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Petitioner: IFTIKHAR AHMAD VS Respondent: THE MUSLIM COMMERCIAL BANK LTD. AND ANOTHER
Court Name: Lahore High Court Judge(s): Gul Muhammad Khan Title: IFTIKHAR AHMAD vs THE MUSLIM COMMERCIAL BANK LTD. AND ANOTHER Case No.: Civil Miscellaneous No. 1823 of 1983 Date of Judgment:1983-06-03 Reported As: PLD 1984 Lahore 69 Result: Order accordingly
JUDGMENT
JUDGMENT ' The learned Special Judge, Banking Court, vide order, dated 9th September, 1982 allowed the petitioner to pay, by six monthly instalments, the sum of Rs. 73,693 with costs, decreed against him. It was further stated in the order that in case of default in payment of any instalment, the balance amount shall become payable immediately and the Bank may recover it by execution of the decree. Later, the petitioner did fail to pay the instalments, on which the learned Special Judge as per order, dated 3rd April, 1983 directed the Collector to attach his property and recover the amount by its sale. The petitioner made an application for the suspension/ vacation of that order. The learned Special Judge allowed his request and withdrew the attachment warrants. He, however, asked him to pay the entire amount in lump sum till 7th July, 1983, as committed by him. The petitioner challenged that order, through this petition, under Article 203 of the 1973 Constitution, read with Provisional Constitution Order, 1981, with the prayer that the previous order of instalments, on yearly basis; be restored, for the reason that the order of the trial Court was harsh and unjust. The application, however, failed and was dismissed, on 18th July, 1983 for reasons to be recorded later. The present order is meant only to supply the reasons. 2. To support the maintainability of this application, the learned counsel relied on rule 9 of the Banking Companies (Recovery of Loans) Rules, 1980, and stated that according to it, the Special Court being subject to the administrative control and superintendence of this High Court, within whose jurisdiction its permanent seat is situate, the impugned order can be modified as prayed. 3. The learned counsel for the respondent Bank resisted this application . On the ground that firstly, the respondent Court established under Ordinance XIX of 1979, is not a Court subordinate to the High Court and secondly, the prayer made does not fall within the scope of the power of
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superintendence and control, conferred on this Court, under Article 203 of the. Constitution. Mr. Tanvir Ahmad Khan, Assistant Advocate-General, who appeared on notice, agreed with the learned counsel for the petitioner and stated that rule 9, referred to above, makes the respondent Banking Court, subject to the superintendence and control of the High Court. He, however, denied if any relief, of the nature prayed for, could be granted to the petitioner in that jurisdiction, or in the circumstances of the case. 4. The learned Deputy Attorney-General, however, opposed the motion. He pleaded that rule 9, made in 1980, had become redundant, in view of the later amendment, incorporated vide Ordinance II of 1983, by which the Special Court was reconstituted vide section 2(f). According to the new provision, a District Judge or an Additional District Judge, to be appointed by the Federal Government, will be the Special Court, for a given territory, in respect of a loan, the outstanding amount of which does not exceed rupees one million. For higher amounts, the High Court, in exercise of its original civil jurisdiction, shall be the Special Court. The argument was that as a case concerning a loan of an amount, exceding rupees ten lacs, is now to be brought before a Special Court, presided by a High Court Judge, it cannot be said that the same Special Court when presided by an officer of the rank of a District Judge, would be subordinate to the High Court. This argument, however, has no merit. Firstly, the jurisdiction for an amount over one million is conferred on the High Court, as such and secondly, if it is to be accepted, then it will be presumed that even those High Courts, which exercise original civil jurisdiction, cannot superintend and control Courts subordinate to them. 5. The learned Deputy Attorney-General then referred to section 5 of the Banking Companies (Recovery of Loans) Ordinance, 1979 (hereinafter. Called the Ordinance) to state that a Court, established by the Federal Government, as a Special Court and presided over, not by a District Judge, but by a persona designata, cannot be a Court subordinate to the High Court. Admittedly, section 5 has been repealed and so the argument on that basis is not available. It is, however, correct that,under section 2(f) of the above Ordinance, a Special Judge is to be appointed, not by the Provincial Government or High Court, but the Federal Government, though in the absence any such appointment, the District Court is to be the Special Court. The controversy thus raised by the learned Deputy Attorney-General is that the Special Judge is not a 'Court' but a 'Tribunal and so not subordinate to the High Court. 