Bar of jurisdiction

Petitioners assailed their discharge orders before the departmental appellate authority, Service Tribunal and Centralized Re-examination Committee, but remained unsuccessful, then they filed present Constitutional petition with the contention that they had been discriminated and instead of proceeding against them under the Removal from Service (Special Powers) Sindh Ordinance, 2000, they had been discharged from service under the Police Rules, 1934

Validity

Matter fell within the competence of the Service Tribunal, thus, notification could not be challenged before High Court under Art.199 of the Constitution in view of the bar set out in Art.212 of the Constitution

Petitioners themselves had approached the Tribunal and accepted the manner in which their appeals were decided as they had awaited the outcome of proceedings before the Centralized Re-examination Committee prior to approaching High Court

If the petitioners were aggrieved by the decision of the Tribunal and wished to advance their challenge to being discharged from service, the appropriate course for them was to have approached the Supreme Court

Since grievance of the petitioners had arisen out of the proceeding of the Re-examination Committee, which had not been impugned before the High Court, thus, the plea of discrimination that respondents had been unduly appointed did not even otherwise serve to advance the cause of the petitioners for their own appointment

Constitutional petition was dismissed, in circumstances.

Bar on the jurisdiction of the civil court to try a suit of civil nature or on the maintainability of a suit envisaged by section 9 or clause (d) of Rule 11 of Order VII, C.P.C. is that which is created either expressly or impliedly by some statutory law enacted by the legislature

Courts in Pakistan, cannot import an implied bar from another country's jurisprudence.

In the present case none of the private parties had alleged and showed that they (or their stated predecessors-in-interest) were the recorded owners of the subject lands either under the land revenue or under any other law, nor had they relied upon any official record of the Government or of its predecessor-in-interest (the State of Swat) in support of their claims

Private parties had based their claims on private documents or on mere assertions

Private parties did not produce nor referred to any document which pre-dated the Notification through which the subject area was declared to be a protected forest, nor any after the Notification's issuance; they also did not prefer a claim to the settlement authorities, nor challenged the record of rights prepared in the year 1986

Record which was produced or referred to by them showed that the Forest Department of the Government was the owner of the subject lands

Private parties were also effectively assailing the survey of the land and the determination of the boundaries of the Forest Department of the Government which had been undertaken

Assailing the same was also not within the jurisdiction of the civil courts

Private parties did not allege that the issuance of the Notification was mala fide or without jurisdiction, or that an order was passed against them which was coram non judice, which may have enabled them to access the courts

Furthermore the Khyber Pakhtunkhwa Forest Ordinance, 2002 did provide a remedy to the private parties, but it was not availed

Private parties had sought the constitution of the Forest Settlement Board for the re-determination of a forty-year-old matter; a rebuttable presumption of legality attached to thirty-year-old documents produced from proper custody

High Court had legally erred in referring the private parties to the civil court for the adjudication of matters over which the civil court did not have jurisdiction

Appeals filed by the private parties were dismissed, while those filed by the Government were allowed by setting aside the impugned judgment of the High Court.

Respondents were the employees of Evacuee Trust Property Board (ETPB), who were appointed under S.12 of the Evacuee Trust Property Board (Management and Disposal) Act, 1975 and according to S.13, they were public servants, but they were posted on deputation against cadre posts meant for civil servants

No provision in law existed which empowered the authority to post non-civil officer against a post meant for civil servants, as such, they were illegally holding the posts

Provisions of Art.212 of the Constitution also did not attract in the present case as respondents, being public servants, were not subject to the terms and conditions of a civil servant

Constitutional petition was allowed, in circumstances.

Exclusionary provisions of Article 212 take within their sweep all preceding provisions of the Constitution and which include Art. 199 of the Constitution

In fact, the non-obstante clause indicates clearly that Art. 212 stands on a higher constitutional pedestal than Art. 199 and that its provisions are not subject to or conditioned upon those of Art.199 of the Constitution

Intention of the legislature in granting primacy to Art. 212 is manifest.

All Articles of the Constitution appearing before and after Art. 199 have a bearing on the remedies afforded by Art. 199

On the other hand, Art. 212 starts with a non-obstante clause and, therefore, takes precedence over Art. 199 and similarly phrased other Articles of the Constitution, and therefore, has to be construed accordingly

Complete remedial mechanism before a forum i.e. the Tribunal, which is a Court for all intents and purposes has been provided by Art. 212 of the Constitution

Article itself mandates for setting up of a Tribunal which attributes of a Court to hear appeals

Perhaps, this is the reason why the ouster contemplated by Art. 212 remains impregnable and which ouster cannot be pierced come what may.

