' This detailed order shall be read in continuation of and as a part of the short order dated 25-10- 1995 .Whereby connected Writ Petitions Nos.14354, 14355, 14356, 14467, 14468, 14686 and 14636 of 1995 were dismissed in limine.
2. Briefly stated facts of the case out of which these writ petitions have arisen are, that the Federal Government of Pakistan had established a Banking Tribunals respondent No,4 under the provisions of section 4 of the Banking Tribunal Ordinance, 1984. Hence suits for recovery of finances were filed and pending in the said Tribunal. Subsequently, more Banking Tribunals were established by the Federal Government for Lahore keeping in view a large number of fresh institution and pendency of cases in one Tribunal and hence delaying disposal thereof, which was causing a lot of inconvenience to the litigants.
3. In exercise of the powers under section 4, subsection (2) of the above-referred Ordinance, Federal Government of Pakistan issued Notifications No,F.34(1)/95-All dated 25-4-1995 and F.18(3)/94-All, dated 28-9-1995, which are reproduced as under: "No,F.34(1)195-All Government of Pakistan, Ministry of Law, Justice and Parliamentary Affairs (Law and Justice Division)
Islamabad, the 25th April, 1995.
' From ' Muhammad Naeem Malik, ' Section Officer.
' To ' Sardar Bahram Khan, ' Banking Tribunal (Commercial-I), ' Old State Bank Building, The Mall, ' Lahore.
' Subject: DISTRIBUTION OF WORK. Sir, ' With reference to your letter No, BTL-C-1/95 dated 19-4-1995, on the above subject, I am directed to say that Mr. Ashiq Hussain Khan, Presiding Officer, Banking Tribunal-I, Lahore will distribute the work being senior most.
2. This issues with the approval of Secretary Law, Justice and Parliamentary Affairs.
Your obedient servant, (MUHAMMAD NAEEM MALIK), Section Officer.
' Copy to:
(1) Mr. Ashiq Hussain, Presiding Officer, Banking Tribunal-I, Old State Bank Building, The Mall, Lahore.
(2) Mr. Mumtaz Ali, Banking Tribunal (Commercial II), Old State Bank Building, Lahore.
(3) Mr. Zafar Ali Thaim, Banking Tribunal (Commercial III), Old State Bank Building, Lahore.
(4) Mr. Aish Bahadur Khan, Banking Tribunal (Agricultural I), Old State Bank Building, Lahore.
(5) Mr. Muhammad Aslam Nagi, Banking Tribunal (Agricultural II), Old State Bank Building, Lahore.
(Sd.)
(Muhammad Naeem Malik), Section Officer.
GOVERNMENT OF PAKISTAN, MINISTRY OF LAW JUSTICE AND PARLIAMENTARY AFFAIRS.
' No,F.18(3)/94/All. Islamabad, the 28th September, 1995 ' From ' Hakim Syed Akhtar Irshad, ' Deputy Secretary.
' To
(1) Mr. Ashiq Hussain Khan, Presiding Officer, Banking Tribunal-I, Lahore
(2) Mr. Mumtaz Ali, Presiding Officer, Banking Tribunal II), Lahore
(3) Mr. Aish Bahadur Khan, Presiding Officer, Banking Tribunal III, Lahore
(4) Mr. Muhammad Aslam Nagi, Presiding Officer, Banking Tribunal IV Lahore.
' Sub: DISTRIBUTION OF SUITS AND EXECUTION/PETITIONS Sir, ' I am directed to say that it has been decided that all the suits/execution petitions which have not been distributed so far may be distributed amongst the Tribunals in seriatim chronological order. It may be ensured that the distribution may take place starting from pending case No,1 onwards to the last case in the same order so that no one can raise his finger that the distribution is uneven.
(2) In future the Registrar when appointed may mark the time in the register on receiving the suit; and distribution thereof may be effected in the chronological order to the Presiding Officers in seriatim. The system may be absolutely transparent so that even distribution of cases is discernible to all concerned.
(3) Same policy may be adopted in respect of pending execution petitions. However when the pendency comes to zero then the execution petition may be disposed of by the Presiding Officer who adjudicated upon the suit out of which it arose.
(4) Compliance report to this effect may be supplied to this Ministry indicating the number of cases assigned to each Presiding Officer.
Your obedient servant, (Sd.)
(Hakim Syed Akhtar Irshad), Deputy Secretary.
' The respondent No,4, in pursuance of The above-referred notifications distributed/transferred the files of the suits pending against the petitioners to the newly established Tribunals who are also respondents in all these petitions. Through these Constitutional petitions, the order of transfer of suits pending against the petitioners from the Court of Mr. Muhammad Ashiq Khan, Chairman, Banking Tribunal No,1 to other Tribunals has been challenged as being illegal and without a lawful authority.
