1992 M (PLP)

"Jurisdiction of High Court.‑‑‑Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,‑‑‑ (a) on the application of any aggrieved party, make an order‑‑‑ (i) directing a person performing within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or local authority, to refrain from doing anything, he is not permitted by law to do or to do anything he is required by law to do; or (ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect;"

8. It is evident from the reading of the above provision that the High Court is empowered to issue directions of the nature contemplated by sub -clause (1) to a person who is performing functions in connection with .the affairs of the Province or the local authority within the territorial jurisdiction o that Court. Similarly, in sub‑clause (2), it is provided that High Court can declare proceeding taken within its territorial jurisdiction to be without lawful authority and of no legal effect. It thus follows that a High Court cannot issue any direction to a person who is not performing any function within its territorial jurisdiction nor can it declare any action or proceeding to be without lawful authority unless the act has been done or proceedings taken within its local limits.

9. So far as the limits of territorial jurisdiction is concerned, Article 199 makes a departure in this respect from Article 98 of the Constitution of Islamic Republic of Pakistan, 1962 and is somewhat similar to Article 226 of the Indian Constitution. Under Article 98 of 1962 Constitution, it was not necessary for the exercise of jurisdiction by a High Court that the person against whom a direction is sought must be performing functions or had passed an order or taken proceedings within the local limits of the High Court to which the application under Article 98 was made. All that was necessary was that the person concerned must be functioning or the order must have been passed or action taken in Province as contradistinguished from federally administered areas and the province need not be the same where the High Court was located. However, both Article 199 of the 1973 Constitution as also Article 220 of the Indian Constitution, the exercise of power is predicated by limitation as to territorial jurisdiction.

10. The distinction between the provisions of Article 98 and Article 226 of the Indian Constitution which as already observed is similar to Article 199, was noticed and brought info bold relief by the Supreme Court of Pakistan in Asghar Hussain v. Election Commission of Pakistan and others (PLD 1968 SC 387) the case cited by the learned counsel for the petitioner himself. It was observed in that case that unlike Article 226 of the Indian Constitution, there was nothing in Article 98 of the 1962 Constitution which limits the exercise of jurisdiction of a High Court to the territories falling within its jurisdiction. The provisions of section 223‑A of the Government of India Act and "Article 170 of the 1956 Constitution which also confined the jurisdiction of the High Court of the Province to the territories falling within its jurisdiction were also noticed and compared with Article

98. In this context it was observed at page 395:‑‑ "The words which limited the jurisdiction of the High Court under Section 223‑A were `any person or authority within those territories' namely, in relation to which it exercises jurisdiction. Under Article 170 the limits were imposed by the words: `throughout the territories in relation to which it exercises jurisdiction'. On the contrary under Article 98 the governing words are: `performed in the Province in connection with the affairs of the Centre, the Province or a Local authority'. Under section 223‑A the person to whom a writ could be issued should have been a resident within those territories in relation to which the High Court exercised jurisdiction. Under Article 170 no writ could be issued beyond the territories in relation to which the High Court exercised jurisdiction. These limitations were, however, done away with in the 1962 Constitution presumably for the reasons that while under the 1956 Constitution the Supreme Court had concurrent jurisdiction with the High Courts to issue writs, the 1962 Constitution took away that jurisdiction and but for this arrangement the citizens of East Pakistan would have been denied the remedy provided by Article 98 of the Constitution in respect of orders made and proceedings taken, etc., by persons performing in that province function in connection with the affairs of the Centre: Again, at page 397 it was observed that:‑‑ "Neither limitations imposed on the powers of a High Court in India by Article 226 are contained in Article

98. The plain meanings of the words: `a person performing in the Province functions in connection with the affairs of the Centre' exclude territorial limitations, such as, that the person or authority to whom the High Court is empowered to issue writs must` be amenable to its jurisdiction either by residence or location within those territories which followed from the phrase: `to any person or authority,. including in , appropriate 'cases any Government, within those territories' in Article 226‑ of the Indian Constitution." It is evident that Asghar Hussain's case turned upon the language of Article 98 of the Constitution of 1962 and is not applicable to the cases arising under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, where the provision is wholly different.

