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Official Citation: 2024 SHC 1302
Court / Jurisdiction: Sindh High Court
Year of Decision: 2024
Decision Date: 2024-12-02
Parties: Attock Cement Pakistan Ltd. and others vs Federation of Pakistan and others
Ruling Summary: This decision was rendered by the Sindh High Court on 2024-12-02, officially reported as 2024 SHC 1302. In this matter between Attock Cement Pakistan Ltd. and others and Federation of Pakistan and others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024SHC1302
Court Name: Sindh High Court Judge(s): Jawad Akbar Sarwana, Muhammad Shafi Siddiqui, CJ Title:Attock Cement Pakistan Ltd. and others vs Federation of Pakistan and
others Case No.: C.P. No.D-1590 of 2023 Date of Judgment:2024-12-02 Reported As: 2024 SHC 1302 Result: Order Accordingly Judgment
ORDER 1. It is common ground between the parties that the present petitions - across all the petitions - presently only have one prayer clause seeking a declaration that Section 31(8) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (the "NEPRA Act, 1997") is ultra vires of the Constitution of the Islamic Republic of Pakistan, 1973 ("1973 Constitution"). This is the only relief sought by the petitioners, which the respondents oppose. However, at this stage, this bench of the Constitutional High Court has to decide whether or not to continue to hear this matter following the creation of a division within the High Court that the Constitution (Twenty-sixth Amendment) Act, 2024 (Act No.XXVI of 2024)(hereinafter referred to as "the 26th Constitutional Amendment")[1] has created a situation in which an assignment has been given under the 1973 Constitution to special benches (judges) of the High Court declared by the Judicial Commission of Pakistan as "Constitutional Benches" under Articles 175 and 175A read with Article 202A. 2. At the outset, the Counsel for petitioner, Abdallah Azzaam Naqvi, Advocate for petitioners in C.P. Nos.D-2661/2023, D-2662/2023, and D-2717/2023 submitted that following this Court's Order dated 11.08.2023 in CP No.1590/2023 and others, these petitions, to the extent of all prayer(s) stood dismissed except the challenge to the vires of the NEPRA Act, 1997. He contended that this "survived" challenge, which remains to be decided, may not be transferred under Article 202A(5) to the Constitution Bench of this High Court under Article 202(3), as this bench retains writ jurisdiction vested in the High Court to hear these Petitions even after the issuance of the Supreme Court of Pakistan, Press Release No.35/2004 dated Islamabad 25.11.2024, informing the general public that
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pursuant to the third meeting of the Judicial Commission of Pakistan constituted under the 26th Constitutional Amendment, the Commission has approved, with a majority of 11 to 4, the formation of the constitution benches in the High Court of Sindh and approved for the period of two (2) months the names of nine (ix) Learned Judges of this Court to constitute those benches in this Court as listed in the said press release. He contended that the vires of the NEPRA Act, 1997 alone is under challenge in all these petitions, which falls under Article 199(1)(a)(ii), therefore, this bench has the power to decide matters within the scope of the leftover clauses of Article 199 of the Constitution following the Constitution (26th Amendment) Act, 2024, i.e. under Article 199(1)(a)(ii). He contended that these petitions cannot be decided by the constitutional benches which exercise jurisdiction in terms of Article 199(1)(a)(i) and Article 199(1)(c) only. He argued that the similarity between the two sub-articles, i.e., Article 199(1)(a)(i) and Article 199(1)(c) is that under both said provisions, an order is sought from the High Court 'directing', either performance of a certain act (writ of Mandamus), or otherwise, directing a restrain from performing a certain act (writ of Prohibition). He relied on 2005 SCMR 534 on page 542 (paras 11, 12). 3. Counsel for petitioners in CP No.D-1590/2023, Mayhar Kazi, Advocate, adopting the above- mentioned Petitioner Counsel's arguments, further submitted that Article 191A of the Constitution (inserted vide the 26th Amendment) also made changes with respect to the jurisdiction of the Supreme Court and the creation of constitutional benches of the Supreme Court but the language of the said provision, especially, Article 191A(3) is vastly different from Article 202A(3). He argued that the Legislature's omission in placing "the constitutionality of any law" (as in Article 191A(3)(b)) in the ouster applicable to High Courts was a deliberate action and must be given effect. He further argued that the Legislature consciously decided not to place within the domain of the High Court's Constitutional Benches cases involving challenges to the constitutionality of laws. This, he contended, clarified that the High Court continued to exercise constitutional jurisdiction, and this bench could continue hearing this lis. 4. Counsel for the respondent, K-Electric, Mr. Ayan Mustafa Memon, Advocate, adopted the arguments of