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Petitioner: Philips Electrical Industries of Pakistan Ltd VS Respondent: Pakistan and others
Court Name: Sindh High Court Judge(s): Zahid Kurban Alavi, Ghous Muhammad Title: Philips Electrical Industries of Pakistan Ltd vs Pakistan and others Case No.: C. P. No. D-1901 of 1999 Date of Judgment:1999-12-22 Reported As: PTCL 2000 CL. 515 Result: Order accordingly
JUDGMENT
JUDGMENT: DR. GHOUS MUHAMMAD, J.--(1). For detailed reasons to be recorded later on we had disposed of the present petition by observing that the appeal of the petitioner pending before the Customs, Excise and Sales Tax Appellate Tribunal (hereafter referred to as "the CESAT") should be disposed off within a period of one month and till disposal of such appeal the respondents shall be restrained from taking any adverse action. This petition had partaken the nature and character of public interest litigation as shall be explained below. Accordingly, the learned members of the CESAT were directed to appear before this Court. 2. There have been rampant complaints by lawyers and litigants against the members of the CESAT and the conduct of their work. The commonest complaints are that the learned members do not maintain any punctuality of timings; sometimes they are completely absent; they come and go at their own sweet will; invariably hearings are conducted from 11.00 a.m. and sometimes no hearings take place at all; the injunction (stay) or other miscellaneous applications are usually neither fixed nor heard and rarely any orders are passed thereon; many appeals are heard and re- heard but no orders are passed; likewise there is no system of roster in the fixation of the appeals and applications; there are lack of proper facilities at the place where the hearings take place, etc. ironically, in the Letters to the Editor appearing in Daily Dawn dated 25-12-1999 similar allegations have been levelled against the members of the CESAT. 3. The above complaints alongwith many other allegations had become widespread. Even while sitting on the tax bench we came across and decided numerous constitutional petitions wherein the alleged inefficiency and apathy of the learned members of the CESAT was brought to surface. Accordingly, when the present petition was filed it became obvious that the predicament had
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reached uncontrollable limits and it was necessary to pass corrective orders. In this manner it had become essential to take cognizance of the plight of the working of CESAT in the exercise of public interest litigation under Article 199 of the 1973 Constitution. It is pertinent to observe that public interest litigation is a concept which has been borrowed from India. 4. In the Indian jurisdiction public interest litigation was formally found for the first time through Peoples Union for Democratic Right v. Union of India AIR 1982 SC 1473 wherein it was observed that public interest litigation was totally different from other litigation which was adversial in nature, in the latter there being a dispute between two litigating parties. It was observed that public interest litigation was brought before the Court not for the purposes of enforcing the right of one individual against another but was intended to promote and vindicate public interest. In our humble opinion this obviously means that public interest litigation is inquisitorial in nature where the Court may even delve into fact finding so as to promote public interest. A more celebrated case from India is the case of S.P. Gupta and others v. President of India and others AIR 1982 SC 149 wherein technical rules were relaxed to entertain a petition relating to transfer of judges. Thereafter in India there have been a number of cases wherein public interest litigation has been invoked ranging from cases of law and order [see Supreme Court Bar Association v. State of U.P. 1995 Supp (3) SCC 602] to cleaning of the city [see Dr. V.L. Wadehra v. Union of India (1996) 2 SCC 594]; there are many other instances where this mechanism has been used by the Indian Courts including a petition filed by a women's forum vindicating the rights of domestic servants indecently assaulted by army personnel [see Delhi Domestic Working Women's Forum v. Union of India (1995) 1 SCC 14]; where human rights of home inmates were protected [see Dr. Upendra Bakshi (1) v. State of U.P. (1983) 2 SCC 308]; where a doctor alleged improvement in railway services [see Dr. Nalla Thampy Thera v. Union of India AIR 1984 SC 74]; and of course in matters relating to environment and pollution [see Rural Litigation and Entitlement Kendra, Dehradun v. State of U. P. AIR 1985 SC 652, Subhash Kumar v. State of Behar AIR 1991 SC 420, Indian Council for Enviro-Legal Action v. Union of India (1996) 3 SCC 212, M. C. Mehta v. Union of India (1996) 4 SCC 750, Buffalo Traders Welfare Association v. Manika Gandhi (1996) 11 SCC 35, etc.]. 