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Petitioner: Haji BASHIR AHMAD VS Respondent: HIGH COURT BAR ASSOCIATION
Court Name: Lahore High Court Judge(s): Sheikh Anwarul Haq, Shafi-ur-Rehman Title: Haji BASHIR AHMAD vs HIGH COURT BAR ASSOCIATION Case No.: Letters Patent Appeal No. 161 of 1969 Date of Judgment:1969-05-09 Reported As: PLD 1970 Lahore 45 Result: accordingly dismiss
JUDGMENT
JUDGMENT ANWARUL HAQ, J.-This order will dispose of Letters Patent Appeals bearing Nos. 161, 165, 166, 168 and 169 of 1969, which are by nine out of 18 persons who have been declared to be touts by our learned brother Bashir-ud-Din Ahmad, J., and have been forbidden from entering the precincts of the Courts. It has further been directed in the order dated the 28th of March 1969 that the names of these persons shall be published in the Gazette as touts. The proceedings were taken against 20 persons, two of whom, namely, Messrs Muhammad Ayub and Maula Dad were, however, excluded from the declaration, on the ground that they were practising members of the Bar and action against them was being taken separately by the Bar Council. 2. The proceedings against the appellants and others were initiated by means of a requisition (Exh. P. A.) submitted to the President of the High Court Bar Association at Lahore (hereinafter referred to as the Association) by 16 members of the Association calling for a special general meeting to "consider the steps to be taken to remove the menace of some undesirable lawyers, i.e. Raja Maula Dad alias M. D. Janjua and Raja Muhammad Ayub, and the touts from the premises of the High Court at Lahore". The requisition further stated that a copy of the proposed resolution was being attached. This resolution is Exh. P. B. And is worded as under :- "The High Court Bar Association resolves that as (Nos. 1 to 20 names of the appellants and others) are habitually acting as TOUTS, therefore, they are unanimously declared by this House as TOUTS and it is further resolved that the names of these touts be sent to the High Court of West Pakistan, Lahore, for placing their names on the list of touts". The requisition and the resolution were both signed by Major Waheed-ud-Din Virk, Advocate of Lahore as the mover, and were supported by 15 other members of the Association. In the absence
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of the President of the Association, the requisition came up before the Vice-President, who passed an order on the 7th of September 1967, calling the meeting for the 9th of September 1967. 64 members of the Association attended and the proposed resolution annexed to the requisition was unanimously passed. In the High Court the matter was placed before Bashir-ud-Din Ahmad, J. For action under section 36 of the Legal Practitioners Act. All the named persons except Mansab A.I filed written statements denying the allegation that they were touts. After recording the evidence on both sides and taking into account the effect of th6 resolution passed by the Association, the learned Judge made the declaration already mentioned. 3. On behalf of the appellants the order under appeal has been challenged before us on the following grounds :- (1) That the learned Judge in Chambers has erred in thinking that the resolution of the Association had been validly passed, as the resolution, in fact, suffered from the following infirmities, viz.- (a) the requisition being for a special general meeting, it could not be converted into a requisition for an urgent general meeting to be convened under rule 29(3) of the Association Rules ; (b) the notices for the meeting were not issued in accordance with the provisions of rule 31 ; (c) the meeting having been convened during the summer vacation of the High Court, the resolution does not validly reflect the will or the opinion of the majority of the members of the Association, and (d) the proposed resolution was not annexed to the requisi--petition, and appears to have been inserted later ; (2) That in any case the evidentiary value of the resolution is considerably weakened by the fact that it does not separately consider the case of each of the persons who were sought to be declared as touts ; and in particular it loses almost all its value as against the appellant Haji Muhammad Bashir whose .Antecedents and activities were favourably commented upon by 42 members of the Association on an application submitted by this appellant ; and (3) That once the invalid resolution is eliminated from consideration, then there is hardly any evidence left to indict the appellants of the charge of being touts. 