the Counsel for the above-named Petitioners and submitted further that Article 202A, ousts the jurisdiction of the High Court partially and confers partial jurisdiction on constitutional benches, is by its very nature an ouster clause; hence, as per settled law, the ouster has to be narrowly construed, and the Courts must jealously guard their jurisdiction. He placed reliance on PLD 1989 SC 26, 2004 YLR 1002, 2020 CLD 1260. He argued that if these cases are referred to the constitutional bench under Article 202A(3) for the exercise of its powers under Article 199(1)(a)(i) or (1)(c) under its "special jurisdiction", then the relief sought in this petition could not be considered as no power of issuing a declaration or striking down the law has been conferred thereupon expressly by Article 202A. Therefore, given the power retained by this bench of the High Court, under its normal jurisdiction under the Constitution of Pakistan, it should continue to hear the lis. 5. Counsel for NEPRA, Qazi Khalid Ali, submits that neither NEPRA nor any of the parties have filed or moved any application for transfer of these petitions to the constitutional benches of the High Court. He submits that this bench retains the lis and ultimately decide the only point left in the petitions, i.e. the challenge to the vires of Section 31(8) of the NEPRA Act, 1997. 6. Counsels for the remaining petitioners, respondents, and the learned Assistant Attorney-General have no objections to this constitution bench continuing to hear these petitions. Their consent still does/did not confer jurisdiction, hence this Order. 7. Heard Counsels. When the High Court was established in terms of the 1973 Constitution under Article 175, which conferred power to all its benches (judges) of the High Court, the said Constitutional Court commenced performing its designated work. The High Court's constitutional jurisdiction has thus far been governed by Article 199 of the 1973 Constitution, which was amended
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from time to time, and its current version as of 28.11.2024 (following the 26th Amendment) reads as hereinunder: "199. Jurisdiction of High Court.--(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,__ (a) on the application of any aggrieved party, make an order-- (i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or (ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or (b) on the application of any person, make an order-- (i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or (ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or (c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of theFundamental Rights conferred by Chapter 1 of Part II. (1A) For removal of doubt, the High Court shall not make an order or give direction or make a declaration on its own or in the nature of suo motu exercise of jurisdiction beyond the contents of any application filed under clause (1). (2) Subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II shall not be abridged. (3) An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law. (4) Where (a) an application is made to a High Court for an order under paragraph (a) or paragraph (c) of clause (1), and(b) the making of an interim order would have the effect of prejudicing or interfering with the carrying out of a public work or of otherwise being harmful to public interest or State property or of impeding the assessm ent or collection. of public revenues, the Court shall not make an interim order unless the prescribed law officer has been given notice of the application and he or any person authorised by him in that behalf has had an opportunity of being heard and the Court, for reasons to be recorded in writing, is satisfied that the interim order (i) would not have such affect as aforesaid; or (ii) would have the effect of suspending an order or proceeding which on the face of the record is without jurisdiction. (4A) An interim order made by a High Court on an application made to it to question the validity or legal effect of any order made, proceeding taken or act done by any authority or person, which has been made, taken or done or purports to have been made taken or done under any law which is specified in Part I of the First Schedule or relates to, or is connected with, State property or assessm ent or collection of public revenues shall cease to have effect on the expiration of a period of six months following the day on which it is made:
