' The learned Special Judge, Banking Court, vide order, dated 9th September, 1982 allowed the petitioner to pay, by six monthly instalments, the sum of Rs. 73,693 with costs, decreed against him.
It was further stated in the order that in case of default in payment of any instalment, the balance amount shall become payable immediately and the Bank may recover it by execution of the decree. Later, the petitioner did fail to pay the instalments, on which the learned Special Judge as per order, dated 3rd April, 1983 directed the Collector to attach his property and recover the amount by its sale. The petitioner made an application for the suspension/ vacation of that order.
The learned Special Judge allowed his request and withdrew the attachment warrants. He, however, asked him to pay the entire amount in lump sum till 7th July, 1983, as committed by him.
The petitioner challenged that order, through this petition, under Article 203 of the 1973 Constitution, read with Provisional Constitution Order, 1981, with the prayer that the previous order of instalments, on yearly basis; be restored, for the reason that the order of the trial Court was harsh and unjust.
The application, however, failed and was dismissed, on 18th July, 1983 for reasons to be recorded later. The present order is meant only to supply the reasons.
2. To support the maintainability of this application, the learned counsel relied on rule 9 of the Banking Companies (Recovery of Loans) Rules, 1980, and stated that according to it, the Special Court being subject to the administrative control and superintendence of this High Court, within whose jurisdiction its permanent seat is situate, the impugned order can be modified as prayed.
3. The learned counsel for the respondent Bank resisted this application . On the ground that firstly, the respondent Court established under Ordinance XIX of 1979, is not a Court subordinate to the High Court and secondly, the prayer made does not fall within the scope of the power of superintendence and control, conferred on this Court, under Article 203 of the. Constitution. Mr. Tanvir Ahmad Khan, Assistant Advocate-General, who appeared on notice, agreed with the learned counsel for the petitioner and stated that rule 9, referred to above, makes the respondent Banking Court, subject to the superintendence and control of the High Court. He, however, denied if any relief, of the nature prayed for, could be granted to the petitioner in that jurisdiction, or in the circumstances of the case.
4. The learned Deputy Attorney-General, however, opposed the motion. He pleaded that rule 9, made in 1980, had become redundant, in view of the later amendment, incorporated vide Ordinance II of 1983, by which the Special Court was reconstituted vide section 2(f). According to the new provision, a District Judge or an Additional District Judge, to be appointed by the Federal Government, will be the Special Court, for a given territory, in respect of a loan, the outstanding amount of which does not exceed rupees one million. For higher amounts, the High Court, in exercise of its original civil jurisdiction, shall be the Special Court. The argument was that as a case concerning a loan of an amount, exceding rupees ten lacs, is now to be brought before a Special Court, presided by a High Court Judge, it cannot be said that the same Special Court when presided by an officer of the rank of a District Judge, would be subordinate to the High Court. This argument, however, has no merit. Firstly, the jurisdiction for an amount over one million is conferred on the High Court, as such and secondly, if it is to be accepted, then it will be presumed that even those High Courts, which exercise original civil jurisdiction, cannot superintend and control Courts subordinate to them.
5. The learned Deputy Attorney-General then referred to section 5 of the Banking Companies (Recovery of Loans) Ordinance, 1979 (hereinafter. Called the Ordinance) to state that a Court, established by the Federal Government, as a Special Court and presided over, not by a District Judge, but by a persona designata, cannot be a Court subordinate to the High Court. Admittedly, section 5 has been repealed and so the argument on that basis is not available. It is, however, correct that,under section 2(f) of the above Ordinance, a Special Judge is to be appointed, not by the Provincial Government or High Court, but the Federal Government, though in the absence any such appointment, the District Court is to be the Special Court. The controversy thus raised by the learned Deputy Attorney-General is that the Special Judge is not a 'Court' but a 'Tribunal and so not subordinate to the High Court.
6. In order to appreciate the point, we must first know the meanings of and the difference between the two concepts i.e. 'Court' and 'Tribunal'. It is historically accepted that only the Courts exercise judicial power. Coke said ; Court is a place where justice is judicially administered. According to 'Words and Phrases Legally Defined' Volume I, page 367, the term 'Court' "has acquired the meaning of the place where justice is administered and has, come to mean the persons who exercise judicial functions under authority either immediately or mediately from the Sovereign and not by reason of merely submission to their jurisdiction". The 20 Am. Jurisdiction 2nd page 386 gives. The definition as under :- "Generally speaking, the word 'Court' ...Describes an organ of the Government consisting of one person or of several persons, called upon and authorised to administer justice. Whether a governmental agency is a Court is determined not by its name or title but by it organizational character, its purpose or its function."
' As for the distinction it states that "under our constitutional system of separation of the three branches of government, Courts are part of the judicial whereas administrative agencies are part of the executive branch of the Government". The American and Australian Constitutions which ar based on the principle of separation of power, use the term 'Judicial power' and say that it shall vest in the 'Courts'.
7. There appears to be a very special feature in our 1973 Constitution. It includes a specific provision in Article 212 for the contitution of tribunals for purposes expressly given therein and provides for an appeal before the Supreme Court. Article 175 only speaks of Courts. The Supreme Court of Pakistan and a High Court for each Province have been created under that Article while power has been conferred on the Legislature to create other Courts and also to confer jurisdiction on them. This position may contrasted with the Indian Constitution. Article 136 (1) of that Constitution lays down that the Supreme Court may grant special leave to appeal from any judgment etc., in any cause or matter, passed or made by any Court or tribunal in the territory of India. Article 227 states that every High Court shall have superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction. Thus, while the Indian Constitution recognises existence of tribunals sharing judicial power with Courts, it is conspicuously absent in the 1973 Constitution. This appears to be a very important departure from the previous Constitutional position as even Article 98 (5) of the 1962 Constitution recognised tribunals alongwith Courts.
Strangely enough, however, the power of superintendence of High Courts was conferred only with regard to the Courts subordinate to them and not for Tribunal as in the Indian Constitution. It is thus quite clear that the 1973 Constitution of Pakistan recognizes only such specific tribunals to share judicial power with Courts, as are particularly mentioned in Article 212 or elsewhere but none else. It may also be useful to note here that neither a Court nor any other judicial tribunal is relieved of the duty of deciding a matter before it justly, fairly, equitably and objectively. The only difference is that a tribunal is not as' much bound by the rules of procedure and the evidence as the Courts of law are. I may also refer here to some observations of the Indian Supreme Court in support of tribunals sharing judicial power with Courts, as made by Gajendragadkar Civil Judge in A. C. Companies v. P.
N. Sharma (1) while comparing Indian Constitution with that of Australia. The learned Judge remarked :- "Under our Constitution, there is no rigid separation of powers as under the Australian Constitution ; and so, it would not be constitutionally inappropriate or improper to say that judicial power of the State can be conferred on the hierarchy of Courts established under the Constitution . As well as on tribunals which are not Courts strictly so-called. Indeed, the fact that Article 136 (1) refers to Courts and tribunals and makes the determination, sentence or order passed by them subject to appeal to this Court by special leave, shows that our Constitution assumes that judicial power of the State can be vested in and exercised by both Courts and tribunals alike."
' A similar remark by Bachawat Judge in that case is as follows :- (1608) "Unlike Australia, in our country the judicial power of the State may be vested not only in Courts but also in other authorities. The Courts alone have no monopoly of this judicial power. An authority other than a Court vested with the judicial power of the State in this sense is regarded as a tribunal within Article 136."
' In Durga Shankar Mehta's case (2) B. K. Mukherjea Judge speaking for the Court observed :- "It is now well-settled by the majority decision of this Court in the case of Bharat Bank Ltd. (AIR 1950 SC 188) that the expression 'Tribunal' as used is Article 136 does not mean the same thing as 'Court' but includes, within its ambit, all adjudicating bodies, provided they are constituted by the State and are invested with judicial as distinguished from purely administrative or executive functions."
