TARIQ SALEEM SHEIKH, J.---The Petitioner is a banking company incorporated under the laws of Pakista n having its Registered Office at Karachi and one of its branches at 9-Jail Road, Lahore. Respondent No.6 (Sub- Divisional Police Officer) issued an undated notice under sections 6 and 10 of the Punjab Security of Vulnerable Establishments Ordinance, 2015 (the "Ordinance"), which was received at the Petitioner's Jail Road Branch on 8.8.2015. The Petitioner has challenged the said notice (the "Impugned Notice") through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution").
2. The learned counsel for the Petitioner contended that the Impugned Notice was without jurisdiction and void ab initio. He argued that, firstly , Respondent No.6 issued the Impugned Notice to the Petitioner under the Ordinance on a date when it did not exist as the Punjab Security of Vulnerable Establishments Act, 2015 (the "Act"), repealed it w.e.f. 18.3.2015. Secondly , even if the Impugned Notice was assumed to be under the Act, the actions contemplated by sections 6, 10 and 11 thereof could only be taken by the Security Advisory Committee which was never constituted in accordance with law. Respondent No.6 was not competent to act on his own initiative. Thirdly , the Petitioner's Jail Road Branch was not notified as a "vulnerable establishment" in terms of section 2(i) of the Act read with section 5 thereof so it was not amenable to any action by the authorities.
3. The learned Additional Advocate General contended that the Impugned Notic e was issued to the Petitioner under the Act and reference to the Ordinance was inadvertent. According to him, the error was inconsequential and did not impinge on its validity . He furthe r contended that this constitutional petition was not maintainable as the Petitioner had a remedy by way of appeal under section 12 of the Act.
4. The CCPO, Lahore, filed para-wise comments to this petition. He submitted that Respondent No.6 had issued the Impugned Notice under the Act and the mere fact that it mentioned a wrong provision would not make it illegal.
He maintained that the District Coordination Officer had constituted Security Advisory Committees for each sub- division in terms of section 3 and appointed Respondent No.6 as the Chairperson of the Committee for the Civil Lines Circle. The banks were vulnerable establishments as defined in section 2(1) of the Act. Respondent No.8 (SHO, Police Station Civil Lines, Lahore) inspected the Petitioner Bank's Jail Road Branch and found its security arrangements unsatisfactory . He reported the deficiencies to Respondent No.6 who sent the Impugned Notice. The CCPO stated that the acts of Respondents Nos. 6 and 8 were in accordance with law and no exception could be taken thereto. He added that the Petitioner should comply with the directions of Respondent No.6 which were for the benefit of the public-at-large.
5. Respondent No.6 filed separate para-wise comments which were obviously in line with that of the CCPO.
6. This Court also requisitioned para-wise comments from Respondent No. 3 (District Coordination Officer. Lahore) who submitted that security of the people was the top priority of the Government of Punjab and it was doing everything necessary for that purpose. It had also re-constituted the District Intelligence Committee for better coordination among various law enforcement agencies. Respondent No.3, however , confirmed that the Petitioner's Jail Road Branch was not notified as vulnerable establishment under section 5 of the Act.
Opinion
7. The objection of the learned Additional Advocate General regarding maintaina bility of this petition deserves a short shrift. The general rule is that the extraordinary jurisdiction of the High Court under Article 199 of the Constitution cannot be invoked where the remedy of statutory appeal is effective and adequate. However , the question of efficacy and adequacy turns on the facts of each case and the provisi on granting the right of appeal.
Fazal Karim J. writes: "An appeal while adequate to correct mere errors in the exercise of jurisdiction, is inadequate to redress or prevent a wrong done in the absence or excess of jurisdiction. In such cases, jurisdiction under Article 199 may be invoked without exhausting the remedy of appeal, revision etc. provided by the law under which the order in question was purportedly made, for the rule is firmly established that if an order is without jurisdiction and void, it need not be formally set aside, and the fact that no appeal was filed or the appeal filed was dismissed as having been filed out of time would not disentitle the aggrieved party to claim relief under the Constitution. The reason is obvious. An enactment provides an appeal against order made under it. An order without jurisdiction is not an order under the enactment, and though the aggrieved party can, at its option, avail itself of the appeal procedure, yet, it can ignore the order and have it set aside under Article 199."