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Provided that the matter shall be finally decided by the High Court within six months from the date on which the interim order is made. (5) In this Article, unless the context otherwise requires, "person" includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or tribunal, other than the Supreme Court, a High Court or a Court or tribunal established under a law relating to the Armed Forces of Pakistan; and "prescribed law officer" means (a) in relation to an application affecting the Federal Government or an authority of or under the control of the Federal Government, the Attorney-General, and (b) in any other case, the Advocate-General for the Province in which the application is made." 8. The question before this bench essentially involves an analysis of Article 199(1)(a)(i) and (ii), Article 199(1)(b), and Article 199(1)((c). Article 199(1)(a) of the 1973 Constitution is split into two parts, i.e. 199(1)(a)(i), which covers the High Court's power to issue writs, which for the moment, may be labelled as writs of mandamus and prohibition and also directions, and 199(1)(a)(ii) which covers the power of the Court to issue what may be presently labelled as the writ of certiorari and also issue declarations. The High Court also has the power to issue a writ of habaes corpus under Article 199(1)(b)(i) and to issue a writ of quo warranto under Article 199(1)(b)(ii). Finally, the High Court also has jurisdiction in relation to fundamental rights to the relief/remedy provided under Article 199(1) (c). This may be expressed in tabular form as follows: Article Nature of Jurisdiction 1. Art.199(1)(a)(i) Similar to writ of Mandamus directing for the performance of a certain act, or similar to writ of Prohibition directing an authority / person to stop and cease the performance of an act, which said authority / person could not do
2. Art.199(1)(a)(ii) Similar to writ of Certiorari to review and consequently declare that an act, decision, proceeding etc., of any authority / person that the same has been done without lawful authority or in an unlawful manner 3. Art.199(1)(b)(i) Similar to writ of Habeas Corpus directing the production of a detenu so that the Court may satisfy itself as to the legality and validity of such 4. Art.199(1) (b)(ii) Similar to writ of Quo Warranto inquiring and effectively directing a person to show under what law he claims to hold office 5. Art.199(1)(a)(ii) Similar to writ of Mandamus and/or writ of Prohibition and almost identical to Art. 199 (1) (a) (i) directing for the enforcement of any of the Fundamental Rights conferred under Chapter I of Part II[2]
9. It is pertinent to mention that the English writs of "mandamus", "prohibition", "certiorari", "habeas corpus", and "quo warranto" had their genesis in English Common Law, and these generic terms
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could be found in the Constitution of Pakistan until the 1962 Constitution removed them.[3] Therefore,
Name of Writs Nature of Writs (i)Writ of Mandamus Directing for the performance of a certain act, which an authority / person was bound to perform (ii)Writ of Prohibition Directing an authority / person to stop and cease the performance of an act, which said authority / person could not do (iii)Writ of Habeas Corpus Directing a detaining authority / person to produce the detenu and direct for the release of the detenu if such detention is illegal (iv)Writ of Quo Warranto Inquiring against a person who claims or usurps a public office and restrain them to hold office if not entitled (v) Writ of Certiorari Review and consequent declare that an act, decision, etc., of any authority / person that the same is correct and/or incorrect, hence void
there is no mention of these writs after the coming into force of the 1962 Constitution and in the 1972 Constitution. The contours of the writs available to the High Court are described in the Articles themselves, and these Articles neither label nor describe themselves as equivalent to those writs comparable to the practice of conferring judicial review jurisdiction in terms of the English Common Law. As articulated by Chief Justice Cornelius in Mian Jamal Shah v. The Member Election Commission, Government of Pakistan, Lahore and Two Others, PLD 1966 SC 1, the English cases are no longer relevant for the application of Article 199, "which is worded in clear terms and must be applied according to its terms." Consequently, the Courts' power, authority, and jurisdiction concerning judicial review are codified and are now entrenched in the written constitutional law. 10. Article 199(1)(a)(i) consists of two subparts. The first subpart confers jurisdiction upon the High Court to make an order directing a person performing functions in connection with the affairs of the Federation, a Province or local authority to refrain from doing anything he is not permitted by law to do. This is comparable to the English writ or order of prohibition. The second subpart confers jurisdiction upon the High Courts to make an order directing such a person to do something he is required by law to do; this is comparable to the English writ or order of mandamus. 11. Article 199((1)(a)(ii) confers upon the High Court jurisdiction to make an order declaring that any act done or proceeding taken had been done or taken "without lawful authority" and is "of no legal effect". This article is comparable to the "writ of certiorari", but not exactly. This is because the scope of Article 199(1)(a)(ii) is to be understood in the context of the words used therein, that is, "without lawful authority" and "of no legal effect". These words were used for the first time in Article 98 of the 1962 Constitution and have to be read as a matter of statutory interpretation of the said constitutional provision.
