MISS ATIKA LOHANI*
A writ is an order issued from a court requiring performance of a specified act. Jurisdiction may be defined as the power of a court to decide a matter, i.e. as limited by court’s geographical location or level of authority. Term jurisdiction is composed of two words ‘juris’ which means law and ‘dictio’ means subject so where a person is authorized to decide a case with the authority of law, he has jurisdiction to deal with that particular matter. In other words jurisdiction consists in taking cognizance of a case involving the determination of jural relations in ascertaining the essential points of it and pronouncing upon them. The term refers to the legal authority to administer justice in accordance with the means provided by law and subject to the limitations imposed by law. Where person has no such authority or lacks power owing to any reason, it is said that he lacks jurisdiction to deal with that particular case. However where he initially proceeded properly within its jurisdiction but subsequently steps out of his jurisdiction in making of some order or the doing of some judicial act, it is said that person has acted in excess of jurisdiction.
The jurisdiction conferred on
the High Court in
It was observed in the Full Bench by Justice Sheikh Riaz Ahmad in Sakina BiBi v. Federation of Pakistan  “The power of High Court to issue, directions, orders and writs is not limited to the writs in the English form, but extends to making of orders restraining or directing any authority or government, which may be discharging executive functions under a statute.” Division of jurisdiction under Article 199 into civil and criminal is denied as per K.E. Chauhan J, (contra) “It is doubtful whether jurisdiction under Article 199 of 1973 constitution as a whole or clause (b) (i) is in particular is a criminal jurisdiction; division of this jurisdiction into civil jurisdiction or criminal jurisdiction probably is not justified and it is proper to say that it is a constitutional jurisdiction which may cover civil matters ,criminal matters, matrimonial matters, fiscal matters, commercial matters , constitutional matters, and matters relating to infants, persons and property etc. whatever the nature of a subject matter in any petition may be, the broad fact can not be disputed that the High Court under Article 199 examines the same under its constitutional jurisdiction”.
Court has categorically
prescribed the purpose of Judicial Review by invocation of Writ Jurisdiction in
Sayyed Mohammad Ayub v.
Govt. of West Pakistan 
where it was held that “High Court will not interfere with the exercise of that power so as to
substitute its own judgment for that of the Government. It is not concerned
with the question whether the power has been correctly, or incorrectly, wisely
or unwisely exercised. It will step only when some legitimate and substantial
interest of a public servant has been adversely affected by an arbitrary
capricious or a manifestly improper or unreasonable use of that power.” Also in Syed Hadi Ali v. Govt. of
Administrative and executive authorities, equally fall within the ambit of the jurisdiction of High Court. It was held in Islamia University v. Mohammad Khan Malik in that “Functionaries of the state statutory bodies, statutory corporations and statutory universities are required to act strictly within the defined spheres of their authority under the law. In case of transgression of powers, abuse of powers or colorful exercise of powers by such functionaries, the exercise is open to correction in constitutional jurisdiction of superior judiciary.
The presumption is always in
favor of the validity of the order and the acts of the public authorities are
not to be interfered with lightly. Hamoodur Rehman C.J laid
Object of constitutional jurisdiction is to foster justice and not to defeat it. High Court in exercise of constitutional jurisdiction can not permit a party to retain ill-gotten wealth, can neither be invoked nor be exercised in aid of injustice, being extraordinary no one is entitled to claim as of right to exercise of discretionary powers. Matters for consideration for exercise of discretion are bad faith, dishonesty and unreasonableness of the decision.
As compared to the courts every public functionary is vested with limited jurisdiction. His jurisdiction is limited by number of factors and if he proceeds with a case where he is not authorized by law to proceed, he lacks the jurisdiction. Incompetancy of authority or coram non judice is an instance of lack of jurisdiction, and courts are willing to apply writ jurisdiction if there is any defect in the composition of entity dealing with the matter under observation. In case Chittaranjan Cotton Mills Ltd. v. Staff Union  where an award of Labour Court was challenged on the ground that two members of such court were not selected in accordance with the said Act, it was held “This is a clear case of an adjudication being made be a body, which was not a Labour court either under the East Pakistan Labour Disputes Act, 1965, or under the Ordinance of 1959, and therefore, the proceedings before that court were coram non judice.”
