The background briefly stated which has given rise to this contempt matter and C. M. No. 1529 of 2002 is that order, dated 15-9-1994 passed by the Joint Registrar (P&D) Cooperatives, Lahore/respondent No.2 in the writ petition, was assailed through W.P. No. 2414/95, which came to be heard by a learned Single Judge of this Court on 27-2-1995 and order maintaining status quo was passed on the said date. The writ petition remained pending, it was however, on 6-11-2002 when the same was dismissed for non-prosecution. An application (C.M. No. 2/02) for restoration thereof was moved the very next day, which was fixed for hearing on 11-11-2002 in which notice was ordered to be issued to the respondents and it was ordered that "in the meanwhile interim order, dated 27-2-1995 as to maintenance of status quo shall continue in force". Thereafter C.M. No. 3/02 was filed by respondent No.1 seeking clarification/modification of interim order, dated 11-11-2002. In that application notice was ordered on 13-11-2002 and was ordered to be heard alongwith C.M. No. 2 of 2002 on 20-11-2002. It was on 13-11-2002 that Criminal Original No. 1351-W of 2002 was filed by the writ petitioner alleging violation of this Court's order, in which on 14-11-2002 the following order was passed:-- "It is stated that the school which was housed in the premises and run since long, has been locked by the respondents as a result whereof the children/students are being deprived of their study and education, despite order, dated 27-2-1995 as revived by this Court on 11-11-2002.
Copy of this petition be sent to the respondents as also the learned counsel representing them for reply and appearance on 20-11-2002, for which date the matter is already fixed.
C.M. No. 1529 of 2002 was moved by petitioner on 19-11-2002 with the prayer to
(i) "proceed against the respondents under the contempt laws and take a deterrent punitive action against them so that the authority of the High Court, which they have under the foregoing circumstances undermined, be established;
(ii) secure, through coercive measures and through the bailiff of this Court a strict compliance of the orders, dated 11-11-2002 and 14-11-2002 of this Court. "
When the matter came up for hearing on 20-11-2002 time was sought by the learned counsel for the respondents for filing reply to the contempt petition. Notice was also issued in C. M. No. 1529 of 2002. The case was thus adjourned to 26-11-2002. On 26-11-2002 C.M. No. 2 of 2002 seeking restoration of the writ petition was allowed after hearing the learned counsel for the parties, the writ petition was ordered to be restored to its original number and has been proposed for hearing on 11- 12-2002, whereas C.M. No. 3 of 2002 (filed by the respondents for clarification/modification) was dismissed observing as follows:-- "Be that as it may the question here is as to whether order, dated 11-11-2002 suffers from any ambiguity warranting any clarification. Order, dated 11-11-2002 has been read out time and again and I find no ambiguity therein which could warrant any clarification or modification thereof. The application, thus, has no merit, and is dismissed accordingly."
It may be mentioned that as per the learned counsel for the respondents, order of this Court, dated 14-11-2002 mentioned above was challenged before the Hon'ble Supreme Court of Pakistan but the petition was disposed of (according to him) in view of the pendency of the matter before this Court. On 26-11-2002 when this matter came up for hearing it was adjourned to 28-11-2002 in order to enable the learned counsel for the respondents to obtain copy of the order of Hon'ble Supreme Court of Pakistan. On the adjourned date again the order was not produced and adjournment was sought by the learned counsel to go through and consider the order of this Court passed on 26-11- 2002.
2. The learned counsel for the petitioner contends that the respondent has sealed and closed the premises in which the school was being run since long, and has not de-sealed despite order, dated 14-11-2002 and dismissal of their petition from the Hon'ble Supreme Court of Pakistan. It is contended that order, dated 11-11-2002 was clear enough, which maintained the continuity of status quo order, dated 27-2-1995 and despite the dismissal of even C.M. No. 3 of 2002 the respondent has continued to disobey, disregard and defy this Court's order. Reference has been made to Black's Law Dictionary and few other Dictionaries to demonstrate that the continuity of order, dated 27-2-1995 was maintained and there was no reason for the respondent to have persisted with his so-called outlook of the matter.
3. The learned counsel for the respondents contends that on 6-11-2002 the Secretary of the respondent-Authority proceeded to issue an order to Director security "to stop the commercial use of premises and seal the residential house Plot No.E-19/stop the functioning of the school", which order according to him was executed immediately and complied with. It is contended that the order was passed by respondent No.1 under section 19 of Defence Housing Authority, Lahore, Order 2002. (Chief Executive's Order No.26 of 2002), which has the overriding effect in view of Article 2(2) of Provisional Constitution Order, 1999 and immune from any scrutiny or challenge and no process can be issued against the respondents. It is contended that no interim injunction could be granted by the Court in view of section 56(d) of Specific Relief Act or Order 39 of C.P.C. It is further contended that the sealing of the property had taken place at a time when there was no stay order, therefore, no order for its de-sealing can be made. According to him the respondent has neither violated the Court's order nor any restoration/restitution can be ordered. Reference has been made to Chiragh Din and another v. Chairman, Thal Development Authority (1970 SCM R 29).