8. The Constitution of Pakistan as regards judicial power is thus quite different from that of India and resembles the Australian Constitution inasmuch as that no executive authority can be empowered to exercise judicial power under Article 175 and any power so conferred by a legislature shall be ultra vires. Relevant portions from two Australian judgment may also be quoted in support. In the Attorney-General for Australia v. The Queen and the Boilermakers' Society of Australia (3) an interesting question arose for the decision of the Court under sections 29(1)(b) and
(c) and 29-A of the Commonwealth Conciliation and Arbitration Act, 1904-1952. These provisions purported to vest judicial power-even to the extent of finding a citizen or depriving him of his liberty-in the Court of Conciliation and Arbitration established under the Act with powers of an administrative, arbitral and executive character. It was held that the said provisions were invalid, because the function of an industrial arbitrator is completely
(1) AIR 1965 SC 1595 (2) AIR 1954 SC 52Q
(3) 1957 A C 288 outside the realm of judicial power and is of a different character. Viscount Simonds, cited with approval the observations made by Griffith Civil Judge in Waterside Workers Federation of Australia v. Alexander Ltd. (1), that it is impossible under the Constitution to confer such functions (i.e. Judicial functions) upon any body other than a Court, nor can the difficulty be avoided by designating a body, which is not in its essential character a Court, by that name, or by calling the functions by another name. In short, any attempt to vest any part of the judicial power of the Commonwealth in any body other than a Court is entirely ineffective.
9. Many Courts and legal philosophers who attempted to give the exact meaning and scope of the term 'judicial power' have opined that it is not possible to adopt any exaustive and exclusive definition. However, in re : The Judiciary Act (2), it was stated that 'all these opinions indicate that a matter under the judicature provisions of the Constitution must involve some right or privilege or protection given by. Law or the prevention, redress or punishment of some act inhibited by law'. A passage from R. v. Local Government Board for Ireland (3), has been quoted by Dixon, C. J. Of the High Court of the Commonwealth of Australia, in The. Queen v. Davison (4) as under :- "I have always thought that to erect a tribunal into a 'Court' or 'jurisdiction', so as to make its determination judicial, the essential element is that it should have powers, by its determination within jurisdiction, to impose liability or affect rights. By this I mean that the liability is imposed, or the right affected by the determination only, and not by the fact determined, and so that the liability will exist, or the right will be affected, although the determination be wrong in law or in fact."
' The views of Dixon, C. J. As recorded by him in the above case are as under :- "The truth is that the ascertainment of existing rights by the judicial determination of issues of fact or law falls exclusively within judicial power so that the Parliament cannot confide the function to any person or body but a court constituted under sections 71 and 72 of the Constitution and this may be true also of some duties or powers hitherto invariably discharged by courts under our system of jurisprudence but not exactly of the foregoing description."
' Kitto, J. In a very learned judgment in The Queen v. Trade Practices Tribunal (5) concluded :- "Thus, a judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts 'as they are, followed by an application of the law as determined to the facts as determined ; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between
(1) (19181 25 C L R 434 (2) (1921) 29.0 L R 257
(3) (1902) 2 I R 349 (4) (1954) 90 C L R 353
(5) (1970-71) 123 C L R 361 whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist."
10. The Privy Council in Labour Relations Board of Saskatchewan v. John East Ironworks Ltd. (1) opined that : "It is truism that the conception of judicial function is inseparably bound up with the idea of a suit between parties, whether between Crown and subject or between subject and subject."
Holmes, J. Of the United States Supreme Court in Prentis v. Atlantic Coast Line Co. (2) laid the following test :- "A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist."
Again, the Privy Council in Shell Co. Of Australia Ltd. v. Federal Commissioner of Taxation (3) approved a definition of Griffith, C. J. Who says :- "I am of the opinion that the words 'judicial power as used in section 71 of the Constitution, mean the power which every sovereign authority must of necessity have to decide controveries between its subjects or between itself and its subjects, whether the rights relate to life, liberty, or property, The exercise of this power does not begin until some tribunal which has the power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action."
The above Privy Council opinion and the definition referred to therein has been cited for guidance in number of judgments of our Courts. Reference be made to Muhammad Ahmad v. Governor General-in-Council (4) The Corporation of the City of Lahore v. Fahmida Begum (5), Masud Ahmad v. Muhammad Saeed Sehgal (6) and Abdul Hamid v. Karam Dad (7).
11. The Indian view also on the scope and extent of judicial power is not much different. In Harinagar Sugar Mills Ltd v. Shyam Sundar Jhunjhunwala (8) Hidayatullah, J. Observed :- "In my opinion, a Court in the strict sense is a Tribunal which is a part of the ordinary hierarchy of Courts of civil judicature maintained by the State under its constitution to exercise the judicial power of the State. These. Courts perform all the judicial functions of the State except those that are excluded by law from their jurisdiction."
' In contrast the tribunals are those bodies of men who are appointed to decide controversies arising under certain special laws. The same Supreme Court in Shankar Lal Aggarwal v. Shankar La!
Poddar (9) observed that it is 'conceived that an administrative order would be one which is directed to the regulation or supervision of matters as distinguished from an order which decides the rights of the parties or confers or refuse to confer rights to property which are subject of adjudication before the Courts. One of the tests would be 'whether a matter which
(1) (1949) A C 134 (2) (1908) 211 U S 210
(3) (1931) A C 275' (4) AIR 1945 Lab. 313
(5) PLD 1952. Lah. 258 (6) PLD 1958 Lah. 153
(7) PLD 1966 Lah. 16 (8) AIR 1961 SC 1669
(9) AIR 1965 SC 507 involves the exercise of discretion is left for the decision of authority, particularly if that authority were a Court, and if the discretion has to be exercised on objective as distinguished from a purely subjective, consideration if the were a judicial decision." Later, Bachawat, J. Of the Indian Supreme Court in A. C. Companies v. P. N. Sharma devised a test to say :- "Far the purpose of this case it is sufficient to say that any outside authority empowered by State to determine conculsively the right of two or more contending parties with regard to any matter in controversy between them satisfies the test of an authority vested with the judicial power of the State."
12. A Full Bench of this Court in Works Manager v. Hashmat (1) devised the following test..
' One of the fundamental tests whether a certain tribunal is a Court or is not so is whether it exercises jurisdiction by reason of the sanction of the law or whether jurisdiction is given to it by the voluntary submission of the parties to a dispute... Another important test whether a certain tribunal is or is not a Court is whether it can take cognizance of a is and whether in exercising its functions it proceeds in a judicial manner."
' The above test was followed by a Full Bench of Allahabad High Court in H. C. D. Mathur v. E. I.
Railway Adminisiration (2). In Engineering Mazdoor Sabha v. Hind Cycles Ltd. (3) the Supreme Court observed that a Tribunal would be outside the ambit of Article 136 if it is not invested with any part of the judicial functions of the State but discharges purely administrative or executive duties. In the opinion of the learned Judge, Tribunals which are found invested with certain functions of a Court of justice and have some trappings also would fall within the ambit of Article 136 and would be subject to the appellate control of this Court whenever it is found necessary to exercise that control in the interest of justice. The learned Judges further noticed that apart from the importance of the trappings of a Court, the basic and essential condition which makes an authority or a body a tribunal under Article 136 is that it should be constituted by the State and should be invested with the State's inherent judicial power. Professor S. A. De Smith at page 41 of Judicial Review of Administrative Action, 18th Ed. Discussed this aspect. The test formulated by him is as under :- "An authority acts in a judicial capacity when, after invesligation and deliberation it determines an issue conclusively by the application of a pre-existing legal rule or any fixed objective standard to the facts of the situation."
13. A majority decision in Muhammad Ahmad v. Governor-Generalin-Council (5) noted that no exhaustive definition has been given to the word 'Court'. To determine whether an authority was a Court or not, the learned Judges noted the negative proposition promoted by Lord Sankey L. C. In the Shell Co. Of Australia's case para. 26 infra and further referred to the following facts to be considered :-
(i) mode of appointment of the members and their qualifications ;
(ii) tenure of office
(I) AIR 1946 Lah..
316. (2) A I it 1950 All. 80
(3) 4 T R 1963 C 874
(iii) method of removal ;
(iv) the manner of payment ;
(v) if the authority can enforce its order.
' From the judgment of Abdur Rehman, J. Who agreed with the general definition of 'Court' as adopted by the Full bench in Muhammad Ahmad's case, but differed with conclusion, the following definition of 'Court' can be gathered : ' That is must be constituted of person, or persons who are entrusted with judicial functions of deciding litigated questions, concerning civil rights, between the contesting parties according to law, under the judicial power of the State, duly conferred on them, so as to give a binding and an authoritative decision, whether subject to appeal or not, and that it will not lose its character simply because it does not have the power to execute its decree or order.
