment) Act, 2011, which provision stipulated that any person aggrieved by an order/decision of the Provincial Office of Inspection may within thirty days of the receipt of the order file an appeal before the Authority (NEPRA) in the prescribed manner. Suffice it to state that sub-section (3) of Section 38 of the NEPRA Act being the federal law will take precedence over the Order of 2005, which is a provincial law. Consequently, the appellate forum (Government) as provided by Section 10 of the Order of 2005 against the decisions of the Provincial Office of Inspection has now been replaced by the Authority (NEPRA). All the three appeals filed by the petitioners were filed before the Advisory Board in the year 2012 i.e. after the promulgation of sub-section (3) of Section 38 of the NEPRA Act. It is thus clear that the petitioners approached the wrong forum (Advisory Board) against the decisions of the Electric Inspector. Their appeals were, therefore, rightly not entertained by the Advisory Board.

2. The learned counsel for the petitioner in Writ Petition No. 6224 of 2017 stated that an application under Section 14 of the Limitation Act, 1908 was filed before the NEPRA and that its finding that the appeal before the Advisory Board was also time barred had no merit and that the Authority fell in error in rejecting the appeal. The arguments advanced by the learned counsel are not tenable. In a judgment reported as Khushi Muhammad through LRs and others v. Mst. Fazal Bibi and others PLD 2016 SC 872, a full Bench of Hon’ble Supreme Court after reviewing the entire case law on the subject held that Section 14 is restricted only to the suits and cannot be resorted to for seeking condonation of delay in filing appeals before the right forum. With regard to the grounds seeking condonation of delay, it was further held in the judgment as follows:

Time spent pursuing an appeal before a wrong forum, in good faith and with due diligence ought in our view to constitute sufficient cause for condonation of delay. But the act of approaching a wrong forum must be accounted for: It should be established that due to some honest, bona fide and genuine ambiguity in the law or in fact, a party or his counsel was led astray in terms of approaching a wrong forum. Mere incompetence of the counsel, inadvertence, negligence or ignorance of law attributable to him and/or overlooking of the record by the counsel cannot constitute sufficient cause ipso facto, but the factors(s) which misled the legal counsel, including any ambiguity in the law, causing him to file the appeal before the wrong forum must be indicated. Mere wrong advice of counsel is not an adequate ground per se to constitute sufficient cause because if this rule is accepted, the centuries tested rule that ignorance of law is no excuse would stand violated. Besides, the above factors which caused ambiguity and misled the appellant (or his counsel as the case may be) have to be stated with clarity and precision in the application for condonation of delay and proved on the record. (emphasis supplied)

The perusal of the order passed by NEPRA shows that it rightly came to the conclusion on the strength of Section 10 of the Order of 2005 that the appeal before the Advisory Board ought to have been filed within a period of 30 days whereas the petitioner filed the said appeal after a delay of 71 days without any explanation. The petitioner, therefore, failed to make out any case for condonation under Section 14 of the Limitation Act, 1908. NEPRA thus rightly rejected the appeal filed by the petitioner.

1. In the circumstances, it is declared that after the promulgation of Order of 2005, the decision rendered on a complaint filed before the Electric Inspector shall be treated to have been given by the Provincial Office of Inspection and that the appeal against the decision of the Electric Inspector/Provincial Office of Inspection after the enactment of sub-section (3) of Section 38 of the NEPRA Act shall lie before the Authority as defined in NEPRA Act. In the result, this writ petition and other connected writ petitions fail and are accordingly dismissed.

(Y.A.) Petition dismissed

PLJ 2018 Lahore 606

Present: Muhammad Sajid Mehmood Sethi, J.

SAJIDA BIBI and others--Petitioners

versus

ADDITIONAL DISTRICT JUDGE & others--Respondents

W.P. No. 29052 of 2016, decided on 9.11.2017.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Muslim Family Laws Ordinance, 1961--Article 9, 10--Suit for recovery of maintenance allowance and gold ornaments--Partly decreed--Appeal--Allowed--Suit was dismissed with cost Territorial Jurisdiction--Challenge to--Where a person has a permanent dwelling at one place and also has temporary residence at another place, he shall be deemed to reside at both places in respect of any cause of action arising at place where he has such temporary residence. [P. 609] A

Family Courts Act, 1964--

----S. 7(2)--Ordinary resides--Jurisdiction--Residence should be long in point of time--Residence of few days was enough--Family Court where wife resides, has jurisdiction qua all such matters--Normal rule has been relaxed for convenience of wife--Place of residence of wife created jurisdiction in competent Court for all types of cases mentioned in the Act. [P. 609] B

Mr. Abdur Rauf, Advocate for Petitioners.

Mr. Muzaffar Ali, Advocate for Respondent No. 3.

Date of hearing: 9.11.2017.

Order

Through instant petition, petitioner has assailed judgments and decrees dated 26.10.2015 and 28.06.2016, passed by learned Judge Family Court and Additional District Judge, Depalpur, respectively, with the following prayer:--

“It is, therefore, most respectfully prayed that this Writ Petition may very kindly be allowed with cost through-out while setting aside the impugned judgments and decrees dated 28.06.2016 and 26.10.2015 passed by Respondent No-1 and Respondent-2 on following terms:--

• That the Petitioner-1 alongwith both the minors (Petitioner-2 & Petitioner-3) are entitled for recovery of monthly sum of maintenance allowance of Rs. 35000/- from Respondent-3 with effect from the date of throwing out i.e. 30.07.2009 to onward.

• That the Petitioner-1 is entitled for recovery of 4 Tola Gold Ornaments or alternate market price in lieu thereof from Respondent-3.”

1. Brief facts of the case are that suit filed by petitioners was party decreed by learned Judge Family Court, vide judgment and decree dated 26.10.2015, whereby claim of Petitioner No. 1 regarding recovery of maintenance allowance and gold ornaments was declined. Petitioners No. 2 & 3 were held entitled to get maintenance allowance @ Rs. 2500/- per month each from the institution of the suit till their legal entitlement with 10% annual increase. Feeling aggrieved, petitioners assailed said judgment and decree by filing appeal before learned lower Appellate Court, which was allowed vide judgment and decree dated 28.06.2016. Consequently, judgment and decree passed by learned Judge Family Court was set-aside and suit of petitioners was dismissed with costs. Hence, this constitutional petition.

2. Learned counsel for petitioners submits that impugned decisions of learned Courts below are the result of misreading and non-reading of evidence brought on record. He adds that petitioners were residing at Tehsil Depalpur. He maintains that learned Judge Family Court at Depalpur had exclusive jurisdiction to entertain and adjudicate upon the matter and findings of learned lower Appellate Court, in this regard, are not sustainable in the eye of law. In the end, he submits that impugned judgments and decrees are not sustainable in the eye of law.

3. Confronted with the above, learned counsel for Respondent No. 1 defends the judgment and decree rendered by learned lower Appellate Court and submits that learned counsel for petitioners has failed to point out any illegality or legal infirmity in the same, which is liable to be upheld.

4. Heard. Available record perused.

5. The operative of impugned appellate judgment is reproduced hereunder:--

“9. Perusal of record reveals that Plaintiff No. 1 herself appeared as PW.1 to prove her version. She filed her affidavit Ex.P1 as examination in chief in which she deposed that two years back the defendant expelled her from his house giving her physical beating and snatching her golden ornaments as well as articles of dowry. Since then she is residing in the house of her parents at Lahore. Muhammad Rafique PW.2 tendered his affidavit Ex.P2 as examination in chief in which he also stated that Plaintiff No. 1 was residing at Lahore since her expulsion from the house of defendant. On the other hand, respondent-defendant appeared as DW.1 submitted his affidavit Ex.D1 as his examination in chief and produced Rehmat Ali as DW.2. In the evidence, the version of defendant was highlighted. Learned trial Court after analyzing the evidence of the parties decreed the suit regarding maintenance allowance of Plaintiffs No. 2 and 3 and over-looked that respondent-defendant is resident of Bure-wala District Vehari. The Nikah of both the spouses was solemnized at Multan Road Lahore. Registered copy of Nikah has been tendered as Mark-B. Earlier Plaintiff No. 1 filed suit for dissolution of marriage at Yazman District Bahawalpur showing her address of Manzoor Abad, Yazman Bahawalpur. She filed the instant suit alleging therein that she was residing in the house of her parents and address was given as Chak Risalpur Sardar Hira Singh Tehsil Depalpur. As already mentioned the plaintiff and her witnesses deposed in their examination in chief Ex.P1 and Ex.P2 in clear terms that since her expulsion from the house of defendant, the Plaintiff No. 1 is residing in the house of her parents at Lahore.

Under Rule 6 West Pakistan Family Court Rules, 1965 the jurisdiction of family Court has been settled. Being advantageous Rule 6 of West Pakistan Family Court Rules, 1965 is being reproduced as under:

The Court which shall have jurisdiction to try a suit will be that within the local limits of which:

(a) the cause of action wholly or in part has arisen, or

(b) where the parties reside or last resided together:

Provided that in suits of dissolution of marriage or dower, the Court within the local limits of which the wife ordinarily resides shall also have jurisdiction.

The perusal of above said Rule indicates that the Family Court has jurisdiction to try the suit within the local limits of which the cause of action wholly or in part arose or where the party resides or last resided together. For suit of dissolution of marriage or dower a wife may institute the same at the place where she ordinarily reside and not in any other case. The Nikah of the parties were solemnized at Lahore. The defendant is resident of Bure-Wala District Vehari. The plaintiff is residing in the house of her parents at Lahore, therefore to my mind Family Court of Depalpur had no jurisdiction to entertain the suit. The learned trial Court over looked this aspect of the case and decreed the suit in favour of Plaintiffs No. 2 and 3 illegally assuming its jurisdiction. The judgment and decree passed by learned trial Court being illegal and without jurisdiction is not sustainable which is accordingly set aside and the suit is dismissed with costs. The plaintiff is at liberty to file/institute the suit in the family Court having jurisdiction. Decree sheet be prepared accordingly.”

1. Examination of judgment and decree rendered by learned lower Appellate Court shows that petitioners have been non-suited with the observation that permanent residence of parents of Petitioner No. 3 is at Lahore, therefore, suit was to be filed before Court at Lahore and learned Judge Family Court, Depalpur had no jurisdiction to entertain the matter. In the plaint, petitioners have specifically maintained and mentioned their residence at Chak Risladaar/Sardar Heera Singh, Tehsil Depalpur, District Okara. Respondent No. 1 in his written statement, has not raised any objection qua residential address of petitioners. Under the law, where a person has a permanent dwelling at one place and also has temporary residence at another place, he shall be deemed to reside at both places in respect of any cause of action arising at the place where he has such temporary residence. This aspect of the matter has not been thrash out minutely by learned Appellate Court, thus, the same cannot be considered to be a well-reasoned judgment within the contemplation of the provisions of Section 24-A of the General Clauses Act, 1897, especially when maintenance allowance of the minors is involved.

2. Needless to observe here that expression “ordinarily resides” does not necessarily mean that residence should be long in point of time. Residence of few days was enough. Family Court where the wife resides, has jurisdiction qua all such matters. Normal rule has been relaxed for convenience of wife. Place of residence of wife created jurisdiction in the competent Court for all types of cases mentioned in Section 7(2) of the Family Courts Act, 1964. Procedural technicality, if allowed to rule the choice of forum in family matters, would result in losing the benefit conferred upon a wife by Section 7(2) ibid. Reference can be made to Mst. Yasmeen Bibi v. Muhammad Ghazanfar Khan and others (PLD 2016 Supreme Court 613), Syed Nazim Hussain Zaidi

v. IVth Additional District Judge, Karachi and 2 others (2013 YLR 400) and Israr Ahmed v. Mst. Pukhraj Ahad (2014 CLC 1029).

1. In view of the above, instant petition is allowed and impugned appellate decision is set aside. The matter is remitted to learned lower Appellate Court with the direction to decide the appeal filed by petitioners afresh as per law and evidence brought on record, after affording opportunity of hearing to parties, preferably within a period of thirty days from the date of receipt of certified copy of this order. Compliance report shall be furnished to this Court through Deputy Registrar (Judicial).

(M.M.R.) Petition allowed

PLJ 2018 Lahore 610

Present: Syed Mansoor Ali Shah, C.J.

MUHAMMAD HUSSAIN CHEEMA--Petitioner

versus

GOVT. OF PUNJAB, etc.--Respondents

W.P. No. 81711 of 2017, heard on 3.11.2017.

Pir Mehr Ali Shah Agricultural University Act, 1995 (V of 1995)--

----Ss. 14(8)(9) & 15-A(2)--Constitution of Pakistan, Art. 199--Appointment of voice chancellor on temporary basis--Challenge to--If post of vice chancellor is vacant, under Section 14(a) of act--Any temporary arrangement prior to appointment of pro-vice chancellor cannot override statutory mandate of aforesaid provisions and therefore automatically comes to an end--Once appointed, Pro-Vice-Chancellor has to perform his functions under Act in terms of Section 15 A(2) of Act--One of his statutory responsibilities is to perform functions of Vice-Chancellor, if post of Vice-Chancellor is vacant, under Section 14(9)--Any temporary arrangement prior to appointment of Pro-Vice-Chancellor cannot override statutory mandate of aforesaid provisions and therefore automatically comes to an end--Impugned notification dated 27.01.2017 assigning duties of Vice-Chancellor to Respondent No. 4 on temporary basis till appointment of regular Vice-Chancellor is declared to have been automatically superseded by appointing notification of Respondent No. 3 as a Pro-Vice-Chancellor--Newly appointed Pro-Vice-Chancellor shall perform functions of post of Vice-Chancellor till such time that a regular Vice-Chancellor is appointed with immediate effect--Petition was allowed. [Pp. 614 & 616] A & C

PirMehr Ali Shah Agricultural University Act, 1995 (V of 1995)--

----S. 15--Powers and duties of Vice-Chancellor--A person on temporary arrangement as a Vice-Chancellor can only attend day to day affairs and ensure that provisions of this Act, Statutes, Regulations and Rules are faithfully observed--He may preside over meetings of Authorities of which he is a Chairman and is entitled to attend any other meeting of any other Authority of University--His temporary role defines extent of his limited duties--He cannot, however, exercise powers envisaged under Section 15(4) which can only be exercised by a Pro-Vice-Chancellor or Vice-Chancellor himself, who are authorized to perform functions of post. [Pp. 615 & 616] B

M/s. Asad Ullah Chathha and Qaisar Imam, Advocates for Petitioner.

M/s. Anwaar Hussain and Ahmad Hassan Khan, Addl. Advocates General, Punjab for Respondents.

MalikGhulam Mustafa Kandwal, Advocate for Respondent No. 4.

Mr. Abdul Rafey,Advocate for Respondent No. 5.

MirzaHaseeb Baig, Asstt. Registrar of Respondent-University Arshad Ali, Law Officer (Agriculture Department).

Date of hearing: 3.11.2017

Judgment

Admitted Facts

Respondent No. 4 was appointed as Vice-Chancellor of Pir Mehr Ali Shah Arid Agriculture University, Rawalpindi (“University”) for a term of four years on 24.01.2013 with immediate effect. After expiry of his tenure on 23.1.2017, the Chancellor was pleased to assign him duties of the post of Vice-Chancellor of the University, on temporary basis w.e.f. 24.01.2017 till appointment of a regular Vice-Chancellor, vide impugned Notification dated 27.1.2017. At the time of this temporary assignment of duties to Respondent No. 4, the post of Pro-Vice-Chancellor of the University was also vacant. Subsequently, Respondent No. 3 was appointed as Pro-Vice-Chancellor of the University on 20-6-2017 for a period of three years or till the date of his superannuation, whichever is earlier.

Arguments

1. Learned counsel for the petitioner submits that under Section 14 (8) of the Act, a retiring or incumbent Vice-Chancellor cannot be granted extension of tenure. He submits that the Chancellor through the impugned notification has granted extension to a retiring Vice-Chancellor which is not permissible under the Act and, therefore, Respondent No. 4 could not have been appointed even on temporary basis. He further submits that in terms of Section 15-A(2) of the Act the Pro-Vice-Chancellor is to perform functions assigned to him under the Act. Reading Section 15A(2) with Section 14(9) of the Act, he submits that, as soon as, the Pro-Vice-Chancellor is appointed he is under a statutory obligation to perform his functions, which include the performance of functions of a Vice-Chancellor when the post of Vice-Chancellor is vacant.

2. Learned counsel for Respondent No. 4 submits that impugned Notification is not an extension of tenure of the Vice-Chancellor as there is no specific time period provided in the said notification. He submits that the impugned notification is just temporary assignment of duties, till such time, that a regular Vice-Chancellor is appointed and in the absence of the Pro-Vice-Chancellor, the impugned notification has been rightly issued by the Chancellor under Section 14(9) of the Act and cannot be undone due to the subsequent appointment of the Pro-Vice-Chancellor.

3. Learned counsel for respondent University has reiterated the same argument, as that of the learned counsel for Respondent No. 4. He submits that once an order has been passed in favour of Respondent No. 4 under Section 14(9) of the Act, subsequent appointment of Pro-Vice-Chancellor is inconsequential.

4. Learned law officer, on the other hand supports the contention of the petitioner and submits that after the appointment of Pro-Vice-Chancellor, he is bound to perform the functions of the Vice-Chancellor in terms of Section 15A(2) of the Act. He adds that the impugned notification cannot hold the field after the appointment of the Pro-Vice-Chancellor.

OPINION OF THE COURT

1. I have heard the arguments of the parties and gone through the record. The relevant provisions of the Act are reproduced hereunder for ready reference:--

Section 14 Vice-Chancellor.--(1) A person who is eligible and who is not more than sixty-five years of age on the last date fixed for submission of applications for the post of the Vice-Chancellor may apply for the post.

…

(8) The incumbent Vice-Chancellor shall not be allowed any extension in his tenure but subject to eligibility he may again compete for the post of the Vice-Chancellor in accordance with the procedure prescribed by or under this section.

(9) If the office of the Vice-Chancellor is vacant or the Vice-Chancellor is absent or is unable to perform the functions of the Vice-Chancellor owing to any cause, the Pro-Vice-Chancellor shall perform the functions of the Vice-Chancellor but, if at any time, the office of Pro-Vice-Chancellor is also vacant or the Pro-Vice-Chancellor is absent or is unable to perform the functions of the Vice-Chancellor owing to any cause, the Chancellor shall make such temporary arrangements for the performance of the duties of the Vice-Chancellor as he may deem fit.

15-A.Pro-Vice-Chancellor.--(1) The Chancellor shall nominate the Pro-Vice-Chancellor of the University, from amongst three senior most Professors of the University, for a term of three years.

(2) The Pro-Vice-Chancellor shall perform such functions as may be assigned to him under this Act, statutes or regulations.

1. Section 14 (9) of the Act provides that in case office of Vice-Chancellor falls vacant, the Pro-Vice-Chancellor shall, perform the functions of the Vice-Chancellor. This Court in “Iftikhar Ahmad v. King Edward Medical University, etc. (PLD 2017 Lahore 825) has held that Pro-Vice-Chancellor shall step into the shoes of the Vice-Chancellor and start performing the functions of the Vice-Chancellor by operation of law. However, in this particular case, the office of the Pro-Vice-Chancellor was also vacant at the time when the term of the Vice-Chancellor expired and as a result, the Chancellor made temporary arrangement for the performance of the duties of the Vice-Chancellor, by assigning the same to Respondent No. 4 under Section 14(9) of the Act. The legal question that arises in this case is the status of the temporary arrangement made by the Chancellor under Section 14(9) of the Act, once a permanent Pro-Vice-Chancellor is subsequently appointed but the post of Vice-Chancellor is still vacant.

2. Section 14(9) envisages that if at any time, the office of Pro-Vice-Chancellor is also vacant or the Pro-Vice-Chancellor is absent or is unable to perform his functions owing to any cause, the Chancellor may make temporary arrangements. Reading of Section 14(9) shows that the temporary arrangement of assignment of the duties of the Vice-Chancellor to any person is a stop-gap arrangement only for the intervening period, when the Pro-Vice-Chancellor is not available for the reasons mentioned above. “If at any time” in Section 14(9) refers to this intervening period - a period when the University is undergoing temporary dysfunctionality due to non-availability of the Pro-Vice-Chancellor. This intervening period and the corresponding temporary arrangement come to an end, as soon as, either of the two events take place i.e., the Pro-Vice-Chancellor becomes available or is appointed or the regular Vice-Chancellor is appointed.

3. In support of the above, consider a situation, where the seat of Vice-Chancellor falls vacant at a time when the Pro-Vice-Chancellor is on a foreign tour, hence he is absent or is hospitalized, hence is unable to perform his functions. In such an eventuality, the Chancellor can proceed to make temporary arrangement and assign the duties of the Vice-Chancellor to any person he deems fit. But, as soon as, the Pro-Vice-Chancellor returns from his foreign tour or recuperates and is back in office, the temporary arrangement automatically comes to an end. Same is the case if the post of the Pro-Vice-Chancellor is vacant and is filled subsequently. Temporary arrangement is made only if at any time (the intervening period) there is a temporary dysfunctionality due to the non-availability of the Pro-Vice-Chancellor. As soon as, this dysfunctionality is cured or removed, the intervening period and the corresponding temporary arrangement comes to an end.

4. Additionally, once appointed, the Pro-Vice-Chancellor has to perform his functions under the Act in terms of Section 15 A(2) of the Act. One of his statutory responsibilities is to perform the functions of the Vice-Chancellor, if the post of the Vice-Chancellor is vacant, under Section 14(9). Any temporary arrangement prior to the appointment of the Pro-Vice-Chancellor cannot override the statutory mandate of the aforesaid provisions and therefore automatically comes to an end.

5. Even otherwise, when viewed in the context of good governance, a permanent Pro-Vice-Chancellor is certainly a far more effective manager of the affairs of the University and the office of the Vice-Chancellor, than a person who has been assigned duties on a temporary basis. In the present case, the post of the Vice-Chancellor fell vacant on 24.01.2017 and after almost ten months the post of Vice-Chancellor has not been filled. Temporary arrangement if allowed to continue indefinitely would not be in the larger interest of the institution.

6. Another dimension is that Pro-Vice-Chancellor is the next officer in the administrative hierarchy after the Vice-Chancellor, (see Section 9 of the Act). It is for this reason that the law [(Section 14(9)] provides that the Pro-Vice-Chancellor performs the functions of the Vice-Chancellor as opposed to just perform the duties of the Vice-Chancellor in the case of a person appointed on a temporary basis. There is a distinction between the words functions and duties. In Iftikhar Ahmad v. Kings Edward Medical University and others (PLD 2017 Lahore 825) while examining the difference between functions and duties under Section 14 (9) of the Act I have held as under:

“Learned counsel for Respondent No. 8 without any further elaboration has argued that there is a difference between the words “functions” and “duties” under Section 13 (9) of the Act. Initial reading of Section 13 (9) of the Act shows that these two words are similar and interchangeable, however, upon a detailed examination there appears to be a difference between the two words. The word “function” means; activity that is appropriate to a particular profession, or special activity or the purpose of a person. While the word “duty” means; a legal obligation that is owed or due to another and that needs to be satisfied; that which one is bound to do, something that you feel you have to do because it is a legal responsibility. The above definitions show that the intention of the law is that the Pro-Vice-Chancellor by stepping into the shoes of the Vice-Chancellor gets to assume the role of the Vice-Chancellor and gets to perform his functions. On the other hand, the temporary arrangement made by the Chancellor, in the absence of the Pro-Vice-Chancellor is of a different nature. The person to be selected by the Chancellor has to perform a temporary stop-gap arrangement and is only to perform the duties of the Vice-Chancellor, as deemed appropriate by the Chancellor, as opposed to the functions of the Vice-Chancellor under the law. Such “duties” may entail only important obligations and not all the functions. The Chancellor may specify which duties are being temporarily assigned to the new person. Functions on the other hand, mean all the functions, under the Act.”

1. There is more. While functions encompass the “powers and duties” of the Vice-Chancellor under Section 15 of the Act. “Duties” are limited to obligations and responsibilities, without the exercise of power, under the Act. A person on temporary arrangement as a Vice-Chancellor can only attend to day to day affairs and ensure that the provisions of this Act, the Statutes, the Regulations and the

Rules are faithfully observed. He may preside over meetings of the Authorities of which he is a Chairman and is entitled to attend any other meeting of any other Authority of the University. His temporary role defines the extent of his limited duties. He cannot, however, exercise the powers envisaged under Section 15(4) which can only be exercised by a Pro-Vice-Chancellor or the Vice-Chancellor himself, who are authorized to perform the functions of the post.

1. For the above reasons, impugned notification dated 27.01.2017 assigning the duties of the Vice-Chancellor to Respondent No. 4 on temporary basis till the appointment of regular Vice-Chancellor is declared to have been automatically superseded by the appointing notification of Respondent No. 3 as a Pro-Vice-Chancellor. The newly appointed Pro-Vice-Chancellor shall perform the functions of the post of Vice-Chancellor till such time that a regular Vice-Chancellor is appointed with immediate effect.

2. Through this judgment instant writ petition, as well as, connected matter bearing W.P. No. 73400/2017 are allowed in the above terms with no order as to costs.

(Y.A.) Petition allowed

PLJ 2018 Lahore 616 [Multan Bench Multan]

Present: Ch. Mushtaq Ahmad, J.

MUHAMMAD IMRAN--Petitioner

versus

ADDL. SESSIONS JUDGE, TEHSIL JAHANIAN, DISTRICT KHANEWAL and 2 others--Respondents

W.P. No. 16818 of 2016, decided on 14.12.2016.

Punjab Sound Systems (Regulation) Ordinance, 2015--

----Ss. 3 & 6--Pakistan Penal Code, (XLV of 1860), S. 294--Magistrate imposed Fine Rs. 5000/-, which was paid by convict--Prosecution challenged his conviction and A.S.J. remanded case--Small speakers alongwith tape record was recovered--Offence of playing songs was not covered by Ordinance 2015, when no private person was cited as witness to show that public servant was disturbed--Trial Court rightly convicted u/S. 294, PPC--Petition Allowed. [P. 617] A

Rana Muhammad Aftab, Advocate for Petitioner.

Mr. Ahmad Raza Ch. APG for State.

Date of hearing: 14.12.2016.

Order

Petitioner being accused of FIR No. 15 dated 21.01.2015 registered u/S. 3/6 of Punjab Loud Speaker Ordinance, 2015 was convicted by learned Magistrate u/S. 294-PPC and imposed fine of Rs. 5000/- which was paid by him but prosecution challenged his conviction before learned Addl. Sessions Judge who set-aside the conviction and remanded the case holding that learned trial Court committed illegality by not recording confession of petitioner.

1. Heard. Perused.

2. Available record reveals that small speakers alongwith tape-record were recovered from the petitioner which were affixed with tractor and petitioner was allegedly found playing songs on the same. Offence of playing songs was not covered by Punjab Loud Speaker Ordinance, 2015, especially when no private person was cited as witness to show that public peace was disturbed. Hence, learned trial Court rightly convicted the petitioner u/S. 294, PPC and observation of learned revisional Court that summary procedure was not adopted/ followed by the trial Court, does not carry weight, thus not sustainable. Resultantly, this petition is allowed and impugned order dated 20.08.2016 is set-aside.

(M.A.K.) Petition allowed

PLJ 2018 Lahore 617

Present: Ch. Muhammad Masood Jahangir, J.

MUHAMMAD TARIQ, etc.--Petitioners

versus

AMJAD ALI, etc.--Respondents

C.R. No. 158016 of 2018, decided on 6.2.2018.

Constitution of Pakistan, 1973--

----Art. 199--Court Fees Act, 1887, S. 7(iv)(a)--Civil Procedure Code, 1908 (V of 1908), S. 149--Suit for pre-emption was withdrawn on a plea that father of petitioner gifted suit property--Suit for owner of property--Dismissed--Appeal--Dismissed--Revisional Jurisdiction--Challenge to--Petitioners claimed themselves to be owners of property valuing at least Rs. 2000000/- on basis of alleged gift and under law, valuation of suit for purposes of Court fee was to be affixed by them as per its market price, but at time of its institution, they fixed its value for that purpose only Rs. 24000/-, however, subsequently on debriefing of learned Civil Court as per requirement of Section 7 (iv) (a) of Court Fees Act, 1887, maximum Court fee of Rs. 15000/- was furnished--Suit for exercise of right of substitution, petitioner acknowledged transaction of sale while disregarding their alleged gift, hence judgment as well as order of Courts below are neither perverse nor infirm, which do not call interference by this Court in exercise of revisional jurisdiction--Petition was dismissed. [Pp. 619 & 620] A & D

Civil Procedure Code, 1908 (V of 1908)--

----S. 149--Fixation of value of lis--Court-fee--Determination--Appeal remained pending for more than two years and ten months but despite fact that learned lower Appellate Court time and again required Court fee, but deficiency was not made good--Provision of Section 149 of Code of Civil Procedure, 1908 cannot be extended for relaxation of limitation beyond prescribed period--Apart from that, no legitimate explanation was provided as to why petitioners failed to affix Court fee well within limitation of filing of appeal, therefore, learned Addl. District Judge was perfect to non-suit them through impugned order. [P. 619] B & C

Mrs. Safia Siddiq vs. Haji Fazal-ur- Rehman and 2 others 2009 CLC 262 ref.

Ch. Sameed Ahmad Wains, Advocate for Petitioners.

Date of hearing: 6.2.2018.

Order

Verily, Samreen Kausar, sister of present petitioners was owner of property measuring 01 Kanal 09 Marlas, who transferred it to Amjad Ali Respondent No. 1 through execution of sale-deed dated 08.07.2006 (Exh.P5). Though in earlier round of litigation, Muhammad Tariq Petitioner No. 1 pirated the said sale through suit for pre-emption (Exh.D1) and one day prior to its withdrawal, suit in hand was filed on 14.09.2011 with the stance that property involved in Exh.P5 was in fact owned by their father Muhammad Manzoor, who gifted it out to them through memo. of gift executed on a plain paper dated 13.01.2006 (Exh.P1) and on the next day, earlier suit of pre-emption was withdrawn vide order dated 15.09.2011 (Exh.D2). After collecting and thrashing evidence of the parties in pros and cons, learned Trial Court dismissed the suit through judgment and decree dated 22.01.2015. Though appeal was preferred by the petitioners well within time on 03.02.2015 yet without affixation of requisite Court fee and for that sole ground, the appeal was dismissed vide impugned order dated 15.12.2017, hence instant Civil Revision.

