Distinguished
Distinguished legal meaning, translation and judicial precedents.
Meaning & Judicial Interpretation: (اردو مفہوم اور قانونی تشریح)
Petitioners challenged the appointments of the private respondents belonging to the teaching cadre of the university for having no qualification to hold the administrative/cadre posts for being appointed in violation of the Recruitment Rules of the subject posts and due to arbitrariness of the respondent-university in posting them
Validity
Shah Abdul Latif University, Khairpur, is a public sector statutory university established under the Shah Abdul Latif University Act, 1986 and performing functions in connection with the affairs of the Province under Art. 199 (1) (a) (ii) read with Art. 199(5) of the Constitution, thus, the constitutional petition was maintainable
For issuance of the writ of quo warranto any person can lay information to the court regarding a public office being illegally occupied
Person laying such information does not necessarily have to be aggrieved
There is much difference between the writ of quo warranto and mandamus
Mandamus also differs from writs of prohibition or certiorari in its demand for some activity on the part of the body or person to whom it is addressed, for the performance of public duty and commands the person to whom it is addressed to perform some public or quasi-public legal duty, which he has refused to perform, and the performance of which cannot be enforced by any other adequate legal remedy and in that situation party should be an aggrieved party having no other adequate and efficacious remedy
Article 199(1)(b)(ii) of the Constitution shows that a person performing duties in connection with affairs of the Province could be required to show under what authority he is holding a particular public office and for that purpose, the petitioner therein may not be required to be an aggrieved person
In the present case direction sought by the petitioners was not merely confined to the issuance of writ of quo warranto rather the same included the issuance of directions like the writ of mandamus and prohibition against the private respondents requiring them to show their fitness to hold the administrative post without fulfilling the criteria as outlined in the recruitment rules
Administrative posts could only be filled as per recruitment rules and subject to eligibility and entitlement and not otherwise for the simple reason that the administrative cadre is different from the teaching cadre of respondent-university and recruitment rules for the subject post were already in the field
Private respondents were required to go back to their original position and work in their own cadre as the practice of transfer and posting out of the cadre based on purported Additional/Acting/OPS charges was not permissible under the University Act or Higher Education Commission
Constitutional petition was allowed, in circumstances.
Respondent university was a private institution and petitioners assailed its affairs regarding filling of vacancies, number of its members and finances etc.
Validity
Fundamental difference between nomination and an appointment was that the former represented interest of the nominating authority and was to serve at its pleasure whereas the latter was in relation to an independent position and was to serve in accordance with terms and conditions of the post to which he or she was appointed
Private universities are regulated and governed but cannot be taken over
Respondent university was a statutory body but it remained a private university (since it had been established by the Foundation and not the State) and did not perform any sovereign functions though operate and function within the frame of Isra University Act, 1997
Superior Courts have consistently refused to issue writs of quo warranto to private universities even though they were established through statutes
If High Court was to approve nomination of Chancellor by the Foundation, subject to approval and appointment by Board of Governors of University, it would amount to rewriting S. 7(1) of Isra University Act, 1997
There was no such requirement in S. 7(1) of Isra University Act, 1997, or any other provision as the same would destroy the distinction between 'nominate' and 'appoint' that had been intentionally created by the Legislature in Isra University Act, 1997 and every person to be nominated under the Isra University Act, 1997, would then also have to be appointed by the Board of Governors
This would necessitate rewriting of all provisions that related to nominated posts under Isra University Act, 1997 and defeat the purpose and intent of Isra University Act, 1997, which was to provide the Foundation a role in the affairs of the University through Chancellor and instead would make the foundation subservient to the Board of Governors
Such appointment of Chancellor would destroy the very fabric that had distinguished nomination and appointment
High Court restored the Foundation to its original members as it stood in year 2011 prior to induction of new members
High Court declared that the council so restored would be at liberty to amend Memorandum and Articles of Association and consequently induct any or as many member council as the amended Articles permitted
High Court directed that the restored council would announce a date of meeting for nominating a Chancellor and until then Registrar of University was to perform daily functions in routine; that audit of Foundation (IIF) would be conducted for last ten years and claim of rent was neither illegal nor illogical but should be fair as far as quantum was concerned
Application was allowed accordingly.
Slight difference between bailment and pledge is that in the case of bailment deposit of goods is for a certain purpose to be returned after the purpose is accomplished but in case of pledge, goods are deposited as security to be kept till payment of debt is effected or a promise for which the goods were pledged is performed
Pledge is kind of bailment and security.
General distinction between a nuisance and a trespass is that the trespass flows from a physical invasion and the nuisance does not.
