2013 PLP 338 (SCMR)

TASSADUQ HUSSAIN JILLANI, J.

We have heard the peititoner and learned counsel for respondent No.6, who is in possession of House No.5-D, Sector G-6/4, Islamabad, which has been cancelled from petitioner's name. The case of the petitioner briefly stated is that he was allotted the afore-mentioned house and is in possession since 13-1-2001; that the said allotment was cancelled on 10-7-2012 without any prior notice to him or without hearing him. Additional Estate Officer (Mr. Muhammad Ashraf), on court's query, submitted that regarding house in question, a complaint was received on 21-5-2012 on account of which the Inspector, Estate Office, conducted on the spot inquiry and found that the house was locked; that the petitioner was given notice of hearing on 22-6-2012 to which he did not respond and thereafter on 11-7-2012 the house was got vacated and possession was delivered to respondent No.6 after due allotment. On repeated queries of this Court, Additional Estate Officer could not controvert the fact that the notice sent to the petitioner was never served on him and admitted that he was not granted prior hearing either. Learned counsel for respondent No.6, however attempted to controvert non service of notice (dated 10-7-2012) issued by the Chief Inspector of the Estate Office, which according to him was a sufficient notice to the petitioner and since his house was locked, the said notice was inserted in the house from the close door. Adds that even prior to that two notices were issued to him, however he could not deny that the same also remained un-served. The notice dated 10-7-2012 is not addressed to any person, which reads as follows:-- "GOVERNMENT OF PAKISTAN ESTATE OFFICE Islamabad, the 10-7-2012 NOTICE Mr. .................... un-authorized (un-authorized Occupant) of Quarter No.5-D G-6/4 Islamabad.

2. Under order(s) of the Estate Officer, Estate Office, Islamabad Government of Pakistan, you are directed to remove the lock and handover possession of the above mentioned quarter to the CDA/Pak, PWD Enquiry Office G-5/4 within 24 hours, failing which action to open the lock and take over the possession of the above quarter will be taken over by force without giving further intimation about the same. Besides, disciplinary/criminal proceedings will be initiated under the relevant rules/flaws. (CHIEF INSPECTOR) The U/O quarter No. 5-D G-6/ 4 Islamabad" Confronted with the court's query as to whether the petitioner could have been dispossessed of the house on the basis of the afore-mentioned notice, learned counsel for the respondent, in all fairness having sought instructions from him frankly conceded that the latter shall hand over the possession of the house to the petitioner by tomorrow evening. Additional Estate Officer shall ensure that the possession of the house is handed over to the petitioner by tomorrow evening. Notwithstanding the restoration of possession to the petitioner I.C.A. bearing No.390-W of 2012 pending before the learned Islamabad High Court, Islamabad shall be decided by a Division Bench on its own merits. Before parting with this order, we express our dismay with the manner in which the Estate Office has dealt with this issue. The so called notice dated 10-7-2012 addressed to 'Mr. un-authorized', which preceded the order of petitioner's dispossession is not a flattering commentary on the working of Estate Office.

2. In the afore-referred circumstances and with a view to ensure that the officers in the Estate Office/Department deal with all the matters strictly in accordance with law and the relevant rules and to protect the right of those civil servants, who are entitled and are in possession of the accommodation, we are persuaded to direct the Secretary, Ministry of Housing and Works, Government of Pakistan, Islamabad to have the matter inquired into, fix the liability and proceed against the delinquent in terms of the relevant law and rules under intimation to the Registrar of this Court. The entire exercise in this regard shall be completed within thirty days of the receipt of this order. This petition is converted into appeal and allowed in terms noted above. Sd/- Tassaduq Hussain Jillani, J. Sd/- Mian Saqib Nisar, J. Sd/- Sarmad Jalal Osmany, J. Note Though I agree with the reasoning of the conclusion of the judgment; yet I had added my own note. Sd/- Mian Saqib Nisar, J. MIAN SAQIB NISAR, J.

3. I have had the privilege of going through the judgment composed by my learned brother and find myself in full agreement thereto vis-a-vis the reasoning as also the conclusion. However, I would like to add a note to the effect, that the impugned order before us is not only patently illegal, rather without jurisdiction. I say so, in the facts of this case which are:- that the writ petition filed by the appellant (writ petitioner) before the learned Islamabad High Court was disposed of by the learned Single Judge in Chambers vide judgment dated 18-7-2012 in terms as under:- "Respondents Nos. 2 and 4 are directed to restore the possession of petitioner forthwith and recover all the articles belonging to petitioner took over from the premises. They are further directed to submit compliance report before the Registrar of this Court, for perusal and passing any further order, if required. With these directions, instant petition stands disposed of." Respondent No.6 challenged this judgment through I.C.A. (No.390-W of 2012), which surprisingly came up for hearing before a Single Judge of Islamabad High Court on 20-7-2012 and perhaps on the said date, as a miscellaneous application filed along with the Appeal (No.2 of 2012) for the grant of interim relief was fixed; the learned single Judge while exercising its appellate jurisdiction was pleased to pass the following order:-- "It is inter alia contended that due to pendency of civil suit in respect of the same cause of action, writ petition was not maintainable and the impugned order/judgment dated 18-7-2012 has been passed by the learned Single Judge in Chambers without his impleadment as a respondent, therefore, his dispossession in presence of a valid allotment letter dated 27-4-2012 is absolutely illegal and unjustified. Notice. Meanwhile, status quo in respect of House No. 5-D, Sector G-6/4, Islamabad, be maintained till next date of hearing. The file be placed before learned Division Bench soon on availability for confirmation or otherwise."