1. Heard. Record perused.

2. Through their suit, the petitioners claimed themselves to be the owners of property valuing at least Rs. 2000000/- on the basis of alleged gift and under the law, valuation of the suit for the purposes of Court fee was to be affixed by them as per its market price, but at the time of its institution, they fixed its value for that purpose only Rs. 24000/-, however, subsequently on debriefing of learned Civil Court as per requirement of Section 7 (iv) (a) of the Court Fees Act, 1887, the maximum Court fee of Rs. 15000/- was furnished. It was amazing that after the dismissal of suit by the learned Civil Court, despite the fact that while filing appeal, Rs. 200000/- was fixed its value for that purpose, but this time again without affixation of any Court fee. The petitioners were very much aware what stamps of Court fee they had to furnish and no confusion was in their way in this regard. The submission of Ch. Sameed Ahmed Wains, Advocate for the petitioners that learned lower Appellate Court prior to dismissal of appeal did not direct the petitioners to levy the requisite Court fee is not well founded. It was not the case where situation with regard to the fixation of valuation of the lis was foggy or tangled and the petitioners were required any clarification. As observed supra, not only the valuation requiring affixation of maximum Court fee was determined by them rather they on the asking of Court of first instance without objection affixed it on their plaint. The study of memorandum of appeal again affirmed that they were certain that Court fee of the highest value was to be affixed, but they remained mum for more than two years, hence they were not only negligent, but their conduct was contumacious and there existed no reason to extend any indulgence to them to make good the Court fee and that too beyond the period of limitation. The appeal remained pending for more than two years and ten months but despite the fact that learned lower Appellate Court time and again required the Court fee, but the deficiency was not made good. The provision of Section 149 of the Code of Civil Procedure, 1908 cannot be extended for relaxation of limitation beyond the prescribed period. Reliance is placed on Mrs.Safia Siddiq vs. Haji Fazal-ur- Rehman and 2 others(2009 CLC 262) and Assistant Commissioner and Land Acquisition Collector, Badin vs. Haji Abdul Shakoor and others (1997 SCMR 919). Apart from that, no legitimate explanation was provided as to why the petitioners failed to affix Court fee well within limitation of filing of appeal, therefore, learned Addl. District Judge was perfect to non-suit them through the impugned order.

3. On facts, it is also admitted by learned counsel for the petitioners that earlier Muhammad Tariq, Petitioner No. 1 had instituted a suit for possession through pre-emption (Exh.D1) against

sale reflected in sale-deed dated 08.07.2007 (Exh.P5) made by Respondent No. 2 in favour of Respondent No. 1 and thereafter the antipodal stance of the petitioners that in fact the property had already been gifted out to them by their father on 13.09.2006 is not adequate. Had there been a valid gift, then they would have assailed the sale while basing their claim on the gift allegedly made prior to earlier transaction, but while filing a suit for the exercise of right of substitution, Petitioner No. 1 acknowledged the transaction of sale while disregarding their alleged gift, hence judgment as well as order of Courts below are neither perverse nor infirm, which do not call interference by this Court in the exercise of revisional jurisdiction. Learned counsel for the petitioners has also remained abortive to pinpoint any illegality or irregularity in the impugned judgment and order. Consequently, instant Civil Revision being devoid of any merit is hereby dismissed in limine.

(M.M.R.) C.R. dismissed

PLJ 2018 Lahore 620

Present: Ch. Muhammad Masood Jahangir, J.

TAJAMAL ABBAS--Petitioner

versus

INAMULLAH--Respondent

C.R. No. 2081 of 2016, heard on 28.2.2018.

Civil Procedure Code, 1908 (V of 1908)--

----O. XXXIX, Rr. 1 & 2--Suit for permanent injunction--Tenant in possession--Suit was dismissed as withdrawn on basis of compromise--Petitioner was agreed to vacate property in possession within six months--Petitioner did not honour his statement--Execution petition--Rejected--Appeal for recalling exparte orders--Allowed--Challenge to--An undertaking made by a party before Court of law has to be given sanctity while applying principle of estoppel as well to respect moral and ethical rules and if retraction therefrom is allowed as a matter of right, then it will definitely result into distrust of public litigants over Judiciary and would damage sacred image of Courts that they are infertile to make implementation of orders passed by them in judicial proceedings--It is again well established that conduct of a party is always considered to be relevant in Court of law, latter has to take exception to conduct of litigant like in case in hand--Petitioner voluntarily opted to surrender himself before Court of law to evict rented premises, then it becomes final and absolute for him to vacate it and any retraction cannot be permitted because sanctity to judicial proceedings has to be safe guarded at any cost--Petition was dismissed. [Pp. 622 & 623] A & B

Farzana Rasool and 3 others vs. Dr. Muhammad Bashir and others 2011 SCMR 1361; Mst. Kishwar Sultan Jehan Begum vs. Aslam Awais Arw 3 others PLD 1976 Lahore 580

Mr. Fawad Malik Awan, Advocate for Petitioner.

M/s. Rai Shahid Saleem Khan, Ehsan Ahmed Bhindar, Ziaullah Khanand Imran Haider Bhatti, Advocates for Respondents.

Date of hearing: 28.2.2018

Judgment

The present petitioner on 11.12.2013 approached the learned Civil Court, Jhang with a suit for permanent injunction, admitting therein that he occupied the demised house being tenant and his ultimate prayer was that respondent be restrained from snatching its possession through illegal means and during its proceedings on 24.03.2014, he at his own, made a statement as under:

Pursuant thereto, the Court then and there passed the order to the following effect:

In view of above recorded statement of the parties recorded above, the instant suit of the plaintiff is hereby dismissed as withdrawn. However, both the parties will abide by and bound to comply with their statement.

Admittedly, the petitioner did not honour his words and the respondent/defendant was compelled to bring an execution petition for its realization, but it failed being incompetent having been rejected by the learned Executing Court on the very first day of its hearing on 31.01.2015. On appeal, the petitioner did not turn up, compelling the Appellate Court to set at naught the view of learned Executing Court and it did so on 15.08.2015 directing the learned Executing Court to summon the present petitioner and decide the Execution Petition strictly in accordance with law. The present petitioner filed an application under Order XLI Rule 21 of the Code of Civil Procedure, 1908 before the same Court for recalling his ex-parte order dated 15.08.2015, which was allowed and appeal of respondent was revived for its decision afresh, but again on merit it was allowed on 13.04.2016 and through instant Civil Revision it was attacked.

1. The inaugural argument of Mr. Fawad Malik Awan, Advocate for petitioner that the suit was dismissed as withdrawn and decree sheet was not drawn and that consent of the parties also did not fall within definition of a decree under sub-section (2) of Section 2 of the Code, 1908 and that execution proceedings could not be initiated was not tenable. Apart from Order XXI of Code ibid, Section 36 thereof is the most relevant provision to be applied, which might have escaped notice of Mr. Fawad and it would be advantageous to go through it, which reads as follows:--

2. Application to Orders.--The provisions of this Code relating to the execution of decrees shall, so far as they are applicable, be deemed to apply to the execution of orders.

A bare perusal thereof in express terms makes all the provisions relating to the execution of decree applicable also to the execution of orders. Moreover, the Court is equipped with the jurisdiction not only to adjudicate upon disputes and pass an order rather it possesses ample powers to get its orders implemented, otherwise machinery of the Courts working under the mandate of law would become dormant. It was not a case of simple withdrawal of the suit, rather same was decided as per undertaking given by the petitioner and he was specifically bounded to comply with it, hence there was no occasion for him to fall back or reneged. An undertaking made by a party before the Court of law has to be given sanctity while applying the principle of estoppel as well to respect moral and ethical rules and if retraction therefrom is allowed as a matter of right, then it will definitely result into distrust of the public litigants over the Judiciary and would damage the sacred image of the Courts that they are infertile to make implementation of orders passed by them in the judicial proceedings. Reliance can be placed upon Farzana Rasool and 3 others vs. Dr. Muhammad Bashir and others (2011 SCMR 1361). It is again well established that conduct of a party is always considered to be relevant in the Court of law, the latter has to take exception to the conduct of litigant like in case in hand. The petitioner voluntarily opted to surrender himself before the Court of law to evict the rented premises, then it becomes final and absolute for him to vacate it and any retraction cannot be permitted because sanctity to the judicial proceedings has to be safe guarded at any cost. Full Bench of this Court in a case reported as Mst. Kishwar Sultan Jehan Begum vs. Aslam Awais Arw 3 others (PLD 1976 Lahore 580), observed as under:

An undertaking given to the Court by a party or his counsel has exactly the same force as an order made or an injunction granted by a Court; once an undertaking is given in the Court by a party or on his behalf by his counsel he becomes bound to fulfill the same.

Whereas, in a case cited as Izhar Alam Farooqi, Advocate and another vs. Sheikh Abdul Sattar Lasi and others (2008 CLD 149), the apex Court observed as follows:--

It is true that a Court which has the jurisdiction to adjudicate the dispute and pass an order has also implicit power to have the order implemented and mere an erroneous order passed by the Court of competent jurisdiction does not render the order without jurisdiction.

Moreover, this Court in the judgment syled as Khawar Saeed Raza vs. Wajahat Iqbal (2003 CLC 1306) clinched the identical controversy in hand while concluding as under:

Compromise is admitted which became part of the order, which stipulated the withdrawal of the suit by the respondent. Under Section 36 Civil Procedure Code, 1908, the provisions of the Code relating to the execution of decree are also applicable to orders. Even if there was no decree in existence an order disposing of the suit in terms of the compromise is very much there, binding upon and operative qua the parties. In Kilachand Devchand and Co. vs. Ajodhuaprasad Sukhamnand and others AIR 1934 Bombay 452, it was observed that if the Court had jurisdiction to make the order it had necessarily the power and jurisdiction to enforce the same and the law does not allow its machinery to be clogged in this respect. Likewise in Ranjit Singh Hazari and others vs. Juman Meah and another PLD 1961 Dacca 842 Section 36 of the Civil Procedure Code was considered by the learned Division Bench of the then High Court of Dacca (East Pakistan) and it was observed that the provisions regarding execution of decree were applicable to orders as well.

Hence, apart from reasoning of the learned Addl. District Judge, the above referred precedents also support his view. Reliance of learned counsel for the petitioner on the case law cited as Shaukat Ali vs. Muhammad Sharif (2013 CLC 1558) and Messrs Singer Pakistan Ltd.

Through Director Personal and Administration and another vs. Nasir Ali Meer and another (2015 MLD 267) is not apt, because scope of Section 36 of Code ibid was absolutely not considered therein. Even otherwise, each case has to be dealt with keeping in view its own peculiar facts and circumstances.

1. As a result of the above, impugned order of the learned Addl. District Judge, Jhang do not call for any interference by this Court and petition in hand being devoid of merit as well as force is accordingly dismissed with costs.

(M.M.R.) Petition dismissed

PLJ 2018 Lahore 624 (DB)

Present: Jawad Hassan and Abid Aziz Sheikh, JJ.

MUHAMMAD NAWAZISH ALI PIRZADA--Petitioner

versus

ELECTION COMMISSION OF PAKISTAN, etc.--Respondents

W.P.No. 168260 of 2018, heard on 2.3.2018.

Election Act, 2017--

----Ss. 112, 133 & 156--Senate (Election) Act, 1975, Ss. 13(5)(6)--Submission of nomination papers--Nomination papers were rejected--Appeal against rejection--Allowed--Petitioner who was either objector nor field appeal before tribunal to implead him as party--Appeal filed by respondent seeking right of audience--Decline right of audience--Appeal was allowed--Maintainability--Holistic reading of Section 113 of Act makes abundantly clear that a candidate who is not an objector to nomination paper during scrutiny cannot file appeal against rejection of nomination papers of another candidate--This depicts scheme of law under Act, that unless a candidate appeared at time of scrutiny and object to nomination papers of another candidate, he cannot be aggrieved of acceptance or rejection of nomination papers of said candidate.

[P. 629] A & B

Constitution of Pakistan, 1973--

----Arts. 199(1)(a) & 225--Election Act, 2017, S. 156--Election proceedings--Aggrieved party--Question of--Whether third party who is just an informer can file constitutional petition against acceptance of nomination papers--Locus standi--Under Article 199(1)(a) of Constitution, only an aggrieved party can approach this Court--Petitioner who was not an objector to nomination papers of Respondent No. 4 cannot be treated as aggrieved party against acceptance of nomination papers of Respondent No. 4, specially when petitioner own nomination papers are already accepted and not affected at all in any manner by impugned judgment passed by Tribunal--A person who is not an objector during scrutiny of nomination papers but only wants to passed on some information will not be an aggrieved party against acceptance of nomination papers of another candidate, unless through impugned order, he has been disfranchised or any of his own right has been affected--In present case, neither petitioner has been disfranchised through impugned order nor his right to contest election has been affected in any manner--Therefore, having not filed any objection to nomination papers of Respondent No. 4, petitioner cannot be treated as aggrieved person--When neither petitioner is disfranchised nor any of his right to contest election is effected, challenging of election process through constitutional petition will circumvent intention of legislation under Article 225 of Constitution--Further interference in constitutional petition will also be against scheme of Act, where against acceptance of nomination papers, only objector can file appeal--Above discussion leads us to ineluctable conclusion that the petitioner has no locus standi to file this constitutional petition being not an objector to the nomination papers of Respondent No. 4 before the Returning Officer--Petition was dismissed. [P. 631, 632, 633 & 634] C, D, E & F

Commission of Pakistan through its Secretary v. Javaid Hashmi and others PLD 1989 Supreme Court 396, Ghulam Mustafa Jatoi v. Additional District & Sessions Judge/Returning Officer, N.A. 158 Naushero Feroze and others 1994 SCMR 1299

Mr. Farooq Amjad Meer, Advocate for Petitioner in person..

M/s. Salman Aslam Butt, Muhammad Shoaib Rashid, Muhammad Ahmed, Ahmed Raza Khalid, Advocates for Respondent No. 4.

Mr. Muhammad Zikria Sheikh, Deputy Attorney General.

Mirza Nasar Ahmad, Deputy Attorney General.

Mr. Imtiaz Ellahi, Assistant Attorney General.

Mr. Muhammad Arshad Virk, Assistant Attorney General.

Mr. Umer Hayat, Director Legal, Election Commission of Pakistan.

Hafiz Adeel Ashraf, Assistant Law Officer, Election Commission of Pakistan.

Date of hearing: 2.3.2018.

Judgment

Abid Aziz Sheikh, J.--This constitutional petition has been filed with following prayer:--

“The impugned order dated 17.02.2018 may very kindly be set aside and the order dated 12.02.2018 passed by Returning Officer/Respondent No. 3 may very kindly be restored, resultantly the nomination papers of the Respondent No. 4 from the seat of Technocrat, Province of Punjab, senate Elections 2018 may very kindly be rejected and Respondent No. 3 may be directed to delete the name of the Respondent No. 4 from the list of validly nominated contesting candidates”.

1. Brief facts are that Respondent No. 4 submitted his nomination papers for the seat of technocrat in Senate from Province of Punjab. The nomination papers of Respondent No. 4 were objected on various grounds by objectors. Respondent No. 3 rejected the nomination papers of Respondent No. 4 on 12.2.2018. The Respondent No. 4 filed appeal against rejection of his nomination papers which was accepted vide impugned order dated 17.2.2018. The petitioner who was neither an objector to the nomination papers of Respondent No. 4 nor filed formal application before Appellate Tribunal to be impleaded as party, appeared before Tribunal during course of arguments on appeal filed by Respondent No. 4 seeking right of audience. However, through impugned order, he was declined right of audience in appeal being not an objector to the nomination papers of Respondent No. 4 and ultimately, the appeal was allowed. The petitioner being aggrieved of order passed by Appellate Tribunal dated 17.2.2018 has filed this constitutional petition.

2. Learned counsel for the Respondent No. 4 at the very outset raised preliminary objection that petitioner being not an objector to the nomination papers of Respondent No. 4 during scrutiny is not aggrieved person, therefore, he could neither file appeal before Appellate Tribunal (Tribunal) nor can he file this constitutional petition challenging the order of Tribunal, whereby nomination papers of Respondent No. 4 were accepted. He submits that petitioner being a candidate can only file election petition under Section 156 of the Election Act, 2017 (Act) in the post election proceedings. Learned counsel further submits that without prejudice to the question of maintainability of this petition, even otherwise, Respondent No. 4 could file appeal before Tribunal against rejection of his nomination papers under the Act despite being an absconder in some other proceedings and that order passed by the Tribunal is legal and duly justified on merits. He finally concluded that question of maintainability of petition is required to be decided at the first instance as repeatedly held by august Supreme Court in number of judgments including judgments reported as Abbas Hussain vs. State (1992 SCMR 320) and Abdul Ali vs. Haji Bismillah (2002 SCMR 203).

3. Learned counsel for the petitioner in response to the above preliminary objection on the maintainability of this petition argued that no doubt, petitioner was not an objector to the nomination papers filed by Respondent No. 4 but he was aggrieved when appeal filed by a fugitive from law has been entertained by the Tribunal through impugned order dated 17.2.2018. He submits that petitioner being also a candidate for seat of technocrat in Senate, has become aggrieved when appeal filed by Respondent No. 4 was entertained and allowed. Learned counsel submits that august Supreme Court in Gul Hassan and another vs. The State (PLD 1969 Supreme Court 69) and Hayat Bakhsh and others vs. The State (PLD 1981 Supreme Court 265) held that fugitive from law cannot file appeal. He adds that same view was expressed by this Court in Ghulam Mustafa vs. District Police Officer Kasur and 3 others (PLD 2014 Lahore 82). He finally argued that petitioner can file this constitutional petition under Article 199(1)(a) of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution).

4. Learned Law Officer supported the arguments of the Respondent No. 4 and submits that that provision of Sections 13(5) and 13(6) of the Senate (Election) Act, 1975 (Act of 1975) is identical to Sections 112 and 113 of the Act, under which only an objector to a nomination paper is an aggrieved person to file appeal before Tribunal or to file constitutional petition to challenge order of Tribunal.

5. We have heard arguments of learned counsel for the parties and perused the record with their able assistance. The law is well settled by august Supreme Court that an objection pertaining to maintainability of petition should be decided at the first instance before touching merits of case which will otherwise a futile exercise. Therefore, we intend to decide question of maintainability of this petition at the initial stage.

6. The main argument of learned counsel for the Respondent No. 4 is that petitioner being not an objector during scrutiny to the nomination papers of Respondent No. 4, had no locus standi to file appeal before Appellate Tribunal, therefore, he is also not entitled to file this constitutional petition challenging the impugned order passed by Tribunal. On the other hand, learned counsel for the petitioner is claiming that because appeal was entertained by the Tribunal illegally on behalf of fugitive of law, therefore, he being also a candidate has secured a locus standi to challenge the impugned judgment passed by the Tribunal. To better appreciate the respective contentions of the parties and to decide the question of maintainability, it is necessary to go through relevant provision of the Act which deals with filing of appeal before Tribunal. Section 113 of the Act provide appeal before Tribunal against scrutiny order. For convenience, provision of Section 113 of the Act is reproduced hereunder:

7. Appeal against scrutiny order.--(1) A candidate or an objector may, within the time specified by the Commission, file an appeal against the decision of the Returning Officer rejecting or, as the case may be, accepting a nomination paper to the Tribunal constituted for the purpose consisting of a person who is a Judge of a High Court, appointed by the Commission in consultation with the Chief Justice of the High Court concerned.

(2) An appeal filed under sub-section (1) shall be summarily decided within such time as may be notified by the Commission and any order passed on the appeal shall be final.

(3) If, on the basis of information or material coming to its knowledge by any source, a Tribunal constituted under sub-section (1) is of the opinion that a candidate whose nomination paper has been accepted is a defaulter of loans, taxes, Government dues and utility expenses or has had any loan written off or has willfully concealed such fact or suffers from any other disqualification from being elected as a Member of the Senate, it may, on its own motion, call upon such candidate to show-cause why his nomination papers may not be rejected, and if the Tribunal is satisfied that the candidate is actually a defaulter or has had a loan written off or suffers from any disqualification, it may reject the nomination paper of the candidate.

(4) Announcement of the day and time appointed for the hearing of an appeal under this section over the radio or television or by publication in the newspaper shall be deemed to be sufficient notice of the day and time so appointed.”

(emphasis supplied)

1. The plain reading of Section 113 of the Act shows that a candidate or an objector can file appeal against the decision of Returning Officer rejecting or accepting the nomination papers. The words “as the case may be” used in Section 113 of the Act postulates the intention of law makers that the candidate can only file appeal against rejection of his nomination papers whereas an objector can file appeal against the acceptance of nomination papers. The holistic reading of Section 113 of the Act makes abundantly clear that a candidate who is not an objector to nomination paper during scrutiny cannot file appeal against rejection of nomination papers of another candidate. This interpretation of Section 113 of the Act is also supported by the fact that scrutiny of nomination papers before the Returning Officer and its appeal before Appellate Tribunal are in the manner of summary proceedings and therefore, only those persons who objected to nomination papers are allowed to file appeals before Tribunal. Further under sub-section (3) of Section 113 of the Act, the suo moto power of Tribunal on basis of information or material coming to its knowledge by any source can only be exercised where nomination papers of candidate has been accepted and not when same are rejected. The rejection of nomination can only be challenged under sub-section (1) of Section 113 of the Act by the candidate himself. However, under Section 156 of the Act, any candidate whether he was objector or not can file election petition, in the post election proceedings for seeking declaration of any election of returned candidate void, if the nomination of returned candidate was invalid or he was not qualified.

2. The provision of Sections 105 to 112 in Chapter VII of the Act, which relates to conduct of election of senate, also support the above legal position. Section 112 specifically relates to the scrutiny of nomination papers. Sub-section (1) of Section 112 of the Act, provides that the candidate, through proposer, seconder and agent authorized by candidate may attend the scrutiny of nomination papers. Candidate is defined under Section 2(vii) of the Act means a person proposed and seconded as a candidate for seeking election as a member. Sub-section (6) of Section 112 of the Act provides that Returning Officer may either on his own motion or upon objection reject the nomination papers for grounds specified in the said sub-section. This depicts the scheme of law under the Act, that unless a candidate appeared at the time of scrutiny and object to the nomination papers of another candidate, he cannot be aggrieved of acceptance or rejection of nomination papers of said candidate. Any other interpretation of these provisions will not only change the entire complexion of scrutiny process under Chapter VII of the Act but will also render certain sub clauses of Sections 112 and 113 redundant.

3. The same view was also expressed by this Court while interpreting Sections 112 and 113 of the Act in Writ Petition No. 168265/2018 vide judgment dated 01.3.2018. Relevant observation is reproduced hereunder:

“Plain and holistic reading of Section 113 of the Act shows that candidate can file Appeal before Appellate Tribunal if his nomination papers are rejected. Where an objector can file Appeal before Appellate Tribunal if nomination papers are accepted. The candidate cannot file Appeal against rejection of nomination paper of another candidate unless he was objector to those nomination papers.

Although the objector is not defined under the Act but as and when any objection is filed by an objector the same is dealt with under Section 112 of the Act.

This interpretation is also inconsonance with the scheme of the Act, where Section 112 of the Act clearly depicts that the Returning Officer shall examine the nomination papers of the candidates and decide any objection raised by any such person to any nomination. Chapter VII of the Act deals with the conduct of Election to the Senate in which under Section 105 the Returning Officer and Dealing Officers have been appointed with the functions under Section 106. Section 110 deals with the nomination of the Election and the entire scrutiny of the candidates is stated in Section 112 (1) of the Act in which the Returning Officer shall give the candidates, their proposers and seconders, and an agent authorized in writing in this behalf, reasonable opportunity for examining all the nomination papers including any nomination by the objector. Only the candidates or the objectors were permitted to file an Appeal before the Appellate Tribunal under Section 113 of the Act in case of rejection or acceptance of nomination papers as the case may be, therefore, the locus standi to file an Appeal against rejection of nomination papers only lies with the objector. Sub-section (3) of Section 113 of the Act further clarifies that the Tribunal can also deal with the matters of the candidates.

In this case it is admitted and apparent from the record that the Petitioner had not filed any objection as provided under Section 112 of the Act to the nomination papers of Respondent No. 4, therefore, he had no locus-standi to be heard before the Appellate Tribunal. It is further noted that the only remedy available to the Petitioner being a candidate and not objector is under Section 156 of the Act in post-election proceedings where the Petitioner will have grounds for seeking declaration of any election of returned candidate void if the nomination of the returned candidate is invalid or he is not qualified.

1. In the present case, it is admitted on all hands that petitioner though was a candidate but he never filed objection against nomination papers of Respondent No. 4 at the time of scrutiny. It is also not disputed that petitioner also not filed any formal application before Appellate Tribunal for being impleaded as party. In the circumstances, the Appellate Tribunal had rightly held in Para 3 of the impugned judgment that petitioner had no right of audience being not an objector, however, he could place any information through counsel already representing Respondent No. 2 in appeal.

2. The next argument that petitioner can file constitutional petition under Article 199 (1)(a) of the Constitution to challenge impugned judgment is also mis-conceived. Under Article 199(1)(a) of the Constitution, only an aggrieved party can approach this Court. The petitioner who was not an objector to the nomination papers of Respondent No. 4 cannot be treated as aggrieved party against acceptance of nomination papers of Respondent No. 4, specially when petitioner own nomination papers are already accepted and not affected at all in any manner by the impugned judgment passed by Tribunal.

3. The question whether third party, who is just an informer like petitioner, can file writ petition against the acceptance of nomination papers filed by a candidate has been dealt with by Full Bench of august Supreme Court in Federation of Pakistan and others vs. Mian Muhammad Nawaz Sharif and others (PLD 2009 Supreme Court 644) relating to similar provisions under Representation of People Act, 1976 (ROPA now repealed). The august Supreme Court in said judgment held that such person is an informer and is not an aggrieved person within the meaning of Article 199 of the Constitution. Relevant observation is reproduced as under:--

The standing of a person who furnishes information under sub-section (5-A) can in no way be equated with that of the appellant under sub-section (5-A), who has a personal interest in the outcome of the proceedings. The status of such a person is simply of an informer laying information before the Tribunal of certain facts, which he believes disqualifies a candidate to contest the election. He has not been bestowed with any vested right to pursue the matter on a personal level to get a candidate disqualified. Needless to state that like all powers exercisable suo motu, the Tribunal is empowered to summon the informer, or for that matter anyone, to appear before it to substantiate, clarify or throw light upon the contents of the show-cause notice. The informer however does not become a party in the legal sense of the term to the proceedings before the Tribunal. The Tribunal’s order rejecting the information and declaring the candidate concerned qualified cannot be termed as an order adverse to the interest of the informer. Such informer, therefore, would not be an aggrieved person within the meaning of Article 199 of the Constitution entitling him to file petition for issuance of a writ of Certiorari or Mandamus.

(emphasis supplied)

The same view was expressed by this Court in Aziz Masood vs. Khawaja Ahmad Hassan and 5 others (2016 CLC 706), where it is held as under:

Therefore, a baseline question arises in the instant matter. Whether the petitioner was present at the time of the scrutiny and did raise an objection validly and properly before the Returning Officer?

Unless, the petitioner is able to cross this threshold, it will be deemed that his appeal before the Appellate Authority was not competent and, therefore, the Appellate Authority was correct in concluding that there were, in fact, no objections and thus an appeal was not competent.

In Faisal Mir vs. Election of Pakistan and others (2018 CLC page 1), the Full Bench of this Court held as under:

The only exception given in this judgment for entertaining a constitutional petition by the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is that if anyone is being disfranchised and no legal remedy is available to any aggrieved party during the process of election or after its completion.

1. The solitary principle of law settled in above judgments is that a person who is not an objector during the scrutiny of nomination papers but only wants to passed on some information will not be an aggrieved party against the acceptance of nomination papers of another candidate, unless through impugned order, he has been disfranchised or any of his own right has been affected. In the present case, neither petitioner has been disfranchised through impugned order nor his right to contest election has been affected in any manner. Therefore, having not filed any objection to nomination papers of Respondent No. 4, the petitioner cannot be treated as aggrieved person.

2. Learned counsel for the petitioner vehemently argued that petitioner is aggrieved because Respondent No. 4, being fugitive from law could not file appeal before Appellate Tribunal in view of law laid down by august Supreme Court in Hayat Bakhsh and Gul Hassan cases supra. We have carefully considered this argument. The provision of Section 113 of the Act ibid deal with appeal before Appellate Tribunal against the scrutiny order. Under said provision of Section 113, a candidate or an objector may file appeal before Appellate Tribunal against the rejection or acceptance of nomination papers as the case may be. In the present case, admittedly, Respondent No. 4 was a candidate whose nomination papers were rejected by the Returning Officer, therefore, under Section 113 of the Act, he was entitled to file appeal against order of Returning Officer rejecting his nomination papers. We have also noted that nomination papers of Respondent No. 4 were not rejected on the ground that Respondent No. 4 was as absconder or fugitive from law. This plea was also not raised before Appellate Tribunal by the objector who was Respondent No. 2 in the said appeal.

3. The case law relied upon by petitioner is not applicable to the facts and circumstances of this case. In case of Hayat Bakhsh supra, appeal arose out of a murder case and august Supreme Court held that when a convicted become a fugitive before filing of appeal, he will be dis-entitled to a relief unless he surrenders. Hon’ble Supreme Court in said judgment also observed that this finding is in accordance with the basic principles governing administration of criminal justice and would apply to other proceedings, only subject to the law applicable thereto. In case of Gull Hassan supra, again the matter arose out of criminal appeal and same principle was applied by august Supreme Court. In present case, matter is not relating to any criminal proceedings against Respondent No. 4, rather he had filed an appeal against order passed by Returning Officer rejecting his nomination papers under Section 112 of the Act before the Appellate Tribunal. Further the applicable law is Section 113 of the Act, which authorizes a candidate to file appeal before Tribunal. There is no specific requirement under the Act that appellant must be present and cannot file appeal through authorized person.

4. Indeed a person who is fugitive of law, will have no right of criminal appeal in the matter, in which he has been declared absconder unless he surrenders, as held by august Supreme Court, in administration of criminal justice. However, it will be a fallacy to hold that a person who is declared absconder has no right to file any appeal before any forum, in respect of matters which have no nexus and relation to proceedings in which, he was declared absconder. By way of illustration, this will mean that a person who is absconder in a criminal case, cannot be allowed to file appeal even in any civil matters including banking matter, family matters etc before any Court of law. This will practically means that all fundamental rights of said person for their enforcement through Court of law will be suspended, which is neither the intention of legislation under the Act nor same is permissible under the Constitution.

5. We also found substance in argument of learned counsel for the respondents that under Article 225 of the Constitution, election is to be challenged through election petition. In the present case when neither petitioner is disfranchised nor any of his right to contest election is effected, the challenging of election process through constitutional petition will circumvent the intention of legislation under Article 225 of the Constitution. Further interference in constitutional petition will also be against the scheme of the Act, where against acceptance of nomination papers, only objector can file appeal, whereas a candidate has right under Section 156 of the Act to file election petition in the post election proceedings. In this regard, reliance is placed on Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others (PLD 1989 Supreme Court 396), Ghulam Mustafa Jatoi v. Additional District & Sessions Judge/Returning Officer, N.A. 158 Naushero Feroze and others (1994 SCMR 1299) and Muhammd Raza Hayat Hiraj and others v. TheElection Commission of Pakistan and others (2015 SCMR 233).

6. The above discussion leads us to ineluctable conclusion that the petitioner has no locus standi to file this constitutional petition being not an objector to the nomination papers of Respondent No. 4 before the Returning Officer. Resultantly, this petition is dismissed, with no order as to cost.

(M.M.R.) Petition dismissed

PLJ 2018 Lahore 635 [Multan Bench, Multan]

Present: Muhammad Ali, J.

GHULAM FATIMA and others--Appellants

versus

MUHAMMAD IQBAL--Respondent

R.S.A. No. 81 of 2014, heard on 19.9.2017.