6. In order to appreciate the point, we must first know the meanings of and the difference between the two concepts i.e. 'Court' and 'Tribunal'. It is historically accepted that only the Courts exercise judicial power. Coke said ; Court is a place where justice is judicially administered. According to 'Words and Phrases Legally Defined' Volume I, page 367, the term 'Court' "has acquired the meaning of the place where justice is administered and has, come to mean the persons who exercise judicial functions under authority either immediately or mediately from the Sovereign and not by reason of merely submission to their jurisdiction". The 20 Am. Jurisdiction 2nd page 386 gives. The definition as under :- "Generally speaking, the word 'Court' ...Describes an organ of the Government consisting of one person or of several persons, called upon and authorised to administer justice. Whether a governmental agency is a Court is determined not by its name or title but by it organizational character, its purpose or its function." ' As for the distinction it states that "under our constitutional system of separation of the three branches of government, Courts are part of the judicial whereas administrative agencies are part of the executive branch of the Government". The American and Australian Constitutions which ar based on the principle of separation of power, use the term 'Judicial power' and say that it shall vest in the 'Courts'.
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7. There appears to be a very special feature in our 1973 Constitution. It includes a specific provision in Article 212 for the contitution of tribunals for purposes expressly given therein and provides for an appeal before the Supreme Court. Article 175 only speaks of Courts. The Supreme Court of Pakistan and a High Court for each Province have been created under that Article while power has been conferred on the Legislature to create other Courts and also to confer jurisdiction on them. This position may contrasted with the Indian Constitution. Article 136 (1) of that Constitution lays down that the Supreme Court may grant special leave to appeal from any judgment etc., in any cause or matter, passed or made by any Court or tribunal in the territory of India. Article 227 states that every High Court shall have superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction. Thus, while the Indian Constitution recognises existence of tribunals sharing judicial power with Courts, it is conspicuously absent in the 1973 Constitution. This appears to be a very important departure from the previous Constitutional position as even Article 98 (5) of the 1962 Constitution recognised tribunals alongwith Courts. Strangely enough, however, the power of superintendence of High Courts was conferred only with regard to the Courts subordinate to them and not for Tribunal as in the Indian Constitution. It is thus quite clear that the 1973 Constitution of Pakistan recognizes only such specific tribunals to share judicial power with Courts, as are particularly mentioned in Article 212 or elsewhere but none else. It may also be useful to note here that neither a Court nor any other judicial tribunal is relieved of the duty of deciding a matter before it justly, fairly, equitably and objectively. The only difference is that a tribunal is not as' much bound by the rules of procedure and the evidence as the Courts of law are. I may also refer here to some observations of the Indian Supreme Court in support of tribunals sharing judicial power with Courts, as made by Gajendragadkar Civil Judge in A. C. Companies v. P. N. Sharma (1) while comparing Indian Constitution with that of Australia. The learned Judge remarked :- "Under our Constitution, there is no rigid separation of powers as under the Australian Constitution ; and so, it would not be constitutionally inappropriate or improper to say that judicial power of the State can be conferred on the hierarchy of Courts established under the Constitution . As well as on tribunals which are not Courts strictly so-called. Indeed, the fact that Article 136 (1) refers to Courts and tribunals and makes the determination, sentence or order passed by them subject to appeal to this Court by special leave, shows that our Constitution assumes that judicial power of the State can be vested in and exercised by both Courts and tribunals alike." ' A similar remark by Bachawat Judge in that case is as follows :- (1608) "Unlike Australia, in our country the judicial power of the State may be vested not only in Courts but also in other authorities. The Courts alone have no monopoly of this judicial power. An authority other than a Court vested with the judicial power of the State in this sense is regarded as a tribunal within Article 136." ' In Durga Shankar Mehta's case (2) B. K. Mukherjea Judge speaking for the Court observed :- "It is now well-settled by the majority decision of this Court in the case of Bharat Bank Ltd. (AIR 1950 SC 188) that the expression 'Tribunal' as used is Article 136 does not mean the same thing as 'Court' but includes, within its ambit, all adjudicating bodies, provided they are constituted by the State and are invested with judicial as distinguished from purely administrative or executive functions." 