4. Before dealing with the various contentions raised on behalf of the appellants, we may dispose of a preliminary objection taken by Malik Amjad Hussain on behalf of the Bar Association to the effect that the order passed by the learned Single Judge declaring the appellants and others to be touts and making certain consequential directions, is in the nature of an administrative or disciplinary order, and cannot be regarded as being a judgment within the meaning of clause 10 of the Letters Patent of the High Court, with the result that no appeal lies against such an order. The learned counsel submits that the nature of the order passed by the learned Judge in Chambers is not altered by the mere fact that he adopted a procedure comparable to that obtaining in ordinary judicial proceedings, namely, of recording evidence and hearing arguments of the parties before deciding whether action should or should not be taken against the appellants in accordance with the resolution of the Bar Association. 5. The first question which arises in this connection is regarding the true nature of the order under appeal. Section 36 under which the proceedings were taken against the appellants, is-- in the following terms :- 36.-(1) Every High Court, District Judge, Sessions Judge, District Magistrate and every Revenue- officer, not being below the rank of a Collector of a district, (each as regards their or his own Court and the Courts, if any, subordinate thereto), may frame and publish lists of persons proved to their or his satisfaction, or to the satisfaction of any subordinate Court as provided in subsection (2-A) by evidence of general repute or, otherwise, habitually to act as touts, and may, from time to, time, alter and amend such lists.
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(Explanation.-The passing of a resolution, declaring any person to be or not to be a tout, by a majority of the members present at a meeting, specially convened for the purpose, of an association of persons entitled to practise as legal practitioners in any Court or revenue-office, shall be evidence of the general repute of such person for the purposes of this subsection). (2) No person's name shall be included in any such list until he shall have had an opportunity of showing cause against such inclusion. (2-A) Any authority empowered under subsection (1) to frame and publish a list of touts may send to any Court subordinate to such authority the names of any persons alleged: or suspected to be touts, and order that Court to hold an inquiry in regard to such persons ; and the subordinate Court shall thereupon hold an inquiry into the conduct of such persons and, after giving each such person an opportunity of showing cause as provided in subsection (2), shall report to the authority which has ordered the inquiry the name of each. Such person who has been proved to the satisfaction of the: subordinate Court to be a tout ; and that authority may include --the name of any such person in the list of touts framed and published by that authority: Provided that such authority shall hear any such person who before his name has been so included, appears before it and desires to be heard. (3) A copy of every such list shall be kept hung up in every Court to which the same relates. (4) The Court or Judge may, by general or special order, exclude from the precincts of the Court any person whose name is included in any such list. (5) Every person whose name is included in any such list shall be deemed to be proclaimed as a tout within the meaning of section 13, clause (e), and section 22, clause (d). (6) Any person who acts as a tout whilst his name is included in any such list shall be punishable with imprisonment which may extend to three months, or with fine which may extend to five hundred rupees, or with both." 6. It will be seen that not only the High Court but certain other judicial officers as well as revenue officers have been given the power to act under this section, and they have further been authorised to alter and amend the list of touts from time to time. Subsection (2) enjoins that the person against whom proceedings are initiated shall be given an opportunity of showing cause against being included in the list of touts, and subsection (2-A) permits the necessary inquiry to be held by a subordinate Court or authority which has then to report the matter to its superior. Subsection (4) mentions two alternative authorities, namely, the Court or Judge, thus indicating that a Judge acts under this section not necessarily as a Court, but as a presiding officer of his Court. The provisions of the section leave no doubt that the power conferred by it is of an administrative or disciplinary nature, although it is enjoined that the power shall not be used against any person unless he has been given an opportunity of q showing cause against the proposed action. This is a fundamental requirement of natural justice and compliance with it would not automatically convert administrative proceedings into judicial proceedings. The section does not attach any finality to the order made by the High Court or the authorities mentioned therein, and they are permitted to alter or amend the list of touts from time to time. These factors point to the conclusion that the power is indeed of an administrative nature. 7. The question as to what is an administrative or a judicial order was discussed at length by their Lordships of the Supreme Court in Tariq Transport Company, Lahore v. The Sargodha-Bhera Bus Service, Sargodha (PLD 1958 SC (Pak.) 437) and it was laid down that "the true question always is whether the act which is-complained of is a judicial act and not whether the procedure adopted by the tribunal is judicial or quasi judicial or whether the dominant or general aspect of the tribunal is that of a judicial, quasi-judicial or administrative body. A tribunal is not always furnished with the trappings of a Court, nor will such trappings make its action judicial. The character of the action taken in a given case and the nature of the right on which it operates must determine whether that