Specific Relief Act, 1877 (I of 1897)--

----S. 42--Civil Procedure Code, (V of 1908), S. 100--Suit for specific performance--Oral agreement to sell--Consideration amount was paid--Receipt of earnest money--Possession of property was handed over--Sale-deed was executed by receiving balance amount--Denial of agreement to sell--Suit decreed--Reappraisal of evidence--Concurrent findings--Challenge to--Learned Courts below have rightly appreciated evidence, no illegality or material irregularity is found in findings--Jurisdiction of this Court is limited while exercising jurisdiction under Section 100 C.P.C in second appeal--It was held that where two Courts after careful appraisal of evidence found evidence of plaintiff regarding execution of agreement to sell as reliable, such findings of fact, could not be substituted by this Court in second appeal, even if a different view was possible on reappraisal of evidence, especially when it was not established that Courts while arriving at such findings of facts misconstrued or misread evidence--In circumstances, no case for interference is made out--Appeal dismissed. [Pp. 638 & 639] A & B

Muhammad Feroze and others v. Muhammad Jamaal Ali 2006 SCMR 1304, Hamid Qayyum v. Muhammad Azeem1991 CLC 812.

Mian Ashfaq Ahmed Sial,Advocate for Appellants.

Syed Tajamal Hussain Bukhari, Advocate for Respondents.

Date of hearing: 19.9.2017

Judgment

Through this regular second appeal under Section 100 of the Civil Procedure Code, 1908 (“C.P.C”), the appellants have challenged the judgment and decree dated 30.04.2011 passed by the learned Civil Judge, Multan and judgment and decree dated 25.04.2014 passed by the learned Additional District Judge, Multan, whereby the suit for specific performance of agreement filed by the respondent-plaintiff was decreed and the appeal against the said decision of the learned trial Court was dismissed.

1. The necessary facts for decision of this appeal are that the respondent filed a suit for specific performance of agreement contending therein; that Appellant No. 1, who was paternal aunt of the respondent being owner of the suit property entered into an oral agreement to sell with the respondent for sale of suit property on 1.11.2001 for a consideration of Rs. 12,00,000/-; that Rs. 10,00,000/- was paid by the respondent to her as an earnest money and a receipt dated 1.11.2001 was executed by her in presence of the witnesses acknowledging the payment; that the possession of the property was handed over to the respondent at that time and since the execution of the agreement, the respondent is in possession of the suit property; that the sale-deed was to be executed in favour of the respondent after receiving balance sale price of Rs. 2,00,000/-and time of one and a half year was settled between the parties; that Appellant No. 1 with mala fide intention after receiving major portion of earnest money gifted the property in an illegal manner to her sons and daughters vide Mutation No. 1246 dated 23.08.2002 which was void, against law and facts, illegal, collusive and was liable to be cancelled.

2. The suit was contested by the appellants-defendants by filing written statement raising legal as well as factual objections. The execution of agreement to sell was denied. The learned trial Court from divergent pleadings of the parties framed necessary issues and after recording evidence of the parties decreed the suit vide judgment and decree dated 30.4.2011. Feeling dissatisfied, the appellants preferred an appeal which was dismissed vide judgment and decree dated 25.04.2014 and the decision of the learned trial Court was upheld, hence this regular second appeal.

3. The learned counsel for the appellants submits that the findings recorded by the Courts below are result of misreading and non-reading of evidence; that Appellant No. 1 was illiterate parda observing lady, a strong and authentic evidence was required to prove that she entered into agreement to sell voluntarily; that the evidence of the witnesses for the respondent was contradictory on material particulars; that Appellant No. 1 was deprived from her property in an illegal and fraudulent manner.

4. Contrarily, the learned counsel for the respondent submits that there are concurrent findings of facts of two Courts below and reappraisal of evidence is not permissible in second appeal merely on the ground that another view is possible; that the respondent proved his stance through clear and convincing evidence by producing oral and documentary evidence; that the witnesses of the respondent deposed in a straight forward manner and there is no contradiction in their testimony; that opinion of Handwriting Expert about the receipt proves execution of the receipt by Appellant No. 1 as her thumb impression on the document matched with her specimen thumb impression.

5. Arguments heard. Record perused.

6. The respondent sought a decree for specific performance of agreement of sale of immoveable property on the basis of an oral agreement. The respondent was under a heavy burden to prove what was settled between the parties on the basis of such agreement. The respondent in order to discharge the burden of proof of Issue No. 1, appeared as PW-1 and reiterated his stance taken in the plaint, he also produced a receipt Exh.Pl which is acknowledgment of payment of the earnest money. The receipt was tendered in statement of the respondent without any objection. In support of his oral and documentary evidence, the respondent produced witnesses of the oral agreement, who are also signatories of the receipt. Muhammad Iqbal appeared as PW-3 and Muhammad Nawaz as PW-4. The scribe of the receipt Ghulam Hussain appeared as PW-2. The plaintiff and the marginal witnesses of the document as well as the scribe have testified in a straightforward manner about the transaction in question. Nothing detrimental to the case of respondent was extracted from their cross-examination. It was established that independent advise was available to Appellant No. 1 as she was accompanied by her son Ghulam Abbas. The execution of the receipt was denied by Appellant No. 1 in her written statement but there was no specific denial on her part as far as the oral agreement to sell is concerned in her written statement. The evasive denial was not enough to rebut the plea as the denial has to be in specific terms in the written statement.

7. The stance of the Appellant No. 1 in her written statement referred about the receipt as a forged and fictitious document and that it was never executed by her. However, in her evidence which was recorded through her attorney DW-1, a new fact was introduced. It was stated by the witness that a suit for pre-emption was filed by his maternal grand father and after his death his mother Mst. Ghulam Fatima was impleaded as a party in the said suit. The matter was pursued by father of the respondent. By producing attested copies of the documents relating to the suit for possession through pre-emption and another suit for permanent injunction, it was submitted that father of the respondent got certain papers thumb marked by Appellant No. 1 and the receipt could be one such document on which writing was made through forgery which was already thumb marked. This plea was never taken in the written statement. No suggestion was put to the scribe PW-2 that he made writing on a paper which was already thumb marked. Even otherwise, if that was the case, this important fact should have been mentioned in the written statement. The witness DW-1 categorically stated that written statement was prepared on his instructions. The plea raised during evidence seems to be a belated plea which is not worth reliance. Nothing stated outside the scope of pleadings can be looked into and no decision can be based on such evidence. Reference in this behalf is made to the cases of Combined Investment (PVT) Ltd v. Wali Bhati (PLD 2016 Supreme Court 730) and Muhammad Rafiq v. Muhammad Ali (2004 SCMR 704). The basic judgment on the point is the case of Siddik Mahomed Shah v. Mt. Saran and others [AIR 1930 Privy Council 57 (1)]

8. The Finger Expert Shafqat Anwar from the Finger Expert Bureu, Lahore appeared as CW-1. Since the thumb impression of Ghulam Fatima on the receipt was denied in the written statement, the document was sent for comparison of her thumb impression with her admitted thumb impression. According to the report of Handwriting Expert Exh.P9, the thumb impressions matched after the comparison. This was an additional factor to hold that agreement to sell was executed between the parties, besides the testimony of marginal witnesses and the scribe. The opinion of Handwritten Expert supported by reasons deserves consideration, if it is in line with the direct evidence. Reference in this behalf can be made to the case of Hamad Qayyum v. Muhammad Azeem (PLD 1995 Supreme Court 381). The document Exh.P1 was not objected at the time, it was tendered in evidence, no objection to its admissibility could be taken, subsequently. The Tamleek executed by Appellant No. 1 was rightly declared invalid because admittedly, possession was not handed over at the time of its execution which undeniably was with the respondent. In case one out of three ingredients of gift i.e. offer, acceptance of offer and delivery of possession is missing, the gift cannot be held as validly executed.

9. The learned Courts below have rightly appreciated the evidence, no illegality or material irregularity is found in the findings. The jurisdiction of this Court is limited while exercising jurisdiction

under Section 100, C.P.C in second appeal. The interference can only be made to the extent of question of law and not on question of fact as held in the case of Muhammad Feroze and others v. Muhammad Jamaal Ali (2006 SCMR 1304). In the case of Hamid Qayyum v. Muhammad Azeem (1991 CLC 812), it was held that where two Courts after careful appraisal of evidence found evidence of the plaintiff regarding execution of agreement to sell as reliable, such findings of fact, could not be substituted by this Court in second appeal, even if a different view was possible on reappraisal of evidence, especially when it was not established that the Courts while arriving at such findings of facts misconstrued or misread the evidence. In the circumstances, no case for interference is made out.

For what has been discussed above, this appeal has no merits and the same is hereby dismissed. There is no order as to costs.

(Y.A.) Petition dismissed

PLJ 2018 Lahore 639

Present: Ali Baqar Najafi, J.

AMIR HAYAT--Petitioner

versus

PUNJAB PUBLIC SERVICE COMMISSION, etc.--Respondents

W.P. No. 31278 of 2016, decided on 15.2.2018.

Punjab Public Service Commission Regulations, 2016--

----Rr. 59 & 62--Constitution of Pakistan, 1973, Arts. 4 & 199--Constitutional Petition--Advertisement for 35 post of sub-inspectors--Petitioner was called for interview--Petitioner stood at No. 32 as per merit list--Three candidates did not join service/duty--Orders of appointment of 30 candidates were issued--Discretionary powers--Direction to--Under regulation 59 of Punjab Public Service commission Regulations, 2016 a substitute can be provided from merit list during its validity period if so requested by department under Regulation 62, such merit list remains valid for twelve months--Petition had smartly and promptly approached High Court within in period of one year as per PPSC Regulations, Discretion exercised by respondent was apparently after thought and to frustrate already completed process--Petitioner has a right to be dealt with in accordance with law under Art. 4 of constitution of Pakistan, 1973--Petition was allowed. [Pp. 641 & 642] A & B

Province of Sindh and others vs. Ghulam Hassan Bughio2014 SCMR 643

Mr. Ali Raza Gillani, Advocate for Petitioner.

Ms. Salma Malik, Addl. A.G. Punjab for Respondents.

Date of hearing: 15.2.2018.

Order

Through this constitutional petition, a direction is sought by the petitioner to the respondents to recommend him for appointment against the post of Sub-Inspector (BS.14) on open merit.

1. Brief facts giving rise to the filing of this writ petition are that in response to the advertisement published in the newspaper dated 1.11.2015 for 35 posts of Sub-Inspectors (BS.14), the petitioner applied and passed the written test held on 24.01.2016. In total 145 candidates including the petitioner were called for interview. He stood at No. 32 in the merit list. As three candidates, namely, Muhammad Umar, Abdul Sattar and Hafiz Suboor-ul-Hassan did not join their service, it is submitted by the petitioner, these seats should fall to the next in line and as such the petitioner is required to be appointed as Sub-Inspector, as per rules of Punjab Public Service Commission.

2. In the report and parawise comments submitted by the Respondent No. 2, it is submitted that 35 posts of Sub-Inspectors of Faisalabad Region included 05 posts for women, 02 for minorities were advertised. In total 2763 applicants applied. It is admitted that petitioner stood at Sr. No. 32 and one Mumtaz Hussain at Sr.N.31 (a petitioner who has already withdrawn petition to his extent). As no request was received from the respondent to the Commission, therefore, no recommendations were made against left out seats in open merit.

3. In the reply filed by Respondent No. 3, Regional Police Officer Faisalabad, it is stated that formal orders of appointment of 30 candidates for the post of Sub-Inspector were issued as 05 candidates could not pass the medical test.

4. In the report and parawise comments filed by IG/Respondent No. 2, it is submitted that 32 candidates were appointed whereas 03 candidates could not be appointed due to their personal & medical reasons. It was however stated that the department as a policy included the said unfilled three seats in the vacant posts of Faisalabad Region for which requisition have been moved to the respondent/Punjab Public Service Commission on 03.11.2016. Importantly, it was done within one year of the merit list dated 29.04.2016 and just after filing of the present writ petition on 5.10.2016 and 04 days before the filing of the comments dated 7.11.2016 by the Inspector General of Police.

5. Learned counsel for the petitioner submits that the petitioner, the next in the merit list, should be appointed as SI (BS.14) within one year and that requisition for recommendation from PPSC is after thought made during the pendency of the present writ petition.

6. Conversely, learned Additional Advocate General Punjab submits that the Government is not bond to appoint the next candidate in line and can exercise its discretionary powers, therefore, places reliance on order dated 29.03.2016 passed in C.P.No. 602-L/2016 titled “Muhammad Saeed Anwar vs. Punjab Public Service Commission” and prays for the dismissal of the writ petition.

7. Arguments heard. File perused.

8. Admittedly, the facts are that under Sub-Inspector & Inspectors (Appointment & Conditions of Service) Rules, 2013, notified on 02.01.2014, 50% vacant posts in the rank of Sub-Inspectors were to be filled on merit by the initial recruitment through selection on the basis of police regions on the recommendations of the PPSC. Accordingly, a requisition for initial direct recruitment of 226 Sub-Inspectors including 35 from Faisalabad Region were forwarded to PPSC on 20.10.2015, which were advertised in the same year. On 29.04.2016, after following the due process, 35 candidates were forwarded by the office of I.G. to Faisalabad Region, but three candidates could not join due to medical/personal reasons. At this juncture, the present writ petition was filed on 05.10.2016 for the above said relief. However, on 03.11.2016 the posts including the said three posts were advertised, which fact was discussed in the comments filed by the respondent/I.G. Police on 7.11.2016.

9. Legally, under Regulation 59 of the Punjab Public Service Commission Regulations, 2016, a substitute can be provided from the merit list during its validity period if so requested by the department. Under Regulation 62 thereof, such merit list remains valid for twelve months. For convenience Regulations 59 & 62 thereof are reproduced as under:--

“59. A substitute can be provided from the merit list during its validity period if so requested by the department concerned, in case a candidate:

a. Fails to join the post.

b. Tenders his/her resignation after joining.

c. Is declared unfit on medical or other grounds.

d. Requisitioned post has become vacant for any other reason.”

“62. For recommending substitutes, the Merit List remains valid for twelve months from the date of issuance of first recommendation or till the date of receipt of next requisition in the commission for the same post, whichever is earlier, provided that where request for substitute is received within the validity period, the Chairman in his discretion may extend the validity period for the disposal of such request.”

1. Here an analogy can also be drawn from case titled “Province of Sindh and others vs. Ghulam Hassan Bughio” reported as 2014 SCMR 643, that a post can be advertised only if a suitable candidate is not available and that it is not mandatory that whenever the vacancy occurs, the post has to be re-advertised. Moreover, the view given in the order dated 29.03.2016 in C.P.No. 602-L/2016 “Muhammad Saeed Anwar vs. Punjab Public Service Commission” is not related to the Rule 62, but Rules 66 & 69 of the Punjab Public Service Commission Rules, 2016. Besides, the petitioner had smartly and promptly approached this Court within the said period of one year, therefore, the discretion exercised by the respondent was apparently afterthought and to frustrate the already completed process. The petitioner has a right to be dealt with in accordance with law under Article 4 of the Constitution of Islamic Republic of Pakistan, 1973.

2. Keeping in view the above, this writ petition is allowed and the respondents are directed to adjust the petitioner and issue him the appointment letter for the post of Sub-Inspector (BS.14) on the basis of the list dated 29.04.2016 already issued.

(M.M.R.) Petition allowed

PLJ 2018 Lahore 643

Present: Ibad-ur-Rehman Lodhi, J.

SH. RIAZ AHMAD and another--Petitioners

versus

DEFENCE HOUSING AUTHORITY through Secretary and 2 others--Respondents

C.R. No. 421 of 2017, heard on 3.10.2017.

Limitation Act, 1908 (IX of 1908)--

----S. 5--Application for condonation of delay--Restoration of suit--Application of--An application was prepared u/S. 5 of Limitation Act, 1908, upon which, although Court fee of two rupees is affixed, but it carries no date as to when and who purchased same--Stamps of “filing” affixed on application for restoration of suit and affidavit annexed therewith and one shown to have been affixed on application seeking condonation of delay and affidavit annexed therewith further indicate that stamps were not affixed at one time and go--Application u/S. 5 of Limitation Act, 1908 and affidavit therewith were got inserted at some later stage, even after dismissal of main application, which carries a clear note of trial Judge that application for restoration of suit was supported with no application for condonation of delay--Petitioners have miserably failed to disclose as to when for first time, dismissal of suit came into their knowledge and further also failed to get delay condoned caused in filing of such application, rather in their such attempt, they have played some foul games and such conduct of petitioners disentitles them to ask for any equitable relief--No illegality or irregularity has been found in concurrent findings arrived at by Courts below, hence, no interference is called for in such findings in revisional jurisdiction of High Court--Civil revision was dismissed.

[P. 645] A, C & D

Limitation Act, 1908 (IX of 1908)--

----Art. 163--Application for restoration of suit--Period of 30 days--Article 163 of Limitation Act, 1908 provides a period of 30-days for filing an application for restoration of suit dismissed in default and starting point of limitation of this 30-days is date of dismissal.

[P. 645] B

Mr. Ahmad Waheed Khan, Advocate for Petitioner.

Mr. Tariq Masood, Advocate for Respondent.

Date of hearing: 3.10.2017.

Judgment

When on 02.06.2012, it was last opportunity for the petitioners to file amended plaint after impleading some added parties, the suit was dismissed for non-prosecution on account of their non-appearance for whole of the day.

Subsequently, the petitioners filed application for restoration of suit, which was concurrently dismissed by the Courts below vide impugned order and judgment dated 19.11.2015 and 16.09.2016 respectively.

1. Admittedly, the petitioners filed application for restoration of the proceedings of suit on 01.03.2013. This application was supported with an affidavit of the petitioner. On the same day, on receipt of application, learned trial Judge on its rear side ordered the requisition of original record of the suit. In the report of the office of Civil Judge, as also in the first order passed by the learned trial Judge on 01.03.2013 on the said application, there is no mention of filing of any independent application by the petitioners seeking condonation of delay caused in filing of application for restoration of the suit and here it would be beneficial to mention that when on 19.11.2015, learned Civil Judge proceeded to dismiss the application for restoration of the suit, he has clearly noted that petitioners have failed to file any application for condonation of delay.

Alongwith civil revision petition at page 64, a copy of application moved under the provisions of Section 5 of The Limitation Act, 1908 before learned Civil Judge has been annexed by the petitioners.

In the above background, the filing/insertion of such application for condonation of delay was doubted and in order to clarify the position, the original record of the restoration application was requisitioned.

Perusal of the original record reveals that scribe of the application of restoration petition drafted the same in a manner that he left almost a space of two lines in between two distinct paragraphs. However, the space left at the end of para 2 was subsequently filled in with a different pen by addition of under mentioned two lines:

لیکن مورخہ 23.02.13 کو سائل کے علم میں یہ بات آئی ہے کہ مقدمہ عنوان بالا مورخہ 02.05.12کو بوجہ عدم پیروی خارج ہو گیا تھا۔

And this was the disclosure for the first time as to when the petitioners came to know about dismissal of suit. The date of knowledge although has been noted down in these two added lines as 23.02.2013, but again the petitioners failed to disclose any source of getting such knowledge.

The original record of restoration application has been arranged in the manner that the original application is placed at pages 3 and 4 and affidavit annexed therewith at page 5, whereas application for condonation of delay caused in filing the restoration petition is placed at page 39 and affidavit therewith at page 41.

The proceedings as carried out upon such application for restoration of suit indicate that the insertion of two lines at the end of para 2 of original application for restoration of suit was result of some afterthought and then in order to substantiate such added contention, an application was prepared under Section 5 of The Limitation Act, 1908, upon which, although Court fee of two rupees is affixed, but it carries no date as to when and who purchased the same. The stamps of “filing” affixed on the application for restoration of suit and affidavit annexed therewith and one shown to have been affixed on the application seeking condonation of delay and affidavit annexed therewith further indicate that the stamps were not affixed at one time and go. The application under Section 5 of The Limitation Act, 1908 and affidavit therewith were got inserted at some later stage, even after dismissal of main application on 19.11.2015, which carries a clear note of the learned trial Judge that application for restoration of the suit was supported with no application for condonation of delay.

1. Article 163 of The Limitation Act, 1908 provides a period of 30-days for filing an application for restoration of suit dismissed in default and starting point of limitation of this 30-days is the date of dismissal.

2. The petitioners have miserably failed to disclose as to when for the first time, dismissal of suit came into their knowledge and further also failed to get the delay condoned caused in filing of such application, rather in their such attempt, they have played some foul games and such conduct of the petitioners disentitles them to ask for any equitable relief.

3. No illegality or irregularity has been found in the concurrent findings arrived at by the Courts below, hence, no interference is called for in such findings in revisional jurisdiction of this Court.

4. Resultantly, finding no force, this civil revision petition is dismissed.

5. Original record of learned trial Court be returned.

(A.A.K.) Revision dismissed

PLJ 2018 Lahore 646 (FB)

Present: Abid Aziz Sheikh, Shams Mehmood Mirza and Shahid Karim, JJ.

CITY SCHOOL PRIVATE LIMITED--Petitioner

versus

GOVERNMENT OF THE PUNJAB etc.--Respondents

W.P. No. 29724 of 2015, decided on 5.4.2018.

Constitution of Pakistan, 1973--

----Arts. 9, 14, 18, 25-A, 37(b) 38(d)--Punjab Private Educational Institutions (Promotion and Regulations Ordinance, 1984 and Rules, 1984, R. 7-A--Amendment--Restructions were imposed--Fee increased for any academic year for not more than 5% and 8% retrospective effect--Question of--Whether amendment regarding fixation and determination fee of private schools which as claimed by Government is ensure not to allow commercialization, profiteering and expatition--Right to education--The right to life and dignity of an individual cannot be assured unless it is accompanied by the right to education--Principles of policy--Right to education is also guaranteed under Arts. 37(b) & 38(d)--Principles of policy not justiciable but cannot be isolated from fundamental rights guaranteed under the Constitution--After 18th Amendment in Constitution the right of education has been made an independent fundamental right under Art. 25-A of the Constitution--The Ordinance of 1984 and Rules of 1984 were promulgated to register and regulate private educational institutions. The Ordinance of 1984 was amended through Ordinance 2015 whereby the impugned Section 7-A was inserted in Ordinance of 1984 and inter alia maximum limit of 5% for increase in fee was prescribed. The said Ordinance of 2015 was converted into Act of 2016. The provision of Section 7-A of Ordinance 1984 was further amended through Act of 2017 and maximum limit was increased to 8%--Plain reading of Article 18 of the Constitution shows that citizen has right to enter upon lawful occupation or profession or conduct a lawful trade or business subject to qualifications or conditions through regulations. These restrictions under Article 18 are of four kinds. Firstly the State can through law prescribe qualifications; secondly the trade or profession may be regulated by a licensing system; thirdly trade, commerce or industry may be regulated in the interest of free competition therein and fourthly, a citizen may be excluded completely or partially from carrying out a trade, business, industry or services, where State wants to carry it out itself. [P. 663, 664 & 666] A, B & C

Punjab Private Educational Institutions (Promotion and Regulations Ordinance, 1984--

----Ss. 7 & 7-A--Punjab Private Educational Institutions (Promotion and Regulation) Rules, 1984, R. 12(ii)--Constitution of Pakistan, 1973, Art. 18--The word ‘Qualification’--Defined--A quality, which is legally necessary to render a person eligible to fill an office or to perform any public duty or function means qualification--Section 7-A of the Ordinance, 1984 shows that a mechanism has been provided for fixation of the fee by educational institution including maximum limit to which fee can be increased--The mechanism of fixation of reasonable fee through S. 7-A of the Ordinance is also a part of registration requirements u/S. 7 of the Ordinance, 1984 and Rule 12 of the Rules, 1984--Certain registration requirements may also amount to ‘qualifications’. [Pp. 666 & 667] D & E

Arshad Mahmood v. Government of Punjab PLD 2005 SC 193 ref.

Punjab Private Educational Institutions (Promotion and Regulation) Ordinance, 1984--

----Ss. 3, 4, 6, 7 & 9--Constitution of Pakistan Art. 18--‘Licence’--Defined--As per Blacks’ Law Dict. Licence is a permit from Government to carry on some trade etc.--No educational institution shall run unless it is registered under Ordinance, 1984--It can safely be concluded that private schools are being regulated under licensing system. [P. 667, 668 & 669] F, G & H

Ghulam Zameer vs. Khondar PLD 1965 Dacca 156 & Cornelius in East and West Steam Shipping Company case PLD 1958 SC 41, ref.

Constitution of Pakistan, 1973--

----Art. 18--Expression ‘reasonable restriction’s is not specifically mentioned as in Art. 19 (6) of Indian Constitution--However word ‘Regulation’ in Art. 18 has been construed that regulation shall be reasonable--Word ‘Regulation’ defined--Right of profession and trade under Art. 18 of constitution is not an absolute right and is always subject to reasonable restriction prescribed by law in a system of licensing--Competent authority is at liberty to regulate profession and trade and said form of regulation shall only be unconstitutional if it is arbitrary, discriminatory, or demonstrable irrelevant to policy--A reasonable restriction is always considered to be within framework of fundamental right--Law may regulate mode of carrying on business, there is no bar to exercise lawful trade but interest of community should be guarded as a public policy.

[Pp. 670, 674 & 675] I, J & K

Arshad Mahmood v. Government of Punjab PLD 2005 SC 193, Pakcom Limited and others v. Federation of Pakistan and others PLD 2011 SC 44, Al-Reham Travels and Tours (Pvt.) Ltd. v. Ministry of Religious, Hajj, Zakat and Ushr through Secretary and others 2011 SCMR 1621, Farooq Ahmad Khan Leghari v. Federation of Pakistan PLD 1999 SC 57, Messrs Elahi Cotton Mills Ltd. and others vs. Federation of Pakistan through Secretary M/o Finance, Islamabad and others PLD 1997 SC 582, Administrator, Market Committee Kasur and 3 others vs. Muhammad Sharif and others 1994 SCMR 1048, Watan Party and another vs. Federation of Pakistan PLD 2011 SC 997, Shahabuddin and another vs. Pakistan PLD 1957 (W.P.) Kar. 854, ref.

PunjabPrivate Educational Institutions (Promotion and Regulation) Ordinance, 1984--

----S. 7-A--Reasonable--Duration and extension Restriction--Fundamental Rights of Restrictions--Interest of General Public--There are no abstract standards or general pattern of reasonableness, Court has to bear in mind that nature of rights infringed through such restrictions should be proportionate to urgency of evil sought to be remedied by said restriction--Question--Impugned Section 7-A of Ordinance 1984 is reasonable or not--An act of parliament is not open to challenge on grounds of reasonableness and reasonableness is available to challenge validity of subordinate legislation such as rules or regulation or act of executive but this general rule doesn’t apply where under constitution, a right conferred is subject to reasonableness restriction imposed by law in public interest etc.--Perusal of clause (v) of repealed Ordinance, 1962--Section 7 of Ordinance, 1984 Rule 12(ii) of Rules, 1984 shows that fees to be charged by educational institutions was always regulated by authority even prior to impugned Section 7-A of Ordinance, 1984--Therefore it can’t be argued that under Article 18 of Constitution, fixation of reasonable fee by educational institutions can’t be regulated through Section 7-A of Ordinance, 1984. [Pp. 682, 683 & 684] L, M & N

Pakistan Broadcasters Association vs. Pakistan Media Regulatory Authority PLD 2016 SC 692, Papnasam Labour Union vs. Madura Coats Ltd. AIR 1952 SC 196, Mohammad Faruk v. State of Madhya Pradesh AIR 1970 SC 93, Narendra Kumar v. Union of India AIR 1960 SC 430, Bannari Amman Sugars Ltd. Commercial Tax Officer 2005 1 SC 625, AIR 1982 SC 33, AIR 1954 SC 220, (1986) 3 SCC 20; AIR 1961 SC 448 & AIR 1952 SC 115, ref.

State’s Regulatory System--

----Mechanism for unaided private schools--Principles--Pakistani and Indian Courts.

Monini Jai vs. State of Karnataka 1992 3 SCC 666, Unni Krishnan, J.P. vs. State of A.P. (1993) 1 SCC 645, TMA Pai Foundation vs. State of Karnataka (2002) 8 SCC 481, Islamic Academy of Education vs. State of Karnataka (2003) 6 SCC 697, P.A. Inamdar vs. State of Maharashtra (2005) 6 SCC 537, Society for Unaided Private School of Rajasthan vs. Union of India 2012 AIR SC 3445, Modern School vs. Union of India AIR 2004 SC 2236, Anti-Corruption and Crime Investigation Cell vs. State of Punjab & others 2013 (2) CLT 488; Modern Dental College and Research Centre and another vs. Madhya Pradesh and others 2016 AIR SC 2601; Modern Dental College v. State of Madhya Pradesh AIR 2009 SC 2432; Father Thomas Shingare Vs. State of Maharashtra AIR 2002 SC 463; India Medical Association vs. Union of India and others AIR 2011 SC 2365; Charutar Arogya Mandal v. State of Gujarat AIR 2011 (SCW) 2475; Rohilkhand Medical College and Hospital, Bareilly v. Medical Council of India 2013 (15) SCC 516; Modern Dental College and Research Centre v. State of Madhya Pradesh 2016 AIR (SC) 2601; M/s. Pushpagiri Medical Society vs. State of Kerala and other 2004 AIR (SCW) 7491, In Educational Services (Pvt.) Limited and 4 others vs. Federation of Pakistan and another PLD 2016 Islamabad 141; Shahrukh Shakeel Khan and 2 others vs. Province of Sindh through Chief Secretary and 4 others PLD 2017 Sindh 198; Arif Yousif Chohan and 9 others vs. Province of Sindh through Secretary Education, Government of Sindh, Karachi and 5 others 2017 YLR Note 385; Pir Liaqat Ali Shah vs. Government of N.W.F.P. through Secretary and 7 others PLD 2011 Peshawar 143, ref.

Constitution of Pakistan, 1973--

----Art. 25--Equal Protection of Law--Sec. 7-A Sub-Sec. (1) of Ordinance, 1984 classifies private schools charging more than Rs. 4000 and other private schools hence discriminatory--Validity--This argument has no substance--Equal protection of law under Art. 25 of constitution doesn’t envisage that every citizen is to be treated alike in all circumstances but it contemplates that persons similarly stated or similarly placed are to be treated alike--Reasonable classification is permissible on basis of intelligible differentia which distinguishes persons or things that are group together from those who have been left out. [P. 698] O

PunjabPrivate Educational Institution (Promotion and Regulation) Ordinance, 1984--

----Cls. (1) & (5)--Principle of proportionality--Restriction on fundamental right can only be upheld if it is established that it seeks to impose reasonable restriction in interest of public at large and a less drastic restriction will not have ensued interest of general public--This is a principle of proportionality which if violated will automatically render condition as unreasonable restriction--Applicability of principle of proportionality on sub-clause (1) & (5) of Section 7-A of Ordinance--Rationale for capping of fee to 5% and 8% and not more than previous academic year, is to prevent profiteering by educational institutions--This extreme restriction across board on every educational institution, regardless of its costs, expenses and actual profit is absolutely unproportionate and unreasonable--Onus of proving to satisfaction of Court that restriction is reasonable lies upon state--Further where legislative enactment abridges any of fundamental right enumerated in constitution, it could be struck down by Court.