Doctrine of occupied field relates to those legislative entries of Province which are expressly made subject to a corresponding entry in the concurrent list
Such doctrine is merely concerned with legislative power and starts off when Federal Legislature legislates and frames the law on a subject and occupies the field and no room or space is left for Provincial Legislator to enter the field
Even when the field is not occupied by a Federal law and Provincial Legislature first legislates in respect of a field hitherto unoccupied, and then Federal Legislature makes a law on the very subject
Such law being passed by dominant legislature pushes aside the Provincial law to the extent it is in conflict with it
In such a situation, however, doctrine of repugnancy and not the doctrine of occupied field comes into play
Very thin line of difference exists between doctrine of repugnancy and doctrine of occupied field, where occupied field ends, repugnancy starts
Repugnancy arises when there is an actual conflict between two legislations, one enacted by a Provincial Legislature and the other by Parliament, and both are competent to do so
Doctrine of occupied field has nothing to do with conflict of laws between Province and Center; it is concerned only with existence of legislative power, while repugnance is with exercise of legislative power that is shown to exist
Normally, when there is a conflict, Courts try to construe Federal law and Provincial law on the same subject harmoniously
When Parliament tries to occupy the field, being the supreme law-making body in Constitutional scheme, it prevails over Provincial law regardless of whether it precedes or succeeds Federal law
Such rule of propriety and supremacy regarding Federal law is aptly encoded in Art. 143 of the Constitution
Court to trump a Provincial statute at the anvil of doctrine of occupied field has to see that both the Provincial and Federal legislature are competent to legislate on the subject; provincial statute in pith and substance is compatible or in pari materia with Federal statute; Provincial law is subsequent to the Federal law etc.
Adults are assumed to understand consequences of their actions and are accordingly held accountable for such consequences
Children are not assumed to have complete agency and law acknowledges that they may neither understand consequences of their actions nor can be held completely responsible for such actions
Every State through legislative enactment determines age at which a person is to be treated as an individual with autonomy and human agency for purposes of certain actions
Such is the age at which his or her actions are deemed valid and are to be given effect as he or she has capacity to understand their consequences and law accordingly holds such person accountable for them.
Public notice is an information got flashed in a newspaper to put people onto notice about the matter with which they may likely to be affected or may have interest.
Bail before arrest and after arrest could not be equated at all as the pre-arrest bail was usually based if the arrest of the accused was meant for ulterior motives, such as humiliation and unjustified harassment by the prosecution agency, motivation to cause irreparable injury to his reputation and liberty
Post-arrest bail was based on the discretion of the court after assessing merit of the case finding sufficient grounds for further inquiry into the guilt of the accused; on medical ground; that remaining of the accused in jail would be detrimental to his life or on the ground of delay in trial as statutory right.
When appointment/posting of a person is challenged in respect of merit against a particular post, the same cannot be treated as in the nature of quo warranto, however, when eligibility of a person to hold a particular post is challenged, the said embargo does not impede the way of a person to approach the High Court.
Income Tax Appellate Tribunal did not hold assessee company as Banking company for income tax purpose and made it liable to be taxed as public company
Validity
In order to qualify as a Banking company, it had to carry out business of Banking and must perform at least all of the four functions which were primary functions when operation of banking companies were taken as a whole as opposed to any ancillary function (i) accepting of deposits of money from public; (ii) accepting must be for purpose of lending and investment; (iii) such deposits must be repayable on demand or otherwise, for example, within a grace period; and (iv) such deposits must be withdrawable by public by cheque, draft, order or otherwise e.g. by cash
Investment Bank did not in essence perform all core functions so as to bring its activities within core definition of business of "banking"
Main function of an investment Bank was acquisition of shares and later, sale of such shares in order to make profits for large organizations as opposed to the public
Assessee was not a Banking company for purposes of Income Tax Ordinance (XXXI of 1979) and Income Tax Ordinance (XLIX of 2001) as it was unlikely that it carried out all four core functions of a Bank to bring it within ambit of carrying out business of banking as defined in S.5(b)(c) of Banking Companies Ordinance, 1962
Assessee was not registered as a Banking company as required by S.27 of Banking Companies Ordinance, 1962 to enable it to carry out business of banking and had been licensed and registered under Notification SRO No. 585(1)/86 dated 13-07-1987 to carry out objects which specifically had excluded business of banking
Assessee company was an investment finance company as opposed to a banking company and was to be taxed accordingly as per law
Reference was dismissed in circumstances.
Income Tax Appellate Tribunal annulled order passed under S.161 of Income Tax Ordinance, 2001, for default of non-deduction of advance income tax under S.236(I)(b)(3) of Income Tax Ordinance, 2001
Plea raised by authorities was that nature and business of pre-paid telephone cards and pay-phone companies was identical
Validity
In year 2004-2005, liability to deduct advance tax was restricted to pay-phone companies dealing in sale of pre-paid cards only
Business of selling pre-paid cards was different from selling of units as had been highlighted by legislature through amendment brought about in S.236(I)(c) and (3A) of Income Tax Ordinance, 2001
Mixed questions of law and facts could be answered in advisory jurisdiction of High Court
In year, 2004-2005, provision of S.236(I) of Income Tax Ordinance, 2001, was not applicable to case of pay-phone dealing with sale of units
Questions of law raised in reference were answered in affirmative
Reference decided accordingly.
