Constitutional Jurisdiction

Registration alone under Income Tax Ordinance, 2001 or issuance of National Tax Number does not qualify as a coercive action against any entity

No prior notice before registration would have made any difference

Supreme Court declined to interfere in judgment of High Court in Constitutional petition, which was directly assailed before Supreme Court without exhausting remedy of Intra Court Appeal

Only under exceptional circumstances, to be adjudged by Supreme Court itself, such indulgence could be extended which did not exist in the present case

Petition for leave to appeal was dismissed and leave to appeal was refused.

Registration alone under Income Tax Ordinance, 2001 or issuance of National Tax Number does not qualify as a coercive action against any entity

No prior notice before registration would have made any difference

Supreme Court declined to interfere in judgment of High Court in Constitutional petition, which was directly assailed before Supreme Court without exhausting remedy of Intra Court Appeal

Only under exceptional circumstances, to be adjudged by Supreme Court itself, such indulgence could be extended which did not exist in the present case

Petition for leave to appeal was dismissed and leave to appeal was refused.

Case of the petitioner was that the Sales Tax Reference is still pending before High Court and due to grudge of filing of Sales Tax Reference, Impugned Notices have been sent for recovery

Impugned Notices have been challenged by the petitioner (Registered Person) through Constitutional petition seeking suspension of recovery notices/proceedings during pendency of the said STR

Whether the High Court while exercising its constitutional jurisdiction should stay the recovery notices issued to the petitioner during the pendency of Sales Tax Reference before High Court

Held: It is not disputed that access to justice is a fundamental right and an essential feature of the said right is that there should be adjudication of grievance by an independent tribunal before a person can be proceeded against under the law ensuring essential ingredients (there should be an independent, impartial court, a fair and public hearing, right of counsel, right to information of the offence charged for with an opportunity to cross examine witnesses and an opportunity to produce evidence) of right of fair trial in reference to Art. 10-A of the Constitution

It is also pertinent that assessment orders as such do not have touch of finality unless all the forums are exhausted in which such orders can be challenged, so that the orders take the shape of final decisions

The legislature when it provides a hierarchy of tribunals for the determination of a dispute is really providing one complete procedure for such determination, proceedings before different tribunals are only steps in such procedure

Order passed in original proceedings is not final unless it crosses all the forums set up under that law in which it can be challenged and the order of the last forum would become final

An assessee is entitled to adjudication in respect of his disputed tax liabilities by at least one independent forum outside hierarchy of the respondent department and the appellate tribunal in taxation matters is the first independent forum

Thus, stay order against recovery of demand of tax cannot be issued by High Court in its constitutional jurisdiction, when the Tax Reference has already been filed before High Court

Consequently, constitutional petition at this stage is not entertainable/maintainable due to equally efficacious alternate remedy available to petitioner under the law

Constitutional petition, filed by Registered Person, having been withdrawn, was disposed of.

Case of the petitioner is that the Sales Tax Reference is still pending before High Court and due to grudge of filing of STR, Impugned Notices have been sent for recovery

Impugned Notices have been challenged by the petitioner (Registered Person) through filing constitutional petition seeking suspension of recovery notices / proceedings during pendency of the said STR

Plea of the petitioner was that the High Court while exercising its jurisdiction may convert present petition into Reference Application and decide it itself

Validity

Though High Court can always convert one type of proceeding into another type of proceeding and decide itself, yet subject to the rider that it has jurisdiction over the issue, subject matter of the dispute and if jurisdiction is not vested in High Court to decide then refer the same to the competent authority, forum, officer or court for its decision on merits

Thus, despite the power vested in High Court to convert present constitution petition into a reference application / petition, it is not a plausible/ feasible option in the present case for the reason that a reference application has already been filed by the petitioner prior to the filing of this constitution petition and the Division Bench of High Court, that has to hear the said reference application, enjoys full powers to grant relief prayed for by the petitioner

Although High Court may in appropriate cases exercise its constitutional jurisdiction despite availability of alternate remedy, yet that jurisdiction is to be exercised by keeping in view the question whether equally efficacious remedy is available to the petitioner or not

In the present case, it is apparent that equally efficacious alternate remedy is available to the petitioner which right has also been exercised by the petitioner by filing a reference application before High Court, which is still pending, and consequently it would not be appropriate for High Court to exercise constitutional jurisdiction at this stage for the reason that where a thing is required to be done in a particular manner then it should be done in that manner as required by the statute otherwise such act will be illegal and without jurisdiction