Another instance for in competency of authority is functus officio i.e. when jurisdiction is available for a limited period or for a limited process the action of the authority will be coram non judice. In Muhammad Rafi v, Additional Commissioner (Rev.) Sargodha wherein the vires of deciding the case by Assistant Collector, Grade-I, Sargodha, after when his jurisdiction has exhausted due to lapse of statutory period of 60 days was assailed. High Court decided that he decided the case after the maximum period of 60 days prescribed in this behalf and according to rules, on the expiry of that statutory period the case should automatically stand transferred to the file of Assistant Commissioner and consequently the order of the Assistant Collector after his becoming functus officio, the case deemed to be pending before Assistant Commissioner. The decision of High Court was upheld by the apex court. “However in two exceptional cases where while being functus officio authority can review its decision, are firstly, where decision suffers from an error of a type, which can be corrected without embarking upon a formal inquiry or holding adverse proceedings, i.e. clerical mistakes, secondly, where decision was obtained by means of fraud or misrepresentation of fraud or misrepresentation”.
Where the law has vested upon public functionary to delegate his power to subordinates, he can not subsequently exercise those powers as he is said to have exhausted his jurisdiction and in case he exercise the power he becomes coram non judice and the defect invites writ jurisdiction. In West Pakistan Land Commission v, Fateh Ullah KhanSupreme Court upheld the decision of the High Court on the score that “Authority once competently exercised by delegatee, get exhausted and no power thereafter left in delegator to exercise same authority in different manner.”
Principle of locus poenitentiae (power of receding till a decisive step taken) is available to Government or relevant authorities; Authority competent to make order has power to undo it. However, order, cannot be withdrawn or rescinded once it has taken legal effect and certain rights created in favour of any individual. In Province of West Pakistan v, Ch.Nazir HussainWherein the government appointed a member of the Public Service Commission for a period of three years and constituted an absolute undertaking by the government to maintain the appointee in that office until the full period of three years had expired, by the termination of that appointment after the expiry of a year, the government committed a breach of contract, and the breach was incapable of justification even upon the government’s interpretation of the wording of any Regulation held it is the violation of the principle of locus poenitentiae.
Special jurisdiction is to deal with the specified subjects only. The forums created under special jurisdiction should not be allowed to enlarge their jurisdiction beyond that subject matter; the logical consequence of doing so will be that administrative chaos will create serious problems for the people. Public policy formulated by the government would not be implemented properly and there will be uncertainty in the decisions of the public functionaries. So the courts have always looked at this aspect very carefully.
Where jurisdiction in personam is disregarded the writ jurisdiction is invoked, for example, a labour court has no jurisdiction to deal with the cases of such people who are not workmen within the meaning of Industrial Relations Ordinance; otherwise it will be lack of personal jurisdiction as in Pakistan International Airlines v. Sind Labour Court No.5 Supreme Court held “The respondents had not been employed to supervise a contract which was of limited jurisdiction. Therefore, High Court and the Labour Courts erred in law in holding that they were ‘permanent workmen’ within the meaning of Standing Orders Ordinance. Appeal allowed and orders for reinstatement of respondents as permanent workmen were held illegal.”