Article 212 of the Constitution being a non-obstante article prevails over Art. 199 since no Court has the jurisdiction to exercise judicial power to grant an injunction or make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Tribunal extends

High Court has no jurisdiction to even entertain a matter that stands barred under Art. 212

In fact, the remedy afforded by Art. 199 cannot be triggered owing to this jurisdictional bar

Words 'jurisdiction to entertain' clearly mean that since there is no jurisdiction to even entertain, no question of exercise of the consequent judicial power arises.

Jurisdiction of Service Tribunal can be invoked against the final order, whereby things have been finally determined.

Definition of civil servant as provided in S.2(1)(b) of the Balochistan Civil Servants Act, 1974 when considered with Art. 212 of the Constitution and Service Tribunals Act, 1974, included the person who had remained as civil servant

Retired civil servants were not ousted from agitating their claims regarding terms and conditions of their service before the Service Tribunals

Petitioners being civil servants were barred from agitating their claim before the High Court and such bar was created through Art.212 of the Constitution

Constitutional petition was dismissed.

Petitioners/plaintiffs were aggrieved of notification under S.7 of Punjab Waqaf Properties Ordinance, 1979, whereby mosque and shops were taken over by Auqaf Department

Lower Appellate Court rejected the suit under O.VII, R.11, C.P.C.

Validity

Petitioners/plaintiffs lacked cause of action as well as locus standi to maintain their suit before Trial Court, whose jurisdiction was barred to make any indulgence

Suit amounted to pre-empting an action under Punjab Waqaf Properties Ordinance, 1979 and circumventing the law so as to defeat its purpose

Remedy was provided in Punjab Waqaf Properties Ordinance, 1979 through a petition before District Court

Legislature by promulgation of Ss. 21 & 23 of Punjab Waqaf Properties Ordinance, 1979, excluded jurisdiction of Civil Court in respect of proceedings and intended action

When law desired a thing to be done in a defined way then it was to be performed in that manner alone

When jurisdiction of Civil Court was ousted then no further inquiry was needed, plaint was rightly rejected at its inception

Revision was dismissed, in circumstances.

Plaintiffs filed suit for declaration and permanent injunction claiming to have purchased suit property from the attorney of defendant

Defendant, prior to the suit, had filed application before the Assistant Commissioner for setting aside the mutation on the ground of fraud in terms of para. 7 of Land Reforms Regulation, 1972

Application filed by defendant under O.VII, R.11, C.P.C., on the ground that the suit was not maintainable being hit by para. 26 of Land Reforms Regulation, 1972, was dismissed being pre-mature and it was held that the matter required evidence

Suit was, however, dismissed on an application filed by defendant under S.151, C.P.C., claiming therein that the proceedings had become infructuous as the possession of suit property was taken over on account of proceedings decided by the Land Commissioner and that the suit was hit by para. 26 of Land Reforms Regulation, 1972

Appellate Court dismissed the appeal

Validity

Order passed by Land Commissioner was without prejudice to the cases before the various forums between the parties other than under Land Reforms Law

Plaintiffs were not heard being claimants in the matter nor the said order decided the matter of controversy / rights between the parties

Impugned orders were set aside and the suit was restored

Revision petition was allowed, in circumstances.

Respondent-plaintiff filed suit for declaration and injunction which plaint was rejected by Trial Court but Lower Appellate Court set aside the order and remanded the matter to Trial Court for decision on merits

Plea raised by petitioner-defendant was that the suit was barred under S.36 of Colonization of Government Lands Act, 1912, S.11 of Sindh Revenue Jurisdiction Act, 1876 and S.172 of Sindh Land Revenue Act, 1967

Validity

Neither provisions of S.36 of Colonization of Government Lands Act, 1912, nor S.11 of Sindh Revenue Jurisdiction Act, 1876 or S.172 of Sindh Land Revenue Act, 1967, was applicable to the matter as there was no dispute regarding policy of land nor any act or omission of any revenue officer was challenged nor correction of any entry in record of rights was challenged

To decide an application under O.VII, R.11, C.P.C., only plaint was to be considered and it was to be presumed that whatever was pleaded therein was true and correct

Plaint disclosed cause of action against petitioner-defendant and was not barred by any law

High Court declined to interfere in the matter as Lower Appellate Court rightly set aside order passed by Trial Court which was perverse

Revision was dismissed, in circumstances.