14. In Sahibzad a Masud Ahmad v. Mian Muhammad Saeed Sehgal, a learned single Judge of this Court held that before a person or persons can be said to constitute a Court, the following conditions must be satisfied :-
(1) That such persons are entrusted with judicial functions i. e. Of deciding litigated questions according to law ;
(2) that they derive their powers to decide such question from the State ;
(3) that they exercise the judicial powers of the State ;
(4) that there is a plaintiff who complains to such persons of an injury done ;
(5) that there is a defendant who is called upon by such persons to make satisfactions for the injury done ;
(6) that they are empowered to pronounce a definitive judgment which is binding and authoritative ;
(7) that such persons are appointed by the Government and should receive payments for their services exclusively out of Government funds and they should not be liable to removal by any authority other than Government.
15. The 'Supreme Court in Tariq Transpart Company's case (1) held that it is not presence or absence of the trappings of a Court but the character of action taken in a given case and nature of rights it operates which determines whether that action is judicial, ministerial or legislative or whether it is simply the act of a public agent. According to the learned Judges an authority acts judicially, in the full sense of the term ;
(1) if it has to determine a dispute ;
(2) the dispute relates to a right or liability which, what ever its immediate aspect, is ultimately referable to some right or liability, recognised by the Constitution or statute or by custom or equity which by the domestic law is declared to be the rule of decision ;
(3) since every right or liability depends upon facts, the tribunal is. Under an obligation to discover the relevant facts ;
(1) PLD 1958 SC (Pak.) 437
(4) the ascertainment of the facts is in the presence of the parties either of whom is entitled to produce evidence in support of its respective case and to question the truth of the evidence produced by its opponent ; and
(5) after an investigation of the facts and hearing legal arguments the tribunal renders a judgment which so far as the tribunal is concerned, terminates the dispute.
' In respect of an administrative tribunal, the learned Judges added that its emphasis is on policy, expediency and discretion to enable it to achieve the object with which it was set up. In the case of such a tribunal, it was added, the approach in determining the relevant facts is often subjective and not objective ; there being generally no lis before it, in which the parties are arrayed against each other, for the enforcement of private right or liability and who for that purpose are entitled to produce evidence and adduce legal argument.
16. In Abdul Hamid v. Malik Karam Dad a Division Bench of this Court referred to the negative proposition (referred to in para. 26 infra) about a Court given by a Privy Council in Shell Company of Australia v. Federal Commissioner of Taxation. The learned Judges further went on to say as under :- "Quasi-judicial tribunals are not fettered by the technical rules of evidence. The concensus of opinion is that administrative tribunals are fact finding bodies and the method of fact-finding varies from that which obtains in Courts of Law Judicial proceedings' are to be distinguished from the duties of administrative tribunals. As observed by Lopes L. J. In Dwarkins v. Lord Rokeby 8 Q. B.
255 'the word "judicial" has two meanings. It may refer to the discharge of duties exercisable by a Judge, by Justices in Court, or to administrative duties which need not be performed in Court, but in respect of which it is necessary to bring to bear a judicial mind that is, a mind to determine what is fair and just in respect of the matters under consideration........................
' At the same time this does not mean that Tribunals can act arbitrarily and capriciously. The Tribunals especially in cases where they are required to adjudicate upon the civil rights of the parties are under an obligation to act judicially and are bound to follow the fundaamental rules of evidence and fair play which are embodied in the. Principles of natural' justice."
' A part of the quotation adopted by the learned Judges in Pk Syed Safi-ud-din v. Secretary (1), from Province of Bombay v. Khushaldas S. Advani (2), may be reproduced with advantage :- "After giving my anxious consideration to the distinction between the quasi-judicial and administrative order, I have arrived at the conelusion that if the statutory authority is allowed to pass an order subjectively, based on his personal or private opinion, and does not impose a liability or affect the right of others in a substantial manner, then the order will be executive, but if the statutory order is to be passed objectively, and based on some relevant and existing circum-
(1) PLD 1958 Pesti. 157 (2) AIR 1930 SC 222 stances and facts, and at the same time substantially affects the rights of others, it would be a quasi-judicial order."
17. The above discussion, apart from clarifying the attributes of Court, quite clearly shows that the judicial power may be exercised both by the Courts and quasi-judicial tribunals. This conclusion, however, has been drawn from foreign judgments or such judgments of our Courts which were delivered before the promulgation of the 1973 Constitution. However, as discussed in para. 7 above, the judicial power. As is contained in Article 175 j can be conferred only on judicial tribunals called Courts and no other authority. Thus, the discussion about Courts and quasi-judicial tribunals is of no importance at all. So, as far as Pakistan is concerned, the distinction is to be found not between judicial and quasi-judicial tribunals but judicial and administrative tribunals and any Court or other authority, by whatever name called, shall be deemed to be a Court, constituted in pursuance to Article 175 (2) of the Constitution and subject to the superintendence and control of the High Court of the Province, in which it is situate, if it exercises judicial power of the State, under an Act of a Legislature, and its existence is not specifically provided for by any other provision of the Constitution.
18. Despite the collection of elaborate views above, it has been generally observed that the definitions so far attempted are not exhaustive of the term 'Court'. However, inspired by all that has been said so far, and without claiming that it will be exhaustive, in my humble view, 'judicial power' is the legal right, ability and authority to hear and decide, objectively and after allowing opportunity to produce evidence, a justiciable issue, dispute, or controversy, concerning the existing legal rights, dulies or interests of persons or property, arising out of relations and dealings, between two or more parties, who bring the same for an authoritative decision, binding on them and may include the authority to execute or get executed its decision and protect rights, prevent and redress wrongs and punish offences through legal process. Further, the judicial power must be conferred by the State under Constitution or law and not the mere consent of parties, on persons who are paid by the State and removable by it only. The authority or body in which this power is vested is generally called 'Court' and in performing its functions it declares, construes and applies law or custom or usage, having the force of law. The 'judicial power' is thus the instrument to be used by the Court.
19. The American and Australian Constitutions divide the State power into three organs i. e.
Legislature, executive and judiciary. The precise position under such Constitution is that the Legislature enacts laws, i. e. Declares what the law shall be. The executive administers that law but any disputes arising thereabout or thereunder are brought before the Courts for resolution. The legislative power is enjoyed by the Legislature exclusively within the Constitutional limits. The laws made by it, to be valid, thus must conform to the Constitutional requirements. For example, if a legislature can make laws only in respect of a certain specified territory or subject, any law transgressing those limits is ultra vises and so void. Again, if the judicial power has been vested by the Constitution only in Courts, the Legislature cannot enact a law to confer any part of it on any executive or other forum. The power to decide as to whether the Legislature has transgressed its limits or if the executive has correctly administered law vests with Courts. It is, however, the obligation of the Courts not to encroach upon the domain of any other organ of the State.
20. The Privy Council in Attorney-General v. The Queen (1) opined that 'in a federal system the absolute independence of the judiciary is the bulwark of the Constitution against encroachment whether by the Legislature or. By the executive. To vest in the same body executive and judicial power is to remove a vital Constitutional safeguard. Resultantly, their Lordships upheld the judgment of the High Court of the Commonwealth of Australia, whereby the Commonwealth Court of Conciliation and Arbitration, a Court of record, created under a law and presided over by a Judge of the High Court, who was to hold office for seven years, was declared unconstitutional, though the objectionable union of executive and judicial power in it was not challenged for about a quarter of a century earlier. Dixon J. Also in Meakar v. Dignan's (2) observed that 'Parliament is restrained both from reposing any essentialy judicial power in any other organ or body and from reposing any other than that judicial power in such tribunals. Again, Dixon, C. J. In The Queen v.
Daison stated that 'It is beyond the Constitutional power of the Parliament to authorise any person or body to make such an order except a Court constituted under sections 71 and 72 of the Constitution.'
21. Griffith, C. J. Of the High, Court of the Commonwealth of Australia, held in Alexander's case (3) that it is impossible under that Constitution to confer judicial functions upon any body other than Courts, nor can the difficulty be avoided by designating a body, which is not in its essential character a Court, by that name, or by calling the functions by another name. In his view, any attempt to vest any part of judicial power of the Commonwealth, in any body, other than a Court, is entirely ineffective. Barton, J. In the above case at page 451 observed: "Whether persons were judges, whether tribunals were Courts and whether they exercised what is now called judicial power, depended and depends on substances and not on mere name."
