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Criminal Original Petition No. 18 of 1957, decided on 4th December 1957, praying that the respondents be proceeded against for contempt of Court,
Art. 176‑Does not empower High Court to punish contempt s of subordinate Courts.
S. 2 (1) "Court"‑What constitutes a Court‑A Deputy Rehabilitation Commissioner under the Pakistan Rehabilitation Act (XVII of 1956), not a Court ‑At any rate not subordinate to High Court ‑Constitution of Pakistan, Art. 177, Third Sch., para. 5.
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 func tions 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 satisfaction 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.
Held, that a Deputy Rehabilitation Commissioner under the Pakistan Rehabilitation Act (XVII of 1956) does not constitute a Court within the meaning of the term used in section 2 (1) of the Contempt of Courts Act XII of 1926.
The word "Court" in section 14 of the Pakistan Rehabili tation Act, 1956, has been used only for a limited purpose.
A Deputy Rehabilitation Commissioner, even if he be assumed to be a Court, is not subordinate to the High Court within the meaning of section 2 (1) of the Contempt of Courts Act XII of 1926.
Hari Charan Kundu v. Kanshi Charan Dey 1940 Cal. 286; R. v. London County Council (1931) 2 K B 215; Shell Company of Australia Limited v. Federal Commissioner of Taxation 1931 A C 275; Cooper v. Wilson (1937) 2 K B 309 : Huddart Parker & Co. v. Moorehead (1909) 8 C L R 330; Mahabale swarappa v. M. Gopalasami Mudaliar A I R 1935 Mad. 673; Works Manager Carriage of Wagon Shops Moghalpura v. Hashmat I L R 1947 Lah. 1; Kishan Chand & Co. v. Nur Muhammad P L D 1949 Lah. 30; In re Mian Sultan Ali Nanghiana v. Mian Nur Hussain P L D 1949 Lah. 301; Muhammad Saeed and others v. Election Petitions Tribunal, West Pakistan and others P L D 1957 S C (Pak.) 91; Brajnandan Sinha v. Jyoti Narain P L D 1956 S C (Ind.) 65; The Corporation of the City of Lahore v. Mst. Fahmida Begum P L D 1952 Lah. 258 ref.
Stroud's Definition; Coke on Littleton; Stephen's Com mentaries on Laws of England,. Vol. III Eight Edition (1880), p. 272; Law Lexicon of British India by P. Ramanatha Iyer (1940 Edition), P. 254; Halsbury's Laws of England, Third Edition, Vol. 9, P. 342; Halsbury's Laws of England, Hailsham Edition, Vol. 8, p. 526, ref.
Mian Mushtaq Ahmad A. A. G. for Petitioner.
Manzoor Qadir and M. Ismail Bhatti for Respondents.
Dates of hearing: 18th & 25th November 1957.
On a petition submitted to this Court by Sahibzada Masud Ahmad, P. C. S., Additional Deputy Commissioner and Deputy Rehabilitation Commis sioner, Layallpur, notices were issued to the respondents to show cause why they should not be punished for contempt of the Court of the said officer. These proceedings are founded on four Articles published on the 25th, 26th, 27th and 29th of May 1957, respectively, in the issues of the daily Urdu Newspaper 'Afaq' of Lyallpur. It is alleged in the petition that under the orders of the West Pakistan Govern ment, the petitioner was holding an inquiry into the alleged irregularities, illegalities and malpractices committed in Ward No. 4 during the Municipal Elections of the Lyallpur Municipal Committee, held in January 1956, and during those proceedings it transpired that Mian Muhammad Yusuf Saihgal, Chairman of Koh‑i‑Noor Textile Mills, who is the brother of respondent No. 1 and father of respondent No. 2, used to visit the polling station at the time when the employees of his Mills were alleged to have cast bogus votes, and the petitioner had accordingly issued a notice to the proprietors of the mills to produce before him the record of service of the alleged bogus voters of the mills. It is also alleged that it was brought to the notice of the petitioner that Mian Muhammad Rafiq Saihgal, respondent No, 2, was in unauthorised possession of about 16 Killas of evacuee land in the name of the so‑called Flying Club, and in his capacity as Deputy Rehabilitation Commissioner he had issued notice to him to show cause why the allotment should not be cancelled and on his refusal to accept service of the notice he had cancelled the allotment. The petitioner has further alleged that as a result of the above‑mentioned proceedings, Mian Muhammad Yusuf Saihgal and respondents Nos. 1 and 2 felt aggrieved, and nourished a grudge against the petitioner, and for that reason they published the four articles complained of, con taining scandalous allegations against him with the object of defaming and disgracing him and to lower his prestige as a judicial officer in the estimation of general public and to deter him from taking any further action in the above mentioned proceedings. He has also alleged that the respon dents were responsible for the publication of the articles in the newspaper as they were connected with it as proprietors, editors, printers and publishers.