Plaintiff assailed proceedings initiated by authorities and his bank accounts were attached on the allegations that those were Benami

Contention of plaintiff was that earlier no show cause notice was issued and to make up the deficiency the same was made up afterwards

Validity

Alleging show cause notice made up afterwards was an allegation of mala fides-in-fact on initiating officer as the same was distinct from mala fide-in-law and such was not the case of plaintiff to begin with

Apart from such vague allegation of mala fides, plaint did not specifically allege that actions of initiating officer were colored or motivated for extraneous reasons or that he was biased against plaintiff

Before allegation of mala fides could be allowed to be proved, mala fides were to be pleaded with particularity and till such time, a presumption of correctness was attached to official acts

Initiating officer was empowered under S.22(5) of Benami Transactions (Prohibition) Act, 2017, to attach related property, therefore, plaintiff could not claim to have been prejudiced

Plaintiff failed to raise any ground that could constitute exception to interfere in exercise of jurisdiction by special fora prescribed under Benami Transactions (Prohibition) Act, 2017

Under implied bar to jurisdiction of High Court that arose by reason of existence of special fora to determine matters arising under Benami Transactions (Prohibition) Act, 2017

Plaint was rejected in circumstances.

Federal Ombudsman Institutional Reforms Act, 2013, is to be read together with the Protection Against Harassment of Women at the Workplace Act, 2010, having been included within the definition of relevant legislation

Section 18 of the Federal Ombudsman Institutional Reforms Act, 2013, is an ouster clause that prohibits courts from assuming jurisdiction in relation to a matter that (i) falls within the jurisdiction of an Ombudsman, or is (ii) pending with or decided by an Ombudsman

Jurisprudence in relation to ouster clauses is well-established: orders and proceedings are amenable to judicial review to the extent they suffer from lack of jurisdiction, corum non judice or mala fides and that ouster clauses cannot oust jurisdiction of constitutional courts in relation to acts and/or proceedings that suffer from such infirmity

High Court can only exercise jurisdiction in relation to a proceeding pending before the Ombudsman or an order passed by the Ombudsman if one of the following conditions is satisfied: (i) the subject-matter of the complaint pending before the Ombudsman or that forms the subject-matter of an order passed by the Ombudsman is such that falls beyond the authority and jurisdiction of the Ombudsman as defined in the Act and thus suffers from jurisdictional defect and the Ombudsman is coram non judice; (ii) the order passed by the Ombudsman is such that the Ombudsman has no authority to pass and it, thus, suffers from lack of jurisdiction or excess of jurisdiction and consequently mala fide in law; (iii) the proceedings being conducted and/or order passed suffers from mala fide in fact; (iv) the proceedings continuing before the Ombudsman or the order passed by the Ombudsman undermine the fundamental rights of a citizen, especially the right guaranteed under Art.10-A of the Constitution.

High Court had to see the facts and circumstances of each and every case and could not refuse the relief claimed against an illegal and void order on the question of want of jurisdiction.

Jurisdiction of High Court had been barred with regard to terms and conditions of service of civil servants.

Promotion of officials for such purpose should not be in a manner that would negatively impact on the rights of other similarly placed officials

Promotion of employee-petitioner was hit by the principles as laid down by Supreme Court

Constitutional petition was dismissed in circumstances.

Bar of jurisdiction as mentioned in Ss. 29 & 31 of Punjab Board of Intermediate and Secondary Education Act, 1976 is not an absolute bar

Civil court is court of plenary jurisdiction and where rights of anyone are infringed, has ample jurisdiction to adjudicate upon the matter within the framework of law

Objection to jurisdiction of civil court has to be raised before Trial Court at the earliest, especially through written statement.

Article 199 (3) of the Constitution stipulated a bar to jurisdiction with regard to the matters pertaining to service of any member of Armed Forces of Pakistan

High Court could not travel beyond and dilate upon the merits of the present case and interfere with any order passed under the hierarchy of Armed Forces pursuant to their applicable laws

Constitutional petition was dismissed in circumstances

Petitioner would be at liberty to avail his remedy as provided under the applicable laws.

Petitioner, a civil servant, matter of his appointment promotion and up-gradation would fall under the terms and conditions of service

Such matter was exclusively within the domain of Service Tribunal

Matter with regard to terms and conditions of service could not be agitated before the High Court in exercise of constitutional jurisdiction

Constitutional petition was not maintainable in circumstances

Office was directed by High Court to send the original constitutional petition to the appellate authority treating same as departmental appeal

Departmental authority was directed to decide the same within one month

Constitutional petition was disposed of accordingly.

Matter over which Service Tribunal does not have appellate jurisdiction, can lawfully be agitated before High Court in its Constitutional jurisdiction under Art.199 of the Constitution.