Where an authority initially proceeded properly within
its jurisdiction but steps out of jurisdiction in making of some order or in
the doing of some judicial act, it is said that it has acted in excess of its
jurisdiction. In an early English case Alter
Caufman v, Government of Bombay
it was held that “The Government has no jurisdiction to direct a person’s movement at
sea beyond the limits of three miles from the shore and the warrants were held
invalid and ultra vires.” The order of removal from
If a tribunal wrongfully refuses to determine a question that it is obliged to determine, mandamus will issue to order it to hear and determine the matter. A refusal to exercise jurisdiction may be conveyed by express words or by conduct. In Captain A. L. Gomes v. Additional Rehabilitation Commissionerwhere appellant was ordered to vacate the said property whereupon he applied to the Additional Rehabilitation Commissioner for revision of the order on the score that he was the occupant of that property since long. His prayer did not find favour with the additional Rehabilitation Commissioner where after he approached the High Court. It was held that “It was a clear-cut refusal to exercise a jurisdiction, which an Additional Custodian possessed in revision, and there was no bar on his revisional jurisdiction but he refused to exercise it, writ of mandamus was thus issued.”
Misinterpretation of section 22 of the Industrial Relations Ordinance 1969, was held to defeat the ends of justice as this provision did not provide authority to the registrar to refuse to hold election and declare a trade union as CBA without election, in PECO Head Office Staff Union v. Registrar of Trade Unions It was observed that the Registrar has misinterpreted the law in contemplating that he is empowered to declare a labour union as CBR without holding election, where he has dismissed the application for election of the other union.
In case of violation
of the prescribed statutory procedure the writ jurisdiction is successfully
imposed. When legislature prescribes
the manner or form in which a duty is to be performed or a power exercised, it
seldom lays down what will be the legal consequences of failure to observe its
prescriptions. The courts must therefore, formulate their own criteria for
determining whether the procedural rules are to be regarded as mandatory, in
which case disobedience will render void or voidable
what has been done, or as directory, in which case disobedience will be an
irregularity not affecting the validity of what has been done (though in some
cases, it has been said that there must be substantial compliance with the
statutory provisions if the deviation is to be excused as a mere irregularity.) Although
there is no standard procedure, the courts insist that a fair procedure should
be followed, and have adopted the procedure of Natural Justice. There is
no uniform or general principle and the courts rely either on the dictates
of the legislature or the supplementary rules of Natural Justice. In Mohammad Keshab v.
Calcutta High Court observed holding that “Where there is no improper conduct
imputed to the owner, and where during the course of case nothing is proved to
show improper conduct on the part of the owner, it would be advisable for the
Magistrate who is trying the case to give the owner an opportunity of being
heard before he comes to the conclusion whether the conveyance should be
confiscated.” In Sm. Idumati
Devi Chowdhuri v.Bengal Courts of Wards where the statute neither specifically
provided for notice nor specifically dispensed with it. Calcutta High Court
gave the finding that “In view of this court the Principles of
Natural Justice demand that the female should have the opportunity of testing
those materials and if she desires, of establishing her competence.” Mir Ali Ahmad Khan v. Province of West Pakistan
is the very first case in
The Principle of
Natural Justice must be followed as functional rule for all persons. In Mohammad Munir Shahid v. Principal,
However, adherence to principles of Natural Justice even implied one is excluded of application by the courts in:
1. The matters concerning land revenue, a person becomes defaulter under the law immediately after the arrears becomes due and it is the duty to pay the same regardless of any demand notice. Moral as well as legal obligation lies on the defaulter to clear up his default and for the debtor to pay up his debt and not on the other party against whom default is committed. Therefore, to enforce the liability of a defaulter or debtor in a manner provided by law without remanding him of his obligations, involves no breach of the principle of natural justice.
2. Where a party not required by law to be served with notice of proceedings impugned in writ petition, omission to hear such party is not against natural justice.
3. Where nature of action is more or less administrative depending on expediency and no right of a party or lis is involved, the rule may be excluded. The principle that no human being should be condemned unheard, which is stated to be the principle of natural justice can be involved only if the law of the land has not either directly or impliedly said that the principle was not applicable.
4. Where suggestion in some enquiry is not in the nature or adjudication affecting some material rights of a person but is merely intended to provide material for determining whether the Government shall proceed to enquire or not the principle can be neglected. The legislature knows the rules of natural justice and where it does not prescribe any rule different from the rules of natural justice, it means that said rules are to be followed in a case, however, where a rule different from the rules of natural justice has been prescribed by the legislature, then the prescribed rule should be followed.