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action is judicial, ministerial or legislative or whether it is simply the act of a public agent". It was further added that "in the case of an administrative tribunal, however, the emphasis is on policy, expediency and discretion to enable it to achieve the object with which it was set up. In the case of such a tribunal the approach in determining the relevant facts is therefore often subjective and not objective, there being generally no lis before it in which the parties are arrayed against each other for the enforcement of a private right or liability and who for that purpose are entitled to produce evidence and adduce legal argument. The word `quasi' as prefixed to the word `judicial' may either indicate that the tribunal is not acting purely administratively or that it is acting in a manner in which a judicial tribunal is expected to act". This view was reiterated by their Lordships in Messrs Faridsons Ltd., Karachi v. Govern--ment of Pakistan and others (PLD 1961 SC 537). 8. Judged in the light of the principles laid down in these two decisions and the factors mentioned by us in the preceding paragraph, as emerging from the various provisions of section 36 of the Act, it seems clear that the order passed by the learned Judge against the appellants cannot be treated to be a judicial order in the strict sense of that term, and that at best it could be regarded as a quasi-judicial order for the reason that the procedure followed by the learned Judge was of that nature. In A char Khuda Bakhsh v. Bar Association, Karachi (AIR 1937 Sind 4), it was held that "proceedings to declare a man a tout are not judicial proceedings, but proceedings of a departmental nature which relate to the working of the Courts". Again in Muhammad Abdul Latif v. Secretary, Bar Association, Gujranwala (AIR 1947 Lah. 313), a Full Bench observed :- "The jurisdiction exercised by Courts or presiding officers of the Courts, "under section 36 of the Legal Practitioners Act, is neither a civil nor a criminal jurisdiction, but is a disciplinary or administrative jurisdiction and an order under section 36 by a District Judge declaring a person to be a tout is not a judgment within the meaning of section 224(2), Government of India Act. Hence such an order though not revisable by High Court on its civil or criminal side, can be interfered with by the High Court on its administrative side and this power is not affected by section 224(2), Government of India Act." It was added that no appeal lay against such an order. 9. On behalf of the appellants reference was, however, made to re : Adiraju Somanna (I L R 1938 Mad. 988), in which a learned Single Judge has held that an order passed by the District Judge under section 36 of the Act falls within the scope of section 115 of the Code of Civil Procedure and is capable of being revised by the High Court under that section. The major portion of this judgment is devoted to the discussion of the question whether such an order was amenable to revision by the High Court under section 224 of the Government of India Act, 1935 or section 15 of the High Courts Act, and whether section 439 of the Code of Criminal Procedure could be invoked in such a case. Having answered these questions in the negative, the learned Judge then proceeded to consider whether section 115 of the Code of Civil Procedure could be invoked and it would be useful to reproduce here the relevant portion of the judgment as appearing on page 994 of the Report :- "A reference to section 115 would show that the High Court is competent to make such order as it thinks fit, if it finds that a case has been decided by any Court subordinate thereto, and in which no appeal lies, if such subordinate Court has either acted beyond or failed to exercise a jurisdiction or has acted in the exercise of its jurisdiction illegally or with material irregularity. 1t cannot be denied that the District Judge was acting in his case as a Court and not in an administrative capacity. The question then is whether the finding given by him against the petitioner and declaring him to be a tout would amount to a decision of the case pending before him." The remaining part of the judgment is then devoted to answering the last question just mentioned, namely, whether it was a case decided within the meaning of section 115 of the Code of Civil Procedure.