2. In their written statements, respondents Nos. 4, 5 and 6 have pleaded that the petitioner, in his capacity as Additional Deputy Commissioner and Deputy Rehabilitation Commissioner, did not exercise any judicial function and did not constitute a Court and in any case his Court was not subordinate to the High Court. On merits they have alleged that they did not bear any grudge or ill‑will against the petitioner and that the articles were published on information supplied by a staff reporter, which was bona fide believed to be true and that the articles were published in interest of cleaner administration and for the benefit of the public, particularly the refugees. The other respondents in their affidavits have either denied their connection with the newspaper or their liability for publishing these articles. They have also averred that the land had been legally allotted to the Flying Club by the competent authority and that they did not bear any grudge or ill‑will on account of the proceed ings taken by the petitioner.
3. Mr. Manzoor Qadir, learned counsel for the respon dents, addressed me at some length on the question whether this Court had the jurisdiction to punish the respondents for the contempt of the officer concerned. He contended that the petitioner, in his capacity as Deputy Rehabilitation Commissioner, did not constitute a Court within the meaning of section 2 (1) of the Contempt of Courts Act (XII of 1926).
He also maintained that in any case the officer concerned, even if he constituted a Court, was not subordinate to the High Court. He, therefore, strenuously argued that this Court had no jurisdiction to punish the respondents for the contempt of the officer concerned.
4. Here, it may be pointed out that the articles com plained of do not refer to the petitioner by name, but refer to a senior officer of the Rehabilitation Department against whom serious allegations of corruption and dishonesty have been made. In the view which I have taken in the matter. I do not think it desirable to reproduce those articles. Suffice it to say that they contain a virulent attack on the honesty and integrity of the officer concerned, but they exclusively deal with his activities in his capacity as a Rehabilitation Officer.
5. Although the officer is not named in the articles, yet, in view of the written statement filed by respondents Nos. 4 to 6, there is no doubt left in my mind that the articles were in fact directed against the petitioner and prima facie they are libellous and defamatory.
6. However, the question which falls for determination is whether this Court has got the jurisdiction to punish the respondents for contempt of the officer concerned. Under Article 176 of our Constitution each High Court of Pakistan is empowered to punish any contempt of itself. It reads as follows:‑
"The Supreme Court and each High Court shall be a Court of record and shall have all the powers of such a Court, including the power to make any order for the investigation or punishment of any contempt of itself."
This Article does not empower the High Court to punish the contempts of Courts, subordinate to them. Such a power is, however, recognised in the provisions of the Contempt of Courts Act (XII of 1926). Professedly this Act was passed to remove doubts as to the powers of the High Court to punish contempts of subordinate Courts. Under the law, the High Court is empowered to exercise a vigilant watch over the proceedings of the inferior Courts. They have accordingly been given correlative powers of guarding them, when such Courts do not possess adequate means of protecting themselves against unlawful attacks, and interference with due administration of justice in such Courts. Section 2 of the Contempt of Courts Act lays down:‑
"(1) Subject to the provisions of subsection (3), the High Courts of judicature established by Letters Patent shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempts of Courts subordinate to them as they have and exercise in respect of contempts of themselves.
(2).................................
(3) No High Court shall take cognizance of a contempt alleged to have been committed in respect of a Court subordinate to it where such contempt is an offence punish able under the I. P. C."
A perusal of this section makes it clear that before the High Court can take action against any one, for contempt under this section, the following three conditions must be fulfilled:‑
(1) That it must be a Court for the 'contempt of which action is proposed.
(2) That the Court must be subordinate to the High Court.
(3) That the contempt should not constitute an offence punishable as such under the provisions of the P. P. C.
It is, therefore, necessary to examine the connotation of the word 'Court' used in this section.