8. On 8.1.2015, in exercise of the powers conferred on him under Article 128(1) of the Constitution, Governor of the Punjab promulgated the Ordinance but the Act repealed it w.e.f. 18.3.2015 when it came into force. Thus, Respondent No.6 issued the Impugned Notice under the Ordinance at a time when it did not hold the field. It is, however , noticed that the provisions of the two statutes are strikingly similar . The organizational structure to bolster the security of vulnerable establishments is identical. Relying upon Muhammad Siddique v. Divisional Forest Officer, Okara (2014 PLC (C.S.) 253), Karachi Electric Supply Company Ltd. through Authorized Officer/Attorney v. Lotte Powergen (Pvt.) Limited through Company Secre tary and 3 others (PLD 2014 Sindh 574) and Khalid Imran Khan Barki v. Government of Punjab and others (2021 PLC (C.S.) 426) the learned Additional Advocate General contended that when an authority passes an order which is within its competence it cannot fail merely because it has been made under a wrong provision. The said order can sustain if it can be shown to be within the power of that authority under any other rule. It's validity should be adjudged on consideration of its substance and not the form. I agree with him but the controversy in the instant case goes far beyond.
9. The Act provides for effective security arrangements of vulnerable establishments inter alia to prevent acts of terrorism and other crimes, to obtain evidence by use of modern devices for investigation and prosecution of offences. Section 2(i) defines "vulnerable establishment" as under:
(i) "vulnerable establishment" means a place of worship or any other religious place, sensitive office of the Government, Federal Government, non-governmental organization or foreign project, hospital, bank, money changer , financial institution, office of firm or company , industrial unit, educationa l institution, public park, private1 2 3 4 clinic, wedding hall, petrol or CNG station, jewelry shop, hotel, amusement or entertainment centre, public transport terminal, special bazaar , commercial street, shop or shopping arcade notified under the Act.
(emphasis added)
10. Section 3 of the Act mandates the District Coordination Officer (DCO) to constitute a Security Advisory Committee (the. "Committee") for each sub-division consisting of the Sub-Divisional Police Officer as the chairperson and the following members: (a) a representative of the district administration in BS-16 or above; (b) an officer from the Special Branch of the Police in BS-16 or above; (c) an officer from the Counter Terrorism Department in BS-16 or above; and (d) three representatives of the traders and other stakeholders. Section 4 describes the functions of the Committee and section 5 requires the Committee to identify the establishments that are required to be brought under the Act's regime and make a recommendation to the DCO who may then, by notification, declare it a vulnerable establishment. (The phrase "by notification declare" in section 5(2) of the Act is vital). The DCO has the power to de-notify any establishment and exclude it from the list. Section 6 empowers the Committee to issue advice to the manager of the vulnerable establishment far making such security arrangements as it may consider necessary. Section 7 obligates the said manager to make sufficient security arrangements for the protection of his place and comply with the Committee's advice within the period specified by it. In the event of default, the Committee may give him a warning under section 10 of the Act or direct complete or partial sealing of the premises under section 11. The Station House Officer is authorized by section 9 to inspect any vulnerable establishment and submit his report to the chairperson of the Committee under intimation to the Head of the District Police.
11. The above reading clearly shows that the provisions of the Act would apply to an establishment subject to two conditions: first, the Committee identifies it as a vulnerable establishment and makes a recommendation to the DCO for notification as such; and secondly , the DCO declares it a vulnerable establishment by notification. In the instant case, none of these requirements are fulfilled. It is well settled that where the law prescribes a method for doing an act it must be done in that particular way or not at all. Further , if a condition that is mandatory for exercise of jurisdiction is not fulfilled, the entire proceedings are vitiated
12. According to Respondent No.3, his predecessor constituted Security Advisory Committees in terms of section 3 of the Act, However , he has not produc ed any evidence to establish that the relevant Committee actually met, identified the Petitioner Bank's Jail Road Branch as a vulnerable establishment and made a recommendation to him for notifying it as such. Respondent No.3 has not filed minutes of the Committee's meeting and the material which it took into consideration for coming to the conclusion that it needs to be declared a vulnerable establishment. Even the Committee's recommendation to the DCO has not been placed before this Court.