4. The question which conspicuously arises for consideration in this matter is, whether a learned single Judge of the same High Court, had the jurisdiction to entertain, hear and adjudicate an intra court appeal, and/or a miscellaneous application filed therein. In order to answer this proposition, I find expedient to refer to the provisions of section 3 of the Law Reforms Ordinance, 1972 (LRO 1972), which provides the right of Intra Court Appeal (ICA) in the following terms:-- "

3. Appeal to High Courts in certain cases.

(1) An appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a single Judge of that Court in the exercise of its original civil jurisdiction. (2) An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan not being an Order made under sub paragraph (i) of paragraph (b) of that clause: Provided that the appeal referred to in this subsection shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceedings in which the law applicable, provided for at least one appeal or one revision or one review to any Court, Tribunal or authority against the original order. (3) ......................................................... (4) ........................................................." Before proceeding further in the matter, it may be observed that there can be no cavil or two opinions that the right to appeal before a court of law is a right specifically conferred upon a litigant or an aggrieved person (effected person with the leave of the court if not a party to the lis) by law. It also is settled by now that such right can and shall only be exercised strictly in the manner and before the forum as is specified/stipulated by law. For the purpose of challenging an order of the learned single Judge of the High Court through an ICA, the only relevant law which provides for the exercise of such a right is section 3 of LRO 1972.

5. Therefore, it is imperative to examine how and where (before which forum) should the noted right be exercised or in legal terminology, which court shall have the jurisdiction in this behalf. From the language of section 3 supra, it is abundantly clear that the right to file ICA is circumvented by certain condition and is not an unqualified or absolute right. In this context, it may be held that under section 3(1) an ICA shall lie only against a decree or a final order of the learned Single Judge of the High Court, and no other decision and that too if it is passed in the exercise of its 'original civil jurisdiction'. Whereas according to subsection (2) thereto, such right is confined to those Orders of the Single Judge which are passed under clause (1) of Article 199, of the Constitution of the Islamic Republic of Pakistan, 1973, while an order passed under sub-paragraph (1) of paragraph (b) of the said clause has been specifically excluded from the purview of an ICA.

6. As regards the forum before which an ICA shall lie or in other words, which court shall have the jurisdiction to entertain, hear and adjudicate such appeal, it is pertinent to briefly highlight the object of such appeal vis-a-vis the forum. In ordinary course a judgment or order of the learned High Court, even if passed by a single Judge can be assailed before this Court in its appropriate jurisdiction, obviously subject to the law laid down by this Court that where an ICA is competent, the apex Court cannot be approached without first availing that remedy. However, for the convenience and facility of the litigants, public and the effected persons, who may seek the correction of any illegality committed by the learned single Judge, instead of approaching this Court, which may consume more time and money, an in-house forum and mechanism for the redressal of their grievance has been provided. But keeping in view the established norms of justice, that an appeal should ordinarily lie before a forum higher than the one which has passed the judgment etc. the legislature in its wisdom and for the purposes of achieving the true object mentioned above, has stipulated that such "an appeal shall lie to a bench of two or more Judges of the High Court". This expression has vital nexus to the judicial empowerment of the forum which can hear the appeal. It has to be a Bench of two or more judges; and this is the absolute and unqualified command of the law. In this context, it may be mentioned that according to Article 175(2) of the Constitution of the Islamic Republic of Pakistan, 1973 "No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law". From the above quoted language of this Sub-Article, it is unambiguously clear that a bar, and a prohibition has been placed that "No" Court in Pakistan shall exercise any jurisdiction in any matter brought before it until and unless, such jurisdiction has been conferred upon it by the Constitution itself or under any law. The word "save" appearing in the Sub-Article has clear connotation of the word "except" for the purpose of construing the above, meaning thereby that "No" Court shall have the jurisdiction except as has been conferred upon it by the Constitution and/or law. It is a settled law that any forum or court, which, if lacks jurisdiction adjudicates and decides a matter, such decision etc. shall be void and of no legal effect. Therefore, as per the clear command of section 3 ibid only a Bench of the High Court comprising of two or more Judges has the jurisdiction to entertain/hear the ICA. Unfortunately, there is a glaring example of the violation of the Article 175(2) of the Constitution, read with section 3 of LRO 1972 and thus the impugned order is without jurisdiction and thus void.

7. When confronted with the above, learned counsel for respondent No.6 states, that during the period when ICA was filed and heard, learned High Court was closed on account of summer vacations and only one learned vacation Judge was holding the Court; and as per some notification issued by the Islamabad High Court, the miscellaneous application/matter during that time could be set down for hearing before a vacation Judge (Single Judge). I am afraid, that such notification or arrangement which at the best could only be an administrative, arrangement/order of the Islamabad High Court or the learned Chief Justice, yet it could not inviolate of the law cited above and confer the jurisdiction upon a single Judge when it does not otherwise have it under section

3. Before parting, it may be observed that any forum or Court, which has no jurisdiction to decide the main matter on a case before it, has no jurisdiction to decide any ancillary and/or incidental matter thereto. Therefore, I am of the firm opinion that the order challenged before this Court is without jurisdiction and should be set aside for that count too. Sd/- Mian Saqib Nisar, J. MWA/S-26/SC Petition accepted.