4. M/s. Iftikhar Ali Sheikh, Ashtar Ausaf Ali and Malik Imran Nazir, Advocates, have appeared on behalf of the petitioners, whereas Mr. Faqir Muhammad Khokhar, Deputy Attorney-General of Pakistan has entered appearance on behalf of Federation of Pakistan as well as on behalf of Banking Tribunals, at limine stage.
5. Learned counsel for the petitioners have contended that the power of transfer of suits vests with the Federal Government of Pakistan as per provisions of section 4, subsection (2) of the Ordinance, therefore, the impugned order of transfer which has been passed by the Chairman of the Banking Tribunal respondent No,4, is illegal and without a lawful authority; that assuming without conceding that the power of transfer could have been delegated to him, order of transfer could only have been passed after being satisfied that the same is in the interest of justice, or is passed for the convenience of the parties and witnesses and as in these cases the impugned orders have been passed without application of mind to the aforementioned conditions, hence the. Same is void ab initio; that the constitution of more than one Tribunals is mala fide inasmuch as majority of the cases are pending against the concerns which belong to the Leader of the Opposition, therefore, the Federal Government in power can misuse the Tribunals to tease him to his disadvantage; that the order of transfer of a pending suit being a judicial act, could not have been passed without giving the petitioners opportunity of hearing which admittedly has not been given in these cases, therefore, the same is void ab initio and that in a similar case a learned Single Bench of this Court has held in W.P. 11899 of 1995, decided on 1-10-1995 that the order of the transfer of the nature which has been impugned in these petitions is illegal and without a lawful authority, therefore, keeping in view the principle of consistency all these petitions merit acceptance as prayed for. In support of his contention learned counsel has further placed reliance on the following cases:
(1) Multilines Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423.
(2) Union of India and others v. Godfrey Philips India Ltd. AIR 1986 SC 806 (12).
(3) Shridhar v. Nagar Palika, Jaunpur and others AIR 1990 SC 307.
(4) The Tariq Transport Company, Lahore v. The Sargodha-Bhera Bus Service Sargodha etc. PLD 1958 SC (Pak.) 437.
6. In case of Multilines Associates (supra) it has been held that earlier judgment of equal Bench in the High Court on the same point is binding upon the second Bench and if a contrary view has to he taken, then request for constitution of a larger Bench should be made. Reference has also been made in case of Province of East Pakistan v. Dr. Azizul Islam PLD 1963 SC 296 and Sindshswa r Ganguly v. State of West Bengal PLD 1958 SC (Ind.) 337. In case of Union of India (supra) it has been held that earlier view taken by a Bench of two Judges of the High Court could not be overturned by another Division Bench and if the said learned Bench is unable to agree with the law laid down in the earlier case, the matter should be referred to a larger Bench.
' In case of Shridhar (supra) it has been held that it is well-settled principle of judicial discipline that if a Single Judge, disagrees with the decision of another Single Judge, it is proper to refer the matter to a larger Bench for an authoritative decision.
' In case of the Tariq Transport Company (supra) it has been held that even administrative orders are open to judicial review by the High Court in cases where the administrative authority goes out of the law, wrongly denies or omits to exercise a jurisdiction or where the law under which he acts prescribes the manner in which he is to act and the authority materially departs from that law.
7. Mr. Faqir Muhammad Khokhar, learned Deputy Attorney-General of Pakistan has contended that the notifications have been issued by the Federal Government in terms of the provisions of section 4, subsection (2) of Banking Tribunals Ordinance, 1984, in pursuance whereof the pending work has been ordered to be distributed/transferred to the newly constituted Tribunals in order to provide speedy justice to the litigants, and, it cannot be said that the order of transfer/distribution of the files of the cases in question are void, illegal and ultra vires; that power of transfer could be delegated as is done in civil cases when the power of entertainment/entrustment of suit which originally vests in the District Judge but is being exercised by the Senior Civil Judges as delegatees of the District Judges, therefore, no fault can be found with the formal orders of transfer passed by respondent No,1 and that even otherwise the petitioners have no vested right to ask for trial of their cases in a particular Tribunal, in view of the law declared in cases of Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187 and Mst. Yasmeen Nighat and others v. National Bank of Pakistan and others PLD 1988 SC 391, therefore, this petition is not maintainable and is liable to be dismissed.