4. The object of making reference to the events and orders passed by the Court from time to time was to comprehend the situation in which this contempt matter has arisen. As is evident from the above, order maintaining status quo passed on 27-2-1995 stood revived in view of order, dated 11- 11-2002 referred to above. Since the respondent purported to seal the premises and stop the functioning of the school, he should have no receipt of order, dated 11-11-2002 de-sealed and unlocked the same. It was not done which prompted the petitioner to file the contempt proceedings in which order, dated 14-11-2002 was passed leaving no scope for any doubt whatsoever as to the import and purport of order, dated 11-11-2002. The operative part of order, dated 14-11-2002 is reproduced at the cost of repetition again:-- "In view of somewhat complex situation heaven would not fall if the educational institution is allowed to run during the interim period till the next date of hearing. The respondents are accordingly restrained from interfering with or interrupting the peaceful running of the school till 20-11-2002.
Application filed by the respondent (C.M. No. 3 of 2002) seeking clarification/ modification of the order which was absolutely without any justification as there was no ambiguity whatsoever in the order, dated 11-11-2002 was dismissed on 26-11-2002. That would have left no doubt whatsoever about the legal efficacy of order, dated 11-11-2002 and 14-11-2002. But still, I am dismayed to note, that the respondent has exhibited an attitude and conduct which smacks of total defiance and disregard of the Court's order without there being any valid justification. Reliance upon section 19 of Chief Executive---s Order No. 26 of 2002 is wholly inapt and misplaced inasmuch as (i) admittedly the closure of the School and its sealing was ordered in view of dismissal of writ petition for non- prosecution on 6-11-2002; (ii) Chief Executive's Order No. 26 of 2002 was in force since 19-9-2002, but no action had been taken till 8-11-2002 and; (i.e) even any action under the said provision of Chief Executive's Order is dependent upon certain steps and prerequisites. Subsection (1) envisages an order in writing requiring the owner/occupier or a user to remove or demolish the building or to use it in such a manner as may bring such a use in accordance with the provisions of this order. It is only thereafter when the order is not complied with in such time as is specified in the order that the Authority can proceed to stop the use of the land", which also is conditioned by an opportunity of hearing to the person concerned. Order issued by the respondent i.e. The Secretary of the Authority does not fall within the ambit of section 19 of the Order, as neither any order in writing was addressed to the petitioner nor it contained any intimation as to time for compliance thereof nor any opportunity was afforded to the petitioner as envisaged by subsection (2) thereof.
It was merely an inter-office directive issued by the Secretary to the Director Security, for reporting compliance thereof. The respondent thus cannot bank upon such an order issued by him, which was not even in accordance with the Chief Executive's Order. The contention of the learned counsel for the respondent thus claiming and invoking immunity from the process of the Court is not tenable and is repelled.
5. At this juncture I am reminded of an incident often quoted from the English Judicial history reproduced by Syed Shabbar Raza Rizvi in his work on Constitutional Law of Pakistan, Text, Case- law and Analytical Commentary, Vol. II, page 1212:-- "The most renowned Prince King Henry the 5th late King of England, during the life of his father was noted to be fierce of wanton courage. It happened that one of his servants, whom he favoured very much was before the King's Bench for felony committed by him and the Prince learning of this in furious rage came hastily to the bar where his servant stood as a prisoner and commanded that he be set at liberty, whereas all men were abashed, except the Chief Justice who humbly exhorted the Prince to be contended that his servant might be ordered according to the ancient laws of the realm, or if he would have him saved from the rigor of the laws, that he would, if he like, appeal to the King, his father, to grant him his gracious pardon. By this answer the Prince was not appeased, but rather more inflamed, and made an attempt to take away his servant. The Judge considering the perilous example and inconvenience that might thereby ensue with the valiant spirit and courage commanded the Prince upon his allegiance to leave the prisoner and depart in a terrible manner came up to the place of judgment and the men present in Court thought that he would slay the Judge or cause him some injury. The Judge, however, sitting still, without moving, declaring the Majesty of the King's place of judgment, and with an assured and bold countenance, addressed the Prince with these words: Sir, remember yourself; I keep here the place of King, your sovereign Lord and father, to whom you owe double obedience. In his name, I charge you desist from your wilfulness and unlawful enterprise and thereby give good example to those who hereafter shall be your subjects and now for your contempt and disobedience I send you to the prison of the King's Bench where I commit you and direct that you shall remain there until the pleasure of your father, the King, be further known.'