' The above view was approved by the Privy Council in Attorney-General v. The Queen Dixon, J. In Victorian Stevedoring and General Contracting Co. And Meakes v. Dignam remarked, with the later approval of the Privy Council in the above case, that an independent consideration of the provisions of the Commonwealth Constitution, unaided by any knowledge of the Constitution of the United States cannot but suggest that it was intended to confine, to each of the three departments of the government, the exercise of power with which it is invested by the Constitution.
22. Article HI, section 1 of the American Constitution states that the judicial power of the United States shall be vested in one Supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish. The Supreme Court in Kansas v. Colorado (4) observed that Artical III granted to the Supereme Court 'entire judicial power of the Nation' and that if there are any limitations they must be expressed. Professor Schwartz in his book 'A Commentary on the Constitution of the United States' Part I, Volume I, page 425 states 'According to Chief Justice Taney, though there was no decision by the Supreme Court in Hayburn's case. (5), the opinions expressed by the members of that tribunal on circuit clearly established that the power
(1) (1957) 95 C L R 529 (2) (1931) 46 C L R 73
(3) (1918) 25 C L R 434 (4) (1907) 206 U S 46
(5) (1792) 2 Dal. 409 proposed to be conferred upon the Federal Courts by 1792 statute was not judicial power within the meaning of the Constitution and was, therefore, unconstitutional and could not lawfully be exercised by the Courts.' On the other hand, no effort seems to have ever been made to confer judicial power on executive. The judicial power of the Australian Commonwealth under sections 71 and 72 of the Constitution is also conferable only on Courts. The Australian Courts have, therefore, as also said above, held all such provisions of law as ultra vires that vest any judicial power in bodies other than Courts. The High Court went rather further in the Rola Company Australia Proprietary Ltd v. Commonwealth (1) to say that the power to find fact, that is fundamental to legal liability, is part of judicial power. It went on to say that where the finding amounts to a binding determination as between parties, the Tribunal empowered to make the finding necessarily exercises judicial power and any statute depriving Courts of judicial power has to be declared unconstitutional. Apparently, it is to take care of that situation that Article 175 (3) of the 1973 Constitution was incorporated so as to give the executive and the Legislature some time to take steps to separate the judiciary from the executive as regards the then existing position. It is, however, to be noted that any judicial function, given to the executive, after the enforcement of the 1973 Constitution, may not be saved and merit being struck down.
23. So, the definitions of `judicial power' and `Courts' as given above show that the 'Courts'. Use judicial power to decide conclusively the justiciable issues, controversies or disputes about existing legal rights in accordance with law or a usage having the force of law. These legal rights, of the individuals, created by natural law or consent of the parties, are recognised by the society in which individuals live and are protected by the State. The test of that right 'is that if it is assailed, will the State enforce it, or grant damages for any failure to carry out the corresponding duty or in some other way recognise the right and attach legal consequences to the interference with it? However, the State may, by law, for political, social or economical reasons regulate those rights so as to curtail, limit or restrict them. In that situation, the differences or disputes wising may either be left to be determined by Courts or power to settle those disputes be conferred on authorities who are to administer the law also. Now, if those authorities are to take a decision which adversely affects the existing natural rights of an individual, it may be an act judicial in nature. In such a case, the law may provide an administrative relief but it must not bar the individual to approach a Court unless the Constitution it self confers immunity to such an action. The reason as explained above, is that executive authorities cannot be entrusted with the function of determining or passing an order about an actual or potential controversy as to an existing right or obligation as it is a judicial function.
24. However, if the right has been created by the same law itself, and an authority to administer the law has also been created the decision of the authority may be challenged in accordance with the procedure laid down in that law. Even in that situation any constitutional power vesting in, a Court to judicially review that decision will remain available for a redress or remedy except where the Constitution itself denies it: So, no law can without the support of the Constitution, deny any individual to go to a Court in respect of a matter which concerns his natural rights, irrespective of the fact whether the said right has been violated by another individual
(1) (1944) 69 C L R 185 or a public functionary or a statutory authority. Further, the Courts are entitled to declare such laws ultra vires and hence void and inoperative. Alongwith that any part of the judicial power being conferred on any executive authority without the backing of the Constitution will also be ultra vires, as held by the Privy Concil in Attorney-General v. The Queen. Referred to above.
25. Such executive authorities, adjudicating matters incidental to the exercise of their administrative power, under a law, are generally referred to as "administrative tribunals" and the adjudication that they do may not be 4 in the exercise of judicial power. It may be noted that even administrative tribunals may have trappings of Courts but they would not lose their character just for that reason. In Federal Commissioner of Taxation v. Munro (1), it was said that power and function of finally determininV matters of fact and even discretion are not solely indicative of judicial action. That is an attribute, it was added, common to administrative bodies that are adjunct to legislation and to judicial bodies. Kiwi, J. In The Queen v. Trade Practices Tribunal, observed that the fact that an official is given a power conditionally upon being satisfied of a particular state of facts is no indication that in deciding that he is exercising judicial power.
26. It is a generally accepted position that there is no hard and fast test to distinguish between a 'Court' and a 'tribunal' and that functions assigned shall have to be analysed in each case to see if they fall under one or the other category. What is available, however, are only the broad,: guidelines. The general attributes of ,a Court have been mentioned in paras. 17-18 above. They deal with the disputes or controversies between two or more parties about their existing legal rights so as to giving binding decisions. Again, a Court is required to base its decision upon the material presented to it in evidence while a tribunal can make use of the information within its personal knowledge also. A Court is generally not concerned with the objective truth or accuracy of its findings, as held in re K (infants) (2) as it proceeds to decide, in accordance with law, on the basis of the material placed before it. The tribunal, on the other hand, may try itself to dig up facts or collect evidence in order to find the true facts on which to base its result. The approach of a Court is through adversary system while that of the tribunal is inquisitorial. An administrative tribunal is characteristically delegated the function of developing and applying through its decision a set of principles which are important and after highly specialised activity can be regulated in the public interest. It possesses a complete, absolute or unfettered discretion and decides matters before it not on the requirement of law, but policy. It has no ascertainable standards to guide it and so follows expediency and policy subjectively on such considerations as it sees fit. A negative proposition was given in R. v. Electricity Commissioners (3), to say that a tribunal:
(a) is not necessarily a Court in the strict. Sense .Because it gives a final decision;
(b) nor because it hears witnesses on oath;
(c) nor because two or more contending parties appear before it between whom it has to decide;
(d) nor because it gives decisions which affect the rights of subjects;
(e) nor because there is an appeal to a Court;
(1) (1926) 38 C L. R 153 . (2) (1965) A C 201 (3) (1924) 1 K B 171
(f) nor because it is a body to which a matter is referred by another body.
' It was held by the Privy Council in Shell Company of Australia Ltd. v. Federal Commissioner of Taxation, already referred to above, that 'an administrative tribunal may act judicially but still remains an administrative tribunal as distinguished from a Court strictly so-called.'
27. To sum up, therefore, a Court adjudicates by fixed standard objectives, upon a controversy or dispute, as regards pre-existing legal rights and liabilities, conferred or imposed by a statute, usage, usage or agreement recognised by law, and long settled principles, on the basis of the evidence produced by the parties before it. In contrast a non-judicial or administrative tribunal may adopt the same procedure as the Courts but its decisions or orders are incidental to an obligation to administer law to regulate or supervise matters and are based not on fixed objective standards but on subjective considerations, policy and expediency. A Court looks for some law to guide it but an 'administrative tribunal, within its province, is law unto itself.
28. Gordon D. M. In his essay on 'Administrative Tribunals and Courts' published in 1933 L Q R 94 expressed the following view :-
(110) "Ministerial, judicial and 'administrative' functions, therefore, exemplify the three degree of irresponsibleness that a tribunal may possess. Acting ministerially a tribunal has no power (except in the rare cases where a statutory discretion is given) to consult its own wishes ; it must carry out its legal duties as judicially decided for it. Acting judicially a tribunal has very little power to consult its own wishes in theory, whatever it may do in practice ; because it professes to be bound by a fixed and settled objective standard. A tribunal exercising 'administrative' functions, when within its proper province and observing any procedural formalities prescribed, must inevitably be guided by its own wishes, because it has no fixed standard to follow, but only policy and expediency ; and these are what it makes them. Its standards are purely subjective ; so in the last analysis it follows own will."
