SHAFAATULLAH QURESHI Versus FEDERATION OF PAKISTAN

ORDER

NAZIM HUSSAIN SIDDIQUI, J. ‑‑‑Petitioner, Shafaatullah Qureshi under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, seeks leave to appeal against judgment dated 17‑11‑1999/ 30‑11‑1999, of a learned D.B., High Court of Sindh, Karachi, passed in H.C.A. No.122 of 1998, whereby the judgment and decree, dated 20‑3 1998, of a learned Single Judge, delivered in a Suit No.192 of 1992 (Shafaatullah Qureshi v. Federation of Pakistan and another) were affirmed.

2. The facts relevant for decision of this petition are that the petitioner started construction work of 4 units officers flats, 4 units of Class IV, Staff Quarters and boundary wall of the Karachi Cantonment Station, which was to be completed by 2‑8‑1987. There arose dispute between the parties. After the respondent refuses to pay the amount as claimed by the petitioner, the latter approached Wafaqi Mohtasib who vide order 31‑12‑1990, directed the respondent to pay Rs.8,69,900. The respondent preferred a review petition, which was dismissed on 23‑4‑1991. Thereafter, the respondent filed representation under Article 32 of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 (President Order No.l of 1983), hereinafter referred to as "the Order, 1983", which was accepted by .the President and recommendations of Wafaqi Mohtasib were set aside. The petitioner then filed a suit on 12‑3‑1992, for recovery of Rs.8,69,900 for the alleged work done by him and also claimed Rs.38,69,000 as damages.

3. Learned Single Judge settled the issues and vide judgment dated 20‑3‑1988 dismissed the suit as being time‑barred.

4. Learned Single Judge held that finally claim of the petitioner was, turned down on 24‑5‑1988 and the limitation period started from said date and not from 10‑3‑1992, when the order of the President was communicated to him.

5. Learned D.B. of the High Court upheld the findings of learned Single Judge and observed that section 14 of the Limitation Act; was not attracted, the relevant portion of which, is as follows:‑‑

"14. Exclusion of time of proceeding bona fide in Court without jurisdiction.‑‑(1) In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.

(2)... .. ... ... ... ... .. ... ... ... ... .. ... ... ..."

6. It is contended on behalf of the petitioner that section 14 of the Limitation Act is attracted to this case and the petitioner is entitled to the exclusion of the period up to 10‑3‑1992.

7. The only point for consideration is whether the Wafaqi Mohtasib (Ombudsman) is a "Court"/ "Judicial Tribunal".

8. In the case reported as Jia Ram v. Sint. Kundana Wanti and 4 others PLD 1978 Quetta 91, the scope of term "Court" was examined and it was observed:‑‑

"According to the Words and Phrases Legally Defined (1969 Edition, Vol,I, p.367) the terms "Court" originally meant the sovereigns' palace; it required the meaning of place where justice is administered and has come to mean the person who exercise judicial functions. Same definition of the term occurs in Halsbury's Laws of England (10th Edition). A Court or a Judge are frequently used by statutes as synonymous and are interchangeable. In Nasir Mahmood v. Murad Ali PLD 1960 Lah. 757, a Division Bench while dealing with the word 'Court' observed as follows:‑‑

'Now the expression 'Court' has not been defined either in the Limitation Act or the General Clauses Act and this can be said to almost all Acts in force in Pakistan. The expression, however, means according to the context in each case either the Presiding Officer or the whole Court including the Presiding Officer of the Court or the place where cases are heard'.

According to Ballentine's Law Dictionary Court is the organ of the Government, consisting of one person, or of several persons called upon and authorized to administer justice. According to this Dictionary three elements are found to be essential for the conception of Court and they are:‑‑

(1) Time when judicial functions may be exercised.

(2) A place for the exercise of judicial functions.

(3) A person or persons exercising judicial functions.

Judicial functions are the common characteristic of each element. The phrase 'Judicial function' has not been clearly spelt out either in this Dictionary or in any other book cited before us. However, in Shell Co. of Australia Limited v. Federation Commissioner of Taxation (1930) All ER 671 Lord Sankey quoted with approval the definition of the term, Judicial powers as given by Griffith, C.J. in Huddart Parker's case, which is to the following effect:‑‑

'I am of opinion that 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 subject, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not come into being until some tribunal which has power to give being and authoritative decision (whether subject to appeal or not) is called upon to take action.'

This definition was later approved by the Privy Council in United Engineering Workers' Union v. Deyanayagam (1976) 2 All ER 367. According to these rulings of the English Courts exercise of judicial power is considered to be an essential feature of a Court, and it distinguishes a Court from an administrative Tribunal. Lord Sankey, in Shell Co.'s case, cited above, observed that a Tribunal is not a Court, no matter if:‑‑

(i) it gives a final decision,

(ii) it hears witnesses on oath,

(iii) two or more contending parties appear before it between whom it is to decide,

(iv) it gives decision which affects the rights of subject,

(v) because its decision could be appealed against before a Court, and

(vi) it is a body to which a matter is referred by another body.

