Ouster of Jurisdiction of Courts in Pakistan

OUSTER OF JURISDICTION OF COURTS IN PAKISTAN

By

Muhammad Usman Ramzan, Deputy Solicitor Punjab

Jurisdiction is the basis of all the legal proceedings. The term 'jurisdiction' refers to the legal authority to administer justice in accordance with the means provided by the law and subject to the limitations imposed by law. It is primarily related to the power of the court to hear, determine and adjudicate a cause by exercising its judicial power and authority. The jurisdiction is so important that a court cannot proceed further in a matter unless it has the jurisdiction to adjudicate the matter. If a court wrongly assumes jurisdiction, then such proceedings are nullity in the eye of law. It is well known principle of law that the courts are established by law and the jurisdiction is also conferred on the courts by law. The establishment and jurisdiction of the courts is essential legislative function as enshrined in Article 175 of the Constitution of Islamic Republic of Pakistan 1973. A court can only be established by duly enacted law of the legislature rather than by means of an executive order and same rule applies so far as conferring of jurisdiction on courts is concerned. The Article 175 of the Constitution describes that there shall be a Supreme Court of Pakistan, a High Court for each province and a High Court for Islamabad Capital Territory and such other courts as may be established by law and no court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. But, sometimes the jurisdiction of the courts is barred by law which is commonly known as ouster of jurisdiction. Section 9 of Code of Civil Procedure 1908 states that the Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Similarly plaint can be rejected under Order VII, Rule 11 of C.P.C. 1908 when the plaint is barred by any law. So the courts are bound by law not to proceed with the case where their jurisdiction is barred by law or their jurisdiction is ousted by law. But various questions arise in our minds e.g. either the ouster of jurisdiction of the court is absolute or not? Can the courts interfere in matters despite the fact that there is express ouster of jurisdiction? What will be the legal status of the proceedings of the court when their jurisdiction is barred by law? Here, we will try to explore the answers to the aforesaid questions.

As the jurisdiction is conferred on the courts by law, so the jurisdiction of the courts is also barred by law. It may be express or implied. Sometimes law expressly bars the jurisdiction of the courts, but on some occasions, there is no express provision in law that bars the jurisdiction of the court but an inference may be drawn from a particular provision of law that the jurisdiction is barred, it is called implied bar of jurisdiction. In our legal system, there are two kinds of ouster of jurisdiction; first one is called as Constitutional Ouster of jurisdiction wherein the Constitution itself bars the jurisdiction of the courts and the second one is called as Statutory Ouster of jurisdiction wherein a particular provision of a statute bars the jurisdiction of the courts. The Constitution of Islamic Republic of Pakistan 1973 envisages some provisions that bar the jurisdiction of courts. e.g. Article 41(6) describes that the validity of the election of the President shall not be called in question by or before any court or other authority, Article 69 narrates that the validity of any proceedings in [Majlis-e-Shoora (Parliament)] shall not be called in question on the ground of any irregularity of procedure. Article 203G bars the jurisdiction in the following words that Save as provided in Article 203F, no Court or Tribunal, including the Supreme Court and a High Court, shall entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the Court [Federal Shariat court] , Article 211 describes that the proceedings before the Supreme Judicial Council, its report to the President and the removal of a Judge under clause (6) of Article 209 shall not be called in question in any Court, Article 212 is that notwithstanding anything hereinbefore contained where any Administrative Court or Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends [and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal [other than an appeal pending before the Supreme Court,] shall abate on such establishment:] of administrative courts and tribunals^`^ Article 225 describes that no election to a House or a Provincial Assembly shall be called in question in court except by an election petition presented to such tribunal and in such manner as may be determined by Act of [Majlis-e-Shoora (Parliament), Article 239(5) no amendment of the Constitution shall be called in question in any Court on any ground whatsoever etc.