Petitioner has not made any attempt to get his reference application and the stay application fixed for hearing before approaching High Court for redress of grievance through the instant constitution petition

Moreover, High Court in its constitutional jurisdiction is not in a position to give direction to the learned Division Bench of High Court to entertain and decide the reference application already pending before it for the reason that the same would amount to High Court entertaining constitutional petition against itself which jurisdiction has specifically been excluded by Art. 199 of the Constitution and High Court cannot exercise its writ jurisdiction against itself

Consequently, present constitutional petition, at this stage is not entertainable / maintainable due to equally efficacious alternate remedy available to petitioner, under the law

Constitutional petition, filed by Registered Person, having been withdrawn, is disposed of.

In constitutional jurisdiction, reappraisal of evidence just because another view is possible, is not permissible.

High Court cannot, in exercise of its constitutional jurisdiction, interfere with an order passed by another Judge on another Bench of the same Court

One Bench of the High Court cannot sit as a court of appeal over an order or a judgment of another Bench

No writ can be issued by a High Court against itself in exercise of jurisdiction under Art. 199 of the Constitution.

Civil proceeding in a High Court is also governed by the provisions of the Code of Civil Procedure, 1908, save the provisions which have been specially excepted.

Vires of any legislation are to be struck down on two grounds: firstly, where the appropriate legislature did not have competency to make law; and secondly, where its enactment abridges any of the fundamental rights annunciated in the Constitution or any other Constitutional provision.

Jurisdiction of High Court, under Art. 199 of the Constitution, is extraordinary, equitable and discretionary and the prerogative writs, contemplated therein, are issued for enforcement of fundamental rights and/or, as the case may be, to inhibit and/or rectify any illegality and unlawfulness on part of the executive.

High Court cannot engage in factual controversies, as the matters pertaining to factual controversies can only be resolved after thorough inquiry and recording of evidence in a Civil Court.

Constitutional jurisdiction is an extraordinary jurisdiction, thus, High Court can neither substitute the evidence recorded by the trial court nor can render opinion regarding quality and advocacy of the evidence as appraisal of the evidence is the task of the trial court, however, the appellate court may see and do reappraisal of the evidence, if the evidence is grossly mis-read, found to be inconsistent with the testimony of the other witnesses or the evidence is found to be shocking and contrary to the pleadings

If the trial and appellate courts after thrashing the factual controversy arrive at the conclusion, then the high Courts are always reluctant to interfere while exercising jurisdiction under Art.199 of the Constitution, unless compelling reasons are shown, such as mis-reading and non-reading of the evidence visible on record.

While adjudicating a constitutional petition of writ of certiorari, High Court shall exercise jurisdiction sparingly and seldom, particularly, when there are concurrent findings of facts rendered by the subordinate courts in original jurisdiction as well as exercising appellate jurisdiction.

Article 199(1)(c) of the Constitution did not necessarily require an aggrieved person to file application, rather on an application of any person, a High Court can make an order, requiring a person within its jurisdiction, holding or purporting to hold a public office to show under what authority of law, he claimed to hold that office

Object of the stated provision of the Constitution was to determine the legality of the holder of a public office

Once an information was received by a Court, it was under an obligation to inquiry from a person holding an office to show as to under which authority of law, he/she was lawfully holding the same

For invoking the jurisdiction of a High Court under Art.199(1)(c) of the Constitution, it is not necessary for a person to be aggrieved, as such, any person having knowledge about any person holding a public office in violation of law has a locus standi to inform the Court through an application

Petitioner had locus standi to file the petition

Constitutional petition was allowed, in circumstances.

Rule of exhaustion of available remedy, though not prescribed by Art. 199 of the Constitution, however it is statutory creation by which High Court regulates its proceedings

Presence of alternate remedy is neither a principle of law nor rule of thumb impressions but one of the practice

If High Court is of the view that alternate remedy available to petitioner/claimant is a remedy in law, i.e. a remedium juris and one which is not less convenient, beneficial and effective, inexpensive, expeditious and efficacious, the petitioner/claimant must first avail the remedy provided by statue before he applies for issuance of a writ

Two well recognized exceptions to the doctrine with regard to exhaustion of statutory remedies

In the first place, where proceedings are taken before a tribunal or a public functionary under provision of law, which is ultra vires, it is open to party aggrieved to move to High Court under Art. 199 of the Constitution for appropriate writ for quashing the proceedings on the grounds that they are incompetent without his being obliged to wait until such proceedings run their full course, secondly the doctrine has no application, unless order in question has been made in violation of principles of natural justice or where proceedings themselves are abuse of process of law.