5. Where a decision is taken in public interest. In Pabna Electric Supply Company v. Province of East Pakistan a temporary sanction of electricity connection was given to the petitioner company, which was not continued and the petitioner company challenged this discontinuance of the sanction. Held that the decision to discontinue can be taken back if the Provincial Government is of the view that public interest so required.
6. Where making of reference by speaker does not involve determination of any substantial right no principle of natural justice are compulsory to be observed.
7. Where the question relates to filing of the FIRs. It is not possible to give opportunity of hearing to an accused person before the registration of a case.
8. Legislative determination does not require compliance of the rule audi alteram partem. It is settled law that no prior notice is necessary for making legislation and if there is legislative determination of compensation, it also does not require compliance of the rules of natural justice.
9. Personal hearing can not be regarded as a condition precedent for passing of a final order and writ jurisdiction is refused. Employee can not insist personal hearing at every stage of a departmental enquiry, as the some is enough at the stage of holding enquiry. So in Chairman, EOBI v. Mohammad Ismail Munawar supreme court held that High Court erred in holding that the order of, dismissal was without lawful authority.
10. Where giving personal hearing was impossible owing to numerous affected persons High Court excluded the rule in Sher. Khan v. Regional Transport Authority.
11. Where examinees were aware of that wrong they had committed and misconduct on their part was discovered in examination Hall. So the rule was excluded in Sikandar Sadiq v. University of Peshawar. 
The Circumstances might have created suspicion that there had been an improper interference with the course of justice per Lord Hewart in R.V. Sussex Justices that “It is not merely of importance, but of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” In Cooper v. Wilson where appellant first tendered his notice of resignation but charges for offences against discipline were leveled against him and enquiry was made by the Chief Constable who dismissed him. The appellant made appeal before the watch committee in which that Chief Constable was also present and after deliberations his appeal was also dismissed. It was held that the proceedings before watch Committee were contrary to the Natural Justice owing to the presence of the Chief Constable during Committee’s deliberations on the appellant appeal. The rule of natural justice demands that the enquiry officer should be a person with an open mind, a mind which is not biased against the delinquent.
Appointing authority can not be judge in his own cause and act as prosecutor, judge and punishing authority merely because power of removal vested in him as appointing authority under the rules. Dismissal based on findings, enquiry held and charges framed, by officer himself and relating to acts of discourtesy towards his own self. Any financial interest, howsoever small may be, would vitiate the action and writ jurisdiction is invoked where action impugned is taken in circumstances where bias arises from certain relationship between the deciding authority and the parties, which incline him unfavorably or otherwise on the side of one of the parties before him. It may be professional hostility or friendship no exhaustive list is possible for bias. It is now settled that in writ jurisdiction, any alleged bias has specifically to be proved by record.
Administrative bias is also amenable to writ jurisdiction, when there is no person or financial grudge but a person has already made up his mind. Rule against bias is based on common law and precedents and it can be modified or altered by the statute and if statute provides something different, in that case, one can not rely on this rule. It is well settled that no one can be a judge in his own cause and this is based on the principle “ nemo debet esse judex in propria causa” The doctrine of bias is one of the important principles of natural justice. In respect of judicial or quasi-judicial tribunals, no man shall be a judge in his own cause and justice should not only be done, but manifestly seen to be done. The doctrine of bias is subject to the limits of statutory exceptions, and principle not applicable to statutory provisions.
There is even an exception and it is that the rule of disqualification must yield to the demands of necessity and a judge or an officer exercising judicial functions may act in proceedings wherein he is disqualified even by interest, relationship or the like, if his jurisdiction is exclusive and there is no legal provision for calling a substitute, so that his refusal to act would destroy the only tribunal in which relief could be had and this prevent a termination of the proceedings. The authority of State Bank to proceed against the company under Section 43-B of the Banking Companies Ordinance 1962 is exclusive. Alleged disability of State Bank on principle of bias was further held must be assumed to have been exempted by legislation.