13. The Act does not define the term "notification" so we must have recourse to section 2(41) of the Punjab General Clauses Act, 1956, which reads:
(41) "notification" shall mean a notification published under proper authority in the of ficial Gazette.
14. In Muhammad Ishaq v. Chief Administrator of Auqaf Punjab (PLD. 1977 SC 639) the Chief Administrator of Auqaf, Punjab, declared the appellant's property as Waqf which he contested through a petition under section 7 of the West Pakistan Waqf Properties Ordinance, 1961. As the notification was printed in the official Gazette on 30.9.1969 and the petition was filed on 15.11.1969, i.e. outside the stipulated period of 30 days prescribed by section 7, ibid, the Chief Administrator took the objection that the petition was barred by time. Certificate from the Manager , Works-II, Government Press, Punjab, Lahore, evinced that the aforemen tioned notification was received in the Book Depot on 23.10.1969. The Hon'ble Supreme Court of Pakistan held that a notification takes effect from the day it is published - when made available for sale to the general public. Thus, the limitation would run from 23.10.1969 and not from 30.9.1969 and the appellant's petition was well within time.
15. In Muhammad Suleman and others v. Abdu l Ghani (PLD 1978 SC 190) the Hon'ble Supreme Court had the occasion to consider the expression "declare by notification" in section 8(2) of the Pre-emption Act, 1913. It was, inter alia, contended that simple declaration by the Board of Revenue that no right of pre-emption existed in certain circumstances was sufficient and its formal publication in the official Gazette was not required because the law did not impose any such condition. It was argued that "declare" means to announce, to make it known; reveal one's5 .6 intention or contemplated action. It does not express any particular mode or circumstance of making it known. The Court held: "... the phrase 'declare by notification' in section 8(2) is clear enough to show that it is to be a public declaration and not a private declaration in the secrecy of the office of the Board of Revenue. Secondly , the section itself lays down the mode of declaration and that is by a notification: The word 'notification', accord ing to section 2(41) of the West Pakistan General Clauses Act (VI of 1956), 'shall, mean a notification published under proper authority in the official Gazette.' This negates the contention of the learned counsel that in the instant case, there was no requirement of doing the relevant thing by publication of a notification in the of ficial Gazette."
16. In Karachi Metropolitan Corporation, Karachi v. Messrs S.N.H. Industries (Pvt.) Limited, Karachi and 2 others (1997 SCMR 1228 ) the apex Court was called upon to interpret section 62(2) of tire Sindh Local Government Ordinance, 1979, which required that the direction issued by the Chief Executive of the Council shall be given effect by issuing a notification in terms of the direction which should be before or on the date specified in the direction. The Court held that publication of notification in the of ficial Gazette was mandatory . It said: "As the word 'notification' has not been defined in the Ordinance, the definition given in the West Pakistan General Clauses Act shall be applied. It requires that any direction/order which is published under proper authority in the official Gazette is called a notification. Mere issuance of an order or direction will not amount to a notification. Even if it is published in the newspapers, affixed on the Notice Board or is published in any other manner , it shall not amount to a notification. Notification published in an official Gazette is a public document and carries certain presumptions of its legality and authority and its enforcement as well. Such attributes cannot be attached to an order or direction which is issued, notified or published without publication in the of ficial Gazette."
It further said: "The terms 'notification' and 'notified' convey completely different meanings. The 'notification' as discussed above is issued by publication under a proper authority in the official Gazette. While the term 'notify' means to give notice, proclaim or publish in any recognized manner ... From the literal meaning of the term 'notify' and the meaning as understood in legal proceedings and public matters, it means to convey information in a manner which ensures that the person sought to be notified shall receive it. The method of conveyance of information, order or notice may be by post, publication, public proclamation or announcement, direct service on the address effected personally on him by the person issuing it or his authorized representative, or any other recognized or customary mode of service . "
Further reference on the subject may be made to Chief Administrator Auqaf v. Mst. Amna Bibi (2008 SCMR 1717 ); Tehsil Municipal Administration and others v. Noman Azam and others (2009 SCMR 1070 ) and Government of Sindh through Secretary Agriculture and Livestock Department and others v. Messrs Khan Ginners (Private)
Limited and 57 others (PLD 201 1 SC 347 ).
