INTERNATIONAL CARGO HANDLING COMPANY (Pvt. LIMITED vs PORT BIN OASIM

1. This is an application under Order 39, Rules I and 2, C.P.C. Filed by the plaintiff M/s. International Cargo Handling Company (Pvt.) Limited praying for ad interim injunction restraining the defendant namely Port Bin Qasim Authority from interfering in any matter whatsoever with the plaintiff handling cargo of its principal i.e. M/s. Sea Trade Shipping Company and M/s. Emirate Saudi Shipping Company and the Director-General, Ministry of Food and Agriculture, Government of Pakistan or with any other principal of the plaintiff with whom the plaintiff may enter into contract during the currency of its registration i.e., 31-12-1992.

2. As per averments, the plaintiff has been pre-qualified by the defendant for handing cargo at Port Qasim of various Government Departments, semi-- Government agencies and private parties since 1989. The pre-qualification is renewed every year. The plaintiff-company has also pre- qualified for the current year by the defendant vide, its letter dated 4-9-1991, in pursuance of which the plaintiff entered into contracts with M/s. Emirate Saudi Shipp9ing Company for handling general cargo and the Director-General, Ministry of Food and Agriculture, Government of Pakistan for handling wheat cargo. The plaintiff has also deposited an amount of Rs.25,000 as annual registration fees with the defendant. It is the general practice that as soon as the amount Of annual registration fees is deposited, the defendant would enter into a contract with the cargo handier but the defendant has failed to do so. The, plaintiff has incurred lot of expenses and liabilities. Presently two ships of M/s. Sea Trade Shipping Company have anchored outside, Port Qasim and the ships will be given berth within a day or two by the defendant and in case the plaintiff --company is not allowed to handle the cargo of these ships, irreparable loss will be caused to it.

3. The defendant in its counter-affidavit has admitted that the plaintiff was pre-qualified as cargo handler. The main contention raised by the defendant is that the Hon'ble Wafaqi Mohtasib (Ombudsman) in Complaint No.Reg-1/11214/91-996-J filed by one Mr. Habibur Rehman of Oriental Cargo Handling Consortium (Pvt.) Limited, Karachi has ordered on 20-10-1991 canceling pre- qualification as cargo handling agents granted to the plaintiff-company and further debarred it to act as such till October, 1992. It is also contended that the plaintiff has not completed various formalities after its pre-qualification i.e. Bank guarantee, undertaking etc. In rejoinder affidavit, the plaintiff inter alia has called into question the order of the learned Mobtasib, being without jurisdiction and of no legal effect. It was pointed out that the plaintiff-company was condemned unheard and came to know of the order of the learned Wafaqi Mohtasib after one week of canceling its pre-qualification as cargo handlers and debarring it to act as such tin October, 1992.

4. Learned counsel for the plaintiff first referred to the Presidential Order I of 1983, Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 under which the institution of Mohtasib was established. The preamble speaks of the establishment of the Wafaqi Mohtasib (Ombudsman) so as "to diagnose, investigate, redress and rectify injustice done to a person through maladministration." This maladministration is in relation to an "agency" which under section 2(1) is defined as *a Ministry, Division, Department, Commission or office of the Federal Government or a statutory corporation or other institution established or controlled by the Federal Government but does not include the Supreme Court, the Supreme Judicial Court the Federal Shariat Court or a High Court." The definition of maladministration as appearing at section 2(2) is as follows: "2Definitions, -In this Order, unless there is anything repugnant in the subject or context-- (1)

5. (2)---maladministration--- includes (i) a decision, process, recommendation, act of omission or commission which-- (a)is contrary to law, rules or regulations or is a departure from established practice or procedure, unless it is bona fide and for valid reasons; or (b)is perverse, arbitrary or unreasonable, unjust, biased, oppressive, or discriminatory-, or

(c) is based on relevant grounds; or (d)involves the exercise of powers, or the failure or refusal to do so, for corrupt or improper motives, such as, bribery, jobbery, favouritism, nepotism and administrative excesses; and (ii)neglect, inattention, delay, incompetence inefficiency and inaptitude, in the administration or discharge of duties and responsibilities;"

6. With regard to the jurisdiction, functioning and power of the Mohtasib section 9 deals with them, relevant portion of which is as follows: "(1)The Mohtasib may on a complaint by an aggrieved person, on a reference by the President, the Federal Council or the National Assembly, as the case may be, or on a motion of the Supreme Court or a High Court made during the course of any proceedings before it or of his own motion, undertake any investigation into any allegation of maladministration on the part of any agency or any of its officers or employees: Provided that the Mohtasib shall not have -any jurisdiction to investigate or inquire into any matters which--- (a)are sub-judice before a Court of competent jurisdiction or judicial tribunal or board in Pakistan on the date of the receipt of a complaint, reference or motion by him; or (b)

7. (2)

8. (3)

9. (4)

10. On the other hand, section 29 relates to the bar of jurisdiction of Court or other authority in the following words:-- "29.Bar of jurisdictionNo Court or other authority shall have jurisdiction-- (1)to question the validity of any action taken or intended to be taken, or order made, or anything done or purporting to have been taken, made or done under this Order; or (2)to grant an injunction or stay or to make any interim order in relation to any proceedings before, or anything done or intended to be done or purporting to have been done by, or under the orders or at the instance of the Mohtasib."