5. In the UK also there has been development in this area. Traditionally, litigation vindicatine public rights could only be brought by either a person directly aggrieved or through the Attorney General. However, some initial attempts were made by Lord Denning to liberalize the principle of locus standi. Accordingly, in Attorney General v. Independent Broadcasting Authority (1973) 1 All ER 689 Lord Denning, M.R. was pleased to observe that the term "sufficient interest" could not be restricted and where the Attorney General had improperly refused leave or had acted unreasonably or delayed in giving the leave or his machinery was too slow, a member of the public could approach the Court directly. Lord Denning took cognizance of abuse by the Government functionaries and elaborated a "high constitutional principle to the effect that "if there is good ground for supposing that a Government department or a public authority is transgressing the law and is about to transgress it, in a way which offends or injures thousands of Her Majesty's subjects, then in the last resort any one of those offended or injured can draw it to the attention of the courts of law and seek to have the law enforced" Similarly, in R. v. GLC (1976) 3 All ER 184 Lord Denning, M.R. relaxed the requirement of locus standi and maintained the case where the powers of censorship were unlawfully exercised by the Greater London Council (hereafter: "GLC"). Accordingly, injunction was issued in relation to films consented by the GLC which were otherwise grossly indecent. Subsequently, however, the liberal approach enunciated by Lord Denning in the Court of Appeal was watered down by the House of Lords in Gouriet v. Union of Post Office Workers (1977) 3 All ER 70 wherein it was held that it was a fundamental principle of English law that public right can only be enforced or ascertained in a civil action by the Attorney General save exceptions provided by the statute. It was only in the late 1980s and the earlier 1990s that the courts of England realized the
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wisdom of the earlier approach taken by Lord Denning. The House of Lords liberalized the principle of locus standi in Cook's v. Southend Borough Council (1990) 2 WLR 61 wherein Wolf L.J. observed that a more liberal approach should be adopted in recent times to "locus standi" and the "person aggrieved". It was further observed that some of the foundational cases supplying the restricted view could no longer be treated as good law. This liberal approach was followed in R. v. Bar Council Ex-parte Persival (1990) 3 All ER 137 (QBD). A more liberal approach was taken up very recently in R. v. Secretary of State for Foreign Affairs, the World Development Improvement Ltd. (1995) 1 WLR 386 by a Divisional Court which relaxed the requirement of "sufficient interest" to extend judicial review. In this case the World Development Improvement Ltd., a pressure group campaigning for the last 20 years to improve the quality and quantity of overseas aid given by the British Government, challenged the grant to build a power station on Peragua Dam in Malaysia. The Court held that the applicant had the locus standi and entertained the application. In doing so the Court emphasised the need for the law to develop and not to stagnate. In Bangladesh the advent of public interest litigation has been marked by a decision of the Appellate Division in 1997 in the case of Dr. Moinuddin Farooque v. Bangladesh and others (1997) 15 Bangladesh Legal Decisions 1 (Appellate Division). In entertaining a petition filed by an Environmental Association of Lawyers, Mustafa Kamal J. was pleased to observe that the term "any aggiieved person" was not confined to individually affected persons only but it extends to the people in general, as a collective and consolidated personality. It was further observed that an applicant, if bona fidely espouses a public cause in the public interest, acquires the competency to claim a hearing from the Court. In this case the petitioner had challenged the environmental ill-effect of a flood control plan affecting the life, property, livelihood, vocation and environmental security of more than a million people in the District of Tangail in Bangladesh. Quite interestingly, the path-breaking judgment from the Bangladeshi jurisdiction has placed reliance upon a number of judgments from the English, Indian, American and Sri Lankan jurisdiction. Very notably, the judgment has also placed its express reliance on four judgments from the Pakistani jurisdictioh which are Muntizma Comminee v. Director Katchi Abadies, Sindh PLD 1992 Karachi 54, Mian Fazal Din v. The Lahore Improvement Trust 21 DLR (SC) 225 = PLD 1969 SC 223, Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 and Shehla Zia v. WAPDA PLD 1994 SC 693. 