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10. It will be seen that on the essential question which we are considering here, namely, regarding the true nature of the order made under section 36 of the Act, the learned Judge has merely contented himself by observing that "it cannot be denied that the District Judge was acting in this case as a Court and not in an administrative capacity". This observation or conclusion is not supported by any reasoning, nor by an examination of the relevant provisions of the section itself. This view was specifically dissented from by the Full Bench of the Lahore High Court in the case of Muhammad Abdul Latif to which we have already referred. Harries, C. J., who delivered the judgment of the Court, forcefully brought out the difficulty involved in accepting the view that such an order could be revised under section 115 of the Code of Civil Procedure. His Lordships pointed out that although orders passed by a District Judge could be so revised, but orders of Sessions Judge and District Magistrates would have to be revised under section 439 of the Code of Criminal Procedure and, a further difficulty would arise with regard to orders made by Revenue Courts or their presiding officers. On this view of the matter it was concluded that the jurisdiction under section 36 of the Act was a peculiar jurisdiction created by that section, and it has neither a civil jurisdiction nor a criminal jurisdiction, but a jurisdiction of a disciplinary or administrative nature. We are in respectful agreement wit this view. 11. The question now is whether an order of a disciplinary or administrative nature made by a learned Single Judge of this Court is open to appeal under clause 10 of the Letters Patent. This clause lays down that "an appeal shall lie to the High Court of Judicature at Lahore from the judgment (not being an order made in the exercise of revisional jurisdiction . . . . . ) of one Judge of the said High Court . . . " The term "judgment" as defined in clause (9) of section 2 of the Code of Civil Procedure means "the statement given by the Judge of the grounds of a decree or order", and ordinarily connotes any decision given by a Court on questions at issue between the parties to a proceeding properly before the Court. It is clear that the reference is obviously to judicial decisions given by a Single Judge, and the clause is not intended to provide .An appeal against decisions of an administrative or departmental nature. This position emerges quite unambiguously from the exceptions mentioned in parenthesis in the clause, and also from the types of cases in which appeal would lie under the Letters Patent only if a certificate of fitness is granted by the learned Single Judge. 12. The learned counsel for the appellants as well as for the Association have referred us to several decided cases with a view to bringing out the true meaning of the term "judgment" as used in the clause in question. All these cases, however, clearly relate to orders made in proper judicial proceedings. In Gokal Chand v. Sanwal Das and others (1 I L R Lah. 348), it was observed that "the term `judgment' in section 10 of the Letters Patent would. Include any interlocutory judgment which decides, so far as the Court pronouncing such judgment is concerned, whether finally or temporarily, any question materially in issue between the parties and directly affecting the subject-matter of the suit". The same idea was elaborated in Shibba Mal and others v. Rug Narain (10 I L R Lah. 132), and it was held that "the term `judgment' is not synonymous with the word `decree', and an order passed by a. Single Bench on an application filed by the appellant against a preliminary decree, for staying further proceedings in pursuance of that decree, amounts to a `judgment' within the meaning of clause 10 of the Letters Patent". In Firm Shaw Hori Dial and Sons, Madras v. Messrs Sohna Mal Beli Ram (AIR 1942 Lah. 95), a Full Bench observed that "the word `judgment' in clause 10 is not synonymous with decree. Clause 10 contemplates orders other than the judgments in a decree. Whether an order amounts to a judgment within clause 10 must be considered on the facts and circumstances of each case, and the tests propounded in 31 Mad. 1 and 17 W R 364 serve as a good guide". It was further held that an order determining the forum in which, the suit is to be tried, or an order refusing to transfer a suit are --judgments within the meaning of clause 10, and so is an order registering a decree as that of a Revenue Court under