8. The Constitution of Pakistan as regards judicial power is thus quite different from that of India and resembles the Australian Constitution inasmuch as that no executive authority can be empowered to exercise judicial power under Article 175 and any power so conferred by a legislature shall be ultra vires. Relevant portions from two Australian judgment may also be quoted in support. In the Attorney-General for Australia v. The Queen and the Boilermakers' Society of Australia (3) an interesting question arose for the decision of the Court under sections 29(1)(b) and (c) and 29-A of the Commonwealth Conciliation and Arbitration Act, 1904-1952. These provisions
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purported to vest judicial power-even to the extent of finding a citizen or depriving him of his liberty-in the Court of Conciliation and Arbitration established under the Act with powers of an administrative, arbitral and executive character. It was held that the said provisions were invalid, because the function of an industrial arbitrator is completely (1) AIR 1965 SC 1595 (2) AIR 1954 SC 52Q (3) 1957 A C 288 outside the realm of judicial power and is of a different character. Viscount Simonds, cited with approval the observations made by Griffith Civil Judge in Waterside Workers Federation of Australia v. Alexander Ltd. (1), that it is impossible under the Constitution to confer such functions (i.e. Judicial functions) upon any body other than a Court, nor can the difficulty be avoided by designating a body, which is not in its essential character a Court, by that name, or by calling the functions by another name. In short, any attempt to vest any part of the judicial power of the Commonwealth in any body other than a Court is entirely ineffective. 9. Many Courts and legal philosophers who attempted to give the exact meaning and scope of the term 'judicial power' have opined that it is not possible to adopt any exaustive and exclusive definition. However, in re : The Judiciary Act (2), it was stated that 'all these opinions indicate that a matter under the judicature provisions of the Constitution must involve some right or privilege or protection given by. Law or the prevention, redress or punishment of some act inhibited by law'. A passage from R. v. Local Government Board for Ireland (3), has been quoted by Dixon, C. J. Of the High Court of the Commonwealth of Australia, in The. Queen v. Davison (4) as under :- "I have always thought that to erect a tribunal into a 'Court' or 'jurisdiction', so as to make its determination judicial, the essential element is that it should have powers, by its determination within jurisdiction, to impose liability or affect rights. By this I mean that the liability is imposed, or the right affected by the determination only, and not by the fact determined, and so that the liability will exist, or the right will be affected, although the determination be wrong in law or in fact." ' The views of Dixon, C. J. As recorded by him in the above case are as under :- "The truth is that the ascertainment of existing rights by the judicial determination of issues of fact or law falls exclusively within judicial power so that the Parliament cannot confide the function to any person or body but a court constituted under sections 71 and 72 of the Constitution and this may be true also of some duties or powers hitherto invariably discharged by courts under our system of jurisprudence but not exactly of the foregoing description." ' Kitto, J. In a very learned judgment in The Queen v. Trade Practices Tribunal (5) concluded :- "Thus, a judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts 'as they are, followed by an application of the law as determined to the facts as determined ; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between (1) (19181 25 C L R 434 (2) (1921) 29.0 L R 257 (3) (1902) 2 I R 349 (4) (1954) 90 C L R 353 (5) (1970-71) 123 C L R 361 whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist." 10. The Privy Council in Labour Relations Board of Saskatchewan v. John East Ironworks Ltd. (1) opined that : "It is truism that the conception of judicial function is inseparably bound up with the idea of a suit between parties, whether between Crown and subject or between subject and subject."