11. As a matter of fact, Article 199 of Constitution is similar to clause (c)' of Article 98(2) which was added by Constitution of First Amendment Act, 1903, which reads as under:‑‑ "On the application of any aggrieved person, make an order giving such directions to any person or authority including any Government exercising any power or performing any function in, or in relations to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the fundamental rights conferred by Chapter I of Part 11 of this Constitution." While interpreting this provision, it was observed by the Supreme Court in Asghar Hussain's case (supra) at page 397 that:‑‑ "The person or authority to whom a direction may be given under clause (c) must be functioning in relation to the territory within the jurisdiction of a High Court. The concept of territory limitation is thus introduced to ensure that writs issued by the High Court do not run to tribal areas and certain States in the Province of West Pakistan. This brings out the intention of the Constitution that the jurisdiction conferred on a High Court to issue writs and directions under Article 98(2)(a)(i) is not confined to the territories in respect of which it exercises its jurisdiction except for the enforcement of fundamental rights conferred by Chapter 1 of Part II of the Constitution." These observations leave no room for doubt that even under the 1962 Constitution in case falling under clause (c) of Article 98 the High Court could only exercise jurisdiction with regard to the territories falling within its territorial jurisdiction.

12. As already observed the provisions of Article 220 of Indian Constitution also contained a similar restriction regarding territorial limits as Article 199 of 1973 Constitution. The Indian Supreme Court in various cases like Election Commission of India v. Saka Venkata Rao (AIR 1953 SC 210), A. Thangal Kanju Musaliar v. M. Venkatachalm Potti (AIR 1956 SC 246), Lt. Col. Khajoor Singh v. Union of India and another (AIR 1961 SC 532) and Shriran Jhunijhuwala v. The State of Bombay (AIR 1962 SC 670), has ruled that High Court 'can only exercise powers under Article 226 of Indian Constitution in relation to the territories within its limits.

13. Mr. Zahid Hussain and Mr. Ashtar Ausaf Ali, Advocates, have also brought to the notice of this Court an authority of Supreme Court in Messrs Al‑Iblagh Limited, Lahore v. the Copyright Board, Karachi and others (1985 SCMR 758) and a judgment of Division Bench of this Court, Muhammad Tariq Chaudhary, Member Senate of Pakistan v. Syed Masroor Ahsan and 3 others (PLD 1991 Lahore 200). In the first case, the order, impugned before the High Court had been passed by Copyright Board, the jurisdiction of which extended to the whole of the country. The distinction becomes clear if the following observations of the Supreme Court in M/s. Al-Iblagh's case are kept in view:‑‑ "Thus, ‑ the Board is to be constituted by the Central Government which will exercise jurisdiction in all parts of the country. Its members wit belong, as far as possible, to all the Provinces of the country and its sittings can be held in every part of the country. Again, its orders except. those passed by it in its appellate capacity can be appealed to in the High Court where appellant resides and carries on his business. Thus, if in this case, the impugned order of the Board was not passed in its appellate capacity but in its original capacity, the appellant herein could undoubtedly ,have filed an appeal before the Lahore High Court, because he admittedly resides anti carries on business at Lahore. But it has been found by the High Court that the same appellant cannot approach the Lahore High Court in its Constitutional jurisdiction. Such an incongruous conclusion cannot easily be acceded to unless the words of the Constitutional provision ` yielded no other interpretation."

14. So far as the other case namely .Muhammad Tariq Chaudhary v: Syed Masroor Ahsan and 3 others (PLD 1991 Lahore. 200), is concerned, the objection as to territorial jurisdiction was repelled in view of the observation that notification impugned in that petition had been issued at Islamabad and the office in question, namely, that of a Senate was held by the respondent in that case at Islamabad. In the present. case, however, the action impugned is that of Collector Customs, Karachi (respondent), whose jurisdiction is confined to Karachi. In view of what has been stated above, it is held that this petition is not maintainable before this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. A.A./N‑85/L. Petition dismissed.