Error of law at one time was primary ground for interference of superior courts and application of writ jurisdiction. Error of law, pure and simple, relates to the erroneous interpretation or application of law, error of fact, that occurs at the fact finding stage and error of discretion, which is made in the exercise of discretion, are essentially errors of law though committed at different stages of proceedings.It has been observed that latent errors committed within jurisdiction remained beyond the writ jurisdiction and only patent errors were treated within scope of application. In an early English case Anisminic Foreign Compensation Commission foreign commission by erroneous interpretation of an order, had refused to pay compensation to an affected company and the House of Lords was willing to correct the error. This case, as the subsequent decisions suggest, brought all errors of law within the reach of writ jurisdiction and hence judicial review.
It took our courts a few
years to recognize this principle. The Pioneer’s role, in establishing error of
law as a ground for the issue of certiorari was played by Karachi High Court
through a series of its decisions given during 1956 and
Public functionaries are required to determine facts before applying law, and give decision, but the findings of facts will be based on evidence, which must be good evidence on the basis of which a decision is made and the basic principle is that this finding of fact will not be conclusive and superior courts may inquire into the correctness of the decisions. Therefore, the courts are always willing to review the findings of facts because the very jurisdiction of these functionaries is depending upon these facts. This has become an exception to the general un-reviewability of questions of fact. In M.A. Haseeb Khan v. Sikandar Shaheen it was held that the High Court is entitled to ascertain facts capable of conferring such jurisdiction on settlement authorities. Contention that High Court ought not to have given findings of fact contrary to findings reached by settlement authorities in circumstances devoid of force.
So where the findings of facts are based on no evidence courts are
willing to apply writ jurisdiction as in Abdul
Baqi etc v. Superintendent where as in convictions under Section 12 of
the Frontier Crimes Regulation for theft of telephone wires, there was evidence
of the tracker of footprints against one of three accused. But there was no
evidence at all against the other two, who had been hauled up as his accomplices,
the High Court, while quashing the conviction of the latter two accused persons
by a writ of certiorari, refused to interfere in case of one against whom there
was evidence and “Spoken order” of Jirga was written
against him, Held that “Writ may issue in case of conviction in entire absence
of evidence but not in case of weak evidence on this reasoning.” Cases of no
evidence, bad faith, misdirection or failure to follow judicial procedure, etc.
are treated as acts done without lawful authority and vitiate the act done or
proceedings undertaken by the tribunal, on this ground.
In Federal Land Commission v. Mst. Gul Babi it was
held that “Where findings recorded by statutory tribunal based on
no evidence or arrived at as a result of misreading of evidence they are open to correction by High Court in exercise of its powers of judicial review.”
Where decision is based on conjectures and surmises or only presumption of any person the court steps forward to correct the error as in case of Samar Pervaiz v. Board of Intermediate and Secondary Education, Lahore wherein a student at the intermediate examination held by the Board had in fact obtained 533 marks and was placed in 2nd division but the result which was gazette showed him to have secured 643 marks and placed him in 1st division. Ultimately he was disqualified by the board from appearing at seven examinations on the presumption that such inflation of marks must have been at the instance of the candidate himself. It was held that “the mere fact that the marks had been inflated and the candidate stood to benefit from circumstance may convincingly lead one to a conjectural hypothesis, that this was done at his instance or with his connivance, but it could be no more than a mere conjecture. It is dangerous to convict a man and rob him of his rights when the probabilities are equally balanced either way. On the facts and circumstances of the case, the Board’ decision in quashing the candidates result could not be upheld as legally correct.”
