UMAR ATA BANDIAL, J.---To recover its over dues without obtaining a decree of court, the respondent bank has sold two charged properties of the appellants on 5-3-2009 in exercise of power under section 15 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 ("FIO").
Such power of a financial institution was struck down as unconstitutional by a learned Full Bench of this court in its judgment dated 23-12-2008 passed in Muhammad Umar Rathore v. Federation of Pakistan 2009 CLD 257. The appellants assailed in writ petition the afore-noted private sale of its charged properties by respondent bank as being illegal and void. The learned Single Judge has dismissed the writ petition for being not maintainable against a private bank. Hence this appeal.
2. In addition to the ground taken by the learned Single Judge, the learned counsel for the respondent bank has justified the impugned sale on the basis that the appellants have admitted their liability vide their letter dated 6-10-2008 and consequently, this is not a fit case for interference by the court as the appellants have approached for relief with unclean hands. For that reason he also contends that assuming void sales to have been made in the present case, the same may not be set aside in the constitutional jurisdiction unless such an order would defeat rather than foster justice.
3. The learned counsel for appellants has answered that the entire liability has been repaid in full by the appellants. This is evident from the statement of account available on record at page 44 of the file which shows a zero balance at page 79. As such the quantum of liability of the appellants is a disputed matter. The ratio of Umar Rathore's case is that a creditor cannot be judge in its own cause and must establish its claim before a court of law before recovering the same from its customer. We respectfully agree with the salutary principle laid down in the said judgment. The impugned sales were conducted in violation of the said principle and in exercise of a presumed statutory power after it had been declared unconstitutional and void. Consequently, the impugned sales are made without lawful authority and are of no legal effect.
4. In so far as the objection regarding maintainability of a writ petition against a private bank is concerned, that has no bearing in the present matter because the challenge in the petition is to be existence and exercise of a statutory power by the respondent private bank and not to any contractual or private action taken by it. The impugned action impinges upon the property rights of the appellants which cannot be denuded except in accordance with law. The impugned action by the respondent bank violates the fundamental right of the appellants to hold and enjoy property under Articles 23 and 24 of the Constitution of Islamic Republic of Pakistan, 1973. Under Article 199(1)
(c) of the Constitution, fundamental rights can be enforced by the appellants, against adverse action taken by any person including a private bank. Reference is made to the illuminating discourse in this behalf in Human Rights Commission of Pakistan v. Government of Pakistan PLD 2009 SC 507 appearing at P.527 of the law report:-- "30. There also seems to be force in the contention that the honourable High Court was not justified in dismissing petitions under Article 199 of the Constitution where enforcement of fundamental rights guaranteed inter alia under Articles 11, 14 and 15 was sought. In the above context it needs to be kept in view that apart from the jurisdiction vested in the High Courts by virtue of clauses (a) and (b) of Article 199(1) a special jurisdiction is conferred by clause (c) [which a High Court shares with the original jurisdiction of this court under Article 184(3)1 in the following words:-- "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 relation to, any territory within the jurisdiction of trial Court as may be appropriate for the enforcement of any of the fundamental Rights conferred by Chapter I of Part-II."
"31 It needs to be explained that in matters pertaining to fundamental rights the jurisdiction of the High Court is wider than that available under clauses (a) and (b). In this context the true meaning of the expression "enforcement of fundamental rights" needs to be ascertained. For doing so a comparison of the provisions pertaining to fundamental rights in the Constitutions of US and Pakistan may be appropriate. For instance, the 13th Amendment to the US Constitution forbids slavery and forced labour but provides that the Congress has the power to enforce this Article through appropriate legislation. Similarly in the 14th Amendment section-1 requires that any state shall not deprive any of life, liberty or property or equal protection of laws. Section 5 however requires that the Congress shall have the power to enforce by appropriate legislation. These provisions show that while State-action violating or ignoring provisions of the Constitution may be struck down by Courts exercising normal judicial power, the power to positively enforce the rights through appropriate sanctions could be exercised by the Congress alone. It is for this reason that the US Supreme Court was able to give effect to the 14th Amendment in respect of recial segregation in the absence of legislation, only through extending the concept of State-action to State-aided school etc. "32 On the other hand, in the scheme of our Constitution, the power to enforce fundamental rights has been conferred upon the superior courts through Articles 199(1)(c) and 184(3). It may be seen that under Article 4 everybody has to be treated in accordance with the law and under Article 8, a law inconsistent with fundamental rights is to be treated as void. Therefore, even in the absence of clause (c) any action by a person performing functions in connection with the affairs of the Federation, a province or local authority, inconsistent with fundamental rights is to be declared without lawful authority under the clause (a) of Article 199.
"33. The reach of clause (c) however is wider. It not merely enables a court to declare an action of a State functionary inconsistent with fundamental rights to be unlawful but also enables the courts to practically enforce such rights by issuing appropriate directives as is evident from its language.
Accordingly, this court after having earlier held that the fundamental rights guaranteed by Article 17 included the right of a political party to contest elections as a collective entity was able to issue mandatory directives in the case of Benazir Bhutto v. Federation of Pakistan reported in PLD 1989 SC 66 to the election authorities to amend the election rules to provide for the same under its powers to enforce fundamental rights under Article 184(3) of the Constitution. Moreover, such directives could be issued to any person including the Government. In the case of Peoples Union for Democratic Rights v. Union of India reported in AIR 1982 SC 1473, it was held that though some of the fundamental rights imposed negative obligation on the part of the State not to encroach upon individual's liberty etc., there were others, which were positively enforceable against the whole world. We are therefore clearly of the view that the High Court has plenary powers to positively enforce fundamental rights not merely against public authorities but even private parties.
Accordingly direction for positive enforcement of fundamental rights against private parties could only be given by the High Court in respect of rights guaranteed, inter alia, by Articles 11, 22 etc. Which might in most cases require enforcement against such parties." (Underlining is ours).
5. In the circumstances of this case and for avoiding the consequences of the arbitrary, pretended and false exercise of a statutory power, the writ petition field by the appellant is maintainable on the principles enunciated by the honourable Supreme Court of Pakistan.
6. Consequently, the impugned sales are declared to be illegal without lawful authority and of no legal effect; the same are accordingly set aside. This appeal is allowed with no order as to costs.