7. The word 'Court' has not been defined in the Contempt of Courts Act. In the absence of any definition of the word in the Act the word has got to be interpreted in its general sense. The dictionary meaning of the word 'Court' is assembly of judges or other persons acting as a Tribunal. A 'Court' is defined by Stroud as a place where justice is judicially administered and the same definition of 'Court' is given by Sir Edward Coke in his Treatise, Coke on Littleton. In Stephens Commentaries on the Laws of England, Volume III, Eighth Edition (1880), at page 272 it is stated that.
"In every Court there must be at least three constituent parts the actor, reus and judex, the actor, or plaintiff, who complains of an injury done; the reus, or defendant, who is called upon to make satisfaction for it; and the judex, or judicial power, which is to examine the truth of the fact, and to determine the law arising upon that fact, and if any injury appears to have been done to ascertain, and by its officers to apply, the remedy."
In the Law Lexicon of British India by P. Ramanatha Iyer (1940) Edn.) at page 254 the term 'Court' is explained as follows:‑
"Court is a body in the Government to which the public administration of justice is delegated; an organised body with defined powers, meeting at certain times and places, for the hearing and decision of causes and other matters brought before it, and aided in this its proper business, by its proper officers, namely attorneys and counsel, to present and manage the business clerks to record and attest its acts and decisions, and ministerial officers execute its commands and secure order in its proceedings. It is a tribunal empowered to hear and determine issues between parties upon pleadings either oral or written, and upon evidence to be adduced under well‑defined and established rules, according to settled principles of law."
In the Laws of England by Halsbury, Third Edition, Volume 9, at page 342 it is stated that‑
"Originally the term 'Court' meant, among other meanings the Sovereign's palace; it has acquired the meaning of the place where justice is administered and, further, has come to mean the persons who exercise judicial functions under authority derived either immediately or mediately from the Sovereign".
Section 3 of the Evidence Act (I of 1872) defines "Court" as including all judges and Magistrates, and all persons, except arbitrators, legally authorised to take evidence. This definition of the word "Court" is obviously meant for the purposes of Evidence Act alone, because the opening words of section 3 which is an interpretation clause are as follows:‑
"In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the content".
It was held in Hari Charan Kundu v. Kanshi Charan Dev (1940 Cal. 286) that the definition of the word "Court" in the Evidence Act has been framed only for the purposes of that Act. Section 20 of the P. P. C., reads as follows:‑
"The words 'Court of Justice' denote a judge who is empowered bylaw to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such judge or body of Judges is acting judicially".
Section 19 of the Penal Code says that‑
"The word 'Judge' denotes not only every person who is officially designated as a judge, but also every person who is empowered by law to give, in any legal proceedings, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive, or who is one of a body of persons, which body of persons is empowered by law to give such a judgment".
8. Unfortunately there is no generic definition of the word "Court" in. any Act of the Legislature. It will, there fore, be useful to obtain valuable guidance in this connection from the decisions of the highest judicial authorities. In R. v. London County Council ((1931) 2 K B 215), Saville L. J., gave the following meaning to the word "Court" or "Judicial Autho rities":‑
"It is not necessary that it should be a Court in the sense that this Court is a Court; it is enough if it is exercising after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition; and it is not necessary to be strictly a Court if it is a tribunal which has to decide rightly after hearing evidence and opposition".
In Shell Company of Australia Limited v. Federal Commissioner of Taxation ((1931) A C 275) Lord Sankey, who delivered the judgment of the Privy Council while dealing with the question whether the Board of Review which was set up in 1925 under the Commonwealth Income‑tax Legislation was a Court exercising judicial powers of the Commonwealth observed as follows:‑
"The decided cases show that there are Tribunals which possess many of the trappings of a Court but which, nevertheless, are not Courts in the strict sense of exercising judicial power. Mere externals do not make direction by an ad hoc Tribunal to an Administrative Officer, an exercise by a Court of judicial power".
The Lord Chancellor enumerated a series of negative pro positions in relation to this subject, at page 297 which are produced below:‑
"(1) A tribunal is not necessarily a Court in this strict sense because it gives a final decision;
(2) Nor because it hears witnesses on oath;
(3) Nor because two or more contending parties appear before it between whom it has to decide;
(4) Nor because it gives decisions which affect the rights of subjects;
(5) Nor because there is an appeal to a Court;
(6) Nor because it is a body to which a matter is referred by another body."