Provisions of Land Reforms Regulation, 1972 would not apply to the property if it was established that the same was purchased or gifted property

Suit of plaintiffs was confined only to correction of wrong entries

Civil court had jurisdiction to entertain the present suit

Both the courts below had properly examined the material available before them in true perspective

Revision was dismissed in circumstances.

If order passed by the Land Commission was found perverse in nature and such would defeat the object of Regulation, then same would not be immune to be challenge.

Property measuring 21 kanals and 09 marlas transferred from occupancy tenants had to be taken into account with regard to their share and ownership

Occupancy tenancy were given less share as claimed by the plaintiffs and proved on the record

Plaintiffs were entitled to be compensated for less share given to them by reversing the entries in mutation and revenue record to the extent of land measuring 10 kanals and 07 marlas

Findings of Trial Court were sustainable to such extent and that of Appellate Court were reverseable

Suit was to be returned due to lack of jurisdiction and had been wrongly dismissed and to such extent judgment was modified

Trial Court had jurisdiction to entertain the suit as neither the provisions of Land Reforms Regulation, 1972 were questioned nor any transaction had been sought to be annulled rather correction of share and resumption of share of occupancy tenants instead of owners was questioned in the present case

Provisions of Land Reforms Regulation, 1972 had no application to the rights of occupancy tenants

Controversy between occupancy tenants and owners had nothing to do with the said provisions

Bar of jurisdiction did not attract in the present case

Functionaries of Land Commission were not arrayed as party to the suit and no relief had been sought against them nor any order passed by them had been challenged

Right from 1950 till 1990 extension were given to occupancy tenancy for deposit of compensation or those for entitled for consideration to get the occupancy tenancy converted into ownership but plaintiffs had not made efforts for the same

Conduct of plaintiffs would not allow them to get occupancy tenancy into ownership at such belated stage

Plaintiffs were not entitled for decree to such extent

Judgment and decree passed by the Appellate Court were set aside and that of Trial Court were restored to the extent of land measuring 10 kanals and 17 marlas and rest of suit of plaintiffs was dismissed

Revision was accepted in circumstances.

Bar of jurisdiction contained in Art. 199(3) of the Constitution is not absolute and High Court had jurisdiction to examine whether the order challenged suffered from mala fide or was without jurisdiction or coram non judice.

S.H.O./Investigating Officer were summoned by the Ombudsman regarding the investigation process of case in offence under Ss.395, 397, P.P.C.

Same being the prerogative of the Investigating Agency, summoning of Investigating Officer by Ombudsman could not be given any legal sanctity and same was set aside

Ombudsman, was directed by High Court to remain within the bounded limits as provided by the law.

Charge-sheet was issued to the plaintiff/candidate against the allegation of impersonation in the examination and he was provided opportunity to defend himself

Plaintiff' instead of surrendering before the Education Board in pursuance of charge-sheet filed a suit calling in question the issuance of charge-sheet

Validity

Civil court had no jurisdiction to entertain the suit filed against any order made or proceedings taken by the Education Board

Persons aggrieved of any order made or proceedings taken by the Education Board could take protection of S.31 of Punjab Boards of Intermediate and Secondary Education Act, 1976 to institute a suit or to initiate any legal proceedings against the Education Board

Condition to take resort for such protection was that the act done or proceeding taken by the Education Board or any official or employee was not in good faith

Plaintiff had not extended any allegation in the plaint with regard to mala fide or lack of good faith on the part of Education Board in issuance of charge-sheet

Only charge-sheet was issued and had the plaintiff joined the proceedings then there was possibility that he would have been exonerated from the charges levelled against him if he succeeded in producing any plausible defence

Statutory proceedings were avoided and a suit which was barred under the law was filed

Civil court had no jurisdiction to entertain and adjudicate upon the suit filed by the plaintiff

Impugned judgments and decrees passed by the courts below were set aside and suit was dismissed

Revision was accepted in circumstances.

Entire exercise undertaken by the Registrar by entertaining time-barred appeal and adjudicating upon the same and pronouncing the decision thereon was mala fide

Plaint could not be rejected in circumstances

Application for rejection of plaint was dismissed.

Reference application filed by the Revenue department was already pending before the High Court at the time when complainant filed his complaint before the Federal Tax Ombudsman

Complaint filed before Federal Tax Ombudsman in a matter being sub-judice before a competent forum was not maintainable

Review petition was dismissed accordingly.

Jurisdiction of any court or authority had been ousted to question the validity of any action taken or proposed by the Ombudsman and no injunctive order could be passed against the proceedings pending before him.

Where there was no final order of any departmental authority in field which could be assailed in the Service Tribunal, then the bar of jurisdiction under Art. 212 of the Constitution would not apply.