6. The pre-condition of public interest litigation and effective enforcement of rights and obligations of parties, whether the individual or the State, is to be found in judicial activism. Simply stating, judicial activism is nothing but to keep abreast with the times and offering an interpretation of law which would make the law workable rather than render it obsolete. The philosophy of law favours a dynamic interpretation rather than stagnation. In Dupont Steel Ltd. v. Sirs (1980) 1 All ER 529 at page 551 Lord Scarman recognized that "great judges are in their different ways judicial activists". However, the learned Law Lord expressed his reservation in any trendof liberal judicial activism as he observed that such an attempt would itself risk judicial independence since the society through the parliament could place clogs and fetters so as to "cut the powers of the Judges". Lord Scarman feared that if judicial power was confined the power to do justice would be at risk and be restricted by law, than it need to be. We do not share the pessimism of Lord Scarman. The law as enshrined in our Constitution expresses a trichotomy of powers (see State v.,Ziaur Rehman PLD 1973 SC 49) where the judges are the guardians of the Constitution and thus are under a legal and constitutional obligation to monitor the entire legal order of the State. The Supreme Court of India has championed the cause of judicial activism. There are a number of instances where the Indian Courts have been responsible to effect social change through their decisions. There are express admissions by the Indian Supreme Court to have made the law rather than just interpret the same. Bandhu Mukhti Morcha v. Union of India AIR 1984 SC 802 is case where the Supreme Court looked into the problem of bonded labour and slavery Mukesh Advani v. State
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of Madhya Pradesh AIR 1985 SC 1368 is a case where the Supreme Court secured the flows of the river Ganges and eradicated pollution, while trying to solve eco-logical issues. Significantly and pertinently, in Union of India v. Raghubir Sing AIR 1989 SC 1933 the Supreme Court observed that it could no longer be disputed that the Judges could not make laws. It was further held that it was no longer a matter of doubt that a substantial volume of the law governing the lives of the citizens and regulating the functions of the State flowed from the decisions of the Supreme Court. Very correctly the Indian Supreme Court in Pomal Kanji v. Karsandas Purohit AIR 1989 SC 436 realized that the law must respond to compulsions and circumstances which would be fair, equitable and just, unless of course being contrary to the statute. It was observed that the Court must take cognizance of this fact and act accordingly. In Central Inland Water Transport Corporation v. Brojonath Ganguly AIR 1986 SC 1571 it has been observed that the law should move forward in tune with the change of ideas and ideologies of the society. Similar views have been expressed in M. C. Mehta v. Union of India AIR 1987 SC 1086 wherein the Supreme Court of India has expressly observed that the law should keep pace with the changing socio-economic norms. Notably the Supreme Court has trod upon the zenith of judicial activism when in that case it further observed that where a law of the past does not fit in the present context, the Court should evolve a new law. We fully subscribe to the latter view. The Courts in Pakistan have equally marched towards judicial activism. In Muhammad Nawaz Sharif v. Pakistan PLD 1993 SC 473, a Full Court of the Supreme Court vehemently stressed the need to offer a dynamic interpretation in keeping with the needs of the time. In Qalandro v. The State 1997 MLD 1632 a Division Bench of this Court in which one of us i,e, Dr. Ghous Muhammad J. while writing for the Court cited with approval the concept of judicial review dilated upon by F.W. Maitland to the effect that "as an ideation judicial review has always been a dynamic concept and each generation has enormous power to shape its own laws; its progressive growth with passage of time would bring into its fold newer subjects and enrich its armory with bolder concepts". In fact this is the mandate of Articles 3 and 4 of the Constitution which prescribe the due process clause. In Qalandro the decision of Al-Jehad Trust PLD 1996 SC 324, enunciating the principles of legitimate expectation and access to justice, was explained as illustrations of the due process clause contained in Articles 3 and 4 of the Constitution. Similarly, in Abdul Rahim v. UBL PLD 1997 Karachi 62 a Division Bench of this Court wherein one of us i,e, Dr. Ghous Muhammad J. read in and read down provisions of the statute, while supplying construction, so as to evolve a person's unhindered right of appeal. The province of judicial review was re-discovered, redefined and re-stated. The disillusionment expressed by Lord Scarman in Duport Steel has not been shared in recent times in the UK in World Development Movement Ltd. case (cited supra) wherein the Divisional Court while fully advocating judicial activism observed as follows:-- "The truth is that the law is uncertain. It does not cover all the situations that may arise. Time and again practitioners are faced with new situations, where the decision may go either way. No one can tell what the law is until the courts decide it. The Judges do every day make law, though it is almost heresy to say so. If the truth is recognised then we may hope to escape from the dead hand of the past and consciously mould new principles to meet the needs of the present. ('The Reform of Equity', in C.J. Hanson (ed.), Law Reform and Law-Making (1953), p. 31.)" James S.C. Reid in 'The Law and the Reasonable Man', 1968 Proceedings of British Academy, 193, 194-5, said: "I suppose that almost every doctrine of the common law was invented by some judge at some period in history, and when he invented-it he thought it was plain common sense - and indeed it generally was originally. But, with the passage of time, more technically minded judges have forgotten its origin and developed it in a way that can easily cause injustice. In so far as we appellate judges can get the thing back on the rails let us do so; if it has gone too far we must pin our hopes on Parliament." 7. Frankly speaking Darshan Masih v. State PLD 1990 SC 513 has marked the formal advent of public