In Cooper v. Wilson ((1937) 2 K B 309 at p. 340) the test of a judicial decision was laid down as follows:‑
"(1) The presentation (not necessarily orally) of their case by the parties to the dispute;
(2) If the dispute between them is a question of fact,
the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence;
(3) If the dispute between them is a question of law, the submission of legal argument by the parties; and
(4) A decision which disposes of the whole matter by a finding upon the facts in dispute and an application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law."
In Huddart Parker of Co., v. Moorehead ((1909) 8 C L R 330 at p. 357) the phrase 'Judicial Power' was defined by Griffith C. J. as follows:‑
"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 controversies 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 power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action."
In Mahabaleswarappa v. M. Gopalasami Mudaliar (A I R 1935 Mad. 675) a Division Bench of the Madras High Court while dealing with the question whether an Election Commissioner appointed under the Madras Local Board Act was a Court competent to file a complaint under section 476 of the Criminal P. C., remarked that the question what is a 'Court' should be answered,
"not by reference to any formal definitions or hard and fast system of classification but by analysing the functions and procedure of the tribunal under scrutiny;" and set out their conclusions as follows:‑
"We have to look, not to the sources of a Tribunal's authority, or to any peculiarity in the method adopted of creating it, (though it is undoubtedly a consideration that it derives its powers mediately or immediately from the Crown) but to the general character of its powers and activities. If it has power to regulate legal rights by the delivery of definitive judgments and to enforce its orders by legal sanctions, and if its procedure is judicial in character, in such matters as the taking of evidence and the adminis tration of the oath then it is a 'Court',
In Works Manager Carriage & Wagon Shops Moghalpura v. Hashmat (I L R 1947 Lah. 1), a Full Bench of the Lahore High Court laid down the following tests for determining whether a Tribunal is or is not a Court:‑
"(1) 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.
(2) Another important test whether a certain tribunal is or is not a Court is whether it can take cognizance of a lis and whether in exercising its functions it proceeds in a judicial manner".
In Kishan Chand & Co. v. Nur Muhammad (P L D 1949 Lah. 30), Mr. Justice Cornelius as a judge of the Lahore High Court (as he then was) approved the dictum laid down in the afore said Madras ruling and observed as follows:‑
"I am in respectful agreement with the conclusions reached by the Division Bench of the Madras High Court in the case which is also authority for the pro position that by merely declaring or characterising a certain functionary as persona designata, the effect cannot be produced of rendering such functionary not a Court, if his functions involve the determination, by reason of the sanction of the law, and not merely by reason of voluntary submission to such jurisdiction, of justiciable issues relating to civil rights arising between persons subject to the jurisdiction, and if the manner in which he is required or expected to resolve such issues is essentially the manner adopted by a Court, i.e., by proceeding upon the claim of one party and reply thereto by second party, to define the matters in issue between them and deciding those matters on the basis of evidence duly received, and finally that his decisions should be of a definitive nature enforceable at law".
His Lordship was considering the question whether the Con troller appointed under the Rent Restriction Act, 1947 was a Court or not, for the purposes of finding out if he was sub ordinate to the High Court for the application of section 115 of the Civil P. C. In view of the provisions of the Rent Restriction Act it was held that the Controller appointed under that Act was a Court and was subordinate to the High Court and was subject to the revisional jurisdiction of the Court . . . . . under section 115, Civil P. C.
In re Mian Sultan Ali Nanghiana v. Mian Nur Hussain (P L D 1949 Lah. 301), while dealing with the question whether the Election Petitions Commission was to be regarded as a Court subordinate to the High Court for the purposes of section 115, Civil 1P. C., Mr. Justice Cornelius again examined the question at great length, and after reviewing the relevant authorities on the point involved, referred to his own conclusion arrived at earlier in Kishen Chand & Co., v. Nur Muhammad, and quoted with approval certain remarks of Harries, C. J. who delivered the majority judgment of the Full Bench of the Lahore High Court in Muhammad Ahmad v. The Governor -General in Council (I L R 1946 Lah. 16), as His Lordship held that they were apposite for the purpose of settling the indicia of a Court. Those remarks of Harries, C. J., are reproduced below:‑
"There can be no doubt that to be a Court, the person or persons who constitute it must be entrusted with judicial functions, i.e., of deciding litigated 'questions according to law. However, by agreement between parties, arbitrators may be called upon to exercise judicial functions and to decide a dispute according to law. But that would not make the arbitrators a Court. It appears to me that before a person or persons can be said to constitute a Court, it must be held that they derive their powers from the State and are exercising the judicial powers of the State".