Apart from the Constitution a particular provision of any statute can also bar the jurisdiction of the court that is commonly known as Statutory Ouster of the Jurisdiction. e.g. Section 70A of Co-operative Societies Act 1925 bars the jurisdiction of any court or authority whatsoever to try matters that are exclusively within the domain of Cooperative departments, Section 172 of Land Revenue Act 1967 bars the jurisdiction of Civil Court in the following words that No Civil Court shall have jurisdiction in any matter which Government, the Board of Revenue, or any Revenue Officer, is empowered by this Act to dispose of, or take cognizance of the manner in which Government, the Board of Revenue, or any Revenue Officer exercises any powers vested in it or him by or under this Act and the said provision further enumerates the subjects in which the jurisdiction of civil court is barred, similarly section 67(2) of Canal and Drainage Act 1873 describes that a court shall not assume jurisdiction in any matter in respect of anything done being done or purported to be done under sections 20, 20-A, 20-B, 20-C, 31, 32, 32-A, 33, 34, 35, 36 and 45 of the Act and shall not pass any order interrupting any proceedings under the Act, section 21(9) of Punjab Environment Protection Act 1997 describes that no court other than an Environmental Tribunal shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of an Environmental Tribunal extends under this Act or the rules and regulations made there under, section 54A of Punjab Food Authority Act 2011 bars jurisdiction of court in the following words; A Civil Court shall not entertain a suit or an application against any proceedings taken or order made under this Act, section 36 of the Colonization of Government Lands (Punjab) Act 1912 describes that a Civil Court shall not have jurisdiction in any matter of which the Collector is empowered by this Act to dispose and shall not take cognizance of the manner in which the [Provincial Government) [Board of Revenue] or Collector or any other Revenue Officer exercises any power vested in it or in him by or under the Act, section 16 of Service Tribunals Act 1973 bars the jurisdiction of courts other than the tribunal to try matters that are the exclusive domain of service tribunal. Notwithstanding the fact that every statute contains the provisions pertaining to bar of jurisdiction of the court because such jurisdiction has to be exercised by another competent authority created by such statute.

Now the question arises that both the Constitutional Ouster of jurisdiction and Statutory Ouster of jurisdiction are absolute in nature or not? In other words what will be the effect of ouster of jurisdiction on Supreme Court and High Courts and Courts subordinate to them? So far as the effect of ouster of jurisdiction on Supreme Court and High Court is concerned, it has been held in number of cases that the constitutional ouster of jurisdiction shall not affect the extraordinary jurisdiction of the Supreme Court and High Court, if the impugned act/order suffers from any of illegality i.e. without jurisdiction, coram non judice and mala fide. This principle was held in Sardar Farooq Ahmad Khan Laghari v. Federation of Pakistan, Pir Sabir Shah v. Federation of Pakistan, Javed Hashmi v. Election Commission of Pakistan, Ghulam Mustafa Jatoe v. ASJ, Muhammad Rafiq Tarar v. Justice Mukhtar Junajo, District Bar Association Rawalpindi v. Federation of Pakistan etc. Similarly, statutory ouster of jurisdiction does not affect the jurisdiction of Supreme Court and High Court even in the circumstances when there is an absolute bar of jurisdiction in statute. Whereas the constitutional as well as the statutory ouster clauses does apply on the subordinate Courts and their jurisdiction is absolutely barred. The proceedings carried out by a subordinate court in the presence of ouster clause, such proceedings are considered nullity in the eye of law. This principle was held in Ahmad Mukhtar Cheema v. Punjab Small Industries case, Muhammad Khursheed v. Superintendent Engineer Highway, Zeenat Manufacturing Ltd v. Secretary Survey and Rebate CBR, Pakistan Islamabad etc.