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interest litigation in our country when the Hon'ble Supreme Court took cognizance of illegal detention and bonded labour through a telegram received by the Hon'ble Chief Justice of the apex Court. That case, of course, reflected an exercise of power under Article 184(3) of the Constitution which empowers the Hon'ble Supreme Court to exercise original constitutional jurisdiction where the matter concerns a question of public importance having reference to the enforcement of fundamental rights. Under the said Article 184(3) there is no clog for maintaining a petition by a person who is not directly aggrieved. After Darshan Masih there was some dispute as regards the power of the High Court under Article 199 to exercise similar power in the exercise of public interest litigation upon an application by a person not being directly aggrieved in the traditional sense. This controversy was triggered off in view of the express terms of Article 199 which itself provides that except in certain circumstances the application under Article 199 is to be filed by "any aggrieved party" or "aggrieved person". The dilemma, however, has now to a great extent been resolved through certain latest pronouncements of the superior courts whereby the need to relax the requirement of locus standi and in turn giving a liberal connotation to the term "aggrieved party" or "aggrieved person" has been proposed and stressed. In this context it would not be out of place to extract support from Mushtaq Ali v. Government of Sindh PLD 1998 Karachi 416 wherein a Division Bench of this Court took cognizance of a petition under Article 199 filed by a free lance journalist complaining the massive riggings in the award of octroi contracts. Writing for the Court, Wajihuddin C.J., as he then was, has very correctly observed that in matters of public interest and public advantage the strict rules of locus standi would have little place. It was further observed that a good deal of laxity and equal amount of indulgence was permissible in such matters directed solely to achieve public good. Very recently the Hon'ble I Supreme Court in Ardeshir Cowasjee v. KBCA 1999 SCMR 2883 has held that in order to maintain a writ petition in the High Court it was not necessary for the petitioner to have a right in the strict sense but it was enough if the petitioner disclosed sufficient or personal interest for the performance of some legal duty. It was further observed that the concept of locus standi has been j whittled down and accordingly, the term "sufficient interest" had to be given a generous interpretation. 8. In the present case the petitioner, a litigant who under the statute has filed an appeal before the CESAT, derives a personal and sufficient interest to be dispensed with expeditious justice in accordance with law by the said forum. The necessary corollary would be that the petitioner would have sufficient interest in the proper working of the CESAT. The matter could be looked from another angle. The preamble of the Constitution alongwith the Objectives Resolution guarantee expeditious dispensation of justice. The said Objectives Resolution has been made a substantive part of the Constitution through Article 2-A. Similarly, Article 37(d) guarantees a citizen inexpensive and expeditious justice. Accordingly, any direction in the form of ameliorating the working of the CESAT would be in the nature of enforcing the provisions contained in the Constitution. In Abdul Rahim v. UBL PLD 1997 Karachi 62 it has been observed that judicial forums must act in cognizance with the dictates of justice and equity and the cause should be decided expeditiously after giving full opportunity. It would also not be out of place to mention that our own Supreme Court in Al- Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 interfered in the process of appointment of Judges which in turn had a bearing on the working of courts and judicial forums. Drawing support from Al-Jehad Trust it could safely be said that where an adverse working of a subordinate judicial, quasi judicial and administrative forum or tribunal is impugned, the issue becomes justiciable under Article 199 of the Constitution. The petitioner in this case had complained that the remedy before the CESAT is neither efficacious nor expeditious. It will also not be out of place to mention that the CESAT established under the statute would not be immune from the superintendence of this Court under Article 203 of the 1973 Constitution which empowers the High Court to supervise and control all "courts" subordinate to it.