In Muhammad Saeed and others v. Election Petitions Tribunal, West Pakistan and others (P L D 1957 S C (Pak.) 91) while dealing with the question whether the Election Petitions Commission was to be regarded as a Court. Mr. Justice Cornelius referred to his own decision in Mian Sultan Ali Nanghiana's case and observed as follows:‑
"On a consideration of the authorities cited in my judgment (Sultan Ali Nanghiana's case) I came to the conclusion that an election petitions commission satisfied all the indicia of a Court and the mere fact that exclusive jurisdiction is given to the commission to decide certain classes of disputes arising between subjects, does not in any way militate against the acceptability of that conclusion. Among those indicia may be mentioned particularly the following:‑
(1) to be a Court, the person or persons constituting such Court, must be entrusted with judicial functions, i.e., of deciding litigated questions according to law;
(2) such person or persons must derive, the power of so deciding questions, from the State, and therefore will be exercising the judicial powers of the State; and
(3) the appointment of the person or Dersons consti tuting a Court should be by the Government; these persons should receive payment for their services exclusively out of Government funds and they should not be liable to removal by any authority other than the Government".
9. I do not propose to refer to the large volume of case law from the Indian High Courts which is available on the subject, because in so far as Indian High Courts are concerned the matter has been set at rest by the latest authoritative pronouncement of the Supreme Court of India bearing on the point. In Brajnandan Sinha v. Jyoti Narain (P L D 1956 S C (Ind.) 65) the question which came up for decision before the Supreme Court was whether a Commissioner appointed under Public Servants Court (Inquiries) Act XXXVII of 1850 was a Court subordinate to the High Court within the meaning of the Contempt of Courts Act. Bhagwati, J. who delivered the judgment of the Court while considering the question as to what is a Court' observed at page 70 as follows:‑
"The word 'Court' was not defined in the Act and the expression 'Courts subordinate to the High Court' would prima facie mean the Courts of law subordinate to the High Courts in the hierarchy of Courts established for the purpose of administration of justice throughout the Union."
Then after referring to the definition of Court by Coke. Stroud and Stephen, and in section 3 of the Evidence Act and sections 19 and 20 of the Penal Code His Lordship observed:‑
"The pronouncement of a definitive judgment is thus considered the essential sine qua non of a Court and unless and until a binding and authoritative judgment can be pronounced by a person or body of persons it cannot be predicated that he or they constitute a Court".
His Lordship then referred to certain observations of Their Lordships of the Privy Council in the case of Shell Co, of Australia v. Federal Commissioner of Taxation referred to above, and also referred to ‑the test of a Judicial Tribunal as laid down in Cooper v. Wilson which had been adopted by the Supreme Court of India in some of its earlier decisions and observed as follows:‑
"It is clear therefore that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a judicial pro nouncement".
10. In the light of the views expressed by eminent judges in the aforesaid rulings, and on a consideration of the defini tions of the word 'Court', quoted above, it appears to me 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 questions 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 satisfaction 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.
11. It now remains to be considered whether a Deputy Rehabilitation Commissioner, in the exercise of his powers under the Pakistan Rehabilitation Act of 1956, consti tutes a Court in accordance with the tests laid down above. It will be appropriate at this stage to examine the various provisions of the Pakistan Rehabilitation Act. The object of the Act as set out in the Preamble is "to provide for the restoration and maintenance of the social and economic life of Pakistan and the orderly settlement of persons who have taken refuge therein." Section 3 empowers the Central Government, in order to carry the provisions of this Act into effect to appoint Rehabilitation Commissioners and Additional, Deputy and Assistant Rehabilitation Commissioners. Under section 5, the powers and duties of a Rehabilitation Authority are prescribed as follows
(a) removing dislocation in the social and economic life of Pakistan caused by the migration of evacuees, and
(b) securing for refugees an orderly entrance into the social and economic life of Pakistan.