29. The Banking Court, when judged on the above standard is a Court in fact and law. According to section 6 (1) (a) of the Ordinance, it has to exercise civil jurisdiction as vested in a Civil Court, under the Code of Civil Procedure. Again under section 6 (1) (b) it exercises criminal jurisdiction vesting in an Assistant Sessions Judge under the Code of Criminal Procedure. Section 6 (3) says that all proceedings before a Special Court shall be deemed to be judicial proceedings within the meaning of sections 193 and 288 of the Pakistan Penal Code and it is a Court for the purposes of sections 480 and 482 Cr. P. C. It has to decide a controversy before it, objectively vide section 7 in accordance with Order XXXVII in the First Schedule to the Code of Civil Procedure. After hearing the case it pronounces a judgment on which has to follow a decree as per section 8(1). The Special Court has also the power to execute its decree under section 8(3). The orders of the Court are also appealable before the High Court. The rights or the liabilities of the parties before it are pre-existing and they have to be dealt with in accord with the evidence produced and the law. The mere fact that the procedure adopted is shorter would not take it out of the ambit of a Court as even the other regular Courts in certain specified matters adopt the same procedure.
30. The next point is to know if it is a Court subordinate to the High Court. The framework of all the three Constitutions made by the people of Pakistan, and enforced at times, was also based on the principle of separation of the State power and its conferment on three organs i. e. Legislature, executive and judicial. This division is not exclusive and X absolute and one sphere of power may overlap the other but extent thereof in each case can be located. In the 1973 Constitution, Article 175 provides the hierarchy of the judicial power as is quite clear from the word 'judiciary' used in sub- Article (3). Article 175 (1) states that there shall be a Supreme Court of Pakistan and a High Court for each Province and such other Courts as may be established by law. The point to be noted is that there will be only one Supreme Court for the whole of Pakistan and one High Court for each Province. There can thus be no parallel or higher Courts at these levels. All the other Courts in Province created under Article 175, thus must be lower or inferior to the High Court of that Province.
Thus section 14 of the West Pakistan Civil Courts Ordinance, 1962, or other similar y provisions laving down that all the Courts created thereunder are subordinate to the High Court, are mere recognition of the Constitutional position. The Courts mentioned in the Constitution, apart from 'other Courts' given in Article 175 and to be created and located in a Province, will thus be exception to the main set up.
31. There is another part of judicial power for which the Article 175 of the Constitution may also be deemed to be providing. There are other territories, apart from the Provinces, like Islamabad, the Federally Administered Tribal Areas and such other States and territories as are or may be included in Pakistan. They are part of Pakistan, as given in Article 1 of the Constitution and held by the Supreme Court in the Superintendent etc. v. Zewar Khan (1). Thus the citizens of the above territories also have the inalienable right to get their disputes settled and grievances redressed by competent Court and according to Article 192 (4) the jurisdiction of any High Court may be extended with regard to such other territory. As a result it will be a High Court for that territory also and so all the inferior Courts of that territory will become the Courts subordinate to it. Reference be also made to Article 187 (2) which provides, that any direction, order or decree issued by the Supreme Court shall be enforceable throughout Pakistan. It shows that the jurisdiction of the Supreme Court also extends to the whole of Pakistan. The only exclusion is given in Article 247 (7) whereby the Supreme Court or the High Courts have been denied the same, in respect of tribal areas unless Parliament by law otherwise provides. AA According to Article 258, the President may, by order, make provision for peace and good government for any part of Pakistan not forming part of a Province, until Parliament by law otherwise provides. This also proves that all the other Courts to be created under Article 175 have to be subordinated to a High Court, as and when that area is brought within the jurisdiction of a High Court.
32. The above position further establishes the view that the judicial power of Pakistan, save as is excepted in Articles 199 (5) and 212, is to be vested in the Courts created under this Article and no forum, other than that specifically mentioned in the Constitution, can be created for the perfor mance of judicial functions and exercise of judicial power. This conclusion is strengthened by the fact that the Constitution does exclude certain other
(1) PLD 1969 SC 485 subjects also from the purview of the Courts jurisdiction as given in it Articles 69, 225 and 247 (7).
Article 209, with regard to the Constitution of the Supreme Judicial Council may also be cited for the same purpose. All these articles thus support the above view, for if the framers of the Constitution wanted, that the judicial power be conferred on any authority, other than a Court or, the same be curtailed, in any respect, it would have either so stated in Article 175 or that intention would have been made clear elsewhere. Further, the intention of the Constitution to separate the judiciary from the executive progressively as contained in Article 175 (3) and the Pre-emble also upholds the above position.
33. Again, the concept that there will be a High Court for each Province has to have its plain meaning, in the absence of a definition. Its clean concept will be that it is the highest Court in the Province and all other Courts there, must be inferior to and be subject to its supervision. Further, as Article 175 of the Constitution embodies the judicial power and also gives the hierarchy of the Courts i. e. a Supreme Court for Pakistan, a High Court for a Province and some other Courts as may be created by the Legislature, "the such other Courts" must necessarily be inferior to the High Courts.
34. It will be seen that there is no mention in the Constitution that the Supreme Court will have any Court subordinate to it, though, according to Article 190, all executive and judicial authorities have to act in its aid and all Courts in the country shall be bound to follow its decision in view of Article
189. As for the High Courts, the Article 202 states that subject to the Constitution and law, a High Court may make rules regulating the practice and procedure of the Court or of any Court subordinate to it. Article 203 provides that each High Court shall supervise and control all Courts subordinate to it. Article 201 lays down that an decision of a High Court shall to the extent it decides a question of law, o is based upon or enunciates a principle of law, be binding on all Court subordinate to it. The Constitution, however, does not specifically say as t which Courts are subordinate to it. The scheme of the Constitution, however, appears to be that while all the Courts in Pakistan have to follow and also act in aid of the Supreme Court, merely because of its position, the Courts in a Province have to follow the High Court and be bound by its decision a they are subordinate to it. So, the mere fact that there is no express indication in Article 175 of the Constitution that all "other Courts" to be created by or under law will be the Courts subordinate to the High Court is not at all important.
35. The jurisdiction conferred on a High Court by the Constitution under Article 199 also gives a clear cut scope of its authority. It lays down that a High Court may, on an application made by an aggrieved person, direct any person performing within its territorial jurisdiction, functions is connection with the affairs of the Federation or a Province, or a loco authority, to do or refrain from doing, any act which he is not permitted by law to do. The High Court can likewise declare their action as without lawful authority. Further, within its territorial jurisdiction, which would include such other area as may be brought within its jurisdiction under Article 192, it can satisfy itself if a person is not being be without lawful authority. Thus, the authority of a High Court extend throughout the Province, in respect of all matters and persons except those expressly taken out of its ambit by the Constitution itself. Reference made to Article 199 (5) which provides for the exclusion of the Courts for the Armed Forces. As a result, the specific mention of "subordinate Courts and not the other Courts and tribunals, in Articles 202 and 203 only amounts to making sure that the superintendence and control of the High Court shall be confined to the Courts in the Province and not the other authorities there.
36. Thus, the judicial power, in view of Article 175 of the Constitution vests, in a Province, only in the High Court and such other inferior Courts as may be created under law. The earlier civil, criminal and revenue Courts have, however, been continued under Article 275(3) of the but the judiciary has to be separated from the executive within the period provided in Article 175(3). May be it is for the reason of saving the unconstitutional position of some of these Courts that the Constitution provided a time limit under Article 175 (3).
37. The Constitution further provides that the Courts shall exercise such jurisdiction as is conferred on them by the Constitution or law. The jurisdiction is a slice of the judicial power. It is defined, as the power to hear and determine a cause of action presented to it, in the 20 Am Jur 2d page 451.
The term has reference to power of the Court, over the subject matter over, the res or property in contest and to the authority of the Court to render the judgment or decree it assumes to make. To create jurisdictions the judicial power is to be divided horizontally, with the Supreme Court at E, the apex High Courts in the middle and the subordinate Courts at the base. A further division in each case, may be made into original, appellate, reviewal or revisional segments and also on the basis of territories, persons, or subjects or their combinations.