Upon these words the Prince was abashed and: laying his weapons apart and doing reverence, departed and went to the King's Bench, as he was commanded. His servant felt disdainful at this came and told the King of what had happened, whereupon, in all gladness, the King holding his hand upwards said in a loud voice: "O. Merciful God, how much am I above all other men bound to your infinite goodness, especially because you have given me a Judge who fears not to administer justice and also a son who can suffer and obey justice." (Emphasis supplied by me for its significance).
Long ago, the Hon'ble Supreme Court of Pakistan, the apex Court of the country, had the occasion to consider the provisions relating to immunity in Ch. Zahur Ilahi, M.N.A. v. Mr. Zulfiqar Ali Bhutto and 2 others (PLD 1975 SC 383) and reiterated recently in Syed Mansoor Ahsan and others v. Kardeshir Cowasjee and others (PLD 1998 SC 823) a thought provoking observation that:-- "Hence, since neither the Constitution nor any law can possibly authorize him to commie a criminal act or do anything, which is contrary to law, the immunity cannot extend to illegal or un- Constitutional acts. Even a Prime Minister is under clause (2) of Article 5 of the Constitution bound to obey the Constitution and law as that is the basic obligation of every citizen."
It need no reiteration that no one is above the law. Article 5 of the Constitution enjoins and reminds every citizen, that obedience to the Constitution and law is inviolable obligation. It is, affirmation of the concept of justice that all are equal before the Court of law and that arm of the law can reach any law-breaker.
6. It is thus not conceivable even, that the Chief Executive's Order No.26 of 2002 would have authorized anyone to flout or disobey the orders of the Court nor the same can be construed like that nor such intention can be attributed. The claim of immunity sought to be professed and adumbrated by the learned counsel for the respondent has thus no force. Reference made by the learned counsel to Chiragh Din's case (supra) is also inapt, as that case had arisen in a totally different context whereas in the instant case order, dated 11-11-2002 and 14-11-2002 suffers from neither any obscurity nor there was any doubt about their efficacy and had thus to be obeyed.
7. Admittedly the premises are being' used as a school where several students were studying and getting education which has been interrupted and stopped with the abrupt action taken by the respondent by using its authority and mighty force. The loss so occasioned to the youth of the nation is not measurable and is incalculable. The only reason for such an action is that the school is within the residential locality and a cause of nuisance to the residents of the area. The learned counsel for the petitioner submits that there are number of other educational institutions in the same locality but the action against the petitioner was selective and singular. This assertion, however, is disputed by the learned counsel for the respondent. So that as it may, as the school was functional since long, any further continuance of sealing and stoppage of the same would only aggravate the problem. It would be just and-- legal under the inherent power, this Court is vested with, besides the provisions of sections 94 and 151, C.P.C. To set the wrong right and not to allow the perpetuation of wrong doing. It is thus expected that the premises are de-sealed forthwith so that the educational institution is allowed to function at least till the hearing of the writ petition. Despite the continuous adamancy exhibited by the respondent, it is hoped that orders would be complied with, failing which a bailiff of this Court will be available who will get the premises de-sealed in his supervision. In order to avoid any complication or untoward situation, he may seek such assistance from the local police, as may be considered necessary. The Senior Superintendent of Police, Lahore is directed to extend all possible assistance and ensure the compliance of order.
8. It may be observed that one of the most important powers and function of Court of Law is its power to pronounce and pass orders i.e. Commanding a person to do something or restraining him from doing something. If, however, some one disobeys, the Court has the power to enforce its orders' for which purpose it has at least in the words of Lord Denning "one weapon in its armoury which it can use. It can punish him for contempt of Court". Let there be no doubt that once an order has been passed by the Court it has got to be obeyed by the litigants, they cannot arrogate to themselves the right to decide whether the Court's order was proper or not. They certainly can have resort to the remedies available to them under the law, but as observed in Muhammad Idrish and another v. The East Pakistan Timber Merchants' Group and another (1968 SCM R 1404) "cannot with impunity flout orders of the Courts on their own construction of the orders. In doing so they clearly run the risk of becoming liable to punishment for contempt in the event of their construction turning out ultimately to be erroneous". It is for the experts in this field i.e. The legal advisors to guide their clients and save them from any such risk and embarrassment. But if it is left to a litigant to take upon himself to decide whether to obey the order of the Court or not, he can conveniently come forward with his own erroneous interpretation of the order as a justification for not complying the same and expose himself to risks entailing serious consequences. The respondent in this case has, chosen for himself to decide not to obey the order of the Court and taken a risk of facing the consequences thereof. This he, has done despite number of opportunities made available to him to mend the situation. He has thus prima facie rendered himself for proceedings of committing contempt. Issue him notice as to why he should not be held for committing contempt of the Court and be sentenced in accordance with law. He will appear in person on 3-12-2002.
N.H.Q./A-658/L Contempt notice issued.