Writ Jurisdiction Article 199

Q.1 Q.1

Explain Expla in the writ writ juris jurisdic dictio tion n of High High Court Court under under Article Article 199 199 of  the Constitution of Islamic Repulic of !a"istan 19#

%$&rit 'urisdiction 'urisdiction (Article 199 )1*+,-  !owers of the High Court to issue /rders and 0irections.  The Constitution of 1956 had expressly expressly recognized the ‘Writ  jurisdiction’ of the High Court in in its rticle 1!" and had classi#ed the ‘Writ’ ‘Writ’ as $rits in the nature of Ha%eas Corpus& 'anda(us& )rohi%ition& *uo Warranto and Certiorar Certiorari+ i+ ,nder that that rticle& rticle& the High Court Court $as gi-en gi-en the po$er to issue these ‘$rits’ to any any person or authority including including any .o-ern(ent+ .o-ern(ent+ The present Constitution Constitution /19!0 /19!0 has (ade no (ention of ‘$rits’+ 2nstead of it& it it gi-es the High Court the po$er to gi-e directions directions and orders+ 2t is& therefore& therefore& o%-ious that it has su%stituted the $ord ‘order’ or directions& for ‘$rits’ of  -arious -arious 3inds (entione (entioned d a%o-e+ 2n fact& this change change is in 3eeping 3eeping $ith the changes in the 4ritish udicial syste(& in $hich ‘$rits’ of the -arious 3inds ha-e ha-e %een %een a%ol a%olis ishe hed+ d+

The The reason eason is that that thes these e ‘$ri ‘$rits ts’’ had had %eco %eco(e (e so

restricted restricted in their (eanings and application a pplication that they did not (eet the needs of the de-elop de-eloping ing and co(ple co(plex x society society of the prese present nt ti(es+ ti(es+

The ter( ter(

‘orders’ or ‘directions’ are so $ide and exi%le as to %e applica%le to all needs and changes in the present day life+ Ho$e-er& $e ha-e continued to use the ter( ‘$rit’ to (eans these orders and directions& %ecause of its past use and con-enience+ ,nder the rticle 199 of the Constitution& the High Court (ay /a on the application of any aggrie-ed party& party& (a3e an 7rder8 7rder8 /i directing a person son perfor(ing in the )ro-i o-ince functions in connec connectio tion n $ith $ith the a:airs a:airs of the ;ederat ederation ion&& the )ro-i )ro-ince nce or loca locall auth author orit ity y to refra efrain in fro( fro( doin doing g that that $hic $hich h he is not not per(itted %y la$ to do& or to do that $hich he is re
/ii

declaring that any act done or proceedings ta3en in the )ro-ince %y a person perfor(ing functions in connection $ith that a:airs of the ;ederation& the )ro-ince or a local authority has %een done or ta3en $ithout la$ful authority & and is of no legal e:ect= or

/% on the applicati"on of any person (a3e an order8 /i directing that a person in custody in the )ro-ince %e %rought %efore the High Court so that the Court (ay satisfy itself that he is not %eing held in custody $ithout la$ful authority or in an /ii

unla$ful (anner= or rece to sho$ under $hat authority of la$ he clai(s to hold that o>ce+

/c 7n the application of any aggrie-ed person& (a3e an order gi-ing such directions to any person or authority including any .o-ern(ent exercising any po$er or perfor(ing any function is or in relation to& any territory $ithin the jurisdiction of the court as (ay %e appropriate for the enforce(ent of any of the ;unda(ental ?ights+ @u%ject to the constitution& the right to (o-e a High Court for the enforce(ent of the ;unda(ental ?ights cannot %e a%ridged+ 2t is clear fro( this pro-ision that the High Court has the po$er to issue orders in #-e 3inds of cases+ 1+ Where a pu%lic ser-ant or o>ce has done so(ething $hich he is not per(itted %y la$ to do or has failed to do that $hich he is re
B+ He holds an o>ce for $hich he has no authority of la$ to do so& and 5+ ny person of authority& including the go-ern(ent -iolates any of the ;unda(ental ?ights+ 2t should %e noted that the High Court $ill (a3e these orders only on the application of an aggrie-ed party or person and not of its o$n account& e-en if a (atter of injustice other$ise co(es into its 3no$ledge+ 4ut in the third category of cases& relating to unla$ful arrest and custody application can %e (ade %y any person+ 'oreo-er& the High Court $ill issue these orders only $hen it is satis#ed that no other adecer or agency of the ;ederal )ro-incial or ocal .o-ern(ent has done or not done so(ething under the la$& as the case (ay %e+