[Pp. 701, 702 & 703] P, Q, R

Constitution of Pakistan, 1973--

----Arts. 23 & 24--Right to property--Ordinance, 1984 Sub-Clause (1) & (5) of Sec. 7-A--It is not reasonable to impose Cap of 5% or 8% or total bar on increase more than previous academic year across board, on all private educational institutions by simply disregarding inflation and costs incurred by those institutions--Cap on gross income without taking into account inflation and actual cost will amount to take away right of property under Art. 23 and 24 of constitution. [P. 703] S

Constitution of Pakistan, 1973--

----Art. 25-A--Right to Education--Responsibility of State to provide free education to children between age 5-16 but unaided private educational institutions are not bound to provide completely free education to all students under Art. 25-A of Constitution. [P. 706] T

Legislative Judgment--

----Concept--Explained--Impugned legislation of freezing maximum fee amounts to legislative judgment--Validity--Such fixation is not an enactment of legislature in domain of judiciary, because no judgment render or to be rendered by any Court is under dispute and no presumption is associated with petitioner--Further no power of any Court has been usurped by impugned legislation and petitioner’s right to have recourse to Court of law remains available. [P. 707] U

Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265, Naseer Ahmed Khan v. GOPPLD 1980 Lah. 684, Government of Punjab vs. Naseer Ahmad Khan 2001 CLC 1422, Government of Punjab v. Naseer Ahmed Khan 2010 SCMR 431, Nat. Industrial Coop Credit Corp. v. Province of Punjab PLD 1992 Lah. 462, distinguished.

Constitution of Pakistan, 1973--

----Art. 10-A--Due process of law--Punjab Private Educational Institution (Promotion and Regulation) Ordinance, 1984, S. 7-A--So, legislation was not required to give hearing to petitioners before passing of impugned Section 7A of Ordinance, 1984--However, ex-post facto hearing mechanism should have been provided to determine if fee beyond 5% or 8% is justified or not--This requirement is further entrenched in law after insertion of Article 10-A of Constitution, which makes due process as fundamental right--In light of above discussion, we are of view that though legislation was not required to give hearing to petitioners before passing of impugned provision of Section 7-A, however, ex post facto hearing mechanism should have been provided to determine if fee beyond 5% or 8% is justified or not--This requirement is further entrenched in law after insertion of Article 10-A of Constitution, which makes due process as fundamental right--It is well settled law that even vested rights can be taken away by express words and necessary intendment by legislature. [P. 709] V & W

Fauji Foundation and another vs. Shamim ur Rehman PLD 1983 SC 457, Province of Punjab vs. National Industrial Co-operation Credit Corporation 2000 SCMR 567, ref.

Punjab Private Educational Institution (Promotion and Regulation) Ordinance, 1984--

----S. 7-A--Constitution, 1973--Art. 128--Section 7-A of Ordinance, 1984 could only be amended through Act of Parliament and not through Ordinance--Validity--Ordinance has no basis--After Ordinance, 2015--Section 7-A was inserted through Act of 2016 and finally through Act of 2017--Under Article 128 of constitution of Pakistan, 1973 Governor exercised legislative power and not merely executive power. [P. 709] X

Fauji Foundation and another vs. Shamim ur RehmanPLD 1983 SC 457, ref.

Constitution of Pakistan, 1973--

----Art. 3--Elimination of exploitation--Regulatory measures for fixing fees--Article 3 enjoins upon state duty to eliminate exploitation and this also provides a raison d’eter for regulation of Education sector and puts paid to argument that GOP must not intervene in regulatory measures of fixing fees on this basis--It is constitutional duty of GOP to balance mandate of Article 3 with rights of petitions to conduct an economic activity. [P. 718] Y

Rawalpindi Bar Association v. Federation PLD 2015 SC 401, ref.

Mrs. Asma Jahangir, M/s. Shahid Hamid, Miss Aysha Hamid, Khawaja Haris, Faisal Hussain Naqvi, Khawaja Ahmad Hosain, Shezad Atta Elahi, Dr. Khalid Ranjha, Asad Ullah Saddiqui, Muhammad Haroon Mumtaz, Hassan Makhdoom, Tafazzul Rizvi, Raza Kazim, Zaki Rehman, Ch. Muhammad Usman, Shezada Mazher, Ali Raza, Ijaz Mehmood Ch., Mian Muhammad Kashif, Ch. Hassan Murtaza Mann, Azam Nazeer Tarar, Hassan Nawaz Makhdoom, Hasnain Ali Ramzan, Fawad Malik Awan, Syed Anwar-ul-Haq Gillani, Miss Asma Inam, Asim Hafeez, Rana Nadeem Sabir, Syed Ahmad Hassan Shah, Barrister Muhammad Umar Riaz, Mashhood Hussain, Moazzam Salim, M. Anwar Ch. and Hashim Raza Shamsi Advocates for Petitioners (School).

M/s. A. K. Dogar, Syed Shahab Qutab, Waqas Meer, Muhammad Javed Arshad, Muhammad Azhar Siddique, Liaqat Ali Butt, Muhammad Zaheer Butt, Fayyaz Ahmad Mehr and Zubair Ahmad Chaudhry, Advocates for Petitioners (Students/Parents).

Mr. Muhammad Shan Gull, Additional Advocate General assisted by Mr. Obaid Ullah, Advocate and Rai Ashfaq Ahmad Kharal, Assistant Advocate General for Respondents (Government).

Dates of hearing: 14.03.2016, 15.06.2016, 26.02.2018, 27.02.2018, 28.02.2018, 05.03.2018, 06.03.2018, 07.03.2018, 12.03.2018, 13.03.2018, 14.03.2018 and 15.03.2018.

Judgment

Abid Aziz Sheikh, J.--This judgment will decide instant writ petition as well as writ petitions detail of which is given in appendix-A and appendix-B. In all these writ petitions, there is communality of issue relating to school fee being charged by unaided private educational institutions in Province of Punjab. The issue involved is right of private educational institutions to increase school fee from time to time and nature of control which government can exercise in regulating such fee structure. In some of the writ petitions, (petitions in appendix A), petitioners are private schools and have challenged the vires of certain sub-clauses of Section 7-A of the Punjab Private Educational Institutions (Promotion and Regulation) Ordinance, 1984 (Ordinance 1984) inserted on 19.09.2015 through Section 4 of Punjab Private Educational Institutions (Promotion and Regulation) Amendment Ordinance, 2015 (Ordinance of 2015). Subsequently on 04.03.2016, the Ordinance 2015 was converted into Act through the Punjab Private Educational Institutions (Promotion and Regulations) (Amendment) Act, 2016 (Act of 2016). Section 7-A of the Ordinance 1984 was further amended through Punjab Private Educational Institutions (Promotion and Regulations) (Amendment) Act, 2017 (Act of 2017). Accordingly these petitions were amended from time to time, also to challenge the amendments made in Section 7-A of the Ordinance 1984 through Act of 2016 and Act of 2017.

1. Brief facts are that in Province of Punjab, Private educational institutions are regulated through Ordinance 1984 and Punjab Private Educational Institutions (Promotion and Regulation) Rules, 1984 (Rules of 1984). The said Ordinance 1984 was amended and Section 7-A was inserted. Under Section 7-A of the Ordinance 1984, certain restrictions are imposed on private educational institutions including capping of increase in fee for any academic year for not more than 5% (under Ordinance 2015 and Act of 2016) and finally 8% (under Act of 2017), charged in preceding academic year. Some of the private schools being aggrieved of Section 7-A of the Ordinance 1984 have filed these constitutional petitions, whereas some of the students through their parents also filed petitions for directing the private schools to charge the fee in terms of Section 7-A of the Ordinance 1984 (detail of petitions by students/parents are appendix B).

2. Ms. Asma Jahangir, Advocate for private schools argued that Section 7-A of the Ordinance 1984 is violative of Article 18 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution). Submits that the petitioners have right to carry out their business of private schools and the State at best in order to promote free competition could regulate business through licence in a reasonable manner. She submits that Section 7-A of the Ordinance 1984 has gone beyond the licensing system and is actually controlling the business of the petitioner in arbitrary manner. Submits that under article 18 of the Constitution, only reasonable restrictions can be imposed but impugned legislation is not only unreasonable but also amounts to deprive the petitioners of their business. She placed reliance on Arshad Mahmood v. Government of Punjab (PLD 2005 SC 193), Pakcom v. Federation of Pakistan (PLD 2011 SC 44), Khawaja Imran Ahmed vs. Noor Ahmed (1992 SCMR 1152), Messrs Murree Brewerey Company Limited D.G (Excise and Taxation) (1991 MLD 267), Landirenozo vs. Federation of Pakistan (2013 PTD 658), Al Raham Travels and Tours v. Ministry of Religious Affairs (2011 SCMR 1621), Elahi Cotton Mills vs. Federation of Pakistan (PLD 1997 SC 582), Administrator, Market Committee vs Muhammad Sharif etc (1994 SCMR 1048), Northern Bottling vs. Federation of Pakistan (2015 PTD 231), K.B. Threads vs. Zila Nazim Lahore (PLD 2004 Lah. 376), Shahabuddin vs. Pakistan etc (PLD 1957 Kar. 854). Further submitted that through impugned amendment, private business of the petitioner schools have virtually been nationalized, as now the regulator will make policy and business decisions regarding educational institutions of the petitioners. She submitted that impugned legislation has also been given retrospective effect which is not permissible under law. Learned counsel submitted that provision of Section 7-A of the Ordinance particularly its subSection 1, 5, 6, 7 and 8 being ultra vires of the constitution and violation of fundamental rights of petitioners are liable to be declared unconstitutional. Learned counsel further argued that under Article 25-A of the Constitution, it is the duty of State to provide free and compulsory education to all children of age 5 to 16 and unaided private educational institutions are not obliged to provide free education. Submits that imparting quality education is like trade and business which is not only protected under article 18 of the Constitution but private institutions also have right to give excellent education to children between age of 5 to 16 year against reasonable fee. Reliance is placed on Petition regarding miserable conditions of schools (2014 SCMR 396), Human Rights Case No. 19360-P/2012 (2013 SCMR 54), Fiaquat Hussain vs. Federation of Pakistan (PLD 2012 SC 224), Syed Nazeer Agha vs. Government of Balochistan (PLD 2014 Bal. 86). She further submitted that private schools have raised fee in proportionate to inflation and increase of salaries and there is no exploitation or forming of cartel. Submitted that parents of students have no locus standi against increase of fee because providing quality education against reasonable fee does not violates fundamental rights, if there is no profiteering or exploitation on part of the petitioners. Submitted that in any other case, the respondents have remedy before Competition Commission of Pakistan or Consumer Courts. She further submitted that parents have also right to seek free education for their children from Government schools if so desired.

3. Mrs. Asma Jahangir Advocate unfortunately passed away during course of these proceedings. Her above arguments are adopted by her co-counsel Mr. Shezad Atta Elahi Advocate who in addition submitted that under Article 18 of the Constitution, the condition can be imposed only in the interest of free competition or through licensing system and finally it must be reasonable. He submits that through impugned legislation, the discretion of the regulatory authority has been fettered to allow increase in fee more than 8%, even if educational institution duly justify such increase. He, therefore, concluded that impugned legislation is not sustainable and further it is also violative of Article 3 of the Constitution, as it exploits the educational institutions.

4. Mr. Shahid Hamid Advocate for private schools argued that the impugned provisions of Section 7-A of Ordinance 1984, are prima facie violative of fundamental rights guaranteed to the petitioners under Article 23 and 24 of the Constitution as the petitioners are being compulsorily restrained/deprived of their right to income/property through charging fees for services provided by them, without any compensation on account of such compulsory restraint/deprivation. Submitted that the parents who place their children in schools operated by petitioners, do so knowing fully well two things: first, the level of fees at the time of entry and second, that these fees will, on average increase by 12 to 14% each year based on the historical pattern of the previous years. Further submitted that they willingly entered into this contractual relationship and respondents cannot lawfully interfere in this contractual relationship. Argued that under Section 7A(1) of the Ordinance, all private schools charging fees of less than Rs.4,000/- per month per student have been exempted from the maximum cap on fees. Submits that these schools are almost 96-98% of all private schools. Argued that the petitioners do not grudge the exemption given to these schools but it bears mention that the parents of students studying in such schools are self-evidently much less well-off than parents of students studying in petitioners” schools. Submits that in other words the well-to-do parents are sought to be protected as against those much less well-off parents. Argued that this is not only discriminatory in violation of Article 25 of the Constitution, as there is no perceivable logic to the cut-off of Rs.4,000/- but it also reflects social priorities. Argued that why protection for the well-to-do and not for the less well-off when the Secretary Schools (respondent), in written statement describe them, as “teaching shops”. Added that petitioners had already collected fees for the months of August and September 2015, before the respondents notified/enacted Ordinance of 2015, which prescribed that for academic year 2015-16, the petitioners could not charge any fee higher than the fees charged for that class during the academic year 2014-15. Argued that neither the Ordinance 2015 nor the Act, 2016 had any provision giving them retrospective effect. Argued that consequently the petitioners are entitled to retain the fees already realized by them prior to the notification/enactment of the aforesaid Ordinance of 2015 and Act of 2016. Reliance is placed on Zila Council Jhang vs. Daewoo Corporation (2001 SCMR 1012) and Chief Land Commissioner vs. Ghulam Hyder Shah (1988 SCMR 715).

5. Mr. Faisal Hussain Naqvi, Advocate for the petitioner schools argued that impugned provisions of Section 7-A of the Ordinance are unreasonable, unconstitutional and against the fundamental rights of the petitioner. He stressed four grounds to assail the impugned provision. Firstly that the provision is violative of Article 18 of the Constitution, secondly the provision amounts to legislative judgment and also violative of separation of power and right of fair trial under Article 10-A of the Constitution, thirdly the provision is violative of Article 25 of the Constitution, not because it is discriminatory but because the legislature has failed to discriminate the petitioner and fourthly, that it is violative of Articles 23 and 24 of the Constitution, which is not only confined to right of property but where by imposing conditions, the value and utility of property is reduced, it also amounts to violation of right of property. Regarding first ground, he submits that the word “lawful trade” used in Article 18 has been discussed in various judgments of Indian Supreme Court, in State of Bombay vs. RMD Chamarbaugwala (AIR 1957 SC 699), it was held that gambling is not a lawful trade. Similarly in Khoday Distilleries Ltd. vs. State of Karnataka (1995) 1 SC 574, it was held that the right to practice a profession or trade does not mean a practice of profession or carrying out trade which is inherently vicious, pernicious and is condemned by all civil societies, however, in Action Committee, Un-Aided Private Schools vs. Director of Education, Delhi and others (2009) 10 SCC 1), it was held that education is a lawful trade. He submits that once it is established that education is a lawful trade, the next question is whether any capping can be done on the fee structure as was done in the impugned provision. He referred the various judgments of Indian Supreme Court including Monini Jai vs. State of Karnataka (1992) 3 SCC 666, Unni Krishnan, J.P. vs. State of A.P. (1993) 1 SCC 645, TMA Pai Foundation vs. State of Karnataka (2002) 8 SCC 481, Islamic Academy of Education vs. State of Karnataka (2003) 6 SCC 697, Modern School vs. Union of Indian (AIR 2004 SC 2236) and P.A. Inamdar vs. State of Maharashtra (2005) 6 SCC 537, to argue that the question whether school fee can be regulated by Government institutions was subject matter of various petitions before Supreme Court in India and after chequered history of judgments, the final consensus reached in P.A. Inamdar vs. State of Maharashtra supra that there can be no profiteering and capitation of fee but reasonable fee can be charged and there will be minimal regulatory control and autonomy be given to unaided schools. He submits that applying the same principle, the capping of fee amounts to violative of fundamental rights of the petitioner under Article 18 of the Constitution. On the issue of legislative judgment, he referred the reply filed by the respondents where it was stated that impugned legislation was passed because petitioners were engaged in profiteering and capitation. He submits that the profiteering as defined in various dictionaries is a crime and without giving any opportunity to the petitioners to explain their position, the legislature could not issue the impugned provision, which amounts to legislative judgment against the petitioners. He submits that even the opportunity of ex-post-facto hearing is not brought in the impugned provision. He placed reliance on judgments Dr. Mubshar Hassan vs. Federation of Pakistan (PLD 2010 SC 265, 370), Naseer Ahmed Khan vs. Government of Punjab (PLD 1980 Lahore 684, 694), Government of Punjab vs. Naseer Ahmed Khan (2001 CLC 1422, 1426), Government of Punjab vs. Naseer Ahmed Khan (2010 SCMR 431), National Industrial Co-operative Credit Corporation vs. Province of Punjab (PLD 1992 Lah. 462, 491-92) and Province of Punjab vs. National Industrial Co-operation Credit Corporation (2000 SCMR 567, 598) to argue that judicial functions are to be performed by judiciary and not by the legislation and therefore, the impugned provision being legislative judgment is not sustainable under law. Finally be concluded that impugned legislation is discriminatory and also violate right of property.

6. Khawaja Ahmad Hosain, Advocate for private schools argued that impugned provisions are ultra vires of the Constitution as Government has no jurisdiction to interfere in the business of the petitioner in a free market. Submits that Government can only interfere if schools have created monopoly or there are allegations of collusion or cartel. Submits that in absence of any such allegation, provisions are not sustainable being violative of Article 18 and 25 of the Constitution. He adds that impugned provision of Section 7-A of the Ordinance 1984 is only regarding increase of fee of existing schools but there is no restriction of fixation of fee by a new school, therefore, this provision being irrational is not sustainable.

7. Khawaja Haris Advocate for private schools argued that education is an occupation, therefore, no doubt it is subject to qualification under Article 18 of the Constitution. He however submits that such qualification or restrictions can only be reasonable. Submits that restriction of capping the increase in fee through impugned legislation is un-reasonable restriction, therefore, violative of Article 18 of the Constitution. He submits that in imposing restriction on increase of fee, the balance must be drawn between right of the educational institution on increase of fee and right of the students and their parents against exploitation or profiteering of fee. He placed reliance on judgment passed by the Islamabad High Court in Educational Services (Pvt.) Limited and 4 others vs. Federation of Pakistan and another (PLD 2016 Islamabad 141).

8. Dr. Khalid Ranjha Advocate argued that impugned Section 7-A of Ordinance of 1984 was inserted through Ordinance of 2015 which is not a valid legislation and amendment could only be made through Act of the Parliament.

9. Mr. Asad Ullah Saddiqui, Advocate for the petitioner schools argued that impugned legislation amounts to exercise the delegation of power by authority without giving procedure, yard stick and parameters for such delegated power. Submits that such un-explained and un-structural powers are not sustainable. Reliance is placed on Khawaja Muhammad Safdar, M.P.A, Lahore vs. Province of West Pakistan etc. (PLD 1964 (W.P.) Lahore 718). He further submits that main purpose of impugned legislation is to put the petitioners out of business, hence violation of article 18 of the Constitution. Adds that impugned legislation has not only denied livelihood of the petitioner but also its employees because their salaries and other benefits cannot be increased due to unreasonable restrictions, therefore, impugned legislation is violation of article 9 of the Constitution. He submits that legislation is discriminatory because in none of the other private professions including hospitals, private tuition centers etc., such restriction has not been imposed. He submits that under Article 4 of the Constitution, every citizen has the right to be dealt in accordance with law whereas impugned legislation is clearly discriminatory which is against the fundamental rights of the petitioners.

10. Mr. Muhammad Haroon Mumtaz, Advocate for schools argued that no doubt the provincial legislation can regulate the fee structure, however, it cannot impose maximum limit on the increase of fee as said power falls within the exclusive jurisdiction of the Parliament under Article 253(1-A) of the Constitution. He submits that increase of fee falls within the definition of property which is not confined to immovable property but also the right to enjoy the benefit of said property. In this regard he also referred to the definition of property in Article 260 of the Constitution and also “property” definition in Black’s Law Dictionary. Argued that impugned Section 7-A infringes right of property of petitioners. He placed reliance on Messrs X.E.N. Shahpur Division (LJC) Quarry Sub-Division Sargodha vs. The Collector Sales Tax (Appeals) Collectorate of Customs Federal Excise and Sales Tax Faisalabad and others (2016 SCMR 1030), Malik Gul Hassan and Co. vs. Federation of Pakistan through the Secretary, Ministry of Health, Islamabad and 9 others (1995 CLC 1662), Federation of Pakistan and others vs. Shaukat Ali Mian and others (PLD 1999 SC 1026) and Tilla Muhammad and another vs. Government of North-West Frontier Province through Secretary, Law Department and another (1986 CLD 1429).

11. Mr. Hassan Makhdoom, Advocate for private schools argued that the impugned levy is discriminatory and violative of Article 25 of the Constitution because schools who are charging fee less than Rs.4,000/- have been totally excluded from the purview of the impugned legislation. He adds that impugned legislation is violative of Article 18 of the Constitution and placed reliance on Arshad Mehmood and others v. Government of Punjab through Secretary Transport Civil Secretariat, Lahore and others (PLD 2005 SC 193).

12. Mr. Tafazzul Rizvi Advocate argued that impugned Section 7-A of the Ordinance of 1984 amounts to unreasonable restriction on fundamental rights of the private schools, therefore, not sustainable under Article 18 of the Constitution. Mr. Zubair Ahmad Chaudhry, Advocate adopted the aforesaid arguments of the petitioner schools.

13. Mr. A. K. Dogar, Advocate (in C.M. No. 10/2015 in W.P. No. 29724/2015) argued that under Article 25-A of the Constitution, all children in age of 5-15 years have fundamental right to get free education. Submits that this fundamental right is not only enforceable against Government Institutions but also against Private Parties and Institutions. Reliance is placed on Human Rights Commission of Pakistan and 2 others vs. Government of Pakistan and others (PLD 2009 SC 507). He further submits that education in Islam is a religious duty, therefore enforceable against all Muslims including the private schools. Reliance is placed on Fiaqat Hussain and others vs. Federation of Pakistan through Secretary, Planning and Development Division, Islamabad and others (PLD 2012 SC 224). He next argued that afore-noted judgments of august Supreme Court are binding on all Courts and institutions and must be complied with in letter and spirit. Reliance is placed on Al-Jehad Trust through Raees ul Mujahidin Habib Al-Wahabul Khairi, Advocate Supreme Court and another vs. Federation of Pakistan and others (PLD 1997 SC 84). Based on above submission, he concluded that all constitutional petitions are liable to be dismissed and no fee whatsoever can be charged by any Private or Government Institution.

14. Syed Shahab Qutab, Advocate appearing on behalf of respondent parents (in W.P. No. 830822/2015), defended the impugned legislation. He submits that running of educational institution being a “trade” can be regulated by the State through a licensing system under Article 18 of the Constitution. He referred to the definition of “trade” explained in K.G. Old, Principal, Christian Technical Training Centre Gujranwala vs. Presiding Officer, Punjab Labour Court, Northern Zone and 6 others (PLD 1976 Lahore 1097) and also referred to various clauses of Ordinance 1984, where conditions for registration have been prescribed. He argued that the requirement of registration of school under the Ordinance amounts to issuance of licence, therefore, the State could regulate the private institutions as well as their registration. He submits that the impugned legislation is not a legislative judgment as it does not interfere in the quasi-judicial power of the executive who will determine whether increase in fee is justified or not. He further argued that the impugned legislation is neither discriminatory nor it amounts to deprive the petitioner from their right of property. Submits that Article 25-A of the Constitution regarding State obligation does not entitle the petitioner’s to charge the excess fee for failure on part of State to perform its obligations. He argued that impugned legislation is permissible under Article 18 of the Constitution. He elaborates that under first part of Article 18, qualification can be prescribed for occupation and profession whereas under second part of Article 18, regulation can be framed under licensing system. He submits that running of education institution being an occupation, conditions for registration under the Ordinance 1984 and Rules of 1984 are qualifications as held by august Supreme Court in Arshad Mahmood case supra. He submits that the running of education institution being also a trade and business and requirements u/Ss. 3, 7, 8 and 9 of the Ordinance for the registration of schools and their monitoring amounts to licensing system, therefore, regulations in form of impugned legislation is also permissible under second part of Article 18 of the Constitution. In this regard reliance is placed on Messrs D.S. Textile Mills Limited vs. Federation of Pakistan and others (PLD 2016 Lahore 355), Messrs East West Steam Shipping Company vs. Pakistan etc. (PLD 1958 SC 41) and Judgment passed by Sindh High Court in case titled “Beacons House School System vs. Province of Sindh”, C.P.D. No. 5812/2015. He finally concluded that these conditions/restrictions being reasonable are valid and legal.

15. Mr. Waqas Meer, Advocate while appearing on behalf of respondents/parents argued that fundamental right under Article 18 of the Constitution is not an absolute right but subject to qualifications and regulations being relating to economics of the State. He submits that heavy burden lies on part of the petitioner to establish that regulations under Article 18 destroy their other fundamental rights including right of property. He submits that there are many laws which provide controlling of prices including prices of commodities but same were never declared unconstitutional merely because it regulates the right of occupation or trade. He submits that law can only be struck down if it is unconstitutional and not merely because it regulates profession and trade which amount to imposing certain restrictions on the business. He placed reliance on Pakcom Limited and others vs. Federation of Pakistan and others (PLD 2011 SC 44) and All Pakistan Newspapers Society and others vs. Federation of Pakistan and others (PLD 2012 SC 1).

16. Mr. Muhammad Javed Arshad, Advocate also appearing for parents (in W.P. No. 29724/2015) argued that the regulation can be prescribed to control working of private schools including their fee structure. He placed reliance on International College of Commerce vs. University of Punjab (PLD 2004 Lahore 335) and Rahim Yar Khan College of Education through Principal and another vs. Islamia University of Bahawalpur through Vice-Chancellor and 3 others (1996 SCMR 341).

17. Mr. Azhar Siddique Advocate on behalf of respondent parents argued that maximum fee was lawfully capped to restrain private schools from profiteering and exploiting the parents. He further argued that in order to declare the impugned provision confiscatory, the petitioners are bound to show that they have actually suffered loss due to capping of fee.

18. Mr. Shan Gull, Additional Advocate General while appearing on behalf of respondent Provincial Government argued that in September 2015, lot of hue and cry was made by the parents through demonstrations and media publications against the exorbitant increases of fee by private schools. Submits that number of complaints were also filed by these parents and matter was also taken up by this Court in W.P. No. 14965/2014. Submits that in consequence of these agitations and complaints by parents, the issue regarding increase of fee by private educational institutions was taken up by the provincial legislation and Ordinance of 2015 was passed, where beside regulating the fee increase, the maximum limit of 5% was also added through Section 7-A in the Ordinance of 1984, which was ultimately converted into Act of 2016. Submits that subsequently Section 7-A of Ordinance 1984, was further amended through Act of 2017 where private schools were allowed to increase fee up to 5%, however maximum limit was prescribed at 8%. Submits that in addition, the private schools were also bifurcated in two categories i.e. schools charging fee less than Rs.4000/- and the other charging more than Rs.4,000/- and Section 7-A was only made applicable to schools charging fee more than Rs.4,000/- per month. Submits that this exercise was done after reviewing the increase of fee by private schools from year 2008-2015 and comparing it with the inflation rate during this period which proved that most of the schools were involved in profiteering. The learned counsel argued that right of profession, occupation and trade under Article 18 of the Constitution is neither an absolute right nor same is fundamental right, therefore, the State could impose total prohibition on this right in view of law laid down by august Supreme Court in Government of Pakistan vs. Zameer Ahmad Khan (PLD 1975 SC 667). Submits that in the light of law settled by august Supreme Court in Zameer Ahmad Khan case supra, the provincial legislation was within its right to declare that increase of fee for more than 8% in a particular year is forbidden by law. Submits that Article 18 of the Constitution, only protects lawful trade and occupation and once the charging of fee more than 8% is declared unlawful, there is no protection to said increase under Article 18 of the Constitution. He submits that Arshad Mahmood case suprawhere it is held that there can be no absolute prohibition or ban in any field is distinguishable.

19. Learned Additional Advocate General refer to provision of sections, 3, 5, 7-A, 8, 9 and 11 of the Ordinance 1984 and rules 11 and 12 of the Rules of 1984 to submit that the registration requirements are not only qualifications under Article 18 of the Constitution but the schools are also governed under the licensing system through the above provisions, therefore, the qualifications and conditions can be prescribed under Article 18 for fixation of fee by the un-aided private educational institutions. He further argued that the impugned legislation provided a two tear system of price fixation which is permissible under the law as already held by the Sindh High Court in case titled “Beacons House School System vs. Province of Sindh” C.P. D. No. 5812/2015 supra. He next argued that the Ordinance of 2015 was promulgated in September 2015 and had expressly given it retrospective effect regarding the fee deposited in August 2015 which is permissible under the law. He submits that normally the legislative provisions are to be applied prospectively, however, there is no bar on the legislation to pass law with retrospective effect expressly. He placed reliance on Messrs Haider Automobile Ltd. vs. Pakistan (PLD 1969 SC 623) and Molasses Trading & Export (Pvt.) Limited vs. Federation of Pakistan and others (1993 SCMR 1905).

20. He next argued that there is no discrimination between petitioner schools and the schools which are charging fee less than Rs.4,000/- as well as Aitchison College Lahore. He submits that these schools are not equal to petitioner schools, therefore, there is no question of discrimination. Adds that legislation in its wisdom can make reasonable classification. Learned Additional Advocate General submits that on number of occasions, the maximum limit imposed by the legislation has been upheld by this Court. He in this regard has placed reliance on Messrs Shaheen Cotton Mills, Lahore and another vs. Federation of Pakistan, Ministry of Commerce through Secretary and another (PLD 2011 Lahore 120). Learned counsel further submits that right through capping of fee can be restricted where it has adverse impact on the welfare of public at large. He next argued that price fixation is a legislative function and can be imposed to save the public interest. He argued that the impugned legislation does not affect the right of property of the petitioner and in any case, the petitioners have to prove that the impugned legislation is confiscatory or expropriatory. He next argued that the impugned levy is neither legislative judgment nor on this ground, impugned levy can be struck down. He finally argued that detailed mechanism is available with the department to fix fee beyond 5%, therefore, impugned levy is reasonable and justified.

21. We have heard learned counsel for the parties and perused the record within their able assistance.

22. In present time while parents increasingly sending their children to private schools for better education but they are also simultaneously affected by the increasing cost of living and education fee every year. Private schools charge fees based on demand and increasing it regularly for multiple reasons. This has created a situation whereby parents want their children to be educated in a private school, but cannot afford it, hence have sought the help of the government to control the price of the services offered by private schools. It is in this context, that Government has started promulgating and implementing laws to fix the maximum tuition fees that can be charged by private schools. Impugned law can be understood as a reaction from the provincial legislation to public demand, complaints from parents and the media publicity about some private schools charging exorbitant fees.

23. The right to education is concomitant to the fundamental rights enshrined under Part II, Chapter 1 of the Constitution. The right to education flows directly from right to life. The right to life and dignity of an individual under Articles 9 and 14 of the Constitution cannot be assured unless it is accompanied by the right to education. The right to education is also guaranteed under Article 37(b) and 38(d) which though principle of policy and not justiciable but cannot be isolated from fundamental rights guaranteed under the Constitution. After 18th Amendment in the Constitution, the right of education has been made an independent fundamental right under Article 25-A of the Constitution. Without right of education under Articles 9, 14, 25-A, 37(b) and 38(d) of the Constitution, in reality the fundamental rights under the Constitution shall remain beyond reach of large majority which will be illiterate. Thus every citizen has a right to education and State is under an obligation to establish educational institutions to enable the citizens to enjoy the said right. The State may discharge its obligation through State owned or State recognized private educational institutions. However, when the State grants recognition to the private institution, it creates an agency through these institutions to fulfill its obligations under the Constitution. Therefore, it is the State responsibility to see that any private educational institutions which have been set up with Government permission are not involved in profiteering, capitation or exploiting the parents. The State has also a responsibility to ensure that these educational institutions must function to the best advantage of all the citizens and not confine to only richer section of the society by increasing fees exorbitantly. This State responsibility can be fulfilled by providing registration requirements or through regulations under law.