Rule about invoking the constitutional jurisdiction of a High Court only after exhausting all other remedies, is a rule of convenience and discretion by which the courts regulate its' proceedings and it is not a rule of law affecting the jurisdiction

Constitutional petition can be entertained against an order passed by a court or authority established under any law, by exceeding its jurisdiction; even if the remedy of appeal/revision against such order is available, depending upon the facts and circumstances of each case.

Case of petitioners was that their predecessor was allotted 3 shops by the Cantonment Executive Officer wherein they had started business and were paying huge monthly rent but due to the construction of wall by the respondents the passage/entry towards the shops has been closed as a result the business activities carried out in the shops had affected

Validity

Petitioners might have a genuine grievance but on no count same could be resolved through a writ petition as not only alternate remedy was available to them for redressal of their grievance but the forum existed too

Constitutional petition was dismissed.

High Court does not generally review factual aspects decided by lower courts.

Constitution requires that public functionaries, deriving authority from or under law, are obliged to act justly, fairly, equitably, reasonably, without any element of discrimination and squarely within the parameters of law, as applicable in a given situation

Any deviation therefrom can be corrected through appropriate orders under Art.199 of the Constitution.

PESCO was established in 2002 as a result of the bifurcation of the Power Wing of WAPDA, as outlined in S.8(vii) of the Pakistan Water and Power Development Authority Act, 1958

Thirteen different corporate entities/companies were established and duly registered under the Companies Ordinance, 1984, following the restructuring of the Power Wing into generation, transmission, and distribution of electric power

PESCO had taken control of and managed the transition process of the WAPDA Power Wing

Afterward, all functions of PESCO were performed by its Board of Directors

Authority to hire and fire employees and determine the terms and conditions of their services exclusively vested in the Board of Directors

Neither the Federal Government nor the Provincial Government or local authority had any say in this matter

Controversy in the present case related to the petitioner's terms and conditions of service

Petitioner had challenged his transfer order, but his grievance was not governed by any statutory rules

Therefore, the writ petition could not be maintained

Appropriate remedy for him was to approach the Civil Court and not the High Court in a writ jurisdiction under the principle of Master and Servant

Constitutional petition was dismissed.

Not necessary that accused always go to the Trial Court at first instance before approaching High Court for the like relief, if the circumstances warrant interference it must be decided by High Court.

Article 199 of the Constitution guarantees that if no other remedy is available High Court can also undo the wrong in its extra ordinary jurisdiction

High Court is exercising this jurisdiction for quashing of FIR

Though S. 561-A, Cr.P.C., is available to exercise jurisdiction by the High Court in its inherent power to secure the ends of justice and to prevent abuse of process of the court yet such power is sparingly used by the High Court in appropriate case only.

Subordinate criminal courts do not have jurisdiction to dilate upon quashing of FIR; however, under Police Rules, 1934, on the recommendation of police, FIR is usually cancelled.

Under Ss. 265-K & 249-A, Cr.P.C., subordinate criminal courts are authorized to acquit the accused at any stage of the case and this power is synonymous to one the High Court exercises under S. 561-A, Cr.P.C., but if they fail to exercise powers the High Court either under Art. 199 of the Constitution of Pakistan or under S. 561-A, Cr.P.C. can either quash the proceedings pending in the court subordinate thereto or quash the FIR.

Ordinarily Constitutional petition was not maintainable against remand order.

It is sine qua non for initiation of proceedings under Art. 199 of the Constitution that the petitioner should have a locus standi to institute the proceedings or in other words the petitioner should be an aggrieved party from the action of the respondent.