This means that a Tribunal does not become a Court, even if it is empowered to do all these things, unless it exercises the judicial power. Giving a definitive and binding judgment is an essential concomitant of judicial powers. "

Again question that which forum is Court and which is not, came under discussion in the case reported as Mir Rehman Khan and another v. Sardar Asadullah Khan and 14 others PLD 1983 Quetta 52 and it was observed as follows:‑‑

"The question of determination as to which forum is a Court and which is not a Court, is mainly dependant on the manner and method in which proceedings are regulated before it. This process naturally embraces the procedural laws, which bind it in its functions and determine its course of action. The evidence being the deciding factor in all kinds of disputes, it is also pertinent to see whether such forum follows the Evidence Act or not. It may be mentioned here that the Evidence Act by virtue of the definition describes such forums as 'Court' which follow its tenets. But it is only relevant for the purpose of the Evidence Act. Ordinarily the decision of a dispute by an arbitrator and a conciliatory body etc. may be termed as decision by a Court but that is not so because such forums are not bound by any law with. regard to procedure and evidence, as such, they only settle the dispute but do not administer justice according to law, and are not, therefore, Courts. Hence, the Courts are such organs of the State which follow legally prescribed scientific methodology as to procedure and evidence in arriving at just and fail conclusions."

9. It is noted that Wafaqi Mohtasib, under the Order of 1983, is appointed to diagnose, investigate and rectify an injustice done to a person through maladministration. Article 9 of the Ordinance speaks about the jurisdiction, functions and powers of Mohtasib, who may, on complaint by an aggrieved person undertake any investigation into any allegation of mal administration on the part of any Agency or any of its officers, or any of its employees. It also provides that Mohtasib shall not have any jurisdiction to investigate or enquire into any matter which are sub judice before a Court of competent jurisdiction or Judicial Tribunal. Article 10 provides procedure and evidence and Article 11 lays down that the Mohtasib is to send his recommendations, if, he is of the opinion that the matter considered amounts to maladministration and in such a situation he is required to communicate, his findings to the concerned agency. According to Article 12, if there is a "defiance of his recommendations", the Mohtasib may refer the matter to the President, who may, in his discretion, direct the Agency to implement the recommendations made by the Mohtasib.

10. It is significant to note that in the Order of 1983, no where is stated that Ombudsman/Mohtasib is to serve as a Court or Judicial Tribunal. Had, so being the intention of the Legislature, the same would have been specifically mentioned therein. By implication status of Court cannot be conferred upon the office of Wafaqi Mohtasib. He cannot deliver a binding judgment which is a condition precedent for being a Court. Mohtasib, under Article 19 of the Order 1983, may, by order in writing delegate such of his powers as may be specified in the order to any Member of his staff or to a standing or advisory committee. Judicial powers in such manner cannot be delegated. This fact alone is enough to show that the office of Mohtasib is not a Court. Thus, it would be seen that though the office of Mohtasib has been created for redressal of the grievances of the citizens but it is neither a Court nor Judicial Tribunal within the scope of Article 175 of the Constitution. His findings basically are of recommendatory nature and not ale judgment/decision.

11. Mr. Abdur Rahim Kazi, learned counsel for the petitioner cited Hafiz Muhammad Arif Dar v. Income Tax Officer PLD 1989 SC 109 and Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad v Muhammad Tariq Pirzada and others 1999 SCMR 2189 to contend that the office of Wafaqi Mohtasib is a Court In the case of Hafiz Muhammad Arif Dar, it was held that for alternate adequate remedy the aggrieved person could amongst other reliefs file a complaint and grievance application before the Federal Ombudsman, who could provide alternate remedy. In the case, Federation of Pakistan. Article 32 of the Order of 1983 was under discussion and it was held that jurisdiction vested, in President under said Article was of appellate jurisdiction and that application of judicial mind was a must for reaching a final ‑and just conclusion on the lis brought before the President/Wafaqi Mohtasib.

12. Suffice it to say, that from above‑cited cases, it is not established that the office of Wafaqi Mohtasib is a Court nor any such finding has been recorded in these matters though it has been stated that Wafaqi Mohtasib performs quasi‑judicial functions. ‑ Performance of quasi‑judicial functions by itself does not convert an authority into Court, whether an act is quasi judicial or purely executive depends on the interpretation of rules/law under which the authority exercises its jurisdiction. It is true that the administrative authority also is to act bona fide, but it is different from saying that it must act judicially. Many authorities are not Court, although they have to decide; questions and have to act judicially in the sense that the proceedings shall be' conducted with fairness and impartiality. In order to constitute a Court in strict sense, it shall have power to give a decision or a definitive judgment, which has finality and authoritativeness.

13. Under the circumstances, it is noted that, under section 9 of the Limitation Act, once time has begun to run, it runs continuously, until entire prescribed period has run out. In this particular case, the limitation started from 24‑5‑1988 when the claim of the petitioner was rejected and the suit was filed after more than 3 years, when the limitation period had already expired. Since, the office of Wafaqi Mohtasib is not a Court, the petitioner cannot claim benefit of section 14 of Limitation Act.

14. The findings of High Court are perfectly correct and do not call for any interference. Accordingly, leave to appeal is refused and the petition is

Q.M.H./M.A.K./S‑81/S Petition dismissed.