24. Apparently with this back ground, the Ordinance of 1984 and Rules of 1984 were promulgated to register and regulate private educational institutions. The Ordinance of 1984 was amended through Ordinance 2015 whereby the impugned Section 7-A was inserted in Ordinance of 1984 and inter alia maximum limit of 5% for increase in fee was prescribed. The said Ordinance of 2015 was converted into Act of 2016. The provision of Section 7-A of Ordinance 1984 was further amended through Act of 2017 and maximum limit was increased to 8%. The current provision of Section 7-A of the Ordinance 1984 as amended through Act of 2017 is reproduced hereunder:--

“7-A. Fees, etc.–(1) Subject to this section, a school charging fee at the rate of four thousand rupees per month or above shall not charge the fee at a rate higher than five percent of the fee charged for the class during the previous academic year but this limitation shall not apply to a school charging monthly fee from a class of students at the rate which is less than four thousand rupees per month inclusive of the increase in the fee.

(2) If there is reasonable justification for increase in the existing fee at a rate higher than five percent under sub-section (1), the Incharge may, at least three months before the commencement of the next academic year, apply to the Registering Authority incorporating justification.

(3) The application shall contain reasons and justification for the proposed increase and all the requisite documents or evidence in support of the application shall be annexed with the application.

(4) The Incharge shall provide such other information or documents to the Registering Authority as may be necessary for the disposal of the application.

(5) The Registering Authority may, after affording an opportunity of hearing to the Incharge and after recording reasons, reject the application for increase in the fee of the school or allow reasonable increase in the fee not exceeding eight per cent of the fee charged for the class during the previous academic year.

(6) 13[\ \ \ \ \ \ \ \ \ \ ]

(7) The Registering Authority shall, within thirty days from the receipt of the application for increase in the fee, take appropriate decision and inform the applicant of the decision taken.

(8) The admission fee or the security shall not exceed the amount equal to the tuition fee payable by the student for a month.

(9) The word ‘fee’ in this section means admission fee, tuition fee, security, laboratory fee, library fee or any other fee or amount charged by an institution from a student.

(10) An institution shall not require the parents to purchase textbooks, uniform or other material from a particular shop or provider.

1. The question require determination is that whether the above enactment in issue regarding fixation or determination of fees of private educational institutions which as claimed by Government is to ensure not to allow commercialization, profiteering and exploitation, does run foul of any provision of the Constitution. In this regard with undisputed right of State to regulate lawful trade and lawful professions or occupations, the moot issue is whether impugned enactment is permissible under Article 18 of the Constitution.

Scope of Article 18 of the Constitution.

1. For convenience, Article 18 of the Constitution is reproduced hereunder:--

“18. Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business:--

Provided that nothing in this Article shall prevent—

(a) the regulation of any trade or profession by a licensing system; or

(b) the regulation of trade, commerce or industry in the interest of free competition therein; or

(c) the carrying on, by the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, of any trade, business, industry or service, to the exclusion, complete or partial, of other persons.?

Plain reading of Article 18 of the Constitution shows that citizen has right to enter upon lawful occupation or profession or conduct a lawful trade or business subject to qualifications or conditions through regulations. These restrictions under Article 18 are of four kinds. Firstly the State can through law prescribe qualifications; secondly the trade or profession may be regulated by a licensing system; thirdly trade, commerce or industry may be regulated in the interest of free competition therein and fourthly, a citizen may be excluded completely or partially from carrying out a trade, business, industry or services, where State wants to carry it out itself. The question whether running of educational institution is a profession, occupation or trade, came up for discussion in number of cases. The Indian Supreme Court in cases reported as P.A. Inamdar vs. State of Mahrashtra (2005 (5) SCC 537) and Model Dental College vs. State of Madhya Pradesh (AIR 2009 SC 2432) held that running of an educational institution for charity or for profit fall within the definition of “occupation”. This position is also not disputed by learned counsel for the petitioner schools.

1. The honourable Supreme Court in Arshad Mahmood case supra (PLD 2005 SC 193), while interpreting first part of Article 18 of the Constitution held that word “qualification” used in Article 18 relates to lawful profession or “occupation” and not to conduct any lawful trade or business. The relevant extract from the Judgment is reproduced here under:--

“But in our opinion, in Article 18 of the Constitution, word “qualification” has been used to confer a right upon a citizen to enter upon any lawful profession or occupation and not to conduct any lawful trade or business.”

The educational institutions being admittedly an “occupation”, the “qualifications” under Article 18 can indeed be prescribed for these institutions by the State. In Arshad Mahmood case supra, honourable Supreme Court while defining “qualification” held that “as per ordinary meaning of “qualification”, a quality, which is legally necessary to render a person eligible to fill an office or to perform any public duty or function like a qualified voter, who meets the residence, age and registration requirements etc.” Plain reading of impugned Section 7-A of the Ordinance 1984 ibid shows that a mechanism has been provided for fixation of the fee by educational institution including maximum limit to which fee can be increased. Charging of reasonable fee being already a condition for registration u/S. 7 of the Ordinance 1984 read with Rule 12(ii) of the Rules of 1984, the mechanism of fixation of reasonable fee through impugned Section 7-A of the Ordinance 1984 is also a part of registration requirements prescribed u/S. 7 of the Ordinance of 1984 and Rule 12 of the Rules of 1984. Indeed certain registration requirements may also amount to “qualifications”, however, we need not to dilate upon this question any further because it is respondent Government’s own case that impugned Section 7-A of Ordinance 1984, is to regulate trade under the licensing system.

1. We have considered this stance of the respondent Government and have noted that under Article 18 of the Constitution, the State can regulate trade or profession by a licensing system. The ordinary meaning of word “licence” as contained in Black’s Law Dictionary is “permit from Government to carry on some trade etc.” The definition and general nature of licence as stated in 33rd Volume of American Jurisprudence is “to confer on a person the right to do something which otherwise he would not have the right to do”. In Ghulam Zameer vs. Khondar (PLD 1965 Dacca 156) the Court held that uniformity of rules and norms of conditions applicable to every case is the gist of the implication of expression “licence”. Further held that those who answer the conditions so laid down are entitled to obtain the said licence.

2. Justice Cornelius in East and West Steam Shipping Company case (PLD 1958 SC 41) held that licence in the relevant aspect mean an arrangement by way of regulation, applicable to a complex whole. It was held that it would provide for rules applicable uniformly. The relevant observation by honourable Supreme Court in M/s. East and West Steam Shipping Company case supra is reproduced hereunder:--

“A system, in my opinion, would in the relevant respect mean an arrangement by way of regulation, applicable to a complex whole namely the trade of shipping in general. It would provide for rules applicable uniformly, subject to suitable classification, in relation to the entire trade of shipping. Again, it is inherent in the use of the expression “licensing system” that the actions of the State in respect of the trade should be in the nature of permissions granted to do certain acts provided certain conditions are satisfied; it goes entirely beyond the meaning of the expression “licensing” to interpret it as a check upon even the primary processes involved in the trade which is being licenced. A simple meaning of the expression “licence” in the sense relevant to this discussion is that contained in the Concise Oxford Dictionary reading as under:--

“permit from Government etc., to marry, print something, preach, carry on some trade (especially that in alcoholic liquor), etc.”

While it is true that upon this interpretation, no person can enter a trade, which is subject to licensing, unless he possesses a licence, yet it seems to me, speaking with respect, that there is a danger of fallacy involved in treating a licence as if it were a reversed prohibition. For the grant of the Fundamental Right of freedom to conduct lawful trades in itself connotes that there is advantage to be gained by granting such a liberty to individual citizens, not only because it tends to produce profit and a livelihood for such citizens, but also because it is to the advantage of the community in general. Therefore, I feel no hesitation in expressing the opinion that the power given to the State to regulate a trade by a licensing system is one which is to be exercised, not for the curtailment of trade or for restricting the initiative and liberty of action which persons engaged in trade must necessarily be allowed, if they are too make their livelihood under conditions of free enterprise, but for the advancement of the trade and its better organization, for the mutual benefit of those engaged in it as well as the community at large, I decline to allow that the systematic domination by the State of every action which a ship owner might wish to take in relation to his ship for the purpose of its profitable employment, can possibly fall within the meaning of the expression “regulation by a licensing system” occurring in the first proviso to Article 12.”

1. The perusal of Sections 3, 4, 6, 7 and 9 of Ordinance 1984 shows that no educational institution shall run unless it is registered under Ordinance 1984. Under Section 6 of the Ordinance 1984, application for registration is to be filed by the institution whereas Section 7 of the Ordinance requires that conditions of registration are to be complied with, as prescribed under the Rules of 1984. Under Section 9 of the Ordinance 1984, registration can be cancelled for failure to comply with the provision of Ordinance 1984 or Rules 1984. The above provision of Ordinance 1984 and Rules 1984 show that an arrangement has been made for running of private schools by way of an Ordinance and Rules applicable uniformly. Therefore, in view of definition of license discussed above, law settled in Ghulam Zameer and East and West Steam Shipping Company case ibid, it can safely be concluded that private schools are being regulated under licensing system.

2. The Division Bench of Sindh High Court in case titled “Beacons House School System vs. Province of Sindh”, (C.P.D. No. 5812/2015) also in similar circumstances held that private schools are regulated under a licensing system. The relevant observation is reproduced hereunder:

“In our view, when the 2001 Ordinance and the 2005 Rules are considered, they set up a regulatory regime for schools (and of course other educational institutions as well) that is in the nature of a licensing system within the meaning of the second condition imposable under Article 18. The schools are required to be registered under the 2001 Ordinance, which is subject to periodic renewal. No school can function as such unless registered. The statute imposes a monitoring and inspection regime. The registration can be cancelled (or not renewed) if the school contravenes any of the provisions of the statute or rules made thereunder, or any term or condition of the registration is violated, or any order passed or instruction given by the registering authority is not complied with. Reports have to be submitted annually. These and a host of other provisions easily establish that the schools are being regulated under a licensing system.”

1. The Sindh High Court in Judgment referred above also held that running of educational institution falls within the definition of “trade” which includes business. The relevant observations are re-produced hereunder:--

“Before proceeding further, we pause to make a general point. Schools obviously impart education and a teacher at a school is clearly undertaking a vocation or profession. The institutionalized provision of schooling is an important and indeed a noble endeavor. Teachers are highly revered in most cultures, and rightly so. But the school itself, at least to the extent here relevant, can also be a business. We must emphasize that there is no opprobrium to a school being run as a business. There should be no stigma if an educational institution is so organized or operated. It is perfectly lawful to do so. Furthermore, the running of a school as a business should not be confused with the making of profits. Many schools that are run on a non-profit basis do make a profit, i.e., their receipts exceed the expenses. It is simply that such profits are not distributed but are (usually as a mandatory condition of the school’s constitutive documents) ploughed back into the institution. However, there is nothing wrong with running a school with the intent of making (i.e., distributing) a profit. It must be remembered that we are here concerned with the Constitution and the law. While the State, in setting up a regulatory regime under a licensing system in terms of the second condition is entitled to take into account a host of factors and tailor its system accordingly, it must be recognized that we are concerned with a fundamental right that is being subjected to a restriction. We proceed accordingly.”

1. The running of educational institution being a business which is covered under definition of “trade” can indeed be regulated by a licensing system. The host of provisions of the Ordinance of 1984 and Rules of 1984, discussed above leave no manner of doubt that schools are being regulated under licensing system.

Regulations to be Reasonable.

1. No doubt the State can regulate the trade or profession by a licensing system, however, honourable Supreme Court repeatedly held that these regulations must be reasonable. There is distinction between Article 18 of Pakistani Constitution and Article 19(6) of the Indian Constitution. In Article 18, the word “reasonable restriction” is not specifically mentioned as in Article 19(6) of the Indian Constitution. However, word “regulation” in Article 18 has been construed that regulation shall be reasonable. In this regard the august Supreme Court in Arshad Mahmood case (PLD 2005 SC 193), held as under:--

“It is well settled that the right of trade/business or profession under Article 18 of the Constitution is not an absolute right but so long a trade or business is lawful a citizen who is eligible to conduct the same cannot be deprived from undertaking the same, subject to law which regulates it accordingly. The word “regulation”, as used in Article 18 of Constitution has been interpreted by the Courts of our country keeping in view the provisions of Article 19(1)(g)(6) of the Indian Constitution.

It is to be noted that our Constitution stands in sharp contrast to the corresponding provisions of Indian Constitution. A comparison of Article 18 of the Constitution and Article 19(1)(g)(6) of the Indian Constitution manifestly makes it clear that in later Constitution, words “lawful”and “regulation” are conspicuously omitted but while defining the word “regulation”, our Courts have followed the interpretation of Indian Supreme Court of expression “reasonable restriction”, while dealing with the concept of “free trade/business etc.”under Article 18 of the Constitution, despite the distinction noted herein above. In this behalf, reference may be made to Administrator Market Committee, Kasur, etc. vs. Muhammad Sharif (1994 SCMR 1048).

Whereas in Black’s Law Dictionary, the word ‘regulation’ has been defined as follows:--

“Regulation.---The act of regulating; a rule of order prescribed for management or government; a regulating principle; a precept. Rule of order prescribed by superior or competent authority relating to action of those under its control. Regulation is rule or order having force of law issued by executive authority of government.

Perusal of above definition persuades us to hold that there cannot be denial of the Government’s authority to regulate a lawful business or trade, but question would arise whether under the garb of such authority, the Government can prohibit or prevent running of such a business or trade. To find out the answer to this question, reference may be made to the case of Municipal Corporation of the City of Toranto vs. Virgo (1896 AC 88, 93), where Lord Davey while discussing a statutory power conferred on a Municipal Council to make bye- laws for regulating and governing a trade made the following observation;--

“No doubt the regulation and governance of a trade may involve the imposition of restrictions on this exercise……….Where such restrictions are in the opinion of the public authority necessary to prevent a nuisance or for the maintenance of order. But their lordships think that there is marked distinction to be drawn between the prohibition or prevention of a trade and the regulation or government of it, and indeed a power to regulate and govern seems to imply the continued existence of that which is to be regulated or governed.”

In Article 18 of the Constitution, word “qualification”has been used to confer a right upon a citizen to enter upon any lawful profession or occupation and not to conduct any lawful trade or business.

Argument of learned counsel for respondents is that competent authority can regulate any trade or profession by a licensing system. There may be no cavil but this clause has to be read conjunctively with proviso (b) of Article 18 of the Constitution, according to which an element of free competition to regulate a trade, commerce or industry has been introduced because if competition in the trade is discouraged, it would negate the provisions of Article 3 of the Constitution, which deals with the elimination of all forms of exploitation and if due to non-competition, franchise is granted on specified routes, it would tantamount to monopolize the trade/business of transport, as held in the case of Harman Singh v. R.T.A. Calcutta Region. (AIR 1954 SC 190).

As observed herein above, Constitution is a living document which portrays the aspirations and genius of the people and aims at creating progress, peace, welfare, amity among the citizens, therefore, while interpreting its different Articles particularly relating to the fundamental rights of the citizens, approach of the Courts should be dynamic rather than static, pragmatic and not pedantic and elastic rather than rigid. As such, following this principle and also keeping in view other provisions of the Constitution, which deals with the principles of State policy, we are inclined to hold that if the definition of word “regulation”as laid down in the judgments cited herein above, is applied to hold that under licensing system, unless the business is unlawful or indecency is involved therein, the legislature can enact laws, which will promote a free competition in the fields of trade, commerce and industry. At any those should not be arbitrary or excessive in nature, barring a majority of persons to enjoy such trade.”

1. Same view was expressed by the august Supreme Court in Pakcom Limited and others v. Federation of Pakistan and others (PLD 2011 SC 44) where while examining the scope of Article 18 of the Constitution, it was held as under:

“The interpretation of Article 18 has been made variously and the judicial consensus seems to be that the “right of freedom of trade, business or professions guaranteed by Art. 18 of the Constitution is not absolute, as it can be subjected to reasonable restrictions and regulations as may be prescribed by law. Such right is therefore, not unfettered. The regulation of any trade or profession by a system of licensing empowers the Legislature as well as the authorities concerned to impose restrictions on the exercise of the right. They must, however, be reasonable and bear true relation to ‘trade’ or profession and for purposes of promoting general welfare. Even in those countries where the right to enter upon a trade or profession is not expressly subjected to conditions similar to this Article, it was eventually found that the State has, in the exercise of its police power, the authority to subject the right to a system of licensing, i.e. to permit a citizen to carry on the trade or profession only if he satisfies the terms and conditions imposed by the prescribed authority for the purposes of promoting general welfare.”

(emphasis supplied).

1. In Al-Reham Travels and Tours (Pvt.) Ltd. v. Ministry of Religious, Hajj, Zakat and Ushr through Secretary and others (2011 SCMR 1621), honourable Supreme Court held that Constitution protects the fundamental rights of every citizen to join any lawful profession or occupation and to conduct any lawful business. Further held that in the proviso of said Article, the Federal Government or a Provincial Government, or by a corporation controlled by any Government, can carry out any trade, business, industry or service, to the exclusion complete or partial of other persons. In the case of Farooq Ahmad Khan Leghari v. Federation of Pakistan (PLD 1999 SC 57), it was held that “the general words cannot be construed in isolation, but the same are to be construed in the context in which they are employed. Therefore, held that exclusion provided in clause (c) of Article 18 of the Constitution is only to the extent of trade, business, industry or service controlled by the Federal Government or Provincial Government or by a corporation, controlled by any such Government.

2. In Messrs Elahi Cotton Mills Ltd. and others vs. Federation of Pakistan through Secretary M/o Finance, Islamabad and others (PLD 1997 SC 582), it is held that any legislation whereby either the prices of marketable commodities are fixed in such a way as to bring them below the cost of production and thereby make it impossible for a citizen to carry on his business or tax is imposed in such a way so as to result in acquiring property of those on whom the incidence of taxation fell, then such legislation would be violative of the fundamental rights to carry on business and to hold property as guaranteed in the Constitution. In Administrator, Market Committee Kasur and 3 others vs. Muhammad Sharif and others (1994 SCMR 1048), it is held that Licensing System is itself a restrain on the trade, but the Constitution empowers the Government to impose reasonable restrictions.

3. In Watan Party and another vs. Federation of Pakistan (PLD 2011 SC 997), honourable Supreme Court held as under:--

“This clearly envisages that the State can by law ban a profession, occupation, trade or business by declaring it to be unlawful which in common parlance means anything forbidden by law, prostitution, trafficking in women, gambling, trade in narcotics or dangerous drugs are common place instances of unlawful profession or trade. These are inherently dangerous to public health or welfare. Therefore, on the wording of Article 18 of the Constitution, the right to enter upon a profession or occupation or to conduct trade or business can hardly be described to be a Constitutional or Fundamental Right when such right may be denied by law. In this respect our Constitution stands in sharp contrast with the corresponding provisions of the Indian Constitution which omits the use of word “lawful” in the relevant provision.

The same principle was enunciated by this Court in the case of Arshad Mehmood (Supra). This Court observed that the Government has the authority to regulate a lawful business or trade. Reasonable restriction, however, does not mean prohibition or prevention completely. Article 24(1) of the Constitution envisages that no person shall be deprived of his property save in accordance with law.”

In Shahabuddin and another vs. Pakistan (PLD 1957 (W.P.) Kar. 854), Sindh High Court held that:--

The first part of the Article relations to prescription of qualifications to enter upon a profession or occupation and has no application to this case because no qualifications have been prescribed for entering upon the occupation of the petitioners. The petitioners therefore, have a right under the Constitution to conduct their trade freely, subject to the regulation of their trade, if any by a licensing system. There must be a licensing system for regulating their trade.

Regulation is different from control. The word ‘control’ only means dominance of a superior authority. The meaning of the word does not necessarily imply a purpose other than the subjection of the subordinate. It is not so with the expression ‘regulation’ because regulation is not a antithesis orderliness with an objection in view.”

1. The crux of the above judgments is that right of profession and trade under Article 18 of the Constitution is not an absolute right and is always subject to reasonable restrictions prescribed by law in a system of licensing. The competent authority is at liberty to regulate profession and trade and said form of regulation shall only be unconstitutional if it is arbitrary, discriminatory, or demonstrably irrelevant to the policy, hence an unnecessary and unwarranted interference with individual liberty and right of property. Reasonable restrictions authorized by the Constitution do not negate the Constitutional rights of a citizen to do business unhindered without any condition. A reasonable restriction is always considered to be within the frame work of the fundamental right. Law may regulate the mode of carrying on business, there is no bar to exercise the lawful trade but the interest of community should be guarded as a public policy. A right to do business does not guarantee a trader an uncontrolled privilege. There should be no doubt that requirement of registration/licence from person desiring to carry on any occupation, trade or business is a restriction on the right to carry on the occupation, trade or business and its validity is liable to be questioned and tested. Therefore the requiring of registration/licence would be valid only if it reasonable in the interest of the general public.

Test of Reasonableness.

1. Now the next question is that what is the test of reasonableness to determine if any particular restriction such as impugned Section 7-A of the Ordinance 1984 is reasonable or not. The august Supreme Court in Pakistan Broadcasters Association vs. Pakistan Media Regulatory Authority (PLD 2016 SC 692) defined the expression “reasonable restriction” as under:--

“It is certainly not easy to define “reasonableness” with precision. It is neither possible nor advisable to prescribe any abstract standard of universal application of reasonableness. However, factors such as the nature of the right infringed, duration and extent of the restriction, the causes and circumstances promoting the restriction, and the manner as well as the purpose for which the restrictions are imposed are to be considered. The extent of the malice sought to be prevented and/or remedied, and the disproportion of the restriction may also be examined in the context of reasonableness or otherwise of the imposition. It needs to be kept in mind that “reasonable”implies intelligent care and deliberation, that is, the choice of course that reason dictates. For an action to be qualified as reasonable, it must also be just right and fair, and should neither be arbitrary nor fanciful or oppressive.”

1. The august Supreme Court in Arshad Mahmood case supra observed that our Courts followed the interpretation of expression “reasonable restriction” form Indian case law, therefore, it will be useful to also examine the test of reasonableness discussed in following Indian judgments:--

(i) In Papnasam Labour Union vs. Madura Coats Ltd. (AIR 1952 SC 196), the Court held as under:--

“That both the substantive and the procedural aspects of the impugned restrictive law should be examined from the point of view of reasonableness; that is to say, the Court should consider not only factors such as the duration and the extent of the restrictions, but also the circumstances under which and the manner in which their imposition has to bear in mind that the test of reasonableness, individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the Judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have in authorizing the imposition of the restrictions, considered them to be reasonable.”

(ii) In Mohammad Faruk v. State of Madhya Pradesh (1970 AIR SC 93), the Court held that:--

“The impugned notification-, though technically within the competence of the State Government, directly infringes the fundamental right of the petitioner guaranteed by Art. 19(1)(g), and may be upheld only if it be established that it seeks to impose reasonable restrictions in the interests of the general public and a less drastic restriction will not be ensure the interest of the general public. The Court must in considering the validity of the impugned law imposing a prohibition on the carrying on of a business or profession, attempt an evaluation of its direct and immediate impact upon the fundamental rights of the citizens affected thereby and the larger public interest sought to be ensured in the light of the object sought to be achieved, the necessity to restrict in the citizen’s freedom, the inherent pernicious nature of the act prohibited or its capacity or tendency to be harmful to the general public, the possibility of achieving the object by imposing a less drastic restraint, and in the absence of exceptional situations such as the prevalence of a state of emergency-national or local- or the necessity to maintain essential supplies, or the necessity to stop activities inherently dangerous, the existence of a machinery to satisfy the administrative authority that no case for imposing the restriction is made out or that a less drastic restriction may ensure the object intended to be achieved. The sentiments of a section of the people may be hurt by permitting slaughter of bulls and bullocks in premises maintained by a local authority. But a prohibition imposed on the exercise of a fundamental right to carry on an occupation, trade or business will not be regarded as reasonable, if is imposed not in (1)[160]2 S.C.R. 375, the interest of the general public, but merely to respect the susceptibilities and sentiments of a section of the people whose way of life, belief or thought is not the same as that of the claimant.”

(iii) In Narendra Kumar v. Union of India (AIR 1960 SC 430), the Court held that:--

“It is reasonable to think that the makers of the Constitution considered the word “restriction” to be sufficiently wide to save laws “inconsistent” with Article 19(1), or “taking away the rights” conferred by the Article, provided this inconsistency or taking away was reasonable in the interests of the different matters mentioned in the clause. There can be no doubt therefore that they intended the word “restriction” to include cases of “prohibition” also. The contention that a law prohibiting the exercise of a fundamental right is in no case saved, cannot therefore be accepted. It is undoubtedly correct, however, that when, as in the present case, the restriction reaches the stage of prohibition special care has to be taken by the Court to see that the test of reasonableness is satisfied. The greater the restriction, the more the need for strict scrutiny by the Court.

In applying the test of reasonableness, the Court has to consider the question in the background of the facts and circumstances under which the order was made, taking into account the nature of the evil that was sought to be remedied by such law, the ratio of the harm caused to individual citizens by the proposed remedy, to the beneficial effect reasonably expected to result to the general public. It will also be necessary to consider in that connection whether the restraint caused by the law is more than was necessary in the interests of the general public.”

(iv) In Bannari Amman Sugars Ltd. Commercial Tax Officer(2005 1 SC 625), the Court held that:--

“Reasonableness of restriction is to be determined in an objective manner and from the standpoint of interest of the general public and not from the stand point of the interests of persons upon whom the restrictions have been imposed or upon abstract consideration. A restriction cannot be said to be unreasonable merely because in a given case, it operates harshly. In determining whether there is any unfairness involved the nature of the right alleged to have taken infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing condition at the relevant time enter into judicial verdict, the reasonableness of the legitimate expectation has to be determined with the respect to the circumstances relating to the trade or business in question. Canalisation of a particular business in favour of even a specified individual is reasonable where the interests of the country are concerned or where the business affects the economy of the country.”

(v) In Bishambhar Dayal Chandra Mohan v. State of Uttar Pradesh (1982 AIR (SC) 33), the Court held that:--

“The real, question at issue is whether or not the seizure of wheat was with the authority of law. The fundamental right to carry on trade or business guaranteed under Article 19(1)(g) or the freedom of inter-State trade, commerce and intercourse under Article 301 of the Constitution, has its own limitations. The liberty of an individual to do as he pleases is not absolute. It must yield to the common good. Absolute or unrestricted individual rights do not and cannot exist in any modern State. There is no protection of the rights themselves unless there is a measure of control and regulation of the rights of each individual in the interests of all. Whenever such a conflict comes before the Court, it is its duty to harmonise the exercise of the competing rights. The Court must balance the individual’s rights of freedom of trade under Article 19 (1) (g) and the freedom, of inter-State trade and commerce under Article 301 as against the national interest. Such a limitation is inherent in the exercise of those rights.”

(vi) In Cooverjee B. Bharucha v. Excise Commissioner(1954 AIR (SC) 220), the Court held that:--

“It was not disputed that in order to determine the reasonableness of the restriction regard must be had to the nature of the business and the conditions prevailing in that trade. It is obvious that these factors must differ from trade to trade and no hard and fast rules concerning all trades can be laid down. It can also not be denied that the State has the power to prohibit trades which are illegal or immoral or injurious to the health and welfare of the public.

Laws prohibiting trades in noxious or dangerous goods or trafficking in women cannot beheld to be illegal as enacting a prohibition and not a mere regulation. The nature of the business is, therefore, an important element in deciding the reasonableness of the restrictions. The right of every citizen to pursue any lawful trade or business is obviously subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, order and morals of the community. Some occupations by the noise made in their pursuit, some by the odours they engender, and some by the dangers accompanying them, require regulations as to the locality in which they may be conducted. Some, by the dangerous character of the articles used, manufactured or sold, Require also special qualifications in the parties permitted to use, manufacture or sell them.”

(vii) In Municipal Corporation of the City of Ahmedabad vs. Jan Mohammed Usmanbhai (1986) 3 SCC 20, the Court held that:--

“When the validity of a law placing restriction on the exercise of a fundamental right in Article 19(1)(g) is challenged, the onus of proving to the satisfaction of the Court that the restriction is reasonable lies upon the State. If the law requires that an act which is inherently dangerous, noxious or injurious to the public interest, health or safety or is likely to prove a nuisance to the community shall be done under a permit or a licence of an executive authority, it is not per se unreasonable and no person may claim a licence or a permit to do that act as of right. Where the law providing for grant of a licence or permit confers a discretion upon an administrative authority regulated by permit confers a discretion upon an administrative authority regulated by rules or principles, express or implied, and exercisable in consonance with the rules of natural justice, it will be presumed to impose a reasonable restriction. Where, however, power is entrusted to an administrative agency to grant or withhold a permit or licence in its uncontrolled discretion the law ex facie infringes the fundamental right under Article 19(1)(g). Imposition of restriction on the exercise of a fundamental right may be in the form of control or prohibition. But when the exercise of a fundamental right is prohibited, the burden of proving that a total ban on the exercise of the right alone may ensure the maintenance of the interest of general public lies heavily upon the State. In this background of legal position the appellants have to establish that the restriction put on the fundamental right of the respondents to carry on their trade or business in beef was a reasonable one. The Court must in considering the validity of the impugned law imposing prohibition on the carrying on of a business or a profession attempt an evaluation of its direct and immediate impact upon the fundamental rights of the citizens affected thereby an the larger public interest sought to be achieved, the necessity to restrict the citizen’s freedom, the inherent pernicious nature of the act prohibited or its capacity or tendency to be harmful to the general public, the possibility of achieving the object by imposing a less drastic restraint, and in the absence of exceptional situations such as the prevalence of a state of emergency, national or local, or the necessity to maintain necessary supplies or the necessity to stop activities inherently dangerous, the existence of a machinery to satisfy the administrative authority that a case for imposing restriction is made out or a less drastic restriction may ensure the objection intended to be achieved.”

(viii) In Abdul Hakim Quraishi and others vs. State of Bihar (AIR 1961 SC 448), the Court held that:--

“The phrase ‘reasonable restriction’ connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word ‘reasonable’ implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19(1)(g) and the social control permitted by clause (6) of Article 19, it must be held to be wanting in that quality.”

(ix) In Mohammad Yasin vs. Town Area Committee, Jalalabad and another (AIR 1952 SC 115), the Court held that:--

“Under Article 19(1)(g) the citizen has the right to carry on any occupation, trade or business which right under that clause is apparently to be unfettered. The only restriction to this unfettered right is the authority of the State to make a law relating to the carrying on of such occupation, trade or business as mentioned in Clause (6) of that article as amended by the constitution (First Amendment) Act, 1951, If, therefore, the licence fee cannot be justified on the basis of any valid law no question of its reasonableness can arise, for, an illegal impost must at all times be an unreasonable restriction and will necessarily infringe the right of the citizen to carry on his occupation, trade or business under Article 19(1)(g) and such infringement can properly be made the subject-matter of a challenge under art 32 of the Constitution.”