17. In Pakistan Sugar Mills Association (PSMA), Islamabad, and 10 others v. Federa tion of Pakistan through Secretary , Cabinet Division, Islamabad and others (PLD 2021 Islamabad 55) a Division Bench of the Islamabad High Court deduced the following principles after analysing the above cases and some others from the Indian jurisdiction: "i) Where a statute requires a notification to be published in the official Gazette, the notification takes effect from the date when it is so published. ii) Where a statute explicitly requires a notification to be published in the official Gazette, mere drawing up of a notification without its publication in the of ficial Gazette falls short of compliance with the statute. iii) Where an appointment to a certain office is required by a statute to be made through a notification in the official Gazette, the assumption of office and the exercise of powers related to that office after the drawing up of a notification but prior to its publication in the of ficial Gazette is without lawful authority . iv) Even where a particular statute does not expressly require a notification to be published in the official Gazette, it has to be so published since section 2(41) of the West Pakistan General Clauses Act, 1956 provides that in the said Act and all the Federal Acts unless there is anything repugnant in the subject or context the word 'notification' shall mean a notification published under proper authority in the of ficial gazette. v) The requirement for a publication in the official Gazette is all the more essentia l where the notification operates to curtail the rights of citizens or imposes a burden on them. vi) The provision in statutes requiring publication of a notification in the official Gazette can be treated to be mandatory in nature where the rights or liabilities of other persons are involved. vii) Publication of a notification is complete when the Gazette containing the notification is made available to the public."
18. There is a set of cases in which the Hon'ble Supreme Court seems to have taken a different view. It has held that the provisions in a statute requiring publication or a notification in official Gazette are directory where no consequences are provided for non-compliance. Further , a notification should not be declared invalid merely because the public functionaries have failed to publish it in the official Gazette or published it with delay . This Court is obligated to follow the dictum laid down in Muhammad Ishaq, supra, because that decision was handed down by a 4-Member Bench while all others have come from Benches of low numeric strength. The law on stare decisis is that if there is conflict between judgments of the Supreme Court the one rendered by the Larger Bench prevails.
19. In the instant case, Respondent No.3 has conceded that a notification in terms of section 5 of the Act declaring the Petitioner's Jail Road Branch as a vulnerable establishment was neither issued nor published. In the circumstances, the Impugned Notice is out-and-out unlawful.
20. In the result, this petition is accepted with costs. The Impugned Notice is quashed. Fazal Karim, Judicial Review of Public Actions, Second Edition, p. 1455 ibid, p. 1456 internal citations omitted.
Preamble of the Act. Government of the Punjab, Food Depar tment through Secretary Food and another v. Messrs United Sugar Mills Ltd. and another (2008 SCMR 1148 and Syed Abdul Aziz Nasir Haqqani alias Pir Aziz Ullah Haqqani v.
Returning Of ficer for Presidential Election (Chief Election Commissioner), Islamabad ( 1994 CLC 648 ).
Rashid Ahmad v. The State (PLD 1972 SC 271); Almas Ahmad Fiaz v. Secretary Government of the Punjab Housing and Physical Planning Development, Lahore and another (2006 SCMR 783) and Izhar Alam Farooqi v. Sheikh Abdul Sattar Lasi and others ( 2008 SCMR 240 ).
Muhammad Siddique v. The Market Committee, Tandlianwala (1983 SCMR 785); Pakistan through Secretary , Ministry of Defence, and others v. Late Ch. Muhammad Ahsan through Legal Heirs and others (1991 SCMR 2180 ); Haji Ali Khan and Company , Abbottabad and 8 others v. Messrs Allied Bank of Pakistan Limited, Abbottabad (PLD 1995 SC 362); Saghir Ahmed through Legal Heirs v. Province of Punjab through Secretary , Housing and Physical Planning Lahore and others (PLD 2004 SC 261) and Commissioner of Income T ax and others v . Messrs Media Network and others ( PLD 2006 SC 787 ). Fazal Muhammad Chaudhry v. Ch. Khadim Hussain and 3 others (1997 SCMR 1368 ); Sardar Muhammad Nawaz v. Mst. Firdous Begum (2008 SCMR 404); Chairman, State Life Insurance Corp oration and others v.
Humayun Irfan and 2 others (2010 SCMR 1495 ) and National Bank of Pakistan through Chairman v. Nasim Arif Abbasi ana others ( 2011 SCMR 446 ).