Provisions of S.6 of Admiralty Jurisdiction of High Courts Ordinance, 1980, have no application in respect of a mortgage which, not being a "claim in respondentia", is not a maritime lien
Suit based on a claim that falls under S.3(2)(c) of Admiralty Jurisdiction of High Courts Ordinance, 1980, cannot be regarded as barred by limitation on account of S.6 of Admiralty Jurisdiction of High Courts Ordinance, 1980.
Delay in filing of legal proceedings within the period specified under provisions of Limitation Act, 1908, and undue time consumed by party in filing Constitutional petition in which no statutory period was prescribed under law have different parameters
Delay in the case under Limitation Act, 1908, has to be explained for each and every day with evidence but in case of laches in filing of Constitutional petition lapse of time on question of laches has to be examined on equitable principles
Exercise of Constitutional jurisdiction is always discretionary with court and relief granted under Constitutional jurisdiction is always an equitable relief.
If agreement is successfully impugned then decree almost always fails, but it may be possible to attack the decree without impugning the agreement
Challenge to one is, therefore, not necessarily a challenge to the other
Grounds on which the agreement on one hand and the decree on the other can be attacked may overlap but are nonetheless distinct, it may be that as a matter of form, the challenge is directed towards the decree
Substance of challenge has to be carefully ascertained and distinction between decree and agreement must be kept in mind
If a compromised matter is challenged on the ground of misrepresentation, it is important to be clear, whether attack is directed against agreement or decree
Compromise agreement is simply a contract and can be impugned on the ground of misrepresentation, if matter comes within the ambit of Ss.18 and 19 of Contract Act, 1872, and compromise decree, on the other hand, can be set aside under S.12(2), C.P.C.
If agreement is successfully impugned then decree almost always fails, but it may be possible to attack the decree without impugning the agreement
Challenge to one is, therefore, not necessarily a challenge to the other
Grounds on which the agreement on one hand and the decree on the other can be attacked may overlap but are nonetheless distinct, it may be that as a matter of form, the challenge is directed towards the decree
Substance of challenge has to be carefully ascertained and distinction between decree and agreement must be kept in mind
If a compromised matter is challenged on the ground of misrepresentation, it is important to be clear, whether attack is directed against agreement or decree
Compromise agreement is simply a contract and can be impugned on the ground of misrepresentation, if matter comes within the ambit of Ss.18 and 19 of Contract Act, 1872, and compromise decree, on the other hand, can be set aside under S.12(2), C.P.C.
"Distinguished", Pakistan Law Portal, available at: https://paklawportal.com/words-terms-maxims/124937036
Precedents & Case Laws citing "Distinguished"
P L D 1970 Karachi 444
Appellant Versus THE ASSISTANT REGISTRAR OF TRADE MARKS,
Court:P L D 2005 Peshawar 98
BASHIR KHAN‑‑‑Petitioner Versus THE STATE through Advocate‑General, N.‑W.F.P. Peshawar and another‑‑‑Respondents
Court:P L D 1970 Karachi 604
Appellant Versus THE ASSISTANT REGISTRAR OF TRADE
Court:1991 M L D 2307
DAWOOD HERCULES CHEMICALS LIMITED — Appellant Versus THE REGISTRAR OF TRADE MARKS — Respondent
Court: Karachi1986 C L C 1286
KIA INDUSTRIAL CO. LTD. And KIA MOTOR‑CYCLE CO LTD‑‑Appellant Versus THE DEPUTY REGISTRAR OF TRA RE ‑MAR KS.‑‑Respondent
Court: Karachi1989 P Cr
ABDUL RAZAQ‑‑Applicant Versus THE STATE‑‑Respondent
Court: Karachi1977 S C M R 52
MUHAMMAD HUSSAIN‑Petitioner Versus THE STATE‑Respondent
Court: ----S. 497‑Bail‑Appellant's case easily distinguishable from that of another accused bailed out by High court Appellant alleged to have caused injuries to deceased, his case not at par with that of accused ''`' enlarged on bail‑Mere fact of appellant being 70 years of age, held, does not entitle him to concession of bail in circumstances.Bail.1984 S C M R 1051
FEDERATION OF PAKISTAND ANOTHER — Petitioners Versus RAMZAN MUHAMMAD CHAUDHRY-Respondent
Court: ----Art. 212(3)-Service Tribunals Act (LXX of 1973), S. 4-Civil service-Promotion-Questions of eligibility and consideration for promotion-Distinguishable from questions of prospects of promotion-No question of law of public importance involved in case-Leave to appeal refused.-Civil service.1989 S C M R 1875
WALI MUHAMMAD Petitioner Versus MUKHTAR HUSSAIN Respondent
Court: High Court1979 P L C 355
MUZAFFAR ABBAS NAQVI AND 10 OTHERS Versus ISLAMIC REPUBLIC OF PAKISTAN AHD 4 others
Court: Lahore