38. The 'jurisdiction' thus represents that part or a segment of the judicial power which is conferred either by the Constitution itself or the law, or any Court. The jurisdiction of the Supreme Court has been given in detail in the Constitution, though the Parliament may also confer on it more of it. The High Courts have also been given the power of super intendence on the Courts subordinate to it and also the power of judicial review on all the statutory functionaries and the local authorities within its territorial jurisdiction. The jurisdiction conferred by the Constitution cannot be altered, amended or repealed by Legislature. Thus while the Constitution has placed the Court Court as the highest Court in the Province and conferred on it jurisdiction of superintence and control and of jndicial review to ensure that any aggrieved person can bring to its notice any injustice or illegality for a redress, it has left it to the respective Legislature to confer any other jurisdiction on it. From the above, it is quite clear that there is a guarantee given in the Articles 199 and 203 on the Constitution to an aggrieved person to approach a High Court, against any excess, illegality or injustice committed by any authority or Court in its territorial jurisdiction. So, the purpose of the provision of Article 203 in the Constitution itself appears to be that if the Legislature for any reason, takes away the appellate or the revisional powers of the High Court in respect of any matter, or fails to apply the same in certain cases, .The High Court shall still be left with a power to redress the genuine grievances of the aggrieved persons and see that injustice, if any, done by the subordinate Courts is not perpetuated. According to 20 Am Jur 2d, page 470, section 112 "where superintending control over all inferior Courts is conferred by a provision of the Constitution, the supervisory power cannot be restricted or removed by legislative action, unless the constitutional provision granting supervisory jurisdiction authorises the legislation to enact a statute regulating such superintending control.
39. Having discussed that the other Courts created under Article 175 are subject to the superintendence and control of the High Courts, in their respective territories, it is now necessary to know as to what kind of `superintendence' and control can a High Court exercise over them. The learned counsel have referred to a number of judgments of our Courts which I shall consider presently. It appears to have been the unanimous view of our Courts in the past that this power of superintendence extended only to the subordinate Courts and not even to the acts of the subordinate judicial officers while they were acting as tribunals or persona designate, though in a quasi-judicial capacity. Reference be made to Aziz Begum v. Noor Muhammad (1), where this Court held that a Civil Judge acting as a Rent Controller under the West Pakistan Urban Restriction Ordinance, 1959, was a persona designata and not a Court and the High Court could not order transfer of proceedings before him under Article 203 of the Constitution. This view was upheld by the Supreme Court in the case of Khadim Mohyuddin (2). It may, however, be noted that the above views fell under the previous constitutional position and as said in para. 17 above, the distinction to be brought out now will be whether it was a judicial or an administrative function.
40. As far its scope, a Full Bench of the Sind High Court in Abdul Rehman v. Mst. Chaman Ara (3) considered it while interpreting Article 102 of 'the 1962 Constitution, which is similar to Article 203 of the 1973 Constitution and did not dissent with the earlier views on the point. However, Qadeeruddin, C. J. Who wrote the judgment for the Full Bench remarked that an earlier. Division Bench judgment to which he was a party had been misunderstood. He observed in its first part of the judgment that the power of superivision and control conferred on the High Court, with regard to its subordinate Courts, did not authorise it to settle the grievance of the parties or to do justice between them for their sake. According to him, as Article 102 of the 1962 Constitution did not refer to any proceedings, order, judgment, relief or remedy, all these would not be considered to be within its ambit and its scope shall have to be confined to superivising only the conduct of the subordinate Courts. The High Court, it was stated, should only keep an eye on the subordinate Courts so that they may not fail 'to do their duties i. e. Attending the Courts regularly and puncutally, to hear and decide those cases only which fall within their jurisdiction and not to hear and decide those which may be ousting their jurisdiction, to obey legitimate directions of their superior authorities and to know the law and to conduct themselves like judicial officers. However, the following concluding remarks may be reproduced with advantage to show that the concept of judicial control earlier approved was maintained :- "But Article 102 merely empowers the High Court to supervise and control the Courts which are subordinate to it so that they may be guided, kept in check and even encouraged to act and conduct themselves rightly as Courts. If a party applies to the High Court under this Article it merely brings the failure, faults, or derelictions of duty to the notice of the High Court and if the High Court takes action on such an application it does so for keeping the administration of justice pure and not to help the appellant. "This duty is to be. Performed (by the High Court) irrespective of whether anybody has
(1) PLD 1962 Lah. 887 (F B) (2) PLD 1965 SC 459
(3) PLD 1972 Kar. 164 been harmed or not and irrespective of whether anybody will be benefited by it or not". It is easy to imagine that an action taken under this Article may be against the liking and even the private interests of both the parties to a proceedings."
41. In an earlier Division Bench judgment in Karim Bakhsh v. Mst. Mubarik Jan (1), to which Qadeeruddin, J. Was a party, and which was written by Dr. Nasim Hasan Shah, J. Now a very eminent Judge of the Supreme Court, the learned Judges carefully considered with approval some earlier opinions on the same point, as expressed by various Courts, including the Privy Council, the Indian Supreme Court, as well as a judgment of the Sind High Court, Emperor v. Tarapore (2), to express the view that Article 102 conferred, not only power of administrative but judicial superintendence also. The relevant portion of the judgment may be reproduced with advantage. - "We respectfully agree with the view expressed in the above judgments that a Family. Court, constituted under the West Pakistan Family Courts Act (XXXV of 1964), is a Court subordinate to the High Court, within the meaning of Article 102 of the 1962 Constitution. Likewise, we agree with the proposition that the power conferred by the Article on the High Court "to supervise and control all other Courts that are subordinate to it" being a general power and include the control of subordinate Courts not merely administratively be also judicially. We are also in accord with the view, taken in those judgments, that Article 102 confers upon the High Court, unlimited power to correct or revise aft proceedings, orders and judgments on the Courts subordinate to it, for the purpose of enforcing the law correctly and guiding or compelling the subordinate Courts to follow the law and to exercise other jurisdiction properly."
42. The learned. Judges, in the above case, also approved two single Bench judgments of this Court, in Mst. Gaman v. Taj Din (3) and Mst. Safia Begum v. Abdul Hamid (4) recorded by. Different Judges. In the case of Mst. Gaman, Karam Elahi Chauhan. J. After taking note of the historical background held that Article 102 gave the High Courts power to control all subordinate Courts administratively as well as judicially. In the other case of Mst. Safia Begum, the view taken by A. R.
Sheikh, J. Was as under :- "No doubt the power is unlimited but it does not have the effect of converting the High Court into a Court of appeal or revision, regardless of the limitations imposed by law on those powers. I, however, agree with. The view that the power is to be exercised only in very rare and exceptional cases and may be used exdebito justitias, where there is no other remedy available under the ordinary law. The case before me, is of that description and the circumstances are such that I feel persuaded to invoke the extraordinary power of superintendence under Article 102 of the Constitution."
(The underlining* is supplied).
43. The last case approved in the above D. B. Judgment (see para. 41) is reported as Mst. Farida Par win v. Qadeeruddin Ahmad Siddiqui (5) Mr. Justice Muhammad Haleem, as he then was, and who now adorns the
(1) PLD 1970 Pesh. 169 (2) AIR 1940 Sind 230
(3) PLD 1968 Lah. 987 (4) PLD 1968 Lab. 1358
(5) PLD 1971 Kar. 118 'iliac in italics) chair of the Chief Justice of the Supreme Court of Pakistan, approved the Indian as well as the view of Karam Elahee Chauhan, J. In the case of Mst. Gaman referred to above, to say that the word `superintendence' includes both judicial as well as administrative junctions. The learned Judge further observed that there is authority to conclude that the word 'supervision' and 'control' in Article 102 empower the High Court to exercise judicial control over the decisions of the subordinate Courts though the limits within which it has to be exercised is a different question. In his view, the judicial control is limited to the correction of exercise of jurisdiction or non-compliance of any statutory provision of the concerned law, and it does not extend to interference on merits, if otherwise, the subordinate Court has acted within its bounds. The result was that the order of the appellate Court was set aside and he was directed to rehear the appeal, for the reason that he had not considered the judgment of the Family Court and had merely set it aside and ordered retrial on the consideration that the declaratory suit of the respondent was still sub judice and until there was a decision against him, the decree for deferred dower could not be passed.