1. The test of reasonableness settled in above case law is that Court should consider not only factors such as the duration and the extent of the restrictions but also the circumstances and the manner in which they are imposed. There are no abstract standard or general pattern of reasonableness, Court has to bear in mind that the nature of the rights infringed through such restriction should be proportionate to the urgency of the evil sought to be remedied by said restriction. The restriction on fundamental right can only be upheld if it is established that it seeks to impose reasonable restriction in the interest of general public and a less drastic restriction will not have ensured the interest of the general public.

2. Under Article 18 of the Constitution, the restrictions imposed are not only required to be imposed by law but the said restrictions must also be reasonable as held in Arshad Mahmood case supra. Generally speaking the validity of primarily legislation such as Act of the Parliament is not open to challenge on the grounds of reasonableness and reasonableness is available to challenge the validity of subordinate legislation such as rules or regulation or act of the executive but this general rule does not apply where under the Constitution, a right conferred is subject to reasonableness restriction imposed by law in the public interest etc. Indeed under Article 18 of the Constitution, a restriction can be imposed through a licensing system on profession and trade in the collective interest of society and general public.

3. No doubt the fundamental rights are sacred and cannot be transgressed, however, fundamental rights have no real meaning if the State itself has in danger or disorganized, because a disorganized State will not be in a position to guarantee the rights of citizens. Therefore, the State has to maintain equilibrium between interest of the individual and the need to impose reasonable limits on the enjoyment of those rights in the interest of collective good of the society. It is here that Court is called upon to hold the balance between public interest and reasonableness of restriction imposed by law which encroached upon the right and in case the Court finds that legislation has transgressed reasonable limits envisaged by the Constitution, it will not hesitate to strike it down as ultra vires.

4. We now apply the above test of reasonableness to the impugned Section 7-A of the Ordinance 1984 which regulate fee structure of unaided private schools, to examine if this enactment infringes any of the fundamental rights. In Pakistan, the registration and regulation of private educational institutions including their fee structure, is not a new phenomenon. Previously the Punjab Educational (Control of unrecognized Private Institutions) Act, 1953 (Act of 1953) was promulgated on 25.01.1954, which inter alia provided that all unrecognized private institutions shall apply for registration in prescribed manner under the Act. The said law further provided that if any person runs an unrecognized private educational institution without its registration under the Act of 1953, he will be guilty of an offence punishable on conviction with fine. The Act of 1953 was repealed and through the West Pakistan Registration of un-recognized Educational Institutions Ordinance, 1962 (Ordinance of 1962), the registering authority was required to ensure that unrecognized private educational institution, fulfilled the conditions specified in the schedule to the Ordinance of 1962. Clause (v) of the Schedule to the Ordinance of 1962 relates to the rates of tuition fee and subscription which is reproduced hereunder:--

“(v) that the rates of tuition fees and subscriptions charged are not in excess of the scales prescribed or approved by the Department; and”

The Ordinance of 1962 was also repealed and finally the Ordinance of 1984 was promulgated. The said Ordinance of 1984 was applicable to all privately managed colleges, schools or institutions notified as such by Government. Section 7 of the Ordinance 1984 relates to conditions of registration including payment of fee. For convenience, said Section 7 is reproduced hereunder:--

“7. Conditions of Registration.–An institution shall comply with such conditions of registration including payment of fees as may be prescribed.”

Under Section 13 of Ordinance of 1984, the Rules of 1984 were framed. Rule 12 deals with the conditions for registration including charging of fees and other charges by the institutions. Sub rule (ii) of rule 12 provides that fees and other charges shall not be fixed or raised beyond reasonable limits. For ready reference, sub-rule (ii) of rule 12 is reproduced hereunder:--

“(ii) The fees and other charges levied, shall not be fixed or raised beyond reasonable limits.”

1. The perusal of clause (v) of repealed Ordinance 1962, Section 7 of the Ordinance 1984 and rule 12(ii) of Rules of 1984 shows that fees to be charged by educational institutions was always regulated by the authority even prior to impugned Section 7-A of Ordinance 1984. It is also admitted position that Section 7 of the Ordinance 1984 and rule 12(ii) of the Rules of 1984 are not under challenge. Therefore, it cannot be argued that under Article 18 of the Constitution, the fixation of reasonable fee by educational institutions cannot be regulated through Section 7-A of the Ordinance of 1984. The Article 18 of the Constitution is in many ways unique. It boxed in simultaneously fundamental rights and also authorizes State to prescribe qualifications and conditions for exercise of those fundamental rights. The right of profession, occupation, trade and business relates to economy of the country, therefore, through this Article, state retained powers to regulate economic matters. The regulation of fee structure of un-aided schools fall within exceptions provided for under Article 18 of the Constitution.

2. However, while imposing fee regulation, balance must be drawn between cost of fee and quality of education. While consumers are always seeking lower costs in any economy and the welfare state in its attempts to help the consumer reduces costs at the expense of the producers. This reduction of price may be seen as a positive impact by the consumers in the short-term but in the long-run the effects may be disastrous. Because when producers see no chance of increasing prices they end up cutting costs, hence unable to function efficiently and also lose incentive to perform better. The regulation of fees therefore if applied arbitrary will have the unintended consequence of lowering the standards of private schools.

3. The hard reality that emerges is that private educational institutions are a necessity in the present day context. It is not possible to do without them because the Government is in no position to meet the demand which call for substantial outlays. While education is one of the most important functions of the State it has no monopoly therein and therefore, private educational institutions have a role to play. No doubt, we have entered into an era of liberalization of economy and in such an economy, private players are undoubtedly given much more freedom in economic activities including profession, business, occupation etc. as these are not normal forte of the State and the State should have minimal role therein. However, it is to be borne in mind that the occupation of education cannot be treated at par with other economic activities. In this field, State cannot remain a mute spectator and has to necessarily step in to prevent possible exploitation, profiteering and commercialization by the private sector through regulatory regime as well by providing Regulations under the relevant statutes.

Judicial Precedents from Pakistan and Indian Jurisdiction on Regulatory Mechanism by State on un-aided Private Schools and Law settled therein.

1. The regulatory mechanism by State of un-aided private schools remained a subject of discussion in various judgments before Indian and Pakistani Courts. Some of these cases and law settled in these judgments which will be beneficial for matter under discussion are as under:--

(i) In Mohni Jain v. State of Karnataka & others (1992 3 SCC 666), the Court held that:--

“The “right to education” is concomitant to the fundamental rights enshrined under Part III of the Constitution. The State is under a constitutional mandate to provide educational institutions at all levels for the benefit of the citizens. The educational institutions must function to the best advantage of the citizens. Opportunity to acquire education cannot be confined to the richer section of the society.”

(ii) In Unni Krishnan vs. State of A.P. (1993) 1 Supreme Court cases 645), Court held that:--

“so far as unaided institutions are concerned, it is obvious that they cannot be compelled to charge the same fee as is charged in Government institutions. If they do so voluntarily, it is perfectly welcome but they cannot be compelled to do so, for the simple reason that they have to meet the cost of imparting education from their own resources—and the main source, apart from donations/charities, if any, can only be the fees collected from the students. It is here that the concepts of ‘self-financing educational institutions’ and ‘cost based educational institutions’ come in. This situation presents several difficult problems. How does one determine the ‘cost of education’ and how and by whom can it be regulated? The cost of education may vary, even within the same faculty, from institution to institution. The facilities provided, equipment, infrastructure, standard and quality of education obtaining may vary from institution to institution.

The obligations created by Article 41, 45 and 46 of the Constitution can be discharged by the State either by establishing institutions of its own or by aiding, recognizing and/or granting affiliation to private educational institutions and merely recognition or affiliation is granted it may not be insisted that the private educational institution shall charge only that fee as is charged for similar courses in governmental institutions. The private educational institutions have to and are entitled to charge a higher fee, not exceeding the ceiling fixed in that behalf. The admission of students and the charging of fee in these private educational institutions shall be governed by the scheme evolved herein.”

(iii) In T.M.A. Pai Foundation & Ors vs. State of Karnatake & others (2002) 8 SCC 481), it was held that:--

“An educational institution is established for the purpose of imparting education of the type made available by the institution. Different courses of study are usually taught by teachers who have to be recruited as per qualifications that may be prescribed. It is no secret that better working conditions will attract better teachers. More amenities will ensure that better students seek admission to that institution. One cannot lose sight of the fact that providing good amenities to the students in the form of competent teaching faculty and other infrastructure costs money. It has, therefore, to be left to the institution, if it chooses not to seek any aid from the government, to determine the scale of fee that it can charge from the students. One also cannot lose sight of the fact that we live in a competitive world today, where professional education is in demand. We have been given to understand that a large number of professional and other institutions have been started by private parties who do not seek any government aid. In a sense, a prospective student has various options open to him/her where, therefore, normally economic forces have a role to play. The decision on the fee to be charged must necessarily be left to the private educational institution that does not seek or is not dependent upon any funds from the government.

We, however, wish to emphasize one point, and that is that inasmuch as the occupation of education is, in a sense, regarded as charitable, the government can provide regulations that will ensure excellence in education, while forbidding the charging of capitation fee and profiteering by the institution. Since the object of setting up an educational institution is not required for the purpose of fulfilling that object. To put it differently, in the establishment of an educational institution, the object should not be to make a profit, inasmuch as education is essentially charitable in nature. There can, however, be a reasonable revenue surplus, which may be generated by the educational institution for the purpose of development of education and expansion of the institution.”

(iv) In Islamic Academy of Education And vs. State of Karnataka And others, (2003) 6 SCC 697), Supreme Court of India held that:--

“so far as the first question is concerned, in our view the majority judgment is very clear. There can be no fixing of a rigid fee structure by the government. Each institute must have the freedom to fix its own free structure taking into consideration the need to generate funds to run the institution and to provide facilities necessary for the benefit of the students. They must also be able to generate surplus which must be used for the betterment and growth of that educational institution. In paragraph 56 of the judgment, it has been categorically laid down that the decision on the fees to be charged must necessarily be left to the private educational institutions that do not seek and which are not dependent upon any funds from the Government. Each institute will be entitled to have its own fee structure. The fee structure for each institute must be fixed keeping in mind the infrastructure and facilities available, the investments made, salaries paid to the teachers and staff, future plans for expansion and/or betterment of the institution etc. Of course there can be no profiteering and capitation fees cannot be charged. It thus needs to be emphasized that as per the majority judgment imparting of education is essentially charitable in nature. Thus the surplus/profit that can be generated must be only for the benefit/use of that educational institution, profits/surplus cannot be diverted for any other use or purpose and cannot be used for personal gain or for any other business or enterprise.”

(v) In P.A. Inamdar vs. State of Maharashtra, (2005) 6 SCC 537), it was held that:--

“To set up a reasonable fee structure is also a component of “the right to establish and administer an institution” within the meaning of Article 30(1) institution is free to devise its own fee structure subject to the limitation that there can be no profiteering and no capitation fee can be charged directly or indirectly, or in any form …………… …………………………………………..

Capitation fee cannot be permitted to be charge and no seat can be permitted to be appropriated by payment of capitation fee. “Profession” has to be distinguished from “business”or a mere “occupation”. While in business, and to a certain extent in occupation, there is also profit motive, profession is primarily a service to society wherein earning is secondary or incidental. A student who gets a professional degree by payment of capitation fee, once qualified as a professional, is likely to aim more at earning rather than serving and that becomes a bane to society. The charging of capitation fee by unaided minority and non-minority institutions for professional courses is just not permissible. Similarly, profiteering is also not permissible. Despite the legal position, this Court cannot shut its eyes to the hard realities of commercialization of education and evil practices being adopted by many institutions to earn large amounts for their private or selfish ends. If capitation fee and profiteering is to be checked, the method of admission has to be regulated so that the admissions are based on merit and transparency and the students are not exploited. It is permissible to regulate admission and fee structure for achieving the purpose just stated.

(vi) In case of Society for Unaided Private School of Rajasthan vs. Union of India (2012 AIR SC 3445), Court held that:--

“Indeed by, virtue of Section 12(2) read with Section 2(n)(iv), private unaided school would be entitled to be reimbursed with the expenditure incurred by it in providing free expenditure incurred by it in providing free and compulsory education to children belonging to the above category to the extent of per child expenditure incurred by the State in a school specified in Section 2(n)(i) or the actual amount charged from the child, whichever is less. Such a restriction is in the interest of the general public. It is also a reasonable restriction. Such measures address two aspects, viz., upholding the fundamental right of the private management to establish an unaided educational institution of their choice and, at the same time, securing the interests of the children in the locality, in particular, those who may not be able to pursue education due to inability to pay fees or charges of the private unaided schools.

Primarily responsibility for children’s rights, therefore, lies with the State and the State has to be respect, protect State and the State has to respect, protect and fulfill children’s rights and has also got a duty to regulate the private institutions that care for children, to protect children from economic exploitation, hazardous work and to ensure human treatment of children. Non- State actors exercising the State functions like establishing and running private educational institutions are also expected to respect and protect the rights of the child, but they are, not expected to surrender their rights constitutionally guaranteed.

(vii) In Modern School vs. Union of India (AIR 2004 SC 2236), held that:--

“The first point for determination is—whether the Director of Education has the authority to regulate the fees of unaided schools?

At the outset, before analyzing the provisions of 1973 Act, we may state that it is now well settled by catena of decisions of this Court that in the matter of determination of the fee structure the unaided educational institutions exercises a great autonomy as, they, like any other citizen carrying on an occupation are entitled to a reasonable surplus for development of education and expansion of the institution. Such institutions, it has been held, have to plan their investment and expenditure so as to generate profit. What is, however, prohibited is commercialization of education. However, in none of the earlier cases, this Court has defined the concept of reasonable surplus, profit, income and yield, which are the terms used in the various provisions of 1973 Act.”

(viii) In Anti-Corruption and Crime Investigation Cell vs. State of Punjab & others (2013 (2) CLT 488), the Court held that:--

“Fee charges should be commensurate with the facilities provided by the institution. Fees should normally be charged under the heads prescribed by the Department of Education of the State/U.T. for schools for different categories. No capitation fee or voluntary donations for gaining admission in the school or for any other purpose should be charged/collected in the name of the school. In case of such malpractices, the Board may take drastic action leading to disaffiliation of the school.”

(ix) In Modern Dental College and Research Centre and another vs. Madhya Pradesh and others (2016 AIR (SC) 2601), Court held that:--

“In modern times, all over the world, education is big business. On account of consumerism, the students all over the world are restless. That schools in private sector which charge fees may be charitable provided they are not run as profit-making ventures. That educational charity must be established for the benefit of the public rather than for the benefit of the individuals. That while individuals may derive benefits from an educational charity, the main purpose of the charity must be for the benefit of the public.”

(x) In Modern Dental College v. State of Madhya Pradesh (AIR 2009 SC 2432), it was held that:--

“In para 91 of Inamdar’s case (supra), it has been observed:

“The right to establish an educational institution, for charity or for profit, being an occupation, is protected by Articles 19(1)(g) of the Constitution....”

Thus, it is clear that the right to establish and run an educational institution is a fundamental right guaranteed under Article 19(1)(g) of the Constitution. Of course under Article 19(6) of the Constitution, reasonable restrictions can be placed on such a fundamental right, and hence we have to examine whether such restriction are reasonable or not.”

(xi) In Father Thomas Shingare Vs. State of Maharashtra (AIR 2002 SC 463), the Court held that:--

“It is a question of fact in each case whether the limit imposed by the Government regarding approved fees would hamper the right under Article 30(1) of the Constitution in so far as they apply to any unaided educational institution established and administered by the minorities. If the legislature feels that the nefarious practice of misusing school administration for making huge profit by collecting exorbitant sums from parents by calling such sums either as fees or donations, should be curbed, the legislature would be within its powers to enact measures for that purpose. Similarly, if the management of an educational institution collects money from persons as quid pro quo for giving them appointments on the teaching or nonteaching staff of such institution, the legislature would be acting within the ambit of its authority by bringing measures to arrest such unethical practices. Such pursuits are detestable whether done by minorities or majorities. No minority can legitimately claim immunity to carry on such practices under the cover of Article 30(1) of the Constitution. The protection envisaged therein is not for shielding such commercialized activities intended to reap rich dividends by holding education as a facade.”

(xii) In India Medical Association vs. Union of India and others (AIR 2011 SC 2365), the Court held that:--

“The Delhi Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-Exploitative Fee And Other Measures to Ensure Equity And Excellence) Act, 2007 (Delhi Act 80 of 2007) or any provisions thereof do not suffer from any constitutional infirmities. The validity of the Delhi Act 80 of 2007, and its provisions, are accordingly upheld.”

(xii) In Charutar Arogya Mandal v. State of Gujarat (AIR 2011 (SCW) 2475), the Court while discussing case law on the subject held that:--

“In T.M.A. Pai Foundation v. State of Karnataka, 2002 (8) SCC 481, this Court declared that every institution is free to devise its own fee structure subject to the limitations that there can be no capitation fee or profiteering, directly or indirectly. This Court also clarified that charging of fees in a manner that a reasonable surplus is left to meet the cost of expansion and augmentation of facilitates, would not amount to profiteering. In Islamic Academy of Education v. State of Karnataka, 2003 (6) SCC 697, this Court directed the state Governments to set up two committees - one to regulate admissions and the other to regulate the fee structure. The fee structure committee was authorized to decide whether the fees proposed by a college were justified or whether they amounted to profiteering or charging capitation fee; and if necessary to prescribe a fee structure different from what was proposed by the institutions. In P.A. Inamdar v. State of Maharashtra, 2005 (6) SCC 537, this Court reiterated that while every institution is free to devise its own fee structure, the same can be regulated to prevent profiteering and to ensure that no capitation fee is charged, either directly or indirectly, or in any form; that if capitation fee and profiteering are to be checked, the method of admission has to be regulated so that the admissions are based on merit and are transparent and the students are not exploited; and that it is, therefore, permissible to regulate admissions and fee structure for achieving the same.”

(xiv) In Rohilkhand Medical College and Hospital, Bareilly v. Medical Council of India (2013 (15) SCC 516), Court observed as under:--

“We think, this is an apt occasion to ponder over whether we have achieved the desired goals, eloquently highlighted by the Constitution Bench judgments of this Court in T.M.A. Pai Foundation and others v. State of Karnataka and others 2003(2) S.C.T. 385: (2002) 8 SCC 481 and P.A. Inamdar and others v. State of Maharashtra and others, 2005(3) S.C.T. 697: (2005) 6 SCC 537. TMA Pai Foundation case (supra) has stated that there is nothing wrong if the entrance test being held by self-financial institutions or by a group of institutions but the entrance test they conduct should satisfy the triple test of being fair, transparent and not exploitative. TMA Pai Foundation (supra) and Inamdar (supra) repeatedly stated that the object of establishing an educational institution is not to make profit and imparting education is charitable in nature. Court has repeatedly said that the common entrance test conducted by private educational institutions must be one enjoined to ensure the fulfillment of twin object of transparency and merits and no capitation fee be charged and there should not be profiteering. Facts, however, give contrary picture. In Inamdar, this Court, in categorical terms, has declared that no capitation fee be permitted to be charged and no seat can be permitted to be appropriated by payment of capitation fee.”

(xv) In Modern Dental College and Research Centre v. State of Madhya Pradesh (2016 AIR (SC) 2601), Court held that for fixing the fee structure, following considerations are to be kept in mind:--

(a) the infrastructure and facilities available;

(b) investment made, salaries paid to teachers and staff;

(c) future plans for expansion and/or betterment of institution subject to two restrictions, viz. non-profiteering and non-charging of capitation fees.”

(xvi) In M/s. Pushpagiri Medical Society vs. State of Kerala and other (2004 AIR (SCW) 7491), it was held that:--

“The other question is regarding the fee structure. In terms of the decision in Islamic Academy’s case, the Government of Kerala appointed a Committee headed by Justice R. T. Thomas, a former Judge of this Court. The said Committee has fixed the fee at Rs.1.13 lakh as the maximum annual fee to be collected from each student of the private self-financing medical colleges.”

1. In Pakistan, Courts have also discussed the extent of authority of State to regulate private institutions as under:--

(I). In Educational Services (Pvt.) Limited and 4 others vs. Federation of Pakistan and another (PLD 2016 Islamabad 141), Islamabad High Court after discussing Indian case law held as under:

“In light of the above judgments and relevant provisions of the Act, the following principles are deduced:--

i. PEIRA has the authority to fix the fee but the same cannot be done in arbitrary manner without calling for record of expenses and examination of requirements of individual Private Educational Institution.

ii. The factors which the PEIRA has to take into consideration in fixation of the fee should be formulated in the Rules which it has the power to frame under the Act.

iii. The broad guidelines which PEIRA has to keep in consideration before fixation of the price and/or formulation of Rules and Regulations are as follows:

(a) The privately managed Educational Institutions can only maintain high standards of education if they hire highly qualified teachers;

(b) Provide adequate buildings comprising all the facilities;

(c) Escalation in utility bills and other charges;

(d) Payment of rents on commercial rates.

iv. The Private Educational Institutions should not make windfall profits, however, are entitled to return for services rendered.

In view of above discussion, Sections 4(c), 5(1)(b) & 5(1)(h) are not ultra vires Article 18. Under the referred Article freedom of Trade, Occupation or Profession is subject to such qualification as may be prescribed by law, however, there can be no arbitrary fixation of the fee by the Authority or even clog on enhancement of the same rather it has to be done after taking into consideration the expenses/costs of the petitioners and naturally the profit on the services provided. In this behalf the principles of natural justice are to be complied with. The Authority needs to frame rules/regulations keeping in view the above observations; also the Authority while making or framing such Rules/Regulations can invite suggestions from Private Educational Institutions to make them comprehensive and in line with the above provisions of law.

(II). In Shahrukh Shakeel Khan and 2 others vs. Province of Sindh through Chief Secretary and 4 others (PLD 2017 Sindh 198), learned Division Bench of Sindh High Court held that:--

“with regards arbitrary increases in fees by private schools, it is evident from the forgoing discussion that the current mechanism provided for in the form of the said Ordinance and rules though looks glossy, however, the loggerhead position of parents against the schools and vice versa is a clear depiction of the fact that private schools are not following the said mechanism and there is no compulsion on these to do so from the Department. It is painful to note that no statement has been provided by the Department as to its receipt of each year’s audited accounts report from private schools and its enforcement of the restricted 5% increase of the tuition fees. Department to strictly act in accordance with law and to ensure compliance of the rules and regulations and submit quarterly reports to this Court in respect of such audit and 5% rule. Petitions filed by parents/students are thus allowed in the term that respondent schools shall only increase tuition fees no more than 5% per annum from the date of their registration for three years and in case there has been no re-registration after the said period of three years, fees shall not be increased unless school re-registers itself; and”

(III). In Arif Yousif Chohan and 9 others vs. Province of Sindh through Secretary Education, Government of Sindh, Karachi and 5 others (2017 YLR Note 385) Court held as under:--

“It has been further emphasized by the respondents that neither the administration nor teachers are causing any kind of harassment to the students for recovery of fee and they are only maintaining a note for the parents in the dairy of students for payment of fee in time, which otherwise is a general practice and procedure in vogue in all educational institutions and it cannot be counted as harassment or de-moralization by the administration to the students. Moreover, the issue of calling the record and audit reports from the year 2009 and onwards for scrutiny i.e. income and expenditure of the School, which absolutely involves factual controversy as such same is beyond the ambit of this Court.”

(IV). In Pir Liaqat Ali Shah vs. Government of N.W.F.P. through Secretary and 7 others (PLD 2011 Peshawar 143):--

“Yes education has become an industry and an enterprise but it should not be shorn of humanistic and philanthropic considerations, otherwise the very purpose of education which could be none else but character-building and something more than memorizing a few useful lessons, shall stand defeated. The private sector of education cannot be taken away from the umbrella of the Code so as to allow it to grow into a wild forest of money yielding trees: We, therefore, do not feel inclined to declare the Code ineffective or ultra vires. The argument that such questions can be raised before the Regulatory Authority in view of Section 13-A of the N.-W.F.P. Registration and Functioning of Private Educational Institutions Ordinance, 2001 is not without substance.

We have been told that many of the petitioners have already filed complaints before the Regulatory Authority but they have not been decided so far. We, therefore, direct the Regulatory Authority to dispose of the complaints, thus, filed. Those who have not filed may, if so advised, file the same, which, too, are directed to be disposed of as early as possible.”

(V). In Beacons House School System vs. Province of Sindh (C.P.D. No. 5812/2015), Court held that school fee can be regulated through licencing system.

1. The above case law from Indian and Pakistani jurisdiction on educational institutions shows that in T.M.A. Pai Foundation case supra, the question of regulation and fees and admission to provide professional engineering and medical colleges was in issue. In said judgments (in Para 57), the Supreme Court held that education by its very nature is a charitable occupation and the State can provide regulation that are necessary to ensure excellence in education and profiteering is not done by private educational institutions. However, the Court held that reasonable revenue surplus which may be generated by the educational institution for the purpose of development of education and expansion of institution is permissible. The T.M.A. Pai case supra caused much confusion amongst the State Government in India and private educational institutions, as they both interpreted the said judgments for their own benefit. On one hand the educational institution thought that they have complete autonomy with regard to their own fee structure and on the other hand, the State interpreted it as the educational institutions are subject to reasonable restriction including fixation of their fees. This confusion was highlighted in Islamic Academy of Education and others case supra where (in Para 7) the Supreme Court while interpreting the T.M.A. Pai case held that although there can be no fixation of rigid fee structure by the Government and that each institute must have the freedom to fix its own fee structure taking into consideration the need to generate funds to run the institution and to provide facilities necessary for the benefit of students, however, the Supreme Court constituted a committee that was to regulate fee charged by private educational institutions. The Court further held that there can be no profiteering and capitation fee and the surplus/profit must be for the benefit/use of that educational institution and cannot be diverted for any other purpose or for personal gain or any other business or enterprise.

2. Subsequently in P.A. Inamdar case supra, the ratio settled in Islamic Academy case was sought to be reviewed. However, the Supreme Court upheld the mechanism brought in for determination of school fees and admission process and held that committees constituted for monitoring admission and determining fee structure in Islamic Academy case was regulatory measure aimed at protecting the interest of the students” community as a whole. The Supreme Court (in Para 20 of the judgment) also held that scheme evolved for monitoring admission and fee fixation are reasonable restrictions and not violative of fundamental right of the private educational institutions under Article 19(1)(g) of the Indian Constitution. Finally in Tamil Nadu Nursery Matriculation case (2010 (4) CTC 353) after discussing entire case law including T.M.A. Pai case, Islamic Academy case and P.A. Inamdar case, the Court held that State has the right to regulate the school fee charged by private schools so far as it strikes a balance between autonomy of institutions and measures to be taken to prevent commercialization of education.

3. In the light of aforesaid judgments, the present position and jurisdiction developed in India regarding regulation of fees charged by private educational institutions is that Government has power to regulate school fees charged by private educational institutions but it must draw a balance to let institutions to fix its fee taking into consideration the need to generate funds to run the institutions and ensure excellence in education.

4. The recent cases regarding educational institutions in Pakistani Courts show that Islamabad High Court in the case of Educational Services Private Limited (PLD 2016 Islamabad 141) held that regulatory authority has the power to fix the fee but same cannot be done in arbitrary manner without calling for record of expenses and examination requirement of individual private educational institution. It was further held that the factors which are to be considered in fixation of fee should be formulated in the rules which rule making authority has power to do so under the relevant Act. The Peshawar High Court in case titled Peshawar Bar Association vs. Government of K.P.K. (W.P. No. 2093-P/2016) vide judgment dated 08.11.2017 held that schools are charging fees which does not commensurate with the facilities they are providing, therefore, the authority should device a policy in order to regulate the tuition fee and the minimum standards in which the school is to operate. The Sindh High Court in case of Beacons House School System vs. Province of Sindh (CPD No. 5812/2015) held that Article 18 of the Constitution postulates that through a licensing system, reasonable restrictions can be imposed upon a lawful profession or trade. Further held that running of a school being a trade or business, it is well within the authority of the State to regulate this business through a licensing system. However, the regulations/restrictions must be reasonable.

5. The close scrutiny of above case law by Pakistani Courts shows that there is a consensus that fee structure can be regulated through a licensing system under Article 18 of the Constitution, however the said restrictions/regulations must be reasonable and should not impinge upon the fundamental rights of the private educational institutions. In other words, the ratio settled by Indian Courts to draw a balance between regulating the fee structure and to maintain minimum autonomy of the schools for quality of service and excellence of education was also maintained by Pakistani Courts.

6. The petitioner schools are mainly aggrieved of sub-section (1), (5), (6), (7) and (8) of Section 7-A of the Ordinance 1984. We have already found that regulation regarding private schools fee is not a new phenomenon and State can regulate it through licencing system. However, we now examine the above impugned sub-Sections of Section 7-A, separately on the touchstone of test of reasonableness and balancing as elucidated by Pakistani and Indian Courts. Learned counsel for the private schools argued that impugned sub-section (1) of Section 7-A substituted through Act of 2017 is discriminatory, as under said sub-clause, Section 7-A has not been made applicable to schools charging fee less than Rs.4,000/-. This argument has no substance. The equal protection of law under Article 25 of the Constitution does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly stated or similarly placed are to be treated alike. Reasonable classification is permissible on the basis of intelligible differentia which distinguishes persons or things that are group together from those who have been left out. The classification between schools who are charging less than Rs.4,000/- fee and schools which are charging fee more than Rs.4,000/- is a reasonable classification for applicability of Section 7-A between schools who are already charging less fee and schools which are charging higher fee. Therefore, this classification is neither unreasonable nor violative of doctrine of equality as settled by august Supreme Court in I.A. Sharwani and others vs. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 1041). The question of discrimination with certain other Government aided and controlled educational institutions is a subject matter of separate writ petition, therefore, we need not to discuss it at this stage in these petitions.

7. The remaining provisions of sub-section (2), (3), (7), (8), (9) and (10) of impugned Section 7-A of the Ordinance 1984 as amended through Act of 2017 shows that these sub-clauses merely provide a mechanism to regulate the increase in fee structure. These requirements through licensing system are not only permissible under law but are also reasonable and justified as it does not imbalance the equilibrium between right of the State to regulate the fee structure and the autonomy of the private educational institutions to justify the increase in fees in order to ensure quality and excellence in education. Therefore, these conditions undertaken by Section 7-A of the Ordinance 1984, does not run afoul to the fundamental rights of petitioner schools managements.

8. However, original sub-clause (1) of Section 7-A (which impose complete bar on increase of fee for academic year 2015-2016 at the rate higher than the fee charged for academic year 2014-2015), sub-clause (5) of Section 7-A of the Ordinance 1984, which imposes a maximum limit of 5% (under Ordinance of 2015 and Act of 2016) and 8% (amended through Act of 2017), is the root cause of controversy between the parties. These particular provisions need closer analysis to determine if these particular sub-clauses amount to unreasonable restriction on the fundamental right of the private educational institutions, therefore, not sustainable or otherwise.