Restrictions on the jurisdiction of the High Courts )Article 199 )$*,, 4ut three restrictions ha-e %een placed on its $rit jurisdiction+ 1+ 2f the petitioner applies to the Court for an interi( order against the proceedings ta3en %y these o>cers& and such an interi( order $ould prejudice or interfere $ith the carrying out of a pu%lic duty or is har(ful to the pu%lic interest& the High Court $ill not (a3e such an order $ithout #rst gi-ing a notice of application to the la$ o>cers of the ;ederal of )ro-incial .o-ern(ent& that is& to the ttorney.eneral or the d-ocate .eneral respecti-ely& and after hearing the(+ This restriction has %een placed so that the $or3 of the .o-ern(ent depart(ents and o>cers (ay not %e unnecessarily o%structed %y the stay orders or interi( orders of the High Court on the application of pri-ate citizen+

A+

)ersons in the Defence @er-ices of )a3istan cannot apply for the

‘$rits’ or orders of the High Courts+ Their jurisdiction has %een expressly

%arred %y the Constitution to the (atters pertaining to the Defence @er-ices are under the discipline of (ilitary la$s and ha-e (ilitary courts to regulate their discipline& $hich $ill %e $ea3ened under the ‘$rit’ jurisdiction+

0+

The High Court cannot (a3e an order on the application of 

person& e(ployed in the Ci-il @er-ices of )a3istan in respect of the ter(s and conditions of his ser-ice& except $hen he is dis(issed %y a su%ordinate authority other than the appointing authority or $hen he is dis(issed $ithout sho$ing of the action ta3en against hi(+ This pro-ision is (ade to ensure e>ciency and discipline in the Ci-il @er-ice of )a3istan+ ,nder rticle 199 of the Constitution& there pro-isions are co((only 3no$n as $rits8 /1 2andamus3

/A

 /To gi-e an order or direction+ The aggrie-ed

person can #le $rit petition+ Certiorari3 /To set aside illegalEunconstitutional order that has %een

$rit petition+ !rohiitions3 /0

passed+

The aggrie-ed person can #le

/To for%id to $or3 $hich is not done as yet F

@tay

7rder+ The aggrie-ed person can

#le $rit petition+ Haeas Corpus3 and /To %ring the person %efore the Court+ /B ggrie-ed

or

any

other

person can #le $rit+ Quo &arranto /,nder $hat authority you are holding the /5 pu%lic

o>ce+ ggrie-ed

person can #le $rit+

/jecti4es of &rits a+ To (aintain supre(acy of the Constitution+ %+ To esta%lish ?ule of a$+

or any other

c+ To ensure the go-ernance is according to la$ to protect rights

d+ e+ f+ g+ h+

of the people+ To control a%use of po$er in order to control authorities+ To control the a%use of discretionary po$ers+ To (aintain independence of judiciary+ To protect and enforce funda(ental rights+ Gxpeditious and inexpensi-e justice+

Case 5aw 6adar*ul*Ha7 8han ersus Election :riunal 0acca  The follo$ing conditions $ere gi-en in the case8 1+ A+

o other ade
authority+ 0+ Writ can %e #eld against )u%lic ;unctionary for his o>cial actions+ ggrie-ed party approaches to the court in *uo$arranto& 'anda(us& )rohi%ition and Certiorari+

Case 5aw !ulic ;mall Industries 5imited Cheema A""A @C'? 5B9

ersus Ahmad A"htar

1+ The court held that if an alternati-e re(edy is a-aila%le it (ust %e exhausted #rst+ A+

•

2f there is a selfcontained statute then that re(edy should %e exhausted #rst+

5aw of limitation  does not apply on $rit petitions %ut not inordinate delay /reasona%le ti(e+

•

Case 5aw )&rits,

1. Anwar ;hau"at ersus
2t $as held that all o>cials’ acts and orders (ust %e in $riting for the purpose of not only reference and record %ut also responsi%ility and accounta%ility+