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9. In Afsaruddin Bhuiya v. Wazed Ali Khan PLD 1953 Dacca 209 District or subordinate Judge deciding an election petition was held to be a Court functioning under the Civil Procedure Code. It was held that a Court is a place where justice is administered by a person appointed by the State. It was further observed that the distinctive feature of Court is that it decides actual disputes between parties and it performs judicial functions which are different from other functions. In Malik Fateh Khan v. Najeebullah Khan PLD 1957 Lahore 631 it was held that a Revenue Officer holding an enquiry or hearing an appeal in a mutation proceedings was not a Court within the meaning of section 195 of the Cr.P.C. In coming to this conclusion S.A. Rehman CJ, as he then was, laid down the operative test in this regard by holding that in order for an officer or authority to function as a Court it must exercise the judicial power of the State. Relying upon Shell Co. of Australia Ltd. v. Federation Commission of Taxation 1931 AC 275 and Huddart, Parker & Co. Moorehead 8 CLR 330 and Nirman Sing v. Thakur Lal Budra Partab Narain Sing AIR 1926 PC 100 it was held that judicial power was vested in a forum which could give authoritative decisions binding upon parties, whether subject to appeal or not. Judging by this test, it was observed that a Revenue Officer holding an enquiry or hearing an appeal in a mutation proceedings, did not become a Court, as he did not really adjudicate on the rights of parties and did not give a decision which was binding on them. In Muhammad Saeed v. Election Petition Tribunal, West Pakistan and others PLD 1957 SC (Pak) 91 it was held that the Election Petition Tribunal was a Court and its "report" was a "judgment" in every sense since it decided the rights of the candidates declaring as to whether the election was valid or void, whether a person was duly elected and whether a person was disqualified. In other words, the emphasis was that where a forum could decide a dispute which was binding on parties. the forum was a Court. In Sahibzada Masood Ahmed v. Mian Muhammad Saeed Sehgal PLD 1958 Lahore 153, seven preconditions were spelt out. which had to be fulfilled before a forum could be construed as a Court. These seven conditions are as follows:-- "(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 satisfaction 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 authority other than Government." While construing the above seven conditions it was held that a Deputy Rehabilitation Commissioner functioning under the Pakistan Rehabilitation Act, 1957 did not constitute a Court within the meaning of the Contempt of Court Act, 1926 as it was held that the same functionary did not satisfy the seven conditions stated above. In Mulji Manilal Kamdar v. State of Maharashtra 1963 PTD 811 a Division Bench of the Maharashtra High. Court found an Income Tax Officer holding proceedings u/s 23 of the Income Tax Act, 1922 to be a Revenue Court within the meaning of section 195 of the Cr.P.C. In Jamal Din v. Haji Muhammad Aslam PLD 1965 Lahore 503 the dictionary meaning of the term "Court", defining it as a place where justice is administered, was cited with approval. It was held that the Rent Controller was authorized under the Oath's Act, 1873 to receive evidence under oath as a Court. In Mst. Gaman v. Taj Din PLD 1968 Lah. 987 the family courts established under the West Pakistan. Family Court Act, 1964 were construed to be courts rather than persona designata or tribunals. Quite significantly, a distinction was laid down between "Court
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of law" and "Tribunal". The distinction has been drawn as follows:- "In Article 242 of the…
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