9. One of the contention of learned Additional Advocate General to justify the complete bar under sub-clause (1) and maximum cap of 5% and 8% under sub-clause (5) is that under Article 18 of the Constitution, only lawful trade or business can be entered upon and that also subject to qualifications and regulations under the licensing system, therefore, Article 18 is not a fundamental right, hence State can ban a profession, occupation, trade or business by declaring it unlawful and forbidden by law. He in the circumstances submitted that legislation could legally declare charging of fee more than 5% and 8% or higher than previous academic year unlawful and forbidden by law. We have carefully considered this argument. No doubt Article 18 prescribed that every citizen shall have the right to enter upon lawful profession, occupation, trade or business. However, the word lawful intends to exclude profession, trade and business which is inherently vicious, pernicious and is condemned by all civilized societies. The word lawful intend to exclude res extra commercium (outside commerce). This expression does not entitle citizens to carry out business in activities which are immoral, criminal and trade in any article or goods which are obnoxious and injurious to health, safety and welfare of general public. There cannot be business in crime. This maxim was also recognized by honourable Supreme Court in Watan Party case (PLD 2011 SC 997). No doubt the august Supreme Court in case of Zameer Ahmad Khan (PLD 1975 SC 667) (relied upon by learned Additional Advocate General himself) held that State under Article 18 can ban unlawful profession or trade, for instance, prostitution, trafficking in women, gambling, trade in narcotics, or dangerous drugs etc. However, in our view it will be fallacy to hold that education or running of educational institution is inherently vicious or pernicious or condemned by civilized society. In case of Navendra Kumar supra, Court held that the word restriction to include cases of “prohibition” also, however, when the restriction reaches the stage of prohibition special care has to be taken by the Court to see that the test of reasonableness is satisfied. The greater the restriction, the more the need for strict scrutiny by the Court.

10. The Supreme Court of India in the case of Action Committee, Unaided Private Schools (2009) 10 SCC 1, held that doctrine of res extra commercium being not applicable in relation to imparting of education for profit by unaided institution or even aided private institutions, it is difficult to conceive that how restrictions relating on this doctrine which is wholly inapplicable could be extended. The august Supreme Court in Arshad Mahmood case and East West Steam Shipping Company case held that restrictions under Article 18 must be reasonable and should bear true relation to trade or profession for the purpose of permitting general welfare. Therefore, we are not convinced with the argument of learned Additional Advocate General that State could ban or declare unlawful the increase more than 5% or 8% higher than the previous academic year by declaring such increase as unlawful trade or business. This would otherwise lead to an absurd result.

11. To justify reasonableness of 5% and 8% capping or not more than the previous academic year, under above sub-clauses, the learned Additional Advocate General also vehemently argued that cap of 5% and 8% and complete restriction on increase not more than previous academic year, is in the interest of the public at large in the present case. No doubt whenever the interest of community collides with the fundamental rights of individual, the interest of the community will have over-riding effect over such rights. However, in the present case, it is admitted by respondents Government itself that impugned Section 7-A of the Ordinance of 1984 has not been made applicable to almost 98% of the unaided private schools who are charging monthly fee less than Rs.4,000/-. Further it is not disputed that out of remaining 2% of private schools to whom impugned Section 7-A of the Ordinance of 1984 is made applicable, only few parents filed complaints before the promulgation of the Ordinance 2015 and Acts of 2016 and 2017. Once almost 98% of students and parents are not benefitting out of the impugned Section 7-A of the Ordinance 1984, it cannot be said that petitioners” fundamental rights should be denied to give way to the interest of community.

12. The restriction on fundamental rights can only be upheld if it is established that it seeks to impose reasonable restriction in the interest of public at large and a less drastic restriction will not have ensued the interest of general public. This is a principle of proportionality which if violated will automatically render the condition as unreasonable restriction. Aharan Barak (a renowned jurist and visiting Professor of Yale Law School, U.S.A.) in his book “Proportionality” quoted requirement of proportionality by As Professor Grimm as under:--

“Laws could restrict human rights, but only in order to make conflicting rights compatible or to protect the rights of other persons or important community interests… Any restriction of human rights not only needs a constitutionally valid reason but also to be proportional to the rank and importance of the right at stake.”

D Smith in his Book Judicial Review (7th Edition) reproduced the view of House of lords on proportionality in following terms:--

“In Daly…the House of Lords adopted a test of proportionality adopted by the Privy Council in de Freitas vs. Permanent Secretary of Ministry of Agriculture, Fisheries, Land and Housing. Drawing on South African, Canadian and Zimbabwean authority, it was said that:

“When determining whether a limitation (by an act, rule or decision) is arbitrary or excessive, the Court should ask itself: ‘whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental rights; (ii) the measures designed to meet the legislative object are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective”.

When above principle of proportionality is applied in present case, we have noted that the rationale for capping of fee to 5% and 8% and not more than previous academic year, is to prevent profiteering by the educational institutions. This extreme restriction across the board on every educational institution, regardless of its costs, expense and actual profit, is absolutely un-proportionate and unreasonable as profiteering could be stopped through less restrictive alternatives, including assessment of increase of fee on case to case basis after analyzing the actual costs and income of the institution on the basis of relevant data.

1. In the East and West Steam Shipping Company case supra, Section 6 of the Control of Ship Act, 1947 was challenged being violative of Article 12 of 1956 Constitution (almost same as Article 18 of the Constitution), as it allowed the Central Government to fix the rate at which a ship could be hired or rate that could be charged for carriage of passenger and cargo. The august Supreme Court with majority view held that impugned Act was not violative of Article 12 of 1956 Constitution, because certain special circumstances exist that justified the impugned Act. While discussing whether impugned Act amounts to reasonable restriction in the public interest, the Hon’ble Supreme Court (at page 62) observed that “because special conditions exist in which Control of Shipping imposes restriction on free use of ships in order to provide for national needs which cannot otherwise be made”. We have noted that in instant matters original sub-clause (1) and sub-clause 5 of Section 7-A of Ordinance of 1984, for capping the maximum limit for increase in private schools fee has not been enacted on account of any special circumstances and conditions but in the ordinary course as a simple regulatory regime under the licensing system in the educational institutions. Further admittedly the impugned provision of Section 7-A of Ordinance 1984 not made applicable to almost 98% of private educational institutions and parents in those schools, who are charging fee less than Rs.4,000/-. Therefore, it cannot be said that fixation of limit is for the collective good of the society. The test of reasonable restriction to fix the upper limit laid down in East West Shipping Company case, hence is not applicable in the present case.

2. Reasonableness of restriction is to be determined in an objective manner and from the standpoint of interest of the general public and not from the stand point of the interest of the persons upon whom the restrictions have been imposed. Canalisation of a particular business of even a specified individual is reasonable where the interests and economy of the country demand. Indeed absolute or unrestricted individual rights do not and cannot exist in any modern state and it must yield to the common good. However, the Court must balance the individual right of trade and business against national interest. In present case, when 98% students and parents of unaided private schools are not benefiting from this restriction, then this restriction of 5% and 8% maximum limit or complete ban on increase more than previous academic year, on private schools is un-proportionate to welfare of public and consequently unreasonable restriction on fundamental rights.

3. No doubt the profiteering and capitation of fee is not permitted, however, it cannot be presumed that any fee beyond maximum limit of 5% and 8% or more than previous academic year will be profiteering. Whether increase more than 5% or 8% or more than previous academic year is justified or amounts to profiteering can only be determined after the factual assessment is made by the Executives. Fixing the cap of 5% or 8% or not more than previous academic year, by presuming that any increase before this cap will always be illegal and profiteering, is not a reasonable restriction on fundamental right of petitioners on trade, business and occupation. When the validity of a law placing restriction on the exercise of a fundamental right in Article 18 of the Constitution is challenged, the onus of proving to the satisfaction of the Court that the restriction is reasonable lies upon the State. Further where legislative enactment abridges any of the fundamental right enumerated in the Constitution, it could be struck down by Courts.

4. There is no cavil that like any other industry or business, the private schools are also to be regulated, however, it is not reasonable to impose cap of 5% or 8% or total bar on increase more than previous academic year across the board, on all private educational institutions by simply disregarding inflation and costs incurred by those institutions. Indeed to control profiteering, a cap can be imposed on the profits but cap on gross income, without taking into account the inflation and actual cost will amount to take away the right of property under Articles 23 and 24 of the Constitution.

5. Right to property under Article 23 and 24 of the Constitution including right to possess, use and dispose of the property. Although deprivation of the right to use and obtain a profit from the property is not in every case independently sufficient to establish a taking of property, however, it is clearly relevant factor when a particular legislation is examined on the touchstone of reasonableness of a restriction on fundamental right. The restriction which is expropriatory and confiscatory in nature should not be imposed in such a way as to deprive a person of his right to property.

6. The cap of 5% or 8% or not more than previous academic year without considering the actual costs will not only be confiscatory or expropriatory and would amount to taking away the property without compensation but this cap can actually be counterproductive and in the long term may work against the interest of students as it will affect the quality education and standards of private schools, hence would actually amount to violation of right to quality education of students.

7. Though minimum standard of schools are required to be maintained, in order to impart better and quality education, however, many schools are having much better facilities, are known for their high standards. Since such schools are unaided, the main source of generating the funds to cater to the aforesaid is the tuition fees to be charged from the students. Therefore, some amount of autonomy has to be conferred upon these institutions. But at the same time, these education institutions cannot be allowed to use the education as business ventures indulging in profiteering. It is also to be borne in mind that under the garb of increasing fee, these schools should not indulge in commercialization.

8. This was conceded by learned counsel for the schools themselves that commercialization and exploitation is not permissible. Private schools may fix the fees and charges payable by the students, however increase cannot be such which is exploitative in nature and travels into the arena of commercialization. In such situation, the Government is equipped with necessary powers to take regulatory measures and check commercialization. The Government under Ordinance 1984 has requisite power to resort to regulatory measures and control the activities of such institutions to ensure that these education institutions keep playing vital and pivotal role to spread education but at same time not indulge in profiteering.

9. Under Article 25-A of the Constitution, it is the responsibility of the State to provide free of cost education to students between age 5-16 year, which the State has admittedly failed to do so. In the circumstances, the State cannot pass on its responsibility to private schools regarding quality education and then insist that these schools must freeze fees and can only increase by 5% or 8% or cannot more than previous academic year. The sole purpose for fixation of the fee and regulation of the same under the Ordinance 1984 and Rules of 1984 is to prevent public from extortion, exploitation or unreasonable profiteering on the part of educational institutions. The purpose of law is not to deprive private educational institutions from reasonable justified gains out of their business.

10. Ordinarily any restriction so imposed which has the effect of permitting or effectuating the fundamental rights and principle of policy can be presumed to be reasonable restriction in public interest. The reasonableness has to be decided both from the procedural and substantive aspect. It is imperative that for the consideration of reasonableness of restriction imposed by a statute, the Court should examine whether the restriction is not arbitrary and has achieved the purpose as envisaged in Article 18 of the Constitution by imposing restrictions on fundamental rights. Sindh High Court in (PLD 1957 (W.P.) Karachi 854) titled Salah ud Din vs. Pakistan regarding restriction on the maximum price of beef held that fixing at will of maximum price of mutton and beef without reference to quality and without control of the price at source may be a character of scheme of permits but does not a system of licensing. The above observation is squarely applicable in the present case where without controlling the source of increase in costs including security, electricity, rent etc. incurred by private educational institutions, the State has caped the upper limit of the tuition fee. In this way, the idea of quality education will be eradicated which is not only against the fundamental rights of trade and business of the petitioners but also fundamental rights of students to have quality education.

11. We have also noted that under impugned sub-clauses (1) and (5) of Section 7-A of the Ordinance of 1984, while imposing cap, no distinction has been made between categories of schools which are charging high fee but providing quality education, facilities and services and the educational institutions which are relatively mediocre but charging high fee. The cap of maximum limit has been imposed on both these categories of schools, which is violative of Article 25 of the Constitution, for failure to discriminate between two different categories of schools.

12. Mr. Justice Fazal Karim (renowned Jurist and former Judge of Supreme Court) in his book (“Judicial Review of Public Actions, Second Edition), discussed this facet of discrimination under Article 25 of the Constitution as under:

“Though the right governed by this Article is violated when the State, through its legislative and executive organs, treats differently persons in analogous situations, without providing an objective and reasonable justification, yet, this is not the only facet of the prohibition of discrimination. The right not to be discriminated against is, it has been held by the European Court of Human Rights, “also violated when states without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.”

The Indian Supreme Court in K.T. Moopil Nair v. State of Kerala, (AIR 1961 SC 552) held that lack of classification amongst unequal creates inequality. Similarly in State of Kerala v. Haji K. Kutty, (AIR 1969 SC 378) Court held that where persons essentially dissimilar are treated by imposition of uniform tax, it amounts to denial of equality. The august Supreme Court in Elahi Cotton (PLD 1997 SC 582) held that Article 25 including obligation of the State to differentiate. The same view was also expressed by this Court in Ghulam Mustafa Insari v. Government of Punjab (2005 SCJ 158) and Ahmad Yar Chohan v. Federal Public Service Commission (1998 MLD 1832).

1. Further under Article 25-A of the Constitution, it is the responsibility of the State to provide free and compulsory education to all children of the age of 5-16 years. Beside Article 25-A, the State is also obliged under Articles 9, 37(b) and 38(d) to ensure education to its citizens. The State has also to ensure that no exploitation has been made by any one including educational institution in violation of Article 3 of the Constitution. We have noted that in pursuance to Article 25-A of the Constitution, “The Punjab Free and Compulsory Education Act, 2014” (Act of 2014) was promulgated on 10.11.2014. However, we have been informed by the learned Additional Advocate General that till date, this law has not been notified by the Government, hence has not been enforced. This shows the slackness and apathy on the part of Government itself to enforce the fundamental right of education guaranteed under Article 25-A of the Constitution on one hand and then fix maximum limit on private educational institutions in garb of public interest. The Government is expected to immediately notify the Act of 2014 which also inter alia deals with the responsibility of private schools for free education to certain number of students. No doubt under Article 25-A, it is the responsibility of the State to provide free education to children between age 5-16 but unaided private educational institutions are not bound to provide completely free education to all students under Article 25-A of the Constitution. On question regarding applicability of Article 25-A on other semi aided Government controlled educational institutions, separate writ petition is pending, therefore, we do not feel appropriate to decide this issue in these petitions.

2. One of the arguments of petitioner private schools is that impugned freezing of maximum fee amounts to legislative judgment which is not permissible under the principle of separation of power. We have considered this argument. As already discussed above, the reasonable restrictions can be imposed on professions and trade through licencing system under Article 18 of the Constitution in the public interest. The august Supreme Court in East West Steam Shipping Company case supra held that even rates can be fixed if special conditions and circumstances exist in the public interest for imposing these restrictions which however is lacking in present case as already discussed above. The impugned restriction of maximum limit may be unreasonable, un-proportionate and therefore, impinge upon fundamental rights but it is not encroachment on judicial functions in violation of separation of power. It is not out of place to note that there are number of statutes for the fixation of prices in Pakistan including Section 12 of the Drugs Act, 1976, Section 3 of the Punjab Essential Articles (Control) Act, 1973, Section 26 of the Punjab Cotton Control Ordinance, 1966, Section 3 of the Punjab Foodstuffs (Control) Act, 1958 and Section 16 of the Sugar Factories Control Act, 1950. The price control itself is not unconstitutional but it should not be unreasonable and unnecessary and unwarranted interference with individual fundamental rights.

3. The concept of “legislative judgment” is that where enactment by the legislature is of such a nature, which impinge upon judicial power of the judiciary, by either taking away the power of judiciary to decide a particular case through a judicial process or nullifies a judgment of the Court without adverting to any flaw on the basis of which the judgment was passed. The fixation of maximum limit of fee by private educational institutions is not an enactment of the legislature in the domain of the judiciary, because no judgment render or to be rendered by any Court is under dispute and no presumption of criminality is associated with the petitioner. Further no power of any Court has been usurped by impugned legislation and petitioner’s right to have recourse to Court of law remains available.

4. The case law relied upon by the petitioners in this regard i.e. Mobashir Hassan v. Federation of Pakistan (PLD 2010 SC 265), Naseer Ahmed Khan v. GOP (PLD 1980 Lahore 684), Government of Punjab vs. Naseer Ahmad Khan (2001 CLC 1422), Government of Punjab v. Naseer Ahmed Khan (2010 SCMR 431) and Nat. Industrial Coop Credit Corp. v. Province of Punjab (PLD 1992 Lahore 462), are also distinguishable and not applicable to the facts and circumstances of this case. In case of Mobashir Hasan supra, the Hon’ble Supreme Court held that legislation is not empowered to declare a judgment or order of conviction by Court void except in civil cases. In case of Naseer Ahmad Khan supra, the house was rented to Military Secretary of Governor which was required back by the landlord or to pay the rent. But instead of paying rent, the MLR was issued to acquire the said house for Rs.86,000/- which according to the petitioner was worth Rs.16,00,000/-. In these circumstances, the Court held that law regarding taking away of property must be rationale and reasonable and Division Bench of this Court in appeal upheld this judgment and also declared impugned law a “legislative judgment” which was further upheld by august Supreme Court. In case of National Industrial Corporation supra, 102 societies were declared undesirable through an Ordinance and Court held that this amounts to exercise of judicial power which is not permissible. In all the above cases, the principle of separation of power was found to be violated, as legislature tried to encroach upon the judicial powers of the judiciary. This situation is not prevalent in the present case, where no judicial functions have been encroached upon and at best this is an unreasonable restriction on the fundamental rights of the petitioner or the discretion of the Executive to determine whether fee increased beyond 5% and 8% or more than previous academic year is justified or not.

5. One of the arguments of petitioner schools is that impugned legislation amounts to a “Bill of Attainder”, which is prohibited under law. The above argument is also misconceived. The bill of attainder is a legislative act directed against a designated person pronouncing him guilty of a crime without trial or conviction without recognized due process of law. The said concept is a criminal law doctrine which is not applicable in present case as no punitive measure of any kind has been taken against private educational institutions.

6. The next argument of the petitioner schools is that legislature was required to follow due process of law including hearing to the petitioners before imposing maximum limit on increase of fee. We have carefully considered this argument. The Hon’ble Supreme Court in Fauji Foundation and another vs. Shamim ur Rehman (PLD 1983 SC 457) (para 158 of the judgment) held that procedural aspect of the due process is not a limitation on the legislative power. However in Province of Punjab vs. National Industrial Co-operation Credit Corporation (2000 SCMR 567) (page 598), the august Supreme Court held that there can be exceptional cases requiring immediate legislation but in such situation, ex post facto hearing can be provided to the party effected by such emergent legislation. The relevant observations are reproduced as under:

“However, there can be exceptional situations or circumstances in which action may have to be taken without prior notice in public interest or for the larger good and benefit of the community but in such cases also the law should provide for an ex-post facto hearing so that in case it is later on found that in a particular case adverse action was not warranted, such adverse action be withdraw. Principle of trichotomy of powers does not require that in every case without exception the law should always provide for a prior hearing before a judicial or quasi-judicial form. As observed, there can be exceptional cases requiring immediate legislation in which situations ex post facto hearing can be provided to the party affected by such emergent legislation.”

In the light of above discussion, we are of the view that though legislation was not required to give hearing to the petitioners before passing of the impugned provision of Section 7-A, however, the ex post facto hearing mechanism should have been provided to determine if fee beyond 5% or 8% is justified or not. This requirement is further entrenched in law after insertion of Article 10-A of the Constitution, which makes the due process as fundamental right.

1. The impugned provision of sub-section (7) of Section 7-A (introduced through Ordinance of 2015) provided that the Incharge shall either refund to the students within seven days from the commencement of the Ordinance 2015, the additional fee already charged or adjust it with the fee immediately payable by students. The petitioner school argument is that this provision cannot be applied retrospectively. Though it is well settled law that even vested rights can be taken away by express words and necessary intendment by legislature. In this regard reliance is placed on Messrs Haider Automobile Ltd. vs. Pakistan (PLD 1969 SC 623) and Molasses Trading & Export (Pvt.) Limited vs. Federation of Pakistan and others (1993 SCMR 1905). However, when we already found that the complete bar through original sub-clause (1) of Section 7-A (introduced by Ordinance 2015) on increase of fee for academic year 2015-2016 not more than fee charged in previous academic year to be unreasonable restriction on fundamental rights, then this sub-section (7) of Section 7-A has to be read down also. According to literal approach of reading statute, the statute has to be read literally by giving the words used therein, ordinary natural and grammatical meaning. Any addition and subtraction of words in statute are not justified except where for the interpretation thereof, the principle of reading in and reading down may be pressed into service in certain cases.

2. The argument of Dr. Khalid Ranjha Advocate was that impugned Section 7-A of Ordinance of 1984 could only be amended through Act of the Parliament and not through Ordinance, has no basis: Firstly for the reason that after Ordinance 2015, the impugned Section 7-A was inserted through Act of 2016 and finally through Act of 2017 and secondly under Article 128, the Governor exercises legislative power and not merely executive power as held by Hon’ble Supreme Court in Fauji Foundation and another vs. Shamim ur Rehman (PLD 1983 SC 457).

3. Learned counsel for one of the petitioner schools also challenged the validity of 5% and 8% cap on the touchstone of Article 253 of the Constitution, which permits Parliament to prescribe the maximum limit as to the property which may be owned, held, possessed or controlled by any person. The argument of the petitioners” counsel is that the power to prescribe the maximum limit being of the Parliament, the Provincial Legislation has no jurisdiction to impose this limit. No rebuttal argument has been addressed by respondents on this legal question. However, as we have already found the cap of 5% and 8% or complete bar on increase more than previous academic year to be unreasonable restriction on fundamental rights and not sustainable under Article 18 of the Constitution, therefore, we need not dilate upon this particular legal question which may be decided in some other appropriate proceedings.

ORDER OF THE COURT

1. For reasons recorded in the preceding paragraphs, these petitions are decided in following terms:--

2. The unaided private educational institutions can be regulated by State through licencing system under Article 18 of the Constitution.

3. The mechanism provided to determine reasonable fee of private educational institutions, through impugned Section 7-A of the Ordinance 1984, is a valid legislation. However, the complete bar on increase of fee for academic year 2015-2016 at the rate higher than the fee charged for academic year 2014-2015 through original sub-section (1) of Section 7-A (through Ordinance 2015) and the maximum limit in increase of annual fee @5% under sub-section (5) of Section 7-A of the Ordinance 1984 (inserted through Ordinance 2015 and Act of 2016) and maximum limit of 8% under sub-section (5) of Section 7-A of the Ordinance 1984 (amended through Act of 2017) are found to be unreasonable and un-proportionate restrictions on petitioner schools fundamental rights, therefore ultra vires of the Constitution, hence struck down. The original sub-section (7) of Section 7-A (through Ordinance 2015) regarding refund of fee, is also read down accordingly.

4. For any increase already made in fee for academic year 2015-2016 at a rate higher than the fee charged for the class during academic year 2014-2015 or beyond 5% for next academic year i.e. 2016-2017 (after promulgation of Ordinance of 2015 and Act of 2016) and increase more than 8% for academic year 2017-2018 (after promulgation of Act of 2017), the relevant private schools shall submit supportive material etc., justifying the above said increases, with the authority within period of 30 days from the announcement of this judgment. In case, no such material is submitted within stipulated time or said increases are otherwise not found justified by the concerned authority, the amount received more than previous academic year for academic year 2015-2016 or beyond limit of 5% for academic year 2016-2017 or beyond limit of 8% for academic year 2017-2018, as the case may be, shall either immediately be refunded to the students/parents or adjusted in the next fee bill of the school of those students.

5. The Provincial Government is directed to notify within reasonable time “The Punjab Free and Compulsory Education Act, 2014 to ensure enforcement of fundamental rights of education under Article 25-A of the Constitution and also responsibility of private schools under Section 13 of said Act.

6. The respondent Government shall frame uniform regulatory regime through rules under Section 13 of the Ordinance of 1984, within 90 days of this judgment to determine the increase claimed by schools in fee by also considering the following factors:--

(i) The actual cost and expenses incurred and profits made by private educational institutions.

(ii) The quality of teachers, adequacy of building and other facilities available in the school.

(iii) The increase in the utility bills and other charges comparing to the previous years.

(iv) Payment of rent etc. on actual basis and its increase.

(v) The fixation and increase in fee should commensurate with the facilities being provided to students which must be examined before increase of any fee.

(vi) The acceptance or rejection of any proposed increase must be done through a speaking and reasoned order.

(vii) Time frame and deadline must be clearly spelt out in rules to file the proposed increased and its decision.

(viii) Fee of each grade/class should be fix to ensure that said fee is not different for same grade/class in same campus.

1. The registering authority shall also ensure that parents are not compelled to purchase text books, uniform or other material from a particular vendor or provider and schools do not charge any amount other than tuition fee, admission fee or prescribed security from the parents.

2. The registering authority shall give representation to parents of private school in the proceeding of increase in fee and such proceeding shall be done in open and transparent manner.

3. An effective parents/students complaint handling procedure be established by using modern information technology. Further the procedure shall also be laid down for expeditious disposal of those complaints.

4. A complete data of teachers and supporting staff being hired by private schools should be obtained by registering authority showing educational qualifications/experience and track record of teachers and supporting staff on annual basis.

5. A periodic inspection of private school be carried out to check the provision of facilities to students as undertook by private schools at the time of registration and thereafter from time to time.

6. The petitions in appendix A & B are disposed of in terms of Order of the Court including directions given in Para 85 above.

7. Before parting with this judgment, we must place on record our appreciation for the hard work undertaken and the valuable assistance rendered by learned counsel namely Mr. Shahid Hamid Advocate, Khawaja Haris Advocate, Mr. Faisal Hussain Naqvi Advocate, Khawaja Ahmad Hosain Advocate, Mr. Shan Gull Additional Advocate General, Mr. Shezad Atta Elahi Advocate, Dr. Khalid Ranjha Advocate, Mr. Asad Ullah Saddiqui Advocate, Mr. Muhammad Haroon Mumtaz Advocate, Mr. Hassan Makhdoom Advocate, Mr. Tafazzul Rizvi Advocate, Mr. A. K. Dogar Advocate, Syed Shahab Qutab Advocate, Mr. Waqas Meer Advocate, Mr. Muhammad Javed Arshad Advocate and Mr. Muhammad Azhar Siddique Advocate.

8. We would also like to pay our tribute to Mrs. Asma Jahangir Advocate, a staunch human rights activist, a leading lawyer and fearless supporter of democracy and rule of law in Pakistan. Mrs. Asma Jahangir Advocate is no more amongst us but she will always be beacon of light and a source of inspiration for all Pakistanis who strongly believe in a democracy and rule of law in Pakistan.

(ABID AZIZ SHEIKH) JUDGE

(SHAHID KARIM) (SHAMS MEHMOOD MIRZA) JUDGE JUDGE

Shahid Karim, J.--I have read in draft the opinion of my learned brother Abid Aziz Sheikh, J. and concur in it. Owing to the importance of the issue involved, I have added a note of my own.

(SHAHID KARIM) JUDGE

Shahid Karim J.--At the centre of the controversy is a challenge to Section 7A of the Punjab Private Educational Institutions (Promotion and Regulation) Ordinance, 1984 which was inserted by the Punjab Private Educational Institutions (Promotion and Regulation) (Amendment) Act, 2017 (Section 7A). The constitutional and legal landscape as well as the able oral arguments of the counsels has been admirably set out in the proposed judgment of my learned brother Abid Aziz Sheikh, J., which I gratefully adopt.

Article 18:

1. In the beginning, some general observations regarding the fundamental right enshrined in Article 18 of the Constitution may be made. This fundamental right is at the forefront of the arguments addressed by the learned counsel for the petitioners and the precise scope of this right was at the heart of the arguments addressed by counsels of both the sides of the aisle.

2. Let us begin by some observations by Lord Parker in Adelaide Steamship Co. (1913) AC 718 (PC), as regards the right to carry on trade or business which is inherent in every member of the community at common law:

“At common law every member of the community is entitled to carry on any trade or business he chooses and in such manner as he thinks most desirable in his own interest and inasmuch as every right connotes an obligation, no one can lawfully interfere with another in the free exercise of his trade or business, unless there exists some just cause or excuse for such interference…Speaking generally, it is in the interest of every individual member of the community that he should be free to earn his livelihood in any lawful manner and in the interest of the community that every individual should have this freedom.’

1. The above observations were quoted by Cornelius J. in East and West Steamship Co. v. Pakistan (PLD 1958 SC (Pak) 41, 68). While dilating upon the reasons underlying the grant of fundamental right by Article 18, Cornelius J. went on to say that:

“We may, therefore, safely conclude that among the considerations which guided the Constitution makers in the drafting of Article 12 (the present Article 18), so as to secure freedom to the citizens of Pakistan to conduct any lawful trade, the place of greatest importance must be given, firstly, to the necessity of ensuring to every individual member of the community, a right to engage in lawful trade according to his choice and to exercise that trade in a mode settled - by him at his own discretion and choice, within the legal requirements, and secondly that the interests of the community should be advanced, by the grant of such liberty to individual citizens, and that every action which tends to interfere with that liberty should be repressed, since it would be injurious to the interests of the State.”

1. There is no doubt that the right concerns and protects an economic life of a citizen and the right to engage in any profession or occupation or trade or business. These are different forms and sources of livelihood and thus this right is inextricably linked with the right of life and liberty guaranteed by Article 9 of the Constitution. This right will also have to be read with Article 38 of the Constitution (one of the principles of policy) which enjoins on the State amongst others to “provide for all citizens, within the available resources of the country, facilities for work and adequate livelihood with reasonable rest and leisure”. It is in this sense that the reasonable restrictions imposed by the State may also be construed by the Courts so that a regulation which is confiscatory in nature may not impinge upon the positive obligation cast under Article 38 on the State. It was reiterated in Muhammad Yasin v. Federation of Pakistan through Secretary, Establish Division, Islamabad and others (PLD 2012 SC 132) that:

“Article 18 and the rights guaranteed by it are concerned with the economic life of the nation and its citizens”.

1. To quote Cornelius J., once again in East and West Steamship Co. case:

“in unequivocal terms that every citizen shall have the right to conduct any lawful trade or business. In so doing, the Article merely furnishes a fresh and authoritative declaration of a pre-existing right under the common law.”

1. In granting the right, Article 18 uses different expressions such as profession, occupation, trade or business but does not define them. However, these are all general terms and as will be seen they run into each other. It will not be required in this case to engage in the nuanced debate as whether the petitioners conduct trade or business or carry on an occupation. For, the petitioners do not quarrel that they run the schools as an occupation and while doing so conduct a business too.

Article 25A:

1. As a prefatory, Article 25A is addressed to the State and is concerned with positive or affirmative obligation on the State to take positive measures to protect the fundamental rights. Such a positive obligation having been cast by a certain fundamental right on the State has received judicial recognition. In A v. UK (1999) 27 EHRR 611, the European Court of Human Rights was considering the case of a child who had petitioned to the Court on the basis that the State had failed to protect him from the ill-treatment of his stepfather. It was held that:

“…the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires states to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals … Children and other vulnerable individuals, in particular, are entitled to state protection in

the form of effective deterrence against such serious breaches of personal integrity.”

1. The positive state obligation has been recognized in Pakistan too. Thus, in Ms. Shehla Zia and others v. WAPDA (PLD 1994 SC 693) effective measures were directed to be taken to prevent serious damage to life and violation of other fundamental rights. Similarly, in Suo Motu Case No. 16 of 2011 (PLD 2011 SC 997) relating to law and order situation in Karachi it was held that:

“It is the duty of the state to protect and safeguard these fundamental rights including right to life and liberty envisaged by Article 9.”

1. Article 25A has brought a paradigm shift in the concept of right to education. It is a fundamental right now and casts an obligation on the state. It says that:--

“25A. The State shall provide free and compulsory education to all children of the age of five to sixteen years in such manner as may be determined by law.”