11. It was maintained by the learned counsel for the plaintiff that section 29 of the Wafaqi Mohtasib (Ombudsman) Order of 1983 contemplates a valid order and not an unlawful order. The plaintiff was neither made a party to the proceedings before the learned Mohtasib nor any show-cause notice was issued to it before the said order was passed by the learned Mohtasib. Further, the complaint related to a matter between an individual and the agency i.e. The defendant. The learned Arbitrator could not have extended his jurisdiction to persons other than those mentioned in section 9(1) of the Wafaqi Mohtasib (Ombudsman) Order of 1983. In support of his contention he placed reliance on Chief Commissioner, Karachi and another v. Mrs. Dina Sohrab Katrak, PLD 1959 Supreme Court 45 and Muhammad Bachal Memon v. Government of Sindh, PLD 1987 Karachi 296.

12. In the former case the Supreme Court of Pakistan held:-- "(b) Maxim--Audi alterarn parten--'No man shall be condemned unheard'--Applies to judicial as well as administrative bodies. The rule of justice embodied in the maxim: audi alteram parten: 'No man shall be condemned unheard' is not confined to proceedings before Courts but extends to all proceedings, by whomsoever held, which may affect the person or property or other right of the parties concerned in the Willdispute. As a just decision in such controversies is possible only if the parties are given the opportunity of being heard, there can be as regards the right of hearing, no difference between proceedings which are strictly judicial and those which are in nature of a judicial proceeding though administrative in form. (p.49) EN., In PLD 1987 Karachi 296 which is a full Court judgment of the High Court of Sindh, it was held:-- Fortunately we have before us some of the decided cases where a similar provision has been for consideration before the Supreme Court. We at the very outset state that amended Article 281(2) of the Interim Constitution of 1972 was completely in the same language in which the present clause

(2) of Article 270-A is found. Morever, clause (2) of Article 269 of the Constitution of 1973 was also in the same language and we have the interpretation of Supreme Court in respect of these provisions. In the case of Ziaur Rehman PLD 1973 SC 49 the unamended clause of Article 281 of the 1972 Constitution came for consideration before the Supreme Court and the Supreme Court held that in spite of the bar provided in the said clause the jurisdiction of the superior Court to scrutinize actions of military authorities was not completely barred in respect of those actions which were mala fide, without jurisdiction or coram non judice. At that time the unamended Article 281(2) of 1972 Constitution was interpreted by the Supreme Court in the case of Ziaur Rahman and the words 'shall not be called in question in any Court on any ground whatsoever' were not found in the said clause (2) of Article 281. Yet the Supreme Court was of the above view and held that jurisdiction was not completely barred at least in respect of above three categories of action."

13. It was further held:-- "Since the Supreme Court of Pakistan had interpreted a provision similar to Article 270-A of our Constitution serveral times, therefore, it is reasonable to conclude that the legislature was aware of the interpretation placed by the Supreme Court of Pakistan on a similar provision. Therefore, when it enacted clause (2) of Article 270-A of the Constitution the legislature knew that it is providing validity and immunity to the actions to the extent already explained and interpreted by the Supreme Court and that this validity did not extend to actions which were mala fide, coram non judice or without jurisdiction."

14. I have carefully examined the legal position as is necessary for the purpose of deciding this injunction application. It is an admitted position duly verified by Mr. Shaukat Kamal, learned counsel for the defendant that the plaintiff-company was neither apart before the learned Mohtasib nor any show-cause notice was issued to it before the order was passed by him canceling its pre-qualification as cargo handling agents and debarring it from acting in that capacity till October, 1992. A bare reading of section 29 of the Establishment of the Office of Wafaqi Mobtasib (Ombudsman) Order of 1983 (P.O.No.1 of 1983) leaves no doubt that the jurisdiction of Courts is barred, inter alia, in respect of any action taken or order made including order of injunction or stay, by the Mohtasib. But where the order from the face of it is repugnant to law under which it was made or suffers from want of jurisdiction, a Court may invoke its inherent jurisdiction vested in it under law so as to prevent injustice being done to an aggrieved person. It is a universally accepted and foremost principle of administration of justice that no person shall be condemned unheard, audi alteram parten. Section 9(1) defines the persons who may lodgea complaint against an agency, its officers or employees before the Mohtasib and includes among others an individual and at the same time restricts the complaint against the agency, its officers or employees. In other words the jurisdiction the Mohtasib is restricted by section 9(1) and cannot be extended further.

15. In the circumstances of the case the plaintiff is entitled to interim In injunction. Since the plaintiff has to comply with certain formalities with the defendant as mentioned above, the injunