1992 PLP 1289 (MLD)

BASHARAT AHMAD SHAIKH, J.‑‑The (facts giving rise to this appeal by leave of the Court are that the respondents presented an application to the Chief Justice of the Azad Jammu and Kashmir High Court on 12‑3‑1991 stating that his two shops, situated in Dadyal Bazar on the College Road in which he was carrying on the business of `Kharad' and repair of vehicles, had been sealed by the Sub‑Divisional Magistrate and the Tehsildar of Dadyal on the behest of Municipal Committee; he had been directed not to re‑open the shops or to do business therein otherwise extreme steps would be taken against him including his arrest. It was further stated that he had been deprived of his livelihood due to the illegal action taken by S.D.M., Tehsildar and Municipal Committee Dadyal who were arrayed as respondents in the application. In the . prayer clause Mistri Abdul Rehman prayed that legal action may be taken against the respondents and that they may also be ordered not to stop him from re‑opening the shops and carrying on business in them. On receiving this application the learned Chief Justice of the High Court, to whom, as noted earlier, the application was addressed passed an order that the shops under reference had been sealed without any lawful order. The S.D.M. Dadyal was therefore ordered to unseal the shops. This order was passed subject to objections. The record of the proceedings was sent for and the respondents were summoned to appear personally or through their counsel on April 23rd. On that date S.D.M, and Chief Officer of the Municipal Committee were present before the Court with their counsel and requested for short adjournment. Adjournment was granted and the case was fixed for 25th of April. On 25th of April the applicant and the counsel for the non‑applicant were present. It is noted in the order recorded on 25th of April that non applicants had been directed to file written objections but the same had not been filed. It may be pointed out that no such direction is recorded in the interim order recorded on 12th of March or 23rd of April. It was further ordered that the non‑applicants shall appear personally before the Court on April 27th positively. On 27th of April the counsel for the non‑applicants stated before the Court that he misunderstood the order of the Court and could not inform his clients that they had to be present in the Court personally. The Court ordered the summoning of the non‑applicants through Superintendent of Police and it was ordered that the non‑applicants were to appear personally on the next date. On the next date non‑applicants are present personally with counsel. Applicant was also present. Arguments were heard and the case was fixed for orders on 2nd May. Although there is no mention of it in the interim order, on the file of the High Court are available objections filed by S.D.M. Municipal Magistrate Dadyal which consist of three pages. It contains the details of the action which had been taken in the matter along with its justification. He stated that the Principal of the Government Degree College at Dadyal had moved the S.D.M. that a road which belonged to the College and was under its control was usually blocked by three workshops which were operating at one end of the road because trucks and suzukis are parked on the road and even the College Bus could not enter the College premises. It was vehemently denied that the shops in question had been sealed but it was accepted that Mistri Abdul Rehman was directed to shift his business. On 2nd of May the learned Chief Justice disposed of the application in the following terms:‑ "This brings to the conclusion that the non‑applicants were not empowered to force the applicant to shift his Workshop from his own premises as to carry on the business of Kharad and Motor Workshop within his own premises and use of road in front of shops for temporary parking, was not an act of encroachment. The application is disposed of accordingly." In reaching the conclusion as aforesaid the learned Chief Justice observed that the non‑applicants had claimed that it was encroachment on behalf of Mistri Abdul Rehman and others which had been removed. It was observed by the learned Chief Justice that according to the definition of the word `encroachment' as given in the Black's Law Dictionary the act of parking of vehicles on the road and blocking of road partly did not come within the ambit of encroachment. The main point which needs to be resolved here is whether the proceedings taken and the order passed by the learned Chief Justice in the High Court are covered by any legal provision, merits of the case notwithstanding. As noted the application was addressed to the Chief Justice of the Azad Jammu and Kashmir High Court and not to the High Court. It is not an illegality which may go to the root of the case but drafting of the application all the same is not in accordance with the prescribed procedure. In the heading the application was described as an application for taking action against the respondents. If we go by the heading the application does not fall under any of the recognised categories of legal proceedings. Even if we ignore this aspect of the matter it needs to be noted that when the learned Chief Justice dictated the order the application was described as `miscellaneous application'. We have anxiously examined this aspect of the matter but we have not been able to find out any jurisdiction in the nature of miscellaneous jurisdiction which may be vested in the High Court. The miscellaneous applications are a part of a main cause which is pending in the High Court for such as the civil appeals, criminal appeals, writ petitions and so on but there can be no miscellaneous application in the nature of the application under reference. When the application filed by Mistri Abdul Rehman along with the order signed by the learned Chief Justice was sent to the office, it was entered as file No.9/91 "criminal miscellaneous". This also does not indicate any lawful authority vesting in the High Court. The subject‑matter of the application did not relate to any criminal matter. There was no order passed by a criminal The learned counsel for Mistri Abdul Rehman respondent submitted in the concise statement that the High Court exercised inherent jurisdiction while passing the order under appeal. At the Bar also Mr. Muhammad Yunus Surakhvi submitted that the High Court has inherent jurisdiction to remedy any wrong. To us this motion appears to be a total fallacy. No provision of law comes to mind conferring such jurisdiction exercisable on a miscellaneous application. The High Court has been created by law and has to exercise only those powers which are vested in it for undoing of a wrong. There are no implied powers vesting in the High Court, or, for that matter this Court, which can be exercised regardless of procedural requirements. It is provided in subsection (1) 'of section 44 of the Azad Jammu and Kashmir Interim Constitution Act that: "The High Court shall have such jurisdiction as is conferred on it by this Act or by any other law." It is provided in subsection (4). of section 46 of the aforementioned Act as follows:‑ (4) "No Court shall have any jurisdiction which is not conferred by it by this Act or by under any law." The effect of these two provisions is that no jurisdiction vests in a Court by implication and the Courts can pass only those orders for which jurisdiction is C specifically conferred on them. We are conscious of the principle that misdescription of the provision of law or heading of an application are matters of form and not of substance, and it is possible in law to uphold an order on a provision different from the provision which is described while passing an order. Therefore, we have examined the possibility that the learned Chief Justice might have been acting in exercise of the writ jurisdiction. This is the main reason why we have tried to record in detail the procedure adopted in disposing of the petition. Apart from L the fact that the learned Chief Justice himself described the application as a miscellaneous application, our conclusion, after perusal of the record, is that the procedure adopted while disposing of the application is substantially different from the procedure which is laid down in the High Court Procedure Rules, 1984 in respect of writ petitions. According to Part B' Chapter VIII of the aforesaid Rules a writ petition has to be filed before the Deputy Registrar while Mistri Abdul Rehman filed his petition directly before the learned Chief Justice. The writ petition has to be accompanied by an affidavit verifying the facts relied on but no affidavit was filed in the case. The writ petition has to be accompanied by a certified copy of the impugned order as well as one separate copy for each one of the respondents. No such copies were filed in the case; instead the whole file was requisitioned from the Municipal Committee. It is then provided in the Rules that a writ petition shall be placed for admission before a Division Bench but the case was not sent to a Division Bench. There is a provision in the rules that the Chief Justice may, if he deems necessary, authorise a Judge sitting alone to hear such petition for admission. There is nothing on the record to show that the learned Chief Justice deemed it necessary to make the required authorisation. Under Rules the respondent in a writ petition has to be required to file his objections but no such order was passed when notice was issued to the respondents. In fact there is nothing on the record that they were ever required to file their objections. There are number of orders in which, as already noted, the respondents were ordered to appear in, person. This is not warranted by the aforesaid Rules. At one stage the respondents were summoned through the Superintendent of Police in sharp contrast to rule 35 which lays down that every notice shall be served on the respondents through his Head of the Department if he is Government Servant. The conclusion is obvious that the procedure followed in the case was not the one which is prescribed for hearing of writ petitions. In light of what has been stated above, we have reached the conclusion that the order under appeal cannot be justified under any provision of law and is an order without jurisdiction. We, therefore, accept the appeal and set aside the order with costs throughout. A.A./331/S.A.C. Appeal accepted.