under subsection (2) of section 7, a Rehabilitation Authority is authorised in particular, and without prejudice to the generality of powers conferred by the preceding subsection to take over and assume control of any abandoned land, buildings, business and undertakings, to eject, summarily persons in unauthorised possession of evacuee property and subject to the prescribed conditions to settle refugees on any abandoned land or in any abandoned house and grant to any refugee or other person a lease of any Abandoned business or undertaking. Section 11 provides for appeal, revision and review.. An order passed by the Deputy Rehabilitation Commissioner is appealable to the Rehabili tation Commissioner, and he is himself empowered to hear appeals from the orders of an Assistant Rehabilitation Commissioner. The Rehabilitation Commissioner is authorised to revise the orders of an Additional, Deputy or Assistant Rehabilitation Commissioner. Under section 12, the Central Government is also empowered to revise orders of the Rehabi litation Authority in specified cases. Under section 13, the orders passed by the Rehabilitation Authority shall be final and shall not be called in question in any judicial proceeding in any Court. Section 14 deals with certain powers of Rehabilitation Authority when holding an inquiry under the Act. Under section 18; the jurisdiction of the Civil Courts is barred in respect of the matters specified therein. Section 22 empowers the Central Government to prescribe fees payable 'to' a Rehabilitation Authority for things done or Services rendered in respect of any evacuee property under that Act and declares that such fees shall be payable out of the income of such property and shall be a charge on such property.
12. It will thus be seen that the object of this piece of legislation is to provide for the restoration and main tenance of the social and economic life of Pakistan and the orderly settlement of persons who have taken refuge therein. The Rehabilitation Authorities are not required by law to adjudicate upon the rights of the parties. In fact there are no contesting parties before the Rehabilitation Authorities. Whoever puts in a claim before the Rehabili tation Authorities, asks for his rehabilitation in the capacity of being a refugee. Nobody has got a legal right to any particular property. The Rehabilitation Authorities are not required to exercise judicial powers of the State and are not required to decide litigated questions in accordance with law. In order to rehabilitate and settle the refugees, they are no doubt authorised to allot evacuee property to them, but in doing so. they do not exercise the judicial powers of the State. There is nothing in the Act from which it could be inferred that the Rehabilitation Authority in arriving at its decision is required to employ any judicial process or is required to act upon evidence legally adduced before it. The Rehabilitation Authority does not appear to be bound by any rigid rules of law. It may be functioning as a quasi judicial tribunal, but it certainly does not function as a Court exercising judicial functions.
13. In the discharge of their functions Administrative Tribunals have also to decide questions, and in doing so are required to conduct the proceedings pending before them with impartiality and fairness, but they are certainly not Courts. In Halsbury's Laws of England, Hailsham Edition, Volume 8, the position is summarised at page 526 as follows:‑
"Many bodies are not Courts, although they have to decide questions, and in so doing have to act judicially, in the sense that the proceedings must be conducted with fairness and impartiality, such As assessment Committees, guardians committees, the Court of referees constituted under the Unemployment Insurance Acts to decide claims made on the insurance funds, the benchers of the Inns of Court when considering the conduct of one of their members, the General Medical Council, when considering questions affecting the position of a medical man".
14. It is true that section 14 of the Rehabilitation .Act provides that a Rehabilitation Authority while holding an inquiry under the Act shall have the same powers as are vested in a Court under the Code of Civil Procedure, 1908, when trying a suit, in respect of the following matters, namely:‑
(a) enforcing the attendance of any person and examining him on oath or affirmation;
(b) compelling the discovery of and production of documents, articles and things;
(c) issuing a commission for the examination of wit nesses;
(d) any prescribed matter.
The section further provides that any proceeding before the Rehabilitation Authority shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 and for the purposes of section 196 of the P. P. C., and the Rehabilitation Authority or such officer, as aforesaid shall be deemed to be a Court within the meaning of sections 480 and 482 of the Code of Criminal Procedure, 1898. This obviously means that the Rehabilitation Authority is em powered to exercise certain powers as are vested in a Court under the Civil P. C., only for a very limited purpose and the proceedings before it are deemed to be judicial pro ceedings only for the purposes specified in the section. The Rehabilitation Authority is also deemed to be a Court only within the meaning of sections 489 and 482 of the Code of Criminal Procedure. The express provisions in this respect only emphasize the fact that the Rehabilitation Authority is in fact not a Court and the proceedings before it are not judicial proceedings. I am fortified in this view by the decision of the Supreme Court of India in Brajnandan Sinha v. Jyoti Narain, quoted above. The question which arose before the Supreme Court was whether a Commissioner, appointed under the Public Servants (Inquiries) Act XXXVI of 1850, was a Court or not in view of the powers vested in him under section 8 of that Act.