8. 1 have considered the argument addressed by the learned counsel for the parties and have perused the record. There is no denying the fact that a learned Single Judge of this Court has accepted W.P. No,11899 of 1995, decided on 1-10-1995 and has declared a similar order of transfer of a suit passed by respondent No,1 as illegal and without a lawful authority, but perusal of the said judgment shows that the notifications which have been produced before me were not before the said learned Single Judge at the time of decision of the said matter and learned counsel appearing on behalf of the contesting respondents (not the Federal- Government) had conceded and had made a statement that he has no objection if the case is sent back to the respondent No,2, as is clear from the operative part of the order: "4. It needs to be noted that originally there was no provision in the Banking Tribunals Ordinance, 1984, empowering any authority to transfer a case pending before one Tribunal to another.
However, the Banking Tribunals Ordinance, 1984 was amended by Ordinance No, VII of 1990 and section 4(2) was introduced which vests powers of transfer in the Federal Government. Clearly, therefore, it was Federal Government, not respondent No,2, which could transfer the case pending before it to respondent No,3. The learned counsel appearing on behalf of contesting respondent has conceded this position and has no objection if the case is sent back to respondent No,2.
' In view of what has been stated above this petition is allowed, order ' dated 29-5-1995 passed by respondent No,2, transferring the suit and consequential orders are declared to be without lawful authority and of no legal effect with the result that the suit shall be deemed to be pending before respondent 'No,2, who shall proceed with it in accordance with law. No order as to costs."
' It is clear from the perusal of the above order, that matter in issue in these cases has not been adjudicated upon after a contested trial between all the interested parties, hence that judgment cannot be treated as a binding precedent. Similarly case. Of Tariq Transport & Company (supra) cited by the learned counsel for the petitioners is of no help to him and does not in any manner advance case of the petitioners as there is no cavil with the principle laid therein to the effect that even executive and administrative orders are open to judicial review under certain situations, but the cases in hand do not fall within these exceptions.
9. A perusal of section 4, subsection (2) shows that the Federal Government has the power to transfer the cases from one Tribunal to another Tribunal in the interest of justice and also for the convenience of the parties as well as witnesses. It is also established on record that the Federal Government has issued notification authorising the respondent No,4 to transfer/distribute the new work as well as the case already pending before him to the newly created Tribunals. The reasons which have been explained to have prompted the Government to issue the notification are due to heavy pendency before respondent No,4 it had become necessary to constitute more Tribunals and hence to distribute the work amongst all the Tribunals, so that speedy justice could be provided to the litigants. The word "transfer" as defined in Black's Law Dictionary in 6th Edition at page 1497 is as under: "To convey or remove from one place, person, etc., to another, pass or hand over from one to another, specifically, to change over the possession or control of."
' As the same page the word "transfer" is further defined as under: "Transfer means every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting the property or with an interest in property."
' The above said definition clearly shows that a cause pending before a particular Tribunal/Court could be transferred by the competent Authority directly or indirectly, hence in the case in hand the cases pending before the Tribunal No,1 have been ordered to be transferred by the Federal Government indirectly through the said Tribunal, to whom the task of distribution of work has been assigned in the two notifications reproduced in the upper part of this order, therefore, it cannot be said that the questioned orders of transfer of files/cases passed by respondent No,1 in any manner are illegal and without a lawful authority. I have already taken a similar view in case of "Aziz ur Rehman v. Federation of Pakistan" W.P. No,14265 of 1995, decided on 24-10-1995. The same view has been taken by a learned Single Judge of this Court in W.P. No,13984 of 1995 titled "M/s. Pakistan Belting (Pvt.) Ltd. v Federation of Pakistan", decided on 22-10-1995. I am bound by my own view as held in case of Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC (Pak.) 9 and also by the view taken by another learned Single Judge in two cases referred to above as held in cases of Multilines Associates, Union of India and Shridhar (supra) relied upon by learned counsel for the petitioners, therefore, I hold that impugned orders of transfer passed by respondent No,4 are unexceptionable and quite valid in law.
10. As regards the arguments of the learned counsel for the petitioner that the constitution of more Tribunals than one is mala fide as the cases against the Leader of the Opposition can be sent to the Tribunal of the choice of the Federal Government, suffice it to say that it is not only the cases of the petitioners alone which have been transferred but the cases of other persons have also been transferred. All the Tribunals who are now seized of the cases are of equal jurisdiction, therefore, it cannot be said that the Federal Government has exercised jurisdiction maliciously, therefore, I hold that neither the constitution of the Tribunal nor transfer of the cases is tainted with mala fides.
11. Examining the case from another angle provisions of section 4, subsection (2) empowering the Federal Government to transfer the cases in the interest of justice is mode which is more administrative in nature, than judicious act, therefore, even following the law declared in cases cited by learned counsel C for the respondent, notifications issued and the orders of transfer passed are not liable to be interfered with in exercise of power of judicial review of this Court as the same do not fall with the exceptions as mentioned in case of Tariq Transport Company (supra) at pages 461 and 494 of which report it has been held as under:-- "The position under our Constitution is substantially the same. Article 170 empowers a 'High Court to issue to any parson or authority, including in appropriate cases any Government, directions, orders of writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, for the enforcement of any of the rights conferred by Part II and for any other purpose' .