Petitioners challenged the notification issued by the Election Commission of Pakistan (ECP) whereby a Care-taker Chief Minister of the Province was appointed

Contention of the petitioner was that the exercise of such discretion was required to be structured

Validity

Doctrine relating to structuring of discretion does not apply to powers which are conferred under the constitutional scheme on high constitutional bodies such as ECP

Structuring of discretion stems from the doctrine of non-delegation

It applies to delegation of powers made by the legislature on subordinate authorities to be exercised within the confines of the powers mentioned in the primary legislation itself

It is in those cases that issues relating to structuring of discretion arise on the basis of which courts can decide whether the delegatee has exceeded the power conferred upon it by the delegator

Election Commission of Pakistan is a constitutional body and is tasked with making a decision regarding the appointment of a care-taker Chief Minister and the High Court will not go into the merits of that decision

Deference must be given to the decision made by ECP, which merely chooses one of the candidates referred to it on the recommendation of the Chief Minister and the Leader of the Opposition

Decisions made by the exercise of constitutional powers can only be interfered with by superior courts if they contravene the constitution itself

Constitutional petitions were dismissed.

Courts should exercise judicial restraint and refrain from passing adverse orders or taking any actions that could potentially hinder or nullify any government initiative

Such actions can seriously impede the positive initiatives being taken by concerned governmental authorities for the larger interest of the public or the country.

Extraordinary constitutional jurisdiction under the provisions of Art. 199 of the Constitution, 1973, was discretionary/equitable and same could not be extended to a party who did not come before the Court with clean hands

High Court, in exercise of constitutional jurisdiction, had only to see whether the court acted without jurisdiction or had violated the statute/law laid down by the superior courts.

To invoke the constitutional jurisdiction of the High Court, the petitioner must establish that his legal or fundamental rights have been violated.

There is a significant difference between writs under Art.199(1)(a)(ii), (b)(ii) of the Constitution in terms of the aggrieved person

Writ of certiorari can only be moved by an aggrieved person who is competent to seek a declaration, whereas for a writ of quo warranto, there is no such restriction, and any person, whether aggrieved or not, can move a writ of quo warranto

For the maintainability of writs of certiorari and/or prohibition, it is necessary that the right sought to be enforced should ordinarily be a personal or individual right of the individual person.

Aggrieved party can invoke the High Court's jurisdiction under Art. 199(1)(a) of the Constitution against a person performing, within its territorial jurisdiction, functions in connection with the affairs of the federation or a province or local authority

Article 199(5) elucidates that "person" includes any body politic or body corporate, any authority under the control of the Federal Government or a Provincial Government, and any court or tribunal, other than the Supreme Court, a High Court, or a court or tribunal established under a law relating to the armed forces of Pakistan

To determine whether an organization is a "person" within the meaning of Art.199, the courts generally apply the "function test".

Not in the domain of the Courts to embark upon an inquiry as to whether a particular merit policy is wise and acceptable or whether better policy could be evolved

Court can only interfere if the policy framed is absolutely capricious and non-informed by reasons, or totally arbitrary, offending the basic requirement of the Constitution.

Mala fide being a question of fact cannot be adjudicated by High Court in exercise of its constitutional jurisdiction.

Respondents assailed their termination orders through various constitutional petitions, which were allowed by the Single Judge of High Court vide impugned orders

Contention of appellant-employer was that its' employees did not have statutory rules of service and that the alleged violation of terms and conditions of service did not attract the constitutional jurisdiction of High Court

Respondents defended the judgment by placing reliance on the judgment reported as "Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed" [2013 SCMR 1707] ('the cited case') and contended that in view of non-adherence of Public Sector Companies (Corporate Governance) Rules, 2013, even in absence of statutory rules of service, the constitutional petition was maintainable

Validity

Supreme Court in the 'cited case' and others case had clearly observed that in order to maintain constitutional petition, it was incumbent upon the petitioner to show statutory intervention

Service rules in the instant case were prepared by Board of Directors of private limited company, having no statutory authority, the case did not meet the criteria and yardstick laid down in paragraph No. 50 of the 'cited case' and others case

Even otherwise, consequences of violation of Public Sector Companies (Corporate Governance) Rules, 2013, were given in R.25 of the same, in the form of fine besides other consequences provided in the Companies Act, 2017

Impugned judgment was set aside and the intra court appeals were allowed.

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.

Mistake as to a fact can also vitiate a decision where the fact is a condition precedent to exercise of jurisdiction, or where the fact is the only evidential basis for a decision or where the fact was about a matter which expressly or impliedly have to be taken into account

Likewise, at times, an error of fact can lead to unfairness

Hence, where there has been a mistake as to an existing fact and where such fact is uncontentious and objectively verifiable and such mistake had played a material even though not decisive part in the decision-makers reasoning, then High Court has the jurisdiction to intervene and remedy the defect

Taking into account a mistaken fact or misunderstanding or ignoring an established and relevant fact leads to judicial review of the decision so reached

Such head of review known as error of fact is now sufficiently well established for High Court to rely on it.