It was held in Hakam v. Tassadaq Hussain Shah case that under section 9 of C.P.C. 1908, Civil Courts are Courts of ultimate jurisdiction to try all suits of civil nature, excepting suits for which their cognizance is either expressly or impliedly barred. The Civil Courts are Courts of plenary and ultimate jurisdiction in dispute between parties pertaining to civil nature and ouster of their jurisdiction is not to be lightly inferred or assumed as a matter of course. Only express provision in any law/statute can debar and take away jurisdiction of Civil Court and such provision is to be strictly construed and applied leaving no room for doubt that jurisdiction of Civil Court has been ousted. It was further held in the above said case that under section 172 of West Pakistan Land Revenue Act, 1967 and section 25 of Displaced Persons (Land Settlement) Act, 1958, expressly and unambiguously commands that jurisdiction of Civil Courts is barred to take cognizance of matters which under said special laws has been conferred upon special forums. The West Pakistan Urban Rent Restriction Ordinance, 1959, bars jurisdiction of Civil Courts and confers upon Rent Controller to decide matters referred to in law regarding landlord and tenant about properties falling within purview of the Ordinance, 1959. So it is clear enough that the civil courts cannot assume jurisdiction in the cases wherein their jurisdiction is expressly and absolutely barred.

Now the very next question is that what will be the fate of the cases wherein the jurisdiction of the civil court is impliedly barred? For application of rule of implied bar, it has to be seen that where a special tribunal or a public body is created by or under authority of an Act of Legislature for purpose of determining rights which is creation of Act, then jurisdiction of that tribunal or of that body is exclusive and jurisdiction of Civil Court is barred. This principle was held in Khurshid Ahmad v. Rana Mumtaz Ahmad Case. The court further elaborated that under section 8 of the Evacuee Trust Properties (Management and Disposal) Act, 1975, the Chairman Evacuee Trust Property alone is competent to decide whenever any question arises as to whether an evacuee property is attached to charitable, religious or educational trust or institution or otherwise. Any proceeding in such regard before the Civil Court shall be coram non judice. On the same principle there is another significant case titled as Muhammad Afzal Warraich v. Muhammad Ramzan wherein the impugn order of Session Judge was assailed before High Court through a Constitutional writ petition under Article 199 of the Constitution 1973 stating therein that Sessions Judge in his capacity as District Chairman of Human Rights, directed police to register case against petitioners. It was held by the court that Punjab Sugar Factories Control Act. 1950, was a special enactment legislated for resolution of such disputes and special law had overriding effect over general law. Sugarcane owners instead of following procedure laid down in special enactment chose wrong forum for redressal of their grievance and Sessions Judge without - taking into consideration the ouster clause provided in section 22(1) of Punjab Sugar Factories Control Act, 1950. Consequently, the High Court, in exercise of constitutional jurisdiction, set aside the order passed by Sessions Judge and allowed the petition.

So the crux of above said entire discussion is that the constitutional ouster of jurisdiction is designed to maintain balance between the legislature, executive and the judiciary, so that each organ of the state may not interfere in the ambit of other. On one hand, the superior courts can review the legislative and executive actions, on the other hand the courts are supposed not to interfere in the domain of other organs of the state. It is by dint of ouster of jurisdiction that the balance is maintained among three organs of the state namely legislature, executive and judiciary. Moreover the ouster of jurisdiction avoids legal complexity. The precision of the authority enhances the proper administration of justice. e.g. a matter is pending in a service tribunal and during the course of the proceedings, the same matter is brought before another court and the matter is adjudicated by both of them. It will create ambiguity and uncertainty. It is by dint of ouster of jurisdiction that a same matter cannot be heard and adjudicated by more than one authority and decision of court of ultimate jurisdiction is binding on the parties. So, the courts and the administrative authorities and tribunals have a line of action due to ouster of jurisdiction. The courts must adhere to the constitutional and statutory ouster of the jurisdiction, in order to avoid legal complexity. The High Court generally refuses to interfere in a matter wherein another efficacious departmental remedy is available. This practice ought to be followed by the subordinate courts. The courts below must also refuse to interfere in a matter that is exclusively within the domain of the department and must direct the aggrieved person to avail departmental remedy first. Consequently, this practice will decrease the number of the cases pending before the courts and that in turn, will provide an opportunity to the public functionaries to exercise their qausi-judicial authority for proper administration of justice.

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