1. Thus the parents can invoke the Court’s jurisdiction to enforce the right and a corresponding duty on the state. But the parents in these petitions have not chosen to do that. They have made a value choice to send their children to private schools and to pay a fee being charged by those schools. It can be argued that the choice that they had was a limited choice and was compelled on account of state’s failure to fulfill its duty. That argument cannot be brushed under the carpet and which leads to the further argument that fees ought to be regulated and cannot be left at the whim of schools. However for other compelling reasons too, regulation can be teased out of Article 18 and so the question remains merely of how much? Other factors like quality and standard of education, by itself, would be sufficient to make out a strong case for regulation. Peripherally, therefore the regulation of fee would be covered by the broader concept of an overarching need for regulation of the education sector by the Government of Punjab (GOP). Article 25A encapsulates the right of education as a fundamental right to inhere in every child between the ages five and sixteen. It the duty of the state to ensure that the right is guaranteed to every child of that age. In fact, it is more in the nature of a duty than a right which the state is required to fulfill. And for the accomplishment of the purpose, the State must enact laws laying down the manner in which this is to be achieved. Thus the provision is not merely a painting to be looked at without more. Included in the concept of free and compulsory education is the right to receive education of high quality and this is a penumbra of the right to education. It would be naïve to detach the two from each other and if the child has a right to free education, he also has a right to good education in a Rights-based democracy. The two are enmeshed to form one whole right. In most cases the parents have had to fall back on private schools for lack of qualitative element in the available sources of education though free education was available. Thus the two elements must exist in tandem with each other. But the GOP cannot shirk its duty by firstly permitting private schools to commence their business and then to regulate them so oppressively that they virtually end up imparting free education. The State cannot be permitted to fulfill its duty under Article 25A by the machination of placing a cap on the fee structure, and thereby to achieve the object of Article 25A in that garb.

Free Market:

1. Mr. Ahmad Hasan, Advocate argued that government has no role in the determination of fees in a free market economy. This argument is not only presumptuous but also does not chime with the structure of our Constitution. The term “free market economy” and “capitalist system of economy” are relative terms and vary in their sweep from one economist to another. Also this argument runs counter to the right under Article 18 which is hedged in by the concept of regulation. But a reading of the constitution would show that the framers have punctuated our Constitution with Islamic social welfare values and which does not leave it entirely to free market forces to determine the course of an economic activity. Justice Oliver Wendell Holmes wrote that the “Constitution is not intended to embody a particular economic theory”, (Lochner v. New York, 198 US 45, 75 (1905)) while rejecting the tenets of Laissez-faire capitalism.

2. Adam Smith once said:

“Merchants seldom meet together, even for merriment or diversion, but the conversation often ends in a conspiracy against the public”.

1. The intention and purpose of a ceiling seems to present to GOP a “conspiracy against the public”. It is a different question whether that purpose comports with the Constitution or not. The purpose, though laudable, must be constitutional as “there is but one step from the sublime to the ridiculous”.

(Napoleon Bonaparte).

1. Article 3 of the Constitution embodies a quintessentially Islamic concept of elimination of Exploitation:

2. The State shall ensure the elimination of all forms of exploitation and the gradual fulfillment of the fundamental principle, from each according to his ability to each according to his work.

3. Justice Saqib Nisar in Rawalpindi Bar Association v. Federation, (PLD 2015 SC 401) addressed the question thus:

“The principles, ‘from each according to his ability, to each according to his work’ is of course a fundamental principle of Marxism-Leninism. (In fact this language has been copies out from Article 12 of the Constitution of USSR, as it then was which is of course based on the writings of Karl Marx).”

1. Article 3, thus, enjoins upon the State the duty to eliminate exploitation and this also provides a raison d’etre for regulation of the Education Sector and puts paid to the argument that GOP must not intervene in the regulatory measure of fixing fees on this basis. It is the constitutional duty of GOP to balance the mandate of Article 3 with the rights of the petitioners to conduct an economic activity.

2. But in this case, in our opinion, the petitioners have a better reading of the Constitution whey they say that capping impinges upon their rights guaranteed by the constitution and does little to ameliorate the plight of the public who opt for private schools as means of education for their children. As explicated, the purpose maybe based on good faith, yet the purpose will be best served by fulfilling the duties by the state enumerated in the Constitution and which, if done faithfully, will enlarge the choice of schools for parents so that they are not driven by circumstances to send their children to private schools.

3. The purpose of providing a qualification and limitation on the right is to serve a public purpose. But if the law serves the economic object of causing any harm, that made the law in pith and substance oppressive and unreasonable in relation to property and civil rights of the persons affected. This begs the question: What were typically the public purposes which would qualify as such? To quote from the Supreme Court of Canada:

“Public peace, order, security, health, morality: these are the ordinary though not exclusive ends served by the law”. (1949 SC R1, 50).

1. Doubtless, legislation on food and drugs standards have been upheld on the basis that the legislation satisfied the requirements of a typically criminal public purpose. Thus, there is a secure criminal law foundation for the legislation. The criminal quality of an act will arm the legislature to provide for regulation permitted by Article 18. Inherent in the concept of regulation is the need felt by the legislature to do so for fear that if not regulated, the trade or profession will run against the public interest and will cause harm. Courts have permitted, and examples abound, the regulation of prices of essential commodities and food stuff but not by prejudging the price as the chancellor’s foot, but rather based on empirical data and other economic factors which impact the question of such determination. “It is well established that food and drug legislation making illegal the manufacture or sale of dangerous products, adulterated products or misbranded products is within the criminal law power”. (R. v. Wetmore (1983) 2 SCR 284- Supreme Court of Canada.)

2. Similarly in RJR-McDonald v. Canada (1995) 3 SCR 199, the Supreme Court of Canada had to review the validity of the Federal Tobacco Products Control Act, which prohibited the advertising of cigarettes and other tobacco products. The Supreme Court viewed the controversy on the touchstone of the criminal law power of the parliament and the Court was unanimous that the protection of public health supplied the required purpose, to support the exercise of criminal- law power. Thus, an underlying criminal law power has typically been used by the parliaments to enact laws for the protection of health etc. There are reasons which compel a legislature to declare a profession as lawful or unlawful. GOP cited Drugs Act, 1976 (Act of 1976) and The Punjab Marriage Functions Act, 2016 (Act of 2016) as instances of laws which have fixed prices. These laws are materially different and do not by way of legislation impose a price leaving nothing in the hands of the administrative authorities to determine in each case. The Act of 2016 in any case does not fix prices but merely regulates the quantity of food to be served which has little or no impact on the economic activity being generated. In case of Act of 1976, the fixation of prices is done by the Registration Board and any decision taken is subject to appeal. Thus comparisons between the two are odious and unnecessary. However, the question still remains whether the fees of educational institutions can be fixed on the same analogy.

Fixing of Prices and Article 18:

1. Plainly and clearly, the power to regulate is a legislative power and the executive cannot exercise it unless granted by law made by the competent legislature. Now what is the power to regulate? It is assumed and Article 18 makes it clear that regulation may be done by a licensing system. The system of regulation has been given a wide sweep in our jurisdiction and a legislature possesses the power to regulate trade or intercourse in order to protect the public welfare. This is the common thread which runs through all regulation by license and public welfare provides the justification for doing so. The following observations of Ruth Bader Ginsberg, J. made in NFIB v. Sebalius,132 S. Ct. 2566 (2012) resonate in our minds while determining the issue:

“Our precedent has recognized Congress’ large authority to set the Nations’ course in the economic and social welfare realm”.

1. In Gibbons v. Ogden (1924) 22 US1, Chief Justice Marshall while describing the power of the Congress to regulate inter-state commerce said:--

“It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all other vested in Congress, is complete in itself, may be exercised to its utmost extent and acknowledges no limitations other than as prescribed in the Constitution”

1. Similarly, in National Labour Relations Board v. Jones (301) US1, 37, Chief Justice Charles Evans Hughes observed that power to regulate implies a power to foster, protect, control and restrain.

2. Does the power to regulate include the power to prohibit? The cases of East and West Steamship Co. (PLD 1958 SC (Pak) 41) and Government of Pakistan v. Akhlaque Hosain (PLD 1965 SC 527) can be cited from our jurisdiction which espouse this view. However, in East and West Steamship, Justice Cornelius seems to have taken a different view of the meaning of power to regulate. I shall revert to this aspect in the later part of this opinion. At the other end of the spectrum is the case of Sardaran v. Municipality (PLD 1964 SC 397), which holds that any attempt to squeeze out a lawful profession or to render it extinct is inconsistent with the right under Article 18. But here we are not considering the effect of a prohibition in respect of a trade or profession but, in essence, a prohibition to charge fee beyond a certain limit and so whether it is unreasonable regulation or not. Thus the question at the heart of it is that of regulation and not of prohibition. Be that as it may, it would suffice to refer to Arshad Mahmood and others v. Government of Punjab through Secretary and others (PLD 2005 SC 193) which is the current view on the subject of whether regulation would include a complete prohibition. This is a seven-members Bench judgment and has watered down the holding in East and West Steamship Co.. The view that by the act of regulation a complete prohibition may be put in place did not find favour in Arshad Mahmood with the Supreme Court. It was held that:

“Perusal of above definition persuades us to hold that there cannot be denial of the Government’s authority to regulate a lawful business or trade, but question would arise whether under the garb of such authority, the Government can prohibit or prevent running of such a business or trade. To find out the answer to this question, reference may be made to the case of Municipal Corporation of the City of Toranto v. Virgo (1896 AC 88, 93), where Lord Davey while discussing a statutory power conferred on a Municipal Council to make bye-laws for regulating and governing a trade made the following observation:--

“No doubt the regulation and governance of a trade may involve the imposition of restrictions on this exercise ……..Where such restrictions are in the opinion of the public authority necessary to prevent a nuisance or for the maintenance of order. But their Lordships think that there is marked distinction to be drawn between the prohibition or prevention of a trade and the regulation or governance of it, and indeed a power to regulate and govern seems to imply the continued existence of that which is to be regulated or governed.”

“As such, following this principle and also keeping in view other provisions of the Constitution, including Article 3, 9, 18 as well as Article 38 of the Constitution, which deals with the principles of State policy, we are inclined to hold that if the definition of word “regulation” as laid down in the judgments cited herein above, is applied to hold that under licencing system, unless the business is unlawful or indecency is involved therein, the legislature can enact laws, which will promote a free competition in the fields of trade, commerce and industry. At any rate, if restrictions are to be imposed to regulate such trade or business, those should not be arbitrary or excessive in nature, barring a majority of persons to enjoy such trade. In the instant case, as per the requirement of Section 69-A of the Ordinance, the appellants, who are the owners of the stage carriages as per the definition under section (2)37 of the Ordinance, would not be in a position to run the business on the specified routes, franchise of which has been offered to the respondents because it has been inferred from the facts of the case put forward by parties’ counsel that for one route they have to arrange a fleet of stage carriages. Obviously the appellants are not in a position to arrange such fleet, on account of their financial position or being Un-influential person. They are also not in a position to obtain hefty loans from the financial institutions, as have been given to respondents at 70% and 30% ratio, and thus unable to compete with the respondents. Consequently, such conditions would appear to be not only arbitrary but oppressive in nature and tend to deprive them from enjoying the fundamental right of freedom of trade and business, as per Article 18 of the Constitution. Therefore, in such situation it becomes duty of the Court to see the nature of the restrictions and procedure prescribed therein for regulating the trade and if it comes to the conclusion that the restrictions are not reasonable then the same are bound to be struck down.”

1. In this context Mr. Shan argued that by so providing it was unlawful to charge any fee in excess of the cap and so the protection of Article 18 was not available. His argument runs an ingenious course. In “On Reading the Constitution’, Laurence H. Tribe and Michael C. Dorf had this to say about such an interpretative method:--

“In beginning to sort out good and bad ways of arguing about what this Constitution means, we can make considerable headway by inquiring what it is about some modes of discourse, some modes of conversation that are put forth as “constitutional argument,” that makes them suspect from the start. What is it about some purported modes of constitutional analysis that makes them implausible candidates for ways of reading the Constitution we actually have?

1. Mr. Shan says he is entitled to this view on the strength of Government of Pakistan v. Zameer Ahmad (PLD 1975 SC 667). But the crux of the holding in Zameer Ahmad are the following observations:--

“Prostitution, trafficking in women, gambling, trade in narcotics or dangerous drugs, are commonplace instances of unlawful profession or trade. These are inherently dangerous to public health or welfare”.

1. It was further held that:

“…Therefore, on the wording of Article 18 of the Constitution, the right to enter upon a profession or occupation or to conduct trade or business can hardly be described to be a constitutional or fundamental right when such right may be denied by law. In this respect our Constitution stands in sharp contrast with the corresponding provision of the Indian Constitution which omits the use of word ‘lawful’ in the relevant provision.”

1. The above two observations will have to be read in conjunction with each other and in a continuum. It refers to the declaration of a trade or business as unlawful and not a part of it. The former is prohibition and the latter regulation.

2. In contrast, Justice Kaikaus in Progress of Pakistan Company Ltd. v. Registrar Joint Stock Companies (PLD 1958 (WP) Lahore 887, 910) explicated the true nature of the right under Article 18 and the concept of “lawful” as used in the following words:--

“The Article entitles the citizens of Pakistan to carry on any business, trade, or profession with this condition only that the individual acts involved in it are not unlawful. If an act involved in a business, trade, profession, or occupation, is such that if performed otherwise than as a part of a business, trade, profession or occupation, it is unlawful, then it cannot become lawful just because it is performed as a part of a business, trade or profession, that is, as a part of activity indulged in for the purpose of profit or income. That is the only limitation placed on the right to carry on a business etc. The object of the Article was to grant the citizen the fullest right to carry on any business etc., but the word “lawful” had to be put in because if it did not exist the citizen may have claimed to make a business of an act that is an offence or is prohibited. Theft is unlawful and, therefore, no person can make a business of it. Blackmail is an offence and no citizen can claim that as it is his occupation, he is entitled to blackmail people. It is on account of the word “lawful” in this Article that the thief the blackmailer and others whose business involves unlawful acts are prevented from putting forward an argument which may have been open to them if this word did not occur in Article 12. But the Article debars the legislature from making a business as such unlawful the individual act involved in which is not unlawful. It can make any act involved in a business unlawful and the citizen would be debarred from doing that act but the legislature cannot say that while the act involved in a profession will be lawful if not performed as a part of business etc., the doing of the same act as a part of a business will be unlawful. There is no bar to the legislature providing that sale of tobacco shall be an offence. But it cannot say that while the sale of tobacco will not be an offence, no person shall carry a business of sale of tobacco. As I have already stated it is not a possible interpretation of this Article that the legislature can prohibit any business etc. If an act when done not for the purpose of business, trade, or profession, is not unlawful, the legislature is debarred from saying that when done as a part of business, trade it profession, it shall be lawful. That is the meaning of saying that the citizens can carry on any lawful business etc. It is lawful if the activity involved in it, is not, apart from its being carried on as a profession, unlawful.

If the intention of the Constituent Assembly was absolutely to guarantee to the citizens of Pakistan the right to carry on any business, trade, whatsoever and not to subject the right even to reasonable restrictions as is provided with respect to some other fundamental rights, the only qualification of its exercise being that it could be subject to a licensing system and to an exception of monopoly in favour of the State, what would be the wording of the Article ? The wording would be exactly as Article 12 now stands. The word “lawful” would have to be put in because if it did not exist, the citizen could claim, as already observed, that he had the right to commit. theft, dacoity, blackmail or any other offence, because he had adopted it as a means of income. This plea would be open to him because, as will be abundantly clear from commentaries on the Income Tax Act, the view that even an unlawful business is a business has been taken in a number of cases. The absence of the word “lawful” in the corresponding Article 19 (9) of the Indian Constitution had created a difficulty. It had been argued that a business, trade, etc., included even an unlawful trade. Indian Courts had been forced to hold that business etc., in Article 19 (9) could only refer to lawful business for otherwise even offences when committed as part of business could be subjected to only reasonable restrictions in the public interest. This was a forced construction, for on being pronounced unlawful a business does not cease to be business, and Article 12 has recognised this. The absence in this Article of the words ‘subject to reasonable restriction” as it exists in some other Articles relating to fundamental rights is by itself proof of the fact that the intention was to give a right of business unhampered in any way by legislation. I would hold that Article 12 guarantees to the citizen the right to carry on any business, occupation, trade, or profession (subject to a licensing system and a monopoly of the State) with this limitation only that the citizen is not entitled by virtue of the Article to do an act which, when done otherwise than as part of a business etc., was unlawful. There is no other limitation of this fundamental right.”

These rules were reiterated by Justice Kaikaus in Akhlaque Hussain’s case.

1. We must also bear in mind a primary rule of interpretation regarding the use of the term “reasonable restriction” in some of the fundamental rights. As a general rule, primary legislation is not open to challenge on the ground of reasonableness but this rule is inapplicable where, under the Constitution, a right is subject to reasonable restriction imposed by law in the public interest. And this is precisely the raison d’etre for 7A to be challenged. The discussion regarding fundamental rights is incomplete without quoting the deathless lines of Muhammad Munir CJ in Jibendra Kishore case (PLD 1957 SC (Pak) 9):

“The very conception of a fundamental right is that it being a right guaranteed by the Constitution cannot be taken away by the law and it is not only technically inartistic but a fraud on the citizens for the makers of a Constitution to say that a right is fundamental but that it may be taken away by the law.”

1. Thus it will be a fraud on the Constitution to say that a fundamental right may be taken away by law. To reiterate, the only limitation is “that the citizen is not entitled by virtue of the Article to do an act, which, when done otherwise than as part of a business etc. was unlawful”. The charging of fee beyond 8% is not unlawful otherwise than as part of a business and thus no limitation can be placed so as to declare it unlawful as an act.

2. Mr. Shaan’s premise is that since there is a ceiling imposed by law, the right, if any, vesting in the petitioners has been taken away and thus seeking its protection is not permissible. Therefore, a part of the right is protected by Article 18 but beyond a certain ceiling, it is not. In short, the petitioners will be deemed to carry on a lawful trade or business as long as they do not raise the fee beyond 8%. The argument is nuanced and too tenuous to be sustained. If accepted, it will lead to dangerous results. It is merely a matter of semantics to reach such a result. Doubtless, the legislature can declare a trade or profession as unlawful and which will mean that that business, trade or profession, as a whole has been declared as unlawful and it will not be lawful to enter upon it. In that sense any act ancillary to that trade or profession will be unlawful too. But if a profession, business or occupation is lawful and there is no prohibition on its activity then that profession or occupation can only be regulated by a licensing system or otherwise within the enumerations of Article 18. Price fixation is a facet of regulation as we believe it is and so by so fixing a price (or placing a cap as in the present case) the legislature is merely imposing a regulation and no more. The distinction, though subtle, is of crucial importance. If it is deemed unlawful, the petitioners lose their right to invoke Article 18 to their aid, but if it is merely a regulatory measure the petitioners can invoke the vice of unreasonableness to have the measure struck down. For regulation can only be to the extent of being reasonable as was held by Justice Cornelius in East and West Steamship Co. case and Arshad Mahmood. As adumbrated, regulation might include prohibition as well (East and West Steamship Co. case) but again, if a prohibition is placed by exercise of licensing powers, that is being done within the regulatory enterprise which governs that trade or occupation. Thus the only limitation on a lawful trade or business is regulation by licensing system or in the interest of free competition. If this were not the case, it would effectively give power in the hands of GOP to wield it at will who may also one day choose to impose a complete ban on charging of fee by the petitioners. Will that serve the public interest? The answer is undoubtedly in the negative. Will it not be a contradiction in terms to say that though the petitioners may carry on the business of running a private school but they cannot charge a fee for it. This will be tantamount to saying that private schools cannot conduct that business, in fact. To put it in other words, though the business is lawful, no one can conduct that business because of an unsavory and grossly stringent regulation. The effect of regulation cannot be to make the conduct of business or profession as unlawful. Hence the adage; what cannot be done directly, cannot be achieved indirectly, too.

3. This brings us to the inherent fallacy of the GOP’s arguments. If by raising the fee beyond 8% makes the act unlawful and unpalatable and hence not protected as a fundamental right under Article 18, can it be argued that the petitioners are stripped of the protection of all other fundamental rights such as right to property, liberty and due process. Surely if the right guaranteed by Article 18 is taken away, the act can be challenged on the touchstone of those rights and the tests laid therein will have to be satisfied. The petitioners can indeed plead property rights and due process to block any attempt to cap fees.

Licensing System:

1. The question, in the context of Article 18, which engaged this Court was the true nature of the prohibition in Section 7A. Whether it was by way of a qualification or a condition of regulation? This question need not detain us for long. The conditions imposed on the private schools are an amalgam of both qualifications and conditions of a license. The law and the rules provide certain qualifications for the schools to have themselves registered and to enter the gate. The GOP, however, continues to keep a watchful eye by way of regulations while the school operates and such regulation can only be undertaken by a licensing system. That is the mandate of Constitution and so the GOP and the petitioners must resign to this legal proposition. Otherwise, the whole edifice must fall. If this were not the case, the GOP will scramble to find a legal basis for the entire structure which has all the contours of a regulatory regime. Thus in our opinion, the regulation by GOP has all the trappings of a licensing system and we harbour no qualms on that account.

2. License is a “permit from government etc. to marry, print something, preach, carry on some trade etc.” (Concise Oxford Dictionary). Also in American Jurisprudence, (33rd vol.) the definition is thus stated:--

“In its specific sense, to license means to confer on a person the right to do something which otherwise he would not have the right to do. A license is in the nature of special privilege rather than a right common to all and is often required as a condition precedent to the right to carry on business or to hold certain classes of property within the jurisdiction.”

1. A system, in the opinion of Justice Cornelius in East and West Steamship case:

“would in the relevant respect mean an arrangement by way of regulation, applicable to a complex whole namely the trade of shipping in general. It would provide for rules applicable uniformly, subject to suitable classification in relation to the entire trade of shipping. Again, it is inherent in the use of the expression licensing system that the actions of the State in respect of the trade should be in the nature of permissions granted to do certain acts provided certain conditions are satisfied; it goes entirely beyond the meaning of the expression ‘licensing’ to interpret it as a check upon even the primary process involved in the trade which is being licensed.”

1. Thus the system of licensing does not confer a license on the GOP to place “a check upon even the primary process involved in the trade which is being licensed”. It is nobody’s case that the petitioner do not conduct a business or even trade; that they do so for profit, though the primary purpose of imparting quality education is not lost sight of upon them; that high quality education is not inexpensive. All of these are lawful acts and the business and trade being conducted is lawful too. What circumstances would then compel the GOP to impose a condition which is not only imprudent but is pernicious and virtually takes away the imprimatur? The petitioners contend that they can certainly make out a case for increase of fee beyond 8% upon cogent and rational grounds. But to what avail would that be since the legislature has tied the hands of the authorities to grant such a permission and hence the petitioners shall have to either shut down or scale down their expenses to manageable levels. The petitioners may carry on with their business but the standard and quality of education will have to be reconfigured to comport to the ceiling imposed by GOP. A spiral effect will set in and one can imagine the rest.

2. However we agree with the Sindh High Court judgment (CPD-5812 of 2015) that the regulation of privately managed schools is by a licensing system and ought to be treated as such. In this case, Rule 7(3) of the Sindh Private Educational Institutions (Regulation and Control) Rules 2002 was challenged.

3. At the same time, the words of Lord Woolf (R v. Secretary of State ex p. Fayed (1997) 1 All ER 228, 240) must resonate emphatically in all such cases which lay down a duty to act fairly in granting and regulating license:

“But even if what a person applying for a license does is to seek a privilege, the days when it used to be said that a person seeking a privilege is not entitled to be heard are long gone. The granting authority has in the case of a license also a duty to act fairly”.

1. The above statement applies, a fortiori, to the regulatory authorities after a license is granted and must be taken to have been embedded in the procedural formalities to be followed. Section 7A, in my opinion, takes away that right to be treated fairly and a corresponding duty to act with fairness.

2. Chief Justice Marshall (of US Supreme Court) said:

The power to tax involves the power to destroy”

Many years later, Justice Holmes completed the phrase by inserting an important rider:

“The power to tax is not the power to destroy while this Court sits”(277 US 218, 222)

1. By analogy, the business of the petitioners cannot be allowed to be destroyed in the guise of regulation, while this Court sits, by providing a cap. The argument of the GoP in support of such a cap runs on a slender margin. The petitioners do not dispute that fixing of fees is part of regulation. But the subtle distinction has to be borne in mind here. Regulation would involve the process of considering the request of a school to increase fees to a certain level and to permit or refuse that increase. It may also include permission to increase to a certain extent on the basis of data before the authority. However, on the contrary, this does not include the power to fix fees without regard to attending circumstances and in oblivion of the good faith underpinning the request for a reasonable increase. That would constitute an unreasonable restraint on the rights.

2. In most part, the petitioners argue that the fixation of a ceiling is expropriatory and confiscatory. It impacts the schools in such a way as to render them uncompetitive and has the effect of driving them out of business. Any law which has that egregious effect triggers a challenge on the basis of Article 18 and an inevitable intervention by the Court. Section 7A is peremptory in nature and forecloses any right of the petitioners to put forth their valid claim for an increase. In a nub, Section 7A has stonewalled any investigation into an increase beyond 8%. GoP contends that the figure of 8% was arrived at upon empirical data regarding inflationary trends etc. If such is the basis, can the petitioners not raise a countervailing argument that those factors are fickle and plastic in nature and are prone to changes which are rapid and uncertain. The data is, at best, unilateral and one-sided and perhaps compiled to suit the GOP’s purpose and may be upended by competing and more reliable data. More importantly, is there a mechanism in place to guide the legislature to bring changes in law on regular intervals in this respect? In the enactment of laws, no such rule can be relied upon and it is naïve to expect the legislature to undertake that exercise periodically or for the petitioners to reach out to the legislature with a plea that an amendment is necessitated by the legislature. And what if only a couple of schools seek an increase beyond 8%. Will the legislature change the law for those couple of schools? Certainly not. It was said in Gadoon Textile Mills v. WAPDA (1997 SCMR 641, 835) that:

“There is therefore no room here for the philosophy that the end justifies the means; the end, however, laudable, cannot be justified, if it is violative of the right guaranteed by Article 18”.

1. And in Government of Pakistan v. Muhammad Ashraf (PLD 1993 SC 176, 185), the following observations aptly apply to the instant case:

“Any legislation whereby either the prices of marketable commodities are fixed in such a way as to bring them below the cost of production and thereby make it impossible for a citizen to carry on his business or whereby taxes are imposed in such a way as to result in acquiring property of those on whom the incidence of taxation falls, would be violative of the fundamental right to carry on business or to hold property as guaranteed by the Constitution.”

Other Rights

1. The arguments of GOP stir a debate about “how not to read the Constitution”. (The chapter in a book by Laurence H. Tribe and Michael C. Dorf titled On Reading the Constitution). The authors began by the notion that:

“Those who wrote the document, and those who voted to ratify it, were undoubtedly projecting their wishes into an indefinite future. If writing is wishprojection, is reading merely an exercise in wish- fulfillment — not fulfillment of the wishes of the authors, who couldn’t begin to have foreseen the way things would unfold, but fulfillment of the wishes of readers, who perhaps use the language of the Constitution simply as a mirror to dress up their own political or moral preferences in the hallowed language of our most fundamental document? Justice Joseph Story feared that that might happen when he wrote in 1845: “How easily men satisfy themselves that the Constitution is exactly what they wish it to be.”

1. Moving on, the authors identified two ways not to read the Constitution which have an important bearing on these cases and in particular in the context of GoP’s argument that Article 18 cannot be invoked beyond a certain ceiling imposed by law. It was said that:

“Two additional ways not to read the Constitution are readily apparent; we will call them reading by dis-integration and reading by hyper-integration.

When we say reading by “dis-integration,”we mean approaching the Constitution in ways that ignore the salient fact that its parts are linked into a whole — that it is a constitution, and not merely an unconnected bunch of separate clauses and provisions with separate histories, that must be interpreted. When we say reading by “hyperintegration,” we mean approaching the Constitution in ways that ignore the no less important fact that the whole contains distinct parts — parts that were, in some instances, added at widely separated points in American history; parts that were favored and opposed by greatly disparate groups; parts that reflect quite distinct, and often radically incompatible, premises.”

1. Thus different provisions are woven into a tapestry and form a whole. But it is important not to fall prey to these two methods of interpretation and to maintain a balance which shuns either dis- integration or hyper-integration. When GOP argues that it is unlawful to conduct the business by the petitioners beyond 8% it is being guilty of disintegration. Even the very imposition of a ceiling on the ground that Article 18 permits GOP to do so would mean “approaching the Constitution in ways that ignore the salient fact that its parts are linked with a whole—that it is a Constitution and not merely an unconnected bunch of separate clauses”. So constitutional concepts like “due process of law” (Article 10A) and “right to property” (Articles 23 and 24) and right to life and liberty (Article 9) cannot be ignored while interpreting Section 7A which must accord with the method which shuns dis- integration. The concept of dis-integration and its vices is further illustrated in the following words:

“Consider more closely, then, the first fallacy — that of disintegration. Let me begin with a straightforward example, one which was a favorite of Chief Justice Warren E. Burger. The Fifth Amendment says that “no person . . . shall be deprived of life, liberty, or property, without due process of law.”Chief Justice Burger used to argue, as have others, that the authors of that language obviously must have contemplated that, with “due process of law,”a person may be deprived of life. Therefore, the argument goes, capital punishment is constitutional. It’s very simple; why should the Court struggle over it? The conclusion may or may not be right; I find the question whether the death penalty is constitutional to be among the most perplexing. But the proposed method of resolving that question is profoundly disintegrated and is not really a way of interpreting this Constitution, because the Fifth Amendment is only part of the document. There is also the Eighth Amendment, ratified as a separate part of the Constitution. It says that “cruel and unusual punishments” shall not be imposed. Is the death penalty, then, cruel and unusual? The answer must be: it depends. Quite clearly, it was not considered cruel and unusual in 1791, when both the Fifth Amendment and the Eighth Amendment were ratified. But it might be so today? That another constitutional clause evidently contemplates that death might be inflicted by government without offense to that part of the Constitution doesn’t answer the question. Indeed, if the Fifth Amendment did answer it, we would be left with another dilemma, since it also seems to sanction hacking off people’s limbs — by its command that no person shall be “twice put in jeopardy of life or limb.” Yet no one would seriously argue today that bodily mutilation, employed on occasion as a punishment during colonial times, could withstand scrutiny under the Eighth Amendment. Again, it seems to be that what the Fifth Amendment suggests as an answer becomes only a question once the Eighth Amendment is consulted. Consider another example. It has been urged by some, including Mark Tushnet of Georgetown University, that we ought to read the Constitution as requiring socialism — as obliterating the institution of private property. How else, he asks, can we make sense of the ideal of equality which underlies the constitutional mandate of the equal protection of the laws?32 If all the Constitution contained was an equal protection clause, I suppose something might be said for that view. But the view becomes untenable if we also remember that, in various of its parts, the Constitution expressly affirms, sanctifies, and protects the institution of private property. It says that neither the state nor the federal government may deprive anyone of property without “due process of law,”and that “private property [shall not] be taken for public use without just compensation.”33 It is a disintegrated “reading” of the Constitution to lift one provision out, hold it up to the light, see how far you can run with it, and forget that it is immersed in a larger whole.”