+. >hulam 0astgir ersus ;alah*ud*0in !50 19=# 5ahore $9 2t $as held that the constitutional jurisdiction under rticle 199 is su%ject to other pro-isions of Constitution and cannot %e exercised in derogation of rticle AA5 $hich contains prohi%ition that -alidity of election could not %e called in
$. 0aud ersus 'amil*ur*Rehman !50 19= Quetta +9 2t $as held that @upre(e Court& High Court and (ilitary  Tri%unals ha-e %een excluded fro( the de#nition of $ord ‘person’ in rticle 199+ ?. ;air ;hah ersus
. Capri Cinema ersus >o4ernment of ;indh 19= C5C 1#@@ 2t $as held that in order to constitute a person Ian aggrie-ed personJ $ithin the a(%it of rticle 199 it is not necessary that he should ha-e in strict juristic sense particular rights %ut it is su>cient that he should ha-e personal interest in the perfor(ance of legal duty $hich if perfor(ed in (anner not per(itted %y la$ $ould result in loss of so(e personal %ene#t or ad-antage to hi(+

Leading & Latest Cases on Article 199 of the Constitution of  Pakistan, 1973 : AIR 1952 SC 64

 THE RETURNING OFFICER NAMAKKAL CONSTITUENCY

 N.P. PONNUSWAMI

P L D 1973 SC 49

P L D 1977 SC 397

STATE FEDERATION OTHERS

OF

PAKISTAN

ZIAURREHMAN AND OTHERS AND UNITED SUGAR MILLS LIMITED! KARACHI

P L D 1977 SC 657

"EGUM NUSRAT "HUTTO

CHIEF OF ARMY STAFF FEDERATION OF PAKISTAN

AND

P L D 19## SC 416

"ENAZIR "HUTTO

FEDERATION OTHERS

AND

OF

PAKISTAN

 DARSHAN MASIH AND OTHERS P L D 199$ SC 513

 STATE

P L D 1992 LAHORE 462

NATIONAL INDUSTRIAL COOPERATI%E CREDIT CORPORATION PRO%INCE OF PUN&A" AND ANOTHER AND ANOTHER

1995 CLC 16#7

M.D. TAHIR! AD%OCATE

CHIEF SECRETARY! GO%ERNMENT OF THE PUN&A"! LAHORE AND ANOTHER

P L D 1996 KARACHI 1

ZOHRA AND 5 OTHERS

 THE GO%ERNMENT OF SINDH! HEALTH DEPARTMENT AND ANOTHER

1999 SCMR 2##3

ARDESHIR OTHERS

P L D 2$$$ LAHORE 5$#

 MRS. SHAHIDA FAISAL

FEDERATION OTHERS

2000 CLC 471

STATE

M.D., WASA AND OTHERS

2$$1 YLR 1139

 SHEHRI AND OTHERS

2$$4 CLD 9$5

COWAS&EE

AND

&A%ED HUSSAIN DAR

1$

KARACHI "UILDING CONTROL AUTHORITY 'KMC(! KARACHI AND 4 OTHERS OF

PAKISTAN

AND

3

PRO%INCE OF SINDH AND OTHERS  LAHORE CHAM"ER OF COMMERCE AND INDUSTRY AND OTHERS

P L D 2$$5 SC #$6

PAKISTAN RED CRESCENT SOCIETY  SYED NAZIR GILLANI AND ANOTHER

2$$6 YLR 229

SHEHZAD RIAZ

P L D 2$$7 LAHORE 346

MUHAMMAD AND AHMAD  GO%ERNMENT OF PAKISTAN THROUGH 'CORPORATE AND TA) COUNSEL( SECRETARY HOME AND 6 OTHERS THROUGH MUHAMMAD AZHAR

P L D 2$$9 SC 644

FEDERATION OTHERS

P L D 2$11 KARACHI 177 2$13 MLD 433

FEDERATION OF PAKISTAN THROUGH SECRETARY CA"INET DI%ISION

OF

PAKISTAN

MUHAMMAD MASOOD "UTT

AND  MIAN MUHAMMAD NAWAZ SHARIF AND OTHERS S.M. CORPORATION 'P%T(LTD AND 5 OTHERS

MIRPURKHAS SUGAR MILLS LTD FEDERATION OF PAKISTAN THROUGH THROUGH WASIF KHALID AND 22 SECRETARY OTHERS

..