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Holmes, J. Of the United States Supreme Court in Prentis v. Atlantic Coast Line Co. (2) laid the following test :- "A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist." Again, the Privy Council in Shell Co. Of Australia Ltd. v. Federal Commissioner of Taxation (3) approved a definition of Griffith, C. J. Who says :- "I am of the opinion that the words 'judicial power as used in section 71 of the Constitution, mean the power which every sovereign authority must of necessity have to decide controveries between its subjects or between itself and its subjects, whether the rights relate to life, liberty, or property, The exercise of this power does not begin until some tribunal which has the power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action." The above Privy Council opinion and the definition referred to therein has been cited for guidance in number of judgments of our Courts. Reference be made to Muhammad Ahmad v. Governor General-in-Council (4) The Corporation of the City of Lahore v. Fahmida Begum (5), Masud Ahmad v. Muhammad Saeed Sehgal (6) and Abdul Hamid v. Karam Dad (7). 11. The Indian view also on the scope and extent of judicial power is not much different. In Harinagar Sugar Mills Ltd v. Shyam Sundar Jhunjhunwala (8) Hidayatullah, J. Observed :- "In my opinion, a Court in the strict sense is a Tribunal which is a part of the ordinary hierarchy of Courts of civil judicature maintained by the State under its constitution to exercise the judicial power of the State. These. Courts perform all the judicial functions of the State except those that are excluded by law from their jurisdiction." ' In contrast the tribunals are those bodies of men who are appointed to decide controversies arising under certain special laws. The same Supreme Court in Shankar Lal Aggarwal v. Shankar La! Poddar (9) observed that it is 'conceived that an administrative order would be one which is directed to the regulation or supervision of matters as distinguished from an order which decides the rights of the parties or confers or refuse to confer rights to property which are subject of adjudication before the Courts. One of the tests would be 'whether a matter which (1) (1949) A C 134 (2) (1908) 211 U S 210 (3) (1931) A C 275' (4) AIR 1945 Lab. 313 (5) PLD 1952. Lah. 258 (6) PLD 1958 Lah. 153 (7) PLD 1966 Lah. 16 (8) AIR 1961 SC 1669 (9) AIR 1965 SC 507 involves the exercise of discretion is left for the decision of authority, particularly if that authority were a Court, and if the discretion has to be exercised on objective as distinguished from a purely subjective, consideration if the were a judicial decision." Later, Bachawat, J. Of the Indian Supreme Court in A. C. Companies v. P. N. Sharma devised a test to say :- "Far the purpose of this case it is sufficient to say that any outside authority empowered by State to determine conculsively the right of two or more contending parties with regard to any matter in controversy between them satisfies the test of an authority vested with the judicial power of the State." 12. A Full Bench of this Court in Works Manager v. Hashmat (1) devised the following test.. ' One of the fundamental tests whether a certain tribunal is a Court or is not so is whether it exercises jurisdiction by reason of the sanction of the law or whether jurisdiction is given to it by the voluntary submission of the parties to a dispute... Another important test whether a certain tribunal is or is not a Court is whether it can take cognizance of a is and whether in exercising its functions it proceeds in a judicial manner." ' The above test was followed by a Full Bench of Allahabad High Court in H. C. D. Mathur v. E. I. Railway Adminisiration (2). In Engineering Mazdoor Sabha v. Hind Cycles Ltd. (3) the Supreme Court
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observed that a Tribunal would be outside the ambit of Article 136 if it is not invested with any part of the judicial functions of the State but discharges purely administrative or executive duties. In the opinion of the learned Judge, Tribunals which are found invested with certain functions of a Court of justice and have some trappings also would fall within the ambit of Article 136 and would be subject to the appellate control of this Court whenever it is found necessary to exercise that control in the interest of justice. The learned Judges further noticed that apart from the importance of the trappings of a Court, the basic and essential condition which makes an authority or a body a tribunal under Article 136 is that it should be constituted by the State and should be invested with the State's inherent judicial power. Professor S. A. De Smith at page 41 of Judicial Review of Administrative Action, 18th Ed. Discussed this aspect. The test formulated by him is as under :- "An authority acts in a judicial capacity when, after invesligation and deliberation it determines an issue conclusively by the application of a pre-existing legal rule or any fixed objective standard to the facts of the situation." 