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12. The expressions "without lawful authority" and "of no legal effect" it has been said in Muhammad Hussain Munir and Others v. Sikandar and Others,[4] are expressions of art and refer to jurisdictional defects as distinguished from a mere erroneous decision whether on a question of fact or even of law. In Reg. v Secretary of State for the Home Department ex-parte Fire Brigades Union,[5] the House of Lords observed: "If a Minister's action is challenged by applicant with sufficient locus standi, it is the court's duty to determine whether the Minister has acted lawfully, that is to say, whether he has acted within the power conferred on him by Parliament. If the Minister has exceeded or abused his powers, then it is the ordinary function of the court to grant appropriate discretionary relief. . ." The constitutional basis of the court's power to quash in England thus is that the impugned decision "is unlawful on the grounds that it is ultra vires". 13. Thus, according to Justice (Retd.) Fazal Karim, in his 3- volumes treatise, "Judicial Review of Public Action" (Second Edition, 2018), in the field of judicial review, the word "lawful" has acquired a technical meaning, that is, it has become a term of art; when it is said that a person has acted lawfully it means that he has acted within the powers conferred on him by law; and when it is said that a person has acted unlawfully, it means that he has acted out with the powers conferred on him by law, i.e. without jurisdiction. A person acts unlawfully when he exceeds his powers or lacks powers.[6] 14. In Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri,[7] the Supreme Court was concerned with the ascertainment of the true expression "without lawful authority" and in an unlawful manner as they occur (2)(b)(i) of article 98 of the 1962 Constitution which responds to clause ...1(b)(i) of Article 199 of the 1973 Constitution it was held that in without lawful authority will be comprised all questions of vires of the statutes itself as also of the person or persons acting under the Statute, i.e. there must be a competent law authorizing the detention and the officers issuing such an order must have been lawfully vested with the power." 15. In Rahim Shah v. Chief Election Commissioner, PLD 1973 SC 25, Justice Muhammad Yaqoob Ali held that: "Under article 201 (predecessor of Article 199) certiorari will issue to any person performing. . .functions in connection with the affairs of the Center, Province or local authority. It is not necessary that the person acts in a judicial or quasi-judicial capacity, High Court will interfere if the act done or the proceedings under taken is in violation of law or any established principle of law. The term "law" is not confined to statute and in holding the Inquiry the Superior courts are not restricted to an examination of record of the case. The Court may even record evidence to determine the legality of the act done or the proceedings undertaken." 16. Justice Kaikaus in the Jamal Shah case observed that the phrase "of no legal effect" is a well- known expression with a well known meaning that "a simple finding that an act is without lawful authority is insufficient. It must be further be found that an act or proceeding is "of no legal effect". When we say that something is of no legal effect, we mean that it is a nullity, it has no existence in the eye of the law." To amount to a nullity, observed Justice Hamood Ur Rahman, CJ, in Nawab Syed Raunuq Ali, etc. v. Chief Settlement Commissioner and Others, PLD 1973 SC 236, "an act must be non-existent in the eye of law, that is to say, it must be wholly without jurisdiction or performed in such a way that the law regards it as a mere colorable exercise of jurisdiction or unlawful usurpation of jurisdiction".[8] 17. When the court holds that an act is without lawful authority, it declares that it is without jurisdiction or ultra vires; an act without jurisdiction or ultra vires is a nullity and is, therefore, of no legal effect. Thus, an act is without lawful authority and of no legal effect when the person doing it had no authority (that is, jurisdiction, power or right) to do it under the law under which he purported to act; it is an act ultra vires and without or in excess of jurisdiction, both in its original and wider concept.[9]