As the framers of the Constitution must be deemed to have known the conditions of the jurisdiction of the King's Bench Division to issue the prerogative writs, the Article must be construed as implicitly enacting those conditions. From the language of the Article, however, it seems to me to be perfectly clear that the power of the High Court to issue directions, orders and writs is not limited to writs in the English form but extends to the making of orders restraining or directing any authority or Government which may be discharging executive functions under a statute. But this cannot be taken to mean that purely executive action can be controlled by the High Court. The Article is to be read in the context of the whole Constitution, the basic feature of which is a distribution of powers between the. Legislature, the Executive and Judiciary. Any encroachment by the High Court in the field reserved for the executive would therefore amount to judicial invasion and would be contrary to the spirit of the Constitution. In the exercise of its writ jurisdiction the High Court can never substitute itself, for or assume the responsibility of the executive, for the simple reason that it does not have the requisite information, experience and training to discharge executive functions. That Court cannot, therefore, itself make any executive order, its function being confined to the issuing of directions on matters of law, The conclusion to be deduced from this discussion in that where an administrative or executive officer acts under a law, the High Court will control the action by an appropriate order if he-
(a) goes out of the law i,e, exercise a jurisdiction not vested in him by law;
(b) wrongly denies or omits to exercise a jurisdiction; and
(c) where the law under which he acts prescribes the manner in which he is to act, materially departs from the law.
' But the overriding requirement in all the three cases is that the excess or denial of jurisdiction or the irregularity in the prescribed procedure should have injuriously affected some justiciable right of a party.'
' Nor am I impressed with the argument that the precise limits laid by the English Courts upon the issue of these writs are not applicable to High Courts in Pakistan exercising their powers under Article 170 of the Constitution. The power thereby given to the High Courts to exercise control over executive actions must be construed within the context of the Constitution, and within the general conception of the functions allocated to the judiciary by the Constitution. I can see no ground for thinking that the intention of the Constitution was to making all or any executive authorities generally answerable to the High Court for their actions. Where anything in the nature of a judicial process is involved in the exercise of action which is covered by the law entrusted to the executive, there to the extent of such involvement the High Court is undoubtedly in a position to exercise a salutary control, by reason of its acquaintance with all aspects and requirements applicable to the judicial process. It is in that sense that the Courts of the country from which originate, not only the writs here in question, but also the whole conception of separation of the legislative, judicial and executive functions, have confined their interference with executive actions by the writs in question to matters involving processes which are either expressly judicial, or analogous to the judicial process: The division of functions between the three great limbs of State in Pakistan is by no means less clear than it is in England. To observe and to respect this division is implicit under the duty of loyalty to the Constitution which rests upon all citizens but in particular upon those who are entrusted with the duty of interpreting and implementing the Constitution. Therefore, I would strongly deprecate and I hope I do so with due respect to all authorities concerned, any tendency on the part of the Courts to regard all executive acts as being amenable to their jurisdiction under Article 170 of the Constitution, merely because that that Article enables the High Court in issue 'directions and orders' as well as writs of specified kinds. So far as concerns the kind of orders which the High Court was requested in the petition to make in the present case, I am clearly of the opinion that the principles laid down by the English Courts are directly applicable, and that the power of - interference by certiorari or prohibition with the executive acts is confined to such portion of those acts as is expressly judicial, in its nature, or can reasonably be held to be of a quasi-judicial nature."
12. Learned counsel has not been able to show that the Federal Government has gone out of the law or failed to exercise the jurisdiction, has departed from the law on the subject in any manner, therefore, it could not be said that justiciable rights of the petitioners have been injuriously effected which may entitle them to bring their causes before this Court. Sufficient hearing has been given to the petitioners before this Court, hence no grievance can be pressed into service on that account.
No prejudice is also alleged or established to have been caused. It is also a well-established legal proposition that choice of a forum out of many having the same jurisdiction, is not the vested right of a litigant as held in case of Adnan Afzal (supra), therefore, on this score as well, as no prejudice has been caused to the petitioners by passing of the order of transfer and the cases have been sent from one Tribunal to another Tribunal of equal jurisdiction which are functioning in the same premises at the same place at Lahore for a reasonable and just cause, the petitioners are not possessed of any actionable cause of grievance.
15. Resultantly, I see no force in these writ petitions, which are dismissed in limine which order has already been passed on 25-10-1995.