P L D 1970 Azad J & K 44 (PLP)

Pakistan Rehabilitation Ordinance (XVII of 1956), Ss. 13 & 18(1)‑Civil Court‑Jurisdiction‑Exclusion of civil Court's juris diction to entertain suit calling in question orders passed by Rehabili tation Authority‑Whether such bar created by Ss. 13 & 18(1) absolute. A suit was brought in the civil Court seeking a declaration that the order passed by the Rehabilitation Commissioner regard ing an evacuee shop was illegal, contrary to the provisions of the Rehabilitation Act and the Rules made thereunder and was therefore invalid and inoperative. On behalf of defendant it was urged that under sections 13 and 18(1) of the Pakistan Rehabili tation Ordinance, 1956 the exclusion of the jurisdiction of civil Courts to entertain suit calling in question orders passed by the Rehabilitation authority was total and admitted of no ambiguity whatsoever. Held: while all authorities are unanimous that a party which alleges mala fide on the part of a tribunal or authority enjoying exclusive jurisdiction can come to the civil Court with such an allegation and seek its intervention in vindication of his rights, if any, there is divergence of views whether mala fide is the only ground on the basis of which a recourse can be had to a civil Court to challenge the orders of special tribunals or authorities. While some authorities speak only of mala fides some others, have indicated a much wider scope for intervention of civil Courts such as orders impugned not being in strict conformity with the provisions of a statute or where such orders are in flagrant breach of such statute or where these orders have been capriciously made or where such functionaries have exceeded their statutory powers or not acted in conformity with the fundamental prin ciples of Judicial Procedure. Even gross negligence or collusion with the opposite‑party have been held to be grounds available to the aggrieved party for coming to a civil Court. If a tribunal or an authority simply purports to act under a statute while in fact the order cannot be termed as one having been passed under it or where it either does something in excess of the jurisdiction conferred upon it by the statute or something which is not in strict conformity with such statute, how can it reasonably be termed as an order to which the protection of the provisions of exclusive jurisdiction can be attracted? An authority which travels beyond the limits ordained by the statute whose creature it is, acts without autho rity. A tribunal or authority has no right to over‑step its limits or override clear provisions which it is required to follow in exercise of its jurisdiction. If compliance with these provisions was avoidable, why then to provide them in the statute? Such a course would reduce them to a farce. If the Legislature in its great wisdom chose to provide them in the statute, how can the tribunals be permitted to dispense away with them. How can, therefore, orders passed in disregard or contempt of such provi sions be termed as orders within jurisdiction? Suppose an allotment is cancelled without a show‑cause notice to the allottee; suppose as very often happens, an allotment order is cancelled in review by a Rehabilitation authority which had not passed the allotment order or suppose a person in possession is ejected by the Rehabilitation authority without providing him with an opportunity of being heard, bow can it be legitimately said that these arbitrary orders passed in flagrant violation of the Act and the rules made thereunder, are not open to question in a civil Court? Civil Courts are the principal Courts in the country to adjudicate upon civil rights of the citizens either between themselves or between them on the one hand and the Government on the other. Their jurisdiction to entertain disputes of civil nature is plenary. It has been very often said that they should not throw away their jurisdiction, of course, not because that may mean any diminution of their authority but because at stake are the rights of citizens, a matter of fundamental importance in the modern political State. So, within the bounds of law, the right of interference by the civil Court is not only permissible but also desirable in the best interest of the State itself. Haji Muhammad Ibrahim v. Fateh Muhammad P L D 1960 Lah. 1106; Abdul Ghafar v. Government of West Pakistan P L D 1963 Kar. 215; Sh. Inayatullah and others v. M. A. Khan and others P L D 1964 S C 126; Abdul Rauf and others v. Abdul Hamid Khan and others P L D 1965 S C 671; Zafarul Ahsan v. Republic of Pakistan P L D 1960 S C 113; A I R 1959 Ph. 417; A I R 1960 Raj. 283 and Secretary of State v. Mask & Co. A I R 1940 P C 105 rel. Gulab Khan v. Government of Azad J & K P L D 1970 Azad J & K 35 and Abdul Aziz and others v. Muhammad Latif Khan and others P L D 1968 Azad J & K 7 ref. Kh. Ghulam Haider Qaiser for Plaintiff. Sh. Abdul Haly for Defendant No.

1. M. A. Hafeez for the Rehabilitation Department. Nazir Ahmad and M. A. Farooq: Amicus curiae.