13. A majority decision in Muhammad Ahmad v. Governor-Generalin-Council (5) noted that no exhaustive definition has been given to the word 'Court'. To determine whether an authority was a Court or not, the learned Judges noted the negative proposition promoted by Lord Sankey L. C. In the Shell Co. Of Australia's case para. 26 infra and further referred to the following facts to be considered :- (i) mode of appointment of the members and their qualifications ; (ii) tenure of office (I) AIR 1946 Lah.. 316. (2) A I it 1950 All. 80 (3) 4 T R 1963 C 874 (iii) method of removal ; (iv) the manner of payment ; (v) if the authority can enforce its order. ' From the judgment of Abdur Rehman, J. Who agreed with the general definition of 'Court' as adopted by the Full bench in Muhammad Ahmad's case, but differed with conclusion, the following definition of 'Court' can be gathered : ' That is must be constituted of person, or persons who are entrusted with judicial functions of deciding litigated questions, concerning civil rights, between the contesting parties according to law, under the judicial power of the State, duly conferred on them, so as to give a binding and an authoritative decision, whether subject to appeal or not, and that it will not lose its character simply because it does not have the power to execute its decree or order. 14. In Sahibzad a Masud Ahmad v. Mian Muhammad Saeed Sehgal, a learned single Judge of this Court held that before a person or persons can be said to constitute a Court, the following conditions must be satisfied :- (1) That such persons are entrusted with judicial functions i. e. Of deciding litigated questions according to law ; (2) that they derive their powers to decide such question from the State ; (3) that they exercise the judicial powers of the State ; (4) that there is a plaintiff who complains to such persons of an injury done ; (5) that there is a defendant who is called upon by such persons to make satisfactions for the injury done ; (6) that they are empowered to pronounce a definitive judgment which is binding and authoritative ; (7) that such persons are appointed by the Government and should receive payments for their services exclusively out of Government funds and they should not be liable to removal by any
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authority other than Government. 15. The 'Supreme Court in Tariq Transpart Company's case (1) held that it is not presence or absence of the trappings of a Court but the character of action taken in a given case and nature of rights it operates which determines whether that action is judicial, ministerial or legislative or whether it is simply the act of a public agent. According to the learned Judges an authority acts judicially, in the full sense of the term ; (1) if it has to determine a dispute ; (2) the dispute relates to a right or liability which, what ever its immediate aspect, is ultimately referable to some right or liability, recognised by the Constitution or statute or by custom or equity which by the domestic law is declared to be the rule of decision ; (3) since every right or liability depends upon facts, the tribunal is. Under an obligation to discover the relevant facts ; (1) PLD 1958 SC (Pak.) 437 (4) the ascertainment of the facts is in the presence of the parties either of whom is entitled to produce evidence in support of its respective case and to question the truth of the evidence produced by its opponent ; and (5) after an investigation of the facts and hearing legal arguments the tribunal renders a judgment which so far as the tribunal is concerned, terminates the dispute. ' In respect of an administrative tribunal, the learned Judges added that its 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, it was added, the approach in determining the relevant facts is 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 private right or liability and who for that purpose are entitled to produce evidence and adduce legal argument. 16. In Abdul Hamid v. Malik Karam Dad a Division Bench of this Court referred to the negative proposition (referred to in para. 26 infra) about a Court given by a Privy Council in Shell Company of Australia v. Federal Commissioner of Taxation. The learned Judges further went on to say as under :- "Quasi-judicial tribunals are not fettered by the technical rules of evidence. The concensus of opinion is that administrative tribunals are fact finding bodies and the…
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