44. It is quite clear from the above that there is no difference of opinion of our Courts on the extent and scope of the power of superintendence conferred on this Court by the Constitution. It is established that an action thereunder may result in a relief which may be in tile nature of g judicial or administrative exercise of power. The controversy, if any, may only lie in the procedure i. e.
Should the Court act on the application of an aggrieved person and for his benefit? It is respectfully submitted that the emphasis placed by the learned Judges of the full Bench is that the High Court should not exercise that power just for the benefit of one or the other party to the case but should do so only under the dictates of law and justice. I think, with respect, that the view expressed in the case of Farida Parveen (Para. 43 above) gives the most concise but comprehensive and correct exposition of Article 102. It may further be seen that our Courts have admitted no hurdle or obstacle in their way and have granted relief whenever it was found necessary or proper, in the interest of justice, both on the application of aggrieved persons and also suo motu.
45. Some of the situations countered may be given chronolgically to illustrate the point :- 1976. A Division Bench of. The High Court of Sind held that the High Court is empowered to correct the failure, faults or dereliction of duty, laches, defect of jurisdiction, denial of justice, bias or disability of the Court in order to keep the administration of justice pure.
(S. Zahid All v. Mubarak Bano PLD 1976 Kar. 68).
1976. Karam Elahi Chauhan, J. Held that the record of the case pending before a. Judge Family Court could be called for suo motu to set aside the short orders passed by him and he could be directed to pass proper orders in accordance with law.
(Muhammad Siddiq v. Syed All Shah PLD 1976 Lah. 293).
1979. The power of superintendence and control was relied on by a learned single Judge of the Lahore High Court (Rustam Sidhwu to allow interim bail.)
(Muhammad Naeem v. State 1979 P Cr. L J 333).
1979. Another learned. Single Judge (M. S. H. Quraishi, J.). Of the Lahore High Court held that as the Rent Controller was not a Court, the power under Article 102 of the Constitution could not be invoked for the transfer of proceedings from one Controller to another.
(Fardaus Kausar v. Subah Sadly 1979 CLC 2081.
1980. Mr. Justice Gulbaz Khan in Shahzad Hussain v. State PLD 1980 Lah. 54 held that as the orders of the special Courts constituted under the Suppression of Terroristic Activities (Special Courts) Act, 1975, are appealable to the High Court, the special Court is a Court subordinate to the High Court and Article 203 of the Constitution would apply so as to set aside proceedings instituted without jurisdiction. It was further held that any order passed by such a Court in violation of law could be corrected.
1980. A learned single Judge of the Peshawar High Court in Mst. Shirin Taj v. Akbar Khan 1980 CLC 787 held that any finding that could be challenged in appeal or revision would not fall for determination in exercise of supervisory jurisdiction given under Article 203 of the Constitution. The learned Judge, however, refused to interfere in the matter before him as the order passed by the learned District Judge was neither perverse nor such that no Court could have arrived at that conclusion.
1980. A Division Bench of the Baluchistan High Court in Khadija Bibi v. Abdul Wahid 1980 CLC 2145 held that superintendence or administrative jurisdiction of the High Court clearly means judicial superintendence over subordinate Courts or administrative control over such Courts in judicial matters. According to the learned Judges such control did not travel beyond passing such orders which are necessary for ensuring that they are functioning in the best interert of law and justice.
Regarding the judgments and orders of the subordinate Courts the learned Judges observed that as they were subject to appellate or revisional jurisdiction of the High Court, no coverage from Article 203 be provided. Reverting to the meaning of the word 'Court' they observed that it did not deserve a limited but elastic meaning depending, of course, upon the consideration that it serves the purpose of letter and real administration of justice.
The result seems to be that the High Court has unlimited Constitutional discretionary power to supervise and control all such forums, by whatever names called, if they exercise judicial power in the Province and this jurisdiction would encompass the judicial decisions as well as the administrative actions so that the particular judgments and orders as well as the main stream of justice are kept pure and clean and the Courts are directed to remain within the 'bounds laid down by law and the superior Courts. The High Court may even go to the extent of taking disciplinary action against the delinquent officers as is supported hereinafter. In this connection reference may also be made to note 115.117 of the 20 Am Jur 2d, which reads as under :- "115. Scope and mode of exercising jurisdiction.-The scope of supervisory jurisdiction is very broad and it may be exercised in different modes, depending on the nature of the particular case. In the exercise of its superintending control over trial Courts, the Supreme Court may make rules for them and enforce those rules, it may restrain a state Court from proceeding in an action involving the same controversy and the same parties as an action pending in a federal Court, it may require a Court to make an order fixing the amount of security for costs where the defendant has a statutory right to such security and no appeal would lie from its detail, and it may compel appropriate action by a lower Court where the lower Court applied a rule in a manner the higher Court considers unreasonable, ' Supervisory jurisdiction may be exercised to compel action by an inferior Court or to keep an inferior Court within its jurisdiction, as by the issuance of a writ of mandamus, or a writ of prohibition. It may also, subject to the rules governing that remedy in the particular jurisdiction, be exercised by the issuance of a writ of certiorari. And although the cases are not in harmony with regard to this point, and the view has been taken that an error not going to the jurisdiction of the Court may not be the subject of remedial action by way of exercise of supervisory jurisdiction, there aro opinions to the effect that supervisory jurisdiction may be exercised in the case of a non- jurisdictional error.
116. Discretion of supervising Court.-The exercise of supervisory jurisdiction is of discretionary nature. It is generally a matter of judicial policy, particularly dependent on the judicial policy prevailing in the given jurisdiction. A Court will not lightly use its superintending jurisdiction and ordinarily will do so where there is an adequate remedy by appeal or writ of error. It has been pointed out, however, that the self-restraints used by Courts aro not limitations on the supervisory powers.
117, When exercised.-The general practice is that sxpervisory jurisdiction will not be exercised as a matter of course, but only where there is an urgent reason for its exercise. It will, therefore, generally be exercised only in extreme cases, to accomplish such things as to prevent irreparable mischief or great hardship, to protect fundamental rights of a party or parties, or to achieve justice, It will not be used merely for the purpose of controlling the exercise of discretion by an inferior Court.
' One of the reasons frequently given for the exercise of supervisory jurisdiction is that a remedy by appeal is not available, or is not adequate to give relief under the particular circumstances, or would come too late for effective redress, ' Sometimes the Supreme Court of a state exercise its supervisory jurisdiction to create uniformity of decisions in the intermediate appellate Courts of the state,"
46. It is necessary to point out with respect, that though some of the above judgments have referred also to the word "control" as appearing in the Article 102 of the 1962 Constitution or Article 203 of 1973 Constitution, yet they have not dwelt on its meaning and scope. A little more closer look at the terms "superintendence" and "control" would show that they overlap each other both in meaning and scope. According to dictionary `control' may also mean superintend and vice versa.
Again while the superintendence may be of the system, its working and the product, the control may be of the personnel also. The Courts of this country did never have the occasion to consider and decide the scope of "Control" in the Article 203 but the Indian Courts have fathomed the scope of the same term as found in the parallel provisions of the Indian Constitution in W. B. v. Nripcndra Nash (1), the Supreme Court held that the power off control conferred on the High Court in Article 235 of the Constitution?, included the power to take disciplinary action and so the Government ' had no power to hold. An inquiry against an Additional Sessions Judge. The Patna High Court in Madan Mohan v. Bihar (2), held that control over subordinate Courts carried with it the power to fix the seniority of Officers employed in those Courts. In Assam v. Ranga Muhammad (3), the Supreme Court held that a power to transfer a District Judge from one place to another belonged not to Government but formed part of the control, exercisable by the High Court under Article 235. The same view was taken by the Supreme Court in Chandramouleshwar v. Patna High Court (4).
Interpreting similar power, the Privy Council in Raj Kumar v. Ram Sundar (5), opined that High Court could take disciplinary action for cases of flagrant maladministration of justice.