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section 100 of the Punjab Tenancy Act. The broad definition of- the term "judgment" adopted by the Full Bench was "a decision which affects the merits of the question between the parties determining some right or liability. It may be either final or preliminary or interlocutory, the difference between them being that a final judgment determines the whole cause or suit and a preliminary and an interlocutory judgment determines only a part of it leaving other matters to be determined". 13. The nature of the appeal provided under clause 10 of the Letters Patent was considered by a Division Bench in Sheikh Muzaffar Din v. Mst. Allah Vasai and others (PLD 1953 Lah. 284), and it was stated that "a Letters Patent Appeal is not really an appeal in the strict sense. It may be more aptly described as an internal arrangement for reviewing its own decisions given in the first instance by one member of the Court. The first as well as the second decision remains a decision of the Court". This view was followed in Abdul Haq v. Saif-ur-Rehman and others (PLD 1968 Lah. 478). From these two decisions as well as those noticed in the preceding paragraph the position clearly emerges that the appeal contemplated under clause 10 is obviously one arising out of a judgment or order made by a learned Single Judge in the exercise of his judicial functions and has nothing to do with any order made on the disciplinary or administrative side. This view is strengthened by the observations appearing in Mumtaz Khan v. Chief Settlement & Rehabilitation Commissioner and another (PLD 1966 SC 276), in which their Lordships were considering the question whether an appeal would lie under clause 10 of the Letters Patent from the order of a learned Single Judge passed in writ jurisdiction. It was held that an order passed by a learned Single Judge in writ jurisdiction, pertaining to a civil matter, amounts to exercise of original jurisdiction within the contemplation of section 103 of Government of India Act, 1915 and would, therefore, be appealable as a judgment under clause 10 of the Letters Patent of the High Court. The learned Judges stated that "in the general connotation of the term a judgment would merely mean a judicial determination or a decision of a Court, and it would be interlocutory or final". They went on to add that "the term `judgment' in clause 10 should not be confined to decrees, but was of a wider import and an order passed in writ jurisdiction was a `judgment' in every sense of the term as it finally decided the rights of the parties and it was clearly rendered in a proceeding of a civil nature as rights to property were adjudicated upon". 14. It was submitted by Mr. Lodhi, the learned counsel for one of the appellants, that the proceedings against the appellants were indeed of a civil nature and, therefore, the order passed by the learned Single Judge would amount to a "judgment" as held by the Supreme Court in Mumtaz Khan's case. This proposition cannot, however, be accepted in view of the opinion we have already expressed regarding the true nature of the order under appeal. 15. For the foregoing reasons, we consider that it must be held that the present appeals are not competent under clause 10 of the Letters Patent as the order made by the learned C Single Judge under section 36 of the Legal Practitioners Act is not a "judgment" in any sense of the term, but is merely an administrative or a disciplinary order regulating the functioning of the Courts. It was submitted on behalf of the appellants that in such circumstances the order of the learned Single Judge may still be open to review by a Division Bench of this Court in the exercise of its supervisory powers vis-a-vis orders passed by Judges sitting in Single Bench, just as orders made by District Judges have been held to be revisable by the High Court in the exercise of its power of superintendence and control. Such an argument, however, proceeds on an assumption which is not warranted by clause 10 of the Letters Patent. While the High Court has undoubtedly power of superintendence and control over the subordinate Courts, apart from its revisional powers in respect of civil and criminal matters as such, a Division Bench of this Court has no such power of superintendence and control over the functioning of learned Judges of the Court sitting in Single Bench. The power conferred by clause 10 o L the Letters Patent is a specific power of hearing
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appeals from the judgments of learned Single Judges in specified cases and situations, and cannot be extended to, or converted into, a genera supervisory power such as is enjoyed by the High Court over Courts subordinate to it. 16. It was next contended that, in any case, section 36 of the Act itself permits a periodical review of the list of touts, prepared by a Court or a Judge, and we should accordingly treat the present appeals as applications for review of the order passed by our learned brother. Reference was made in this. Behalf to Mirza Akbar A.I v. Mirza Iftikhar A.I and others (PLD 1956 FC 50) and Lt.-Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty, Government of Pakistan, Karachi (PLD 1962 SC 335), which are, however, cases dealing with the power of review enjoyed by the Federal Court and its successor, namely, the Supreme Court of Pakistan. These cases are of no direct relevance in the present context as they…
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