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18. In the case at hand, the petitioners seek a declaration that Section 31(8) of the NEPRA Act, 1997 is ultra vires. Parties Counsel conceded that the words "without lawful authority" and "is of no legal effect" amounted to "ultra vires". Based on the exposition of law discussed above, we agree with Counsel that a challenge against an act of Parliament, as raised by the petitioners herein, is a challenge to legislative competency on the ground of it being "without lawful authority" and "is of no legal effect". However, these words "without lawful authority" and "is of no legal effect" have to be read in the context of Article 199(1)(a)(ii) and to this end, Counsel did not submit either any reported or unreported case law that the challenge of declaring a section in a legislative instrument to be "without lawful authority" and "is of no legal effect" could be sustained under Article 199(1)(a)(ii). Meanwhile, we found two reported judgments of the Supreme Court of Pakistan that the remedy by way of an English writ of certiorari was inappropriate for setting aside an administrative or executive order.[10] Still, both these judgments of the Supreme Court of Pakistan were in relation to Pakistan law as it stood before the coming into force of the 1962 Constitution, which (for the first time) introduced the words "without lawful authority" and "is of no legal effect" in Article 98 of the 1962 Constitution. Further, the said judgments relied on interpreting English writs under English Common Law, but Article 199(1)(a)(ii) is to be read and interpreted statutorily. Therefore, applying the principles of English Common Law concerning English writs would not be correct, and, both these judgments of the Supreme Court are distinguished and cannot be relied upon. 19. We now turn to the High Court's jurisdiction determination under Article 199 following the 26th Amendment. Article 199 now has to be read with Article 202A, which reads as hereinunder: "202A. Constitutional Benches of High Courts. (1) There shall be Constitutional Benches of a High Court comprising such Judges of a High Court and for such term as may be nominated and determined by the Judicial Commission of Pakistan as constituted under clause (5) of Article 175A,from time to time. (2) The most senior Judge amongst Judges nominated under clause (1) shall be the Head of the Constitutional Benches. (3) No Bench of a High Court other than a Constitutional Bench shall exercise jurisdiction vested in the Court under subparagraph (i) of paragraph (a) and paragraph (c) of clause (1) of Article 199. (4) For the purposes of clause (1), a Bench, to be nominated by a committee comprising the Head of the Constitutional Benches and next two most senior Judges from amongst the Judges nominated under clause (1), shall hear and dispose of such matters. (5) All petitions under sub-paragraph (i) of paragraph (a) and paragraph (c) of clause (1) of Article 199 or appeals therefrom, pending or filed in a High Court prior to commencement of the Constitution (Twenty-sixth Amendment) Act, 2024 (XXVI of 2024), subject to clause (7), forthwith(6) Notwithstanding anything contained in the Constitution but subject to an Act of Majlis -e- Shoora (Parliament) in respect of the Islamabad High Court and an Act of Provincial Assembly in respect of other respective High Courts, a High Court may make rules regulating the practice and procedure of the Constitutional Benches. (7) This Article shall come into force, if in respect of- (a) the Islamabad High Court, both Houses of Majils-e-Shoora (Parliament) in the joint sitting; and (b) a High Court, the respective Provincial Assembly, through a resolution passed by majority of the total membership of the joint sitting or the respective Provincial Assembly, as the case may be, give effect to the provisions of this Article stand transferred to the Constitutional Benches and shall only be heard and decided by Benches constituted under clause (4). 20. It is a trite…
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