Written by
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[1]. 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.[2]
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.[3]
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 [5]
“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)[6]
“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 [7]
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.[9] 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.[10]
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
down in
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[14],
can neither be invoked nor be exercised in aid of injustice[15],
being extraordinary no one is entitled to claim as of right to exercise of
discretionary powers.[16]
Matters for consideration for exercise of discretion are bad faith, dishonesty
and unreasonableness of the decision.[17]
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 [18]
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[19]
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”.[20]
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
Khan[21]Supreme
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.[22]
In Province of West Pakistan v, Ch.Nazir Hussain[23]Wherein
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[24]
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[25]
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
Commissioner[27]where
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[28] 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.
King Empror[29]
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[30] 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[31]
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.[37]
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.[38]
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.[39]
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.[40]
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.[41]
5. Where a decision is
taken in public interest. In Pabna Electric Supply Company v. Province of East
Pakistan[42] 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.[43]
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.[44]
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.[45]
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[46]
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.[47]
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. [48]
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[49]
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[50]
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.[51]
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.[52] 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.[53]
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.[54]
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.[55] 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.[56]
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[57]
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[61] 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[62] 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.[63]
In Federal Land Commission v. Mst. Gul Babi[64] 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[65] 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.[66]
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.[67]
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.[68]
However in cases of Reappraisal of evidence High Court is not willing to
interfere. In Ghulam Nabi v. Khan
Mohammad Afzal Khan[69] 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[70] 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[71]
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.”[72]
*Miss Atika
Lohani (LL.B (Hons.) Shariah & Law, IIUI, LL.M., P.U.L.C. Lahore is presently serving as
Lecturer in Law in
[1] Black’s Law Dictionary, page.855
[2] PLD 1975 Lah.
1339
[3] PLD 1973 S.C. 49
[4] PLD 1984
[5] PLD 1992 Lah.99
[6] PLD 1976 Lah.
396
[7] PLD 1957 (W.P) Lah.
487
[8] PLD 1956 Lah.
824
[9] PLD 1964 S.C. 673
[10] PLD 1993 Lah.
141.
[11] PLD 1971 S.C. 811
[12] PLD 1991 Lah.
78
[13] 1985 PTD 465
[14] 1989 MLD 1096
[15] PLD 1990 Kar.
9, PLD 1973 S.C 236
[16] 1985 CLC 2546
[17] 1986 CLC 518
[18] PLD 1971 S.C. 197
[19] 1981 SCMR 1181
[20] PLD 1971 S.C. 669
[21] PLD 1971 S.C. 393
[22] PLD 1969 S.C. 407
[23] PLD 1960 S.C. 130
[24] PLD 1980 S.C. 323
[25] (1894)1 KB 636
[26] PLD
[27] PLD 1955
[28] PLD 1979 Lah.
820
[29] AIR 1925
[30] AIR 1938 Clacutta
385
[31] PLD 1956
[32] PLD 1956 Lah.
615
[33] PLD 1958 Lah.
466
[34] PLD 1959 S.C. 45.
[35] PLD 1964 S.C. 673
[36] PLD 1961 S.C. 537
[37] PLD 1960 Kar.651
[38]PLD 1960 Kar.
826
[39] PLD 1962
[40] PLD 1962 Lah.
151
[41] PLD 1967 Lah.42
[42] PLD 1968
[43] PLD 1969 Lah.
602
[44] PLD 1970 Lah.
679
[45] PLD 1983 S.C. 457
[46] 1984 SCMR 143
[47] PLD 1985 Kar.
614
[48] PLD 1988
[49] (1924)1 KB 256
[50] (1937)2 KB 309
[51] PLD 1957 Kar.
363
[52] PLD 1964 S.C. 64
[53] PLD 1971 Kar.
654
[54] PLD 1968 Peshawar-30
[55] PLD 1971 S.C. 585
[56] PLD 1980 Lah.
658
[57] (1969)2 AC147
[58] PLD 1957 Kar.111
[59] PLD 1957 Kar.539
[60] PLD 1960
[61] PLD 1980 SC 139
[62] PLD 1957 Kar.
694
[63] PLD 1973 S.C. 24
[64] 1983 SCMR 818
[65] PLD 1971 S.C. 838
[66] 1972 SCMR 395
[67] 1980 SCMR 952
[68] 1968 SCMR 1376
[69] 1970 SCMR 68
[70] 1975 SCMR 39
[71] 1968 SCMR. 88
[72] 1981 SCMR 101