Where the findings of the tribunal are based on inadmissible evidence the writ jurisdiction can be involved. It is correct that ordinarily, the High Court is not entitled to investigate disputed questions of fact in the exercise of its writ jurisdiction, but it is well settled that a finding of fact can be interfered with if it is based on no evidence or a misreading of, evidence or ignoring of material evidence or taking into consideration inadmissible evidence. Interference of High Court was held justified and petition was dismissed. It is well settled that if material evidence is ignored in coming to a finding of fact, then it amount to an error of law. Where Additional Settlement Commissioner without giving any cogent reasons ignored the prior allotment in favour of the respondent held that in other wards it was the case of misreading of evidence in which High Court was justified to interfere. However in cases of Reappraisal of evidence High Court is not willing to interfere. In Ghulam Nabi v. Khan Mohammad Afzal Khan it was held that “the order was passed after consideration of the material placed on record by both the parties, and after giving them full hearing. Merely because another view of the evidence is possible, would furnish no ground for interference in writ jurisdiction. What the learned counsel really wants to do is to reappraise the evidence which was construed in favour of the respondent. This is not the function of this court.” Also sufficiency and insufficiency of evidence is not considered in writ jurisdiction. In Hams Ali v. Custodian of Evacuee Property it was held that “whether this evidence should have been believed or not is an entirely different matter. The custodian having believed the evidence, the High Court could not go behind that finding of fact in a constitutional petition.” In Farid Ahmad v. Ghiasuddin Chaudhry it was held that “High Courts power to interfere with the order of the election tribunal is extremely limited in nature. Tribunal’s finding of fact can not in writ jurisdiction be questioned merely on ground that a different view could be taken on same evidence.” Courts will not substitute its opinion from that of tribunal as it was held by Supreme Court that “There was no ground for the court to substitute its own opinion for that of the Federal Government.”
 Black’s Law Dictionary, page.855
 PLD 1975 Lah. 1339
 PLD 1973 S.C. 49
 PLD 1984
 PLD 1992 Lah.99
 PLD 1976 Lah. 396
 PLD 1957 (W.P) Lah. 487
 PLD 1956 Lah. 824
 PLD 1964 S.C. 673
 PLD 1993 Lah. 141.
 PLD 1971 S.C. 811
 PLD 1991 Lah. 78
 1985 PTD 465
 1989 MLD 1096
 PLD 1990 Kar. 9, PLD 1973 S.C 236
 1985 CLC 2546
 1986 CLC 518
 PLD 1971 S.C. 197
 1981 SCMR 1181
 PLD 1971 S.C. 669
 PLD 1971 S.C. 393
 PLD 1969 S.C. 407
 PLD 1960 S.C. 130
 PLD 1980 S.C. 323
 (1894)1 KB 636
 PLD 1955
 PLD 1979 Lah. 820
 AIR 1925
 AIR 1938 Clacutta 385
 PLD 1956
 PLD 1956 Lah. 615
 PLD 1958 Lah. 466
 PLD 1959 S.C. 45.
 PLD 1964 S.C. 673
 PLD 1961 S.C. 537
 PLD 1960 Kar.651
PLD 1960 Kar. 826
 PLD 1962
 PLD 1962 Lah. 151
 PLD 1967 Lah.42
 PLD 1968
 PLD 1969 Lah. 602
 PLD 1970 Lah. 679
 PLD 1983 S.C. 457
 1984 SCMR 143
 PLD 1985 Kar. 614
 PLD 1988
 (1924)1 KB 256
 (1937)2 KB 309
 PLD 1957 Kar. 363
 PLD 1964 S.C. 64
 PLD 1971 Kar. 654
 PLD 1968 Peshawar-30
 PLD 1971 S.C. 585
 PLD 1980 Lah. 658
 (1969)2 AC147
 PLD 1957 Kar.111
 PLD 1957 Kar.539
 PLD 1960
 PLD 1980 SC 139
 PLD 1957 Kar. 694
 PLD 1973 S.C. 24
 1983 SCMR 818
 PLD 1971 S.C. 838
 1972 SCMR 395
 1980 SCMR 952
 1968 SCMR 1376
 1970 SCMR 68
 1975 SCMR 39
 1968 SCMR. 88
 1981 SCMR 101