15. Section 8 of the Public Servants. (Inquiries) Act XXXVI of 1850 gives almost similar powers to the Commis sioner appointed under that Act as are given to Rehabilitation Authority under section 14 of the Pakistan Rehabilitation Act. The relevant portion of section 8 of the former Act is as follows:‑
"The Commissioners shall have the same power of punishing contempts and obstructions to their proceedings as is given to civil and criminal Courts by the Code of Criminal Procedure, 1898, and shill have the same power for the summons of witnesses, and for compelling the production of documents, and for the discharge of their duty under the commission, and shall be entitled to same protection as the Zila and City Judges".
While dealing with the question referred to above, Their Lordships observed as follows:‑
"The very fact that this provision had got to be enacted shows that the position of the Commissioners was not assimilated to that of judges and that they did not con stitute Courts of justice or Courts of law but were mere fact finding tribunals deriving whatever powers they could exercise under the very terms of the Act which created them. The power of punishing contempts and obstruction to their proceedings as is given to civil and criminal 4 Courts by the Code of Criminal Procedure was also similar in its nature and the very nature and extent of the power indicated that they were not Courts in the ordinary sense of the term. No such provision would have been necessary to be enacted if in fact they were constituted Courts of justice or Courts of law and it is no argument to say that these provisions were enacted even though they were not strictly necessary merely for the sake of abundant caution or clarification of the position. We are of the opinion that the Commissioner appointed under the Act, having regard to the circumstances above set out, does not con stitute a Court within the meaning of the term as used in the Contempt of Courts Act".
16. After taking into consideration all the relevant provisions of the Pakistan Rehabilitation Act and the tests laid down above for determining what is a Court, I have no hesitation in holding that a Deputy Rehabilitation Commis sioner does not constitute a Court within the meaning of the term used in section 2 (1) of the Contempt of Courts Act XIII of 1926.
17. This concludes the matter, but assuming without conceding that the Deputy Rehabilitation Commissioner is a Court, the question arises whether such a Court is subordinate to the High Court for the purposes of the Contempt of Courts Act. Article 177 of our Constitution provides that until other provisions in that behalf are made by Act of Parliament, the provisions of the Third Schedule shall apply in relation to the Supreme Court and High Courts in respect of matters specified therein. Para. 5 of Part II of, the Third Schedule deals with the administrative functions of High Courts and is in the following terms:‑
"Each High Court shall have superintendence and control over all Courts subject to its appellate or revisional juris diction".
In view of the provisions of the Pakistan Rehabilitation Act, it is clear that the Deputy Rehabilitation Commissioner is not subject to the appellate or revisional jurisdiction of the High Court and as such the High Court has no power of superintendence and control over him. The Deputy Rehabi litation Commissioner is, therefore, neither subject to the appellate or revisional jurisdiction of the High Court nor he is subject to its administrative jurisdiction.
18. In the case of Mian Sultan Ali Nanghiana, referred to above, Mr. Justice Muhammad Munir, Acting Chief Justice of the Lahore High Court (as he then was) while dealing with the question whether Election Petitions Commis sioners were subordinate to the High Court for the purposes of section 115, Civil P. C., observed as follows:‑
"Granting that the Election Commissioners constitute a Court, a proposition which itself is not free from doubt, revisional powers can be exercised by this Court only in respect of cases decided by Courts that are subordinate of it. If I am right in the view that the Election Petitions Commissioners are a special tribunal with exclusive juris diction, it would follow that they are not subordinate to the High Court. It is not contended that the Commissioners are subject to the appellate or administrative jurisdiction of this Court. On what ground, then, can they be held to be subordinate to this Court Section 3 of the Code of Civil Procedure says that for the purpose of that Code the District Court is subordinate to the High Court and every Civil Court of a grade inferior to, that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court. This is the only definition of subordination given in the Code and the presumption is that the word "subordinate" in section 115 of the Code is used in tire sense in which it is defined in section 3. Section 44 of the Punjab Courts Act also uses the word "subordinate" and the only section of that Act that defines and enumerates Subordinate Civil Courts is section 18 which says that besides the Courts of Small Causes estab lished under the Provincial Small Cause Courts Act, 1887, and the Courts established under any other enactment for the time being in force, there shall be the following classes of Civil Courts namely:‑
(1) The Court of the District Judge;
(2) The Court of the Additional judge; and
(3) The Court of the Subordinate Judge.