47. Even the termination of the services of a member of his judicial service, by the High Court, on the findings of an inquiry, conducted by the Director of Vigilance, at the instance of the High Court was set aside by the Supreme Court in Shamsher Singh v. Punjab (6), on the ground that the High Court not only denied the employee the protection under Article 311 but also denied to itself the dignified control of the subordinate judiciary. According to "Words and Phrases Permanent Edition"; Volume 9-A page 21 "the power of the Supreme Court, conferred by I.-C. A Court, Article 5.1 to supervise the inferior Courts is to oversee for direction, to superintend and to inspect with authority: and to "control" is to exercise restraining or governing influence over and to regulate, govern, or overpower, so that the appointment of the District Judges as Condemnation Commissioners by statutory authority is properly within the supervisory control of the Supreme Court. It is to be appreciated that if exercise of disciplinary jurisdiction over the subordinate judiciary is not a part of the constitutional power of superintendence then the High Courts cannot exercise effective control and be made responsible for proper functioning of the subordinate Courts. On the other nand, there is no provision of the Constitution burdening the executive with such a responsibility. Further, it is not only relevant to the concept of separation of judiciary from the executive, it is essential to inspire confidence in the public mind about the independence of judiciary.
48. This power of superintendence is not new to our system of law. According to Common Law every appellate and superior Court possessed it as its inherent power. The Government of India Act, 1915, vide
(1) AIR 1966 SC 447 (2) AIR 1970 Pat. 432
(3) AIR 1967 SC 903 (4) AIR 1970 SC 370
(5) AIR 1932 P C 69 (6) AIR 1974 SC 2192 section 107 conferred on every High Court the power of superintendence over all Courts, for the time being subject to its appellate jurisdiction. Earlier, section 15 of the High Courts Act, 1861, also gave the same power to all the High Courts. Subsequently, by section 224 of the Government of India Act, 1935, every High Court was given the power of superintendence over all Courts for the time being subject to their respective appellate jurisdiction. The subsection (2) was, however, added to it in order to take away the power of judicial superintendence over the subordinate Courts which the High Courts already enjoyed, in addition to the powers of revision conferred by the ordinary law. The Calcutta High Court in Sakai v. Is war (1), Jahaahi v. Basudeb (2), and also in Ryots of Garabandhu v. Parlakimedi (3), noted the change made by section 224(2) of the 1935 Act to say that it expressly barred the already available power of judicial interference in exercise of its power of superintendence.
49. The Article 227 of the Constitution of India, however, reproduced the section 224 of the Government of India Act, 1935, without the limitation of "appellate jurisdiction" and dropped the subsection (2) also. The result is that the Indian High Courts have unabridged and unlimited power of superintendence over all Courts and Tribunals in their respective territorial jurisdiction. The same position has been brought in by Article 203 of our Constitution though this power has not been extended to the tribunals. Consequently, the position as it obtained under section 107 of the Government of India Act, 1915, has not only been restored but improved. The relevant part of section 107 read as under:- "Each of the High Courts has superintendence over all Courts for the time being subject to its appellate jurisdiction and may do any of the following acts that is to say........... "
' The relevant portion of Article 227 of the Constitution of India runs as follows:- "(1) Every High Court shall have superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction.
(4) Nothing in this Article shall be deemed to confer on a High Court powers of superintendence over any Court or Tribunal constituted by or under any law relating to the armed force."
' Article 203 of the Constitution 1973, may also be reproduced for ready reference:- "203. Each High Court shall supervise and control all Courts subordinate to it."
50. So, by omitting to incorporate the contents or spirit of subsection (2) of section 224 of the Government of India Act, 1935, in its Article 227, the Indian Constitution also restored the judicial superintendence of the High Courts as it existed after the Government of India Act, 1915. The Indian Courts have also taken same view in their subsequent pronouncements. Reference may be made to the cases of
(1) (1941) 2 Cal. 366 (2) (1949) 54 C W N 626
(3) (1943) 70 I A 129.
Satyanarayan v. Mallikarfun (1), Waryam Singh v. Amarnath (2), as well as Hari Vishnu v. Ahmad (3).
Section 107 of the Government of India Act, 1915, was similarly interpreted in a number or cases. In Sholapur Municipality v. Tuljaram (4), Emperor v. Jamnadas (5), and a Full Bench of the same High Court in Balkrishna v. Emperor (6), held that the word 'superintendence meant to include judicial as well as administrative superintendence and the High Court would intervene by revision in 'proper cases even where section 115 of the C. P. C. Or section 439 of the Criminal Procedure Code did not apply.
51. The meaning and the scope of the word 'superintendence' was considered by the Indian Supreme Court in Waryam Singh v. Amar Nath referred to above, which ruled that Article 227 conferred a general power to control all subordinate Courts administratively as well as judicially. In Santlal v. Kedar (7), it was held that it includes the power of the High Court to direct the subordinate Courts and Tribunals to carry out its orders. In Rajkumar v. Ramsundar (8), the Privy Council opined that the Court could direct inquiry with a view to take disciplinary action for cases of flagrant maladministration of justice ander that power. The power to stay proceedings before a Tribunal till the disposal of the suit pending before a civil Court was also found to lie in this power. To re: Pattisam (9). It was further noticed in Faqir v. Gopi (10), and Barrow v. State of U. P. (11), that the power under Article 227 could be exercised sup mote in proper cases even without any application from the party aggrieved. The Indian Courts, however, in some cases refused to give relief under that Article in cases where alternative relief could be granted under some other jurisdiction. In Carlstill v. State of Bihar (12), the Indian Supreme Court held that the power of general superintendence, conferred by Article 227, involves a duty on the part of the High Court, to keep, all Courts and Tribunals, in its territorial jurisdiction within the bounds of their authority and to see that they do what their duty requires and they dolt in a legal manner.
52. The scope of this Article as enunciated by the Indian Courts in various cases can further be summed up as under:- "The High Court can interfere in cases of-
(a) erroneous assumption or excess of jurisdiction;
(b) refusal to exercise jurisdiction; (r) error apparent on the face of the record;
(d) violation of the principles of natural justice;
(e) fraud on the part of the prosecutor;
(f) arbitrary or capricious exercise of authority; or discretion;
(g) perverse finding e, g., .Where it is based on no material' whatsoever;
(1) AIR 1960 SC 137 (3) AIR 1955 SC 233 (5) AIR 1937 Born. 153 (7) AIR 1935 All, 519 (9) AIR 1954 Mad. 573 (11) AIR 1958 AU. 154 (2) AIR 1954 SC 215 (4) AIR 1931 Born. 582 (6) AIR 1933 Born. 1 (8) AIR 1932 P C 69 (10) AIR 1962 Pb. 117 (12) AIR 1961 SC 1615
(h) deciding contrary to the law laid down by the High Court or refusal to comply with the decision of the High Court; ' Those Courts further held that this power will be restricted to:
(i) cases of grave dereliction of duty, or flagrant violation of law, where grave injustice would result unless the High Court interferes;
(ii) be exercised only to do justice between the parties and not even to remove an illegality if the result may be to perpetuate some other illegality or injustice;
(iii) not be exercised to correct an error of fact, or of law, not being an error of law apparent on the face of the record, unless such error affects the jurisdiction of the inferior tribunal;
(iv) will not proceed to reappraise the evidence on which the conclusion of the Court is based, or to go into the evidence for any other purpose except in exceptional cases e. g., to see whether its own order of remand has been carried out;
(v) intervene to correct an error as to the interpretation of the Constitution.
(vi) not substitute its own judgment for that of the inferior Court, whether on a question of fact or law or interfere with the intro vires exercise of a discretionary power, unless it is 'arbitrary or capricious'; or perverse e. g., where it is based on no material whatsoever.
' The power under Article 227 has also been held to be wider than that under section 115, C. P. C.
53: Thus, the position in the prepartition India before 1935 and after the enforcement of its Constitution in 1950 has been that the High Courts had both the administrative and judicial superintendence over the Courts subordinate to it. The power under Article 227 of the Constitution was thought to be superior but co-extensive with the ordinary revisional power, wherever it was available. The Courts in Pakistan as discussed above, therefore, also rightly treated the similar powers given to them under Article 177 of the 1956 Constitution, Article 102 of 1962 Constitution and Article 203 of 1973 Constitution as conferring right of administrative as well as judicial superintendence over its subordinate Courts. The result is that this application is maintainable under Article 203 of the Constitution, but as the Special Court. Withdrew its previous order on the commitment of the petitioner that he will, pay the balance amount in lump sum within the period specified and there is no miscarriage of justice or an illegality calling for interference, this application has no merit.
' The parties to bear their own costs.