Judges, in judicial review proceedings, traditionally are cautious in entertaining fact-based challenges since factual questions are primarily the domain of the public body concerned

However, the Court can certainly interfere in a case involving unsupported or unsubstantiated factual conclusions or where the ignorance or disregard of an established and material fact leads to unfairness.

Contract employee cannot approach High Court by filing a constitutional petition agitating grievance qua his contractual employment.

High Court, in exceptional circumstances, can pass ad-interim orders pending final adjudication of a petition; but that can only be done when a prima facie case is made out that the petitioner may be able to succeed before the Court in its final determination of the dispute

Ad-interim relief can only be granted where there is every likelihood that if such a relief is not granted, the party approaching the Court may be prejudiced

It is only when the Court is empowered to grant the final relief, an ad-interim relief can be granted

Approaching a constitutional court, in any other situation or manner, is not a correct approach.

Any individual or small group of persons, in the garb of public interest litigation, cannot be allowed to invoke the constitutional jurisdiction of High Court under Art. 199 of the Constitution, on mere allegation of mala fide in respect of any decision of the executive authority, whereas, Courts are required to exercise restraint, and should ensure that unless there is a matter of public interest or enforcement of fundamental rights, only then its discretion under Art. 199 of the Constitution should be invoked and exercised by the Courts

In such type of cases, extra caution and care has to be exercised, and unless good faith on the part of petitioner is established and the matter is found to be of a public interest, and the respondent is not in a position to distinguish that the impugned transaction does not suffer from any jurisdictional defect or patent illegality, the Courts may not encourage frivolous litigation between the parties and cause miscarriage of justice.

High Court while exercising jurisdiction, particularly in cases relating to public interest litigation, can take cognizance of subsequent events during pendency of lis before it, in order to do complete justice, however it is to be done without changing the complexion of proceedings.

Article 199 of the Constitution casts an obligation on the High Court to act in the aid of law and protects the rights within the framework of Constitution and this extraordinary jurisdiction of High Court may be invoked to encounter and collide with extraordinary situation and non-availability of any alternate remedy under the law where the illegality of the impugned action of an executive or other authority can be established without any elaborate enquiry into complicated or disputed facts

Mandatory and obligatory for a party invoking the constitutional jurisdiction to establish a clear legal right which should be beyond any doubt and controversy.

High Court in its constitutional jurisdiction can look into the legality or otherwise of the proceedings before lower courts and the orders and judgments pronounced by them or any jurisdictional defect therein.

Promotion is neither a right nor there is any concept of vested right in the promotion policy and therefore, the employees cannot seek a writ in their favour for such purpose.

Executive policy making is not the domain of Court in the scheme of the Constitution; rather, is the prerogative of the executive to ascertain it on the basis of its need, requirement, available resources and fiscal space.

Application under the Constitution shall be accompanied by an affidavit or affidavits in proof of the fact and certified copies of all pleadings, documents, orders of the subordinate Court or authority or tribunal, including the evidence recorded, if any, unless dispensed with by the Court

High Court directed its office not to accept for filing a petition seeking the issuance of a writ of certiorari without a certificate of the counsel for the petitioner to the effect that the record of the Court or Tribunal below has been filed along with the petition.

Held, High Court must not exercise constitutional jurisdiction in order to interfere with the discretion exercised by lower courts unless the same suffers from jurisdictional, factual or legal error

However, such interference would be justified incases where the impugned order had been passed without jurisdiction or is based on misreading or non-reading of evidence, or is not in accordance with law.

Courts are guided by certain set of rules in discharging their solemn duty to declare laws passed by legislature unconstitutional or otherwise in which the foremost principle applied is when a law is enacted by the Parliament, the presumption is that the Parliament had competently enacted it (law) and if the vires of the same (law) are challenged, the burden is always upon the person making such challenge to show that the same (law) is violative of any of the fundamental rights or provision of the Constitution

In a case where two opinions with regard to the constitutionality of the enactment are possible, the one in favour of validity of enactment is to be adopted

It is also cardinal principle of interpretation that law should be interpreted in such a manner that it should be saved rather than destroyed

Courts should lean in favour of upholding the constitutionality of a legislation and it is thus incumbent upon the Courts to be extremely reluctant to strike down laws as unconstitutional.