This section cannot be taken to mean that the Courts established under any other enactment for the time being in force are all subordinate to the High Court. It is, however, true that in several decisions some Courts which are not specifically mentioned either in the Code of Civil Procedure or section 18 of the Punjab Courts Act have been held to be a Subordinate Court for the purposes of section 115 of the Code of Civil Procedure. I cannot accept the broad and unqualified proposition that once it is held that an officer, authority or functionary is exercising the functions of a Court in relation to rights that may be called "civil" that officer, authority or functionary must be held to be subordinate to the High Court. The result of any such finding would be that all Courts which adjudicate upon the civil rights of subjects, whether in cases between the subjects themselves, or between the State and the subject, will be subordinate to the High Court and this will bring within the sphere of subordination not only the Revenue Courts which admittedly decide civil disputes between the parties but also the income‑tax authorities which determine the subject's liability to the State. One clear indication of subordination has always been held to be, that the Court whose subordination is in question is subject to the appellant jurisdiction of the High Court, A Court may also be subordinate to the High Court even qua matters which are not subject to the High Court's appellate power if these matters have been entrusted for adjudication to an admittedly Subordinate Court as a Court and not to the presiding Officer of such Court as a persona designata."
It was held by the majority of the judges composing the Full Bench that the Election Petitions Commissioners were not a Court subordinate to the High Court.
19. In another case reported as The Corporation of the City of Lahore v. Mst. Fahmida Begum (P L D 1952 Lah. 258) another Full Bench of the Lahore High Court, after considering a number of authorities reversed the decision of the Division Bench in Kishen Chand & Co. v. Nur Muhammad and held "that a Controller appointed under the Punjab Urban Rent Restriction Act of 1947 is not intended to act is a Court, but even if it be assumed that it be regarded as Court, then in view of the special provisions of the Act and the absence of any indication of a link with the High Court the con clusion is irresistible that it is by no means Court subordinate to the High Court so as to attract its revisional jurisdiction".
20. In some Indian rulings it has been held that tri bunals, although they do not function as Courts, are also subordinate to the High Court. But these rulings are based on Article 227 (1) of the Indian Constitution which provides that every High Court shall have superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction, but as pointed out above our Constitution provides that each High Court shall have superintendence and control over all Courts subject to its appellate or revisional jurisdiction. The High Courts of Pakistan, therefore, do not exercise powers of superintendence and control over tribunals other than Courts.
21. After carefully going through the provisions of the Pakistan Rehabilitation Act, I have not been able to discover any link between the Deputy Rehabilitation Commissioner and the High Court. This Court has no power of super intendence and control over such officers, nor they are subject to the appellate and revisional jurisdiction of this Court. The tests laid down by the learned Acting Chief Justice in Sultan Ali Nanghiana's case for determining whether a Court is subordinate to the High Court for the application of section 115 of the Civil, P. C., can be safely applied to find out whether a Court is subordinate to the High Court for the purposes of the Contempt of Courts Act. Applying these tests, I am of the opinion that a Deputy Rehabilitation Commissioner, even if he be assumed to be a Court, is not subordinate to the High Court within the meaning of section 2 (1) of the Contempt of Courts Act XII of 1926.
22. In view of my findings that the petitioner, in the exercise of his powers as Deputy Rehabilitation Commissioner, is not a Court and in any case is not subordinate to the High Court for the purposes of the Contempt of Courts Act, no further action is called for in these proceedings. The notices issued to the respondents to show cause why they should not be committed for contempt are, hereby, cancelled. The petitioner Sahibzada Masud Ahmad, if he is so advised, may seek his remedy by filing a complaint in a Criminal Court. As the point involved was of a complicated nature, there will be no order as to costs.
23. In the end I would like to note that Mian Mushtaq Ahmad, Assistant Advocate‑General, who appeared for the State on the first date of hearing, sought my permission on the next date of hearing to withdraw from the case as he stated that he had received instructions from the Government to do so. I gave him the permission to withdraw from the case, but I asked him to assist me as amicus curiae, which he did. I have not been able to understand why the Government thought it fit to instruct the Assistant Advocate‑General to withdraw from this case. May be that the Government had any special reasons to do so. I can only hope that it was not done under some political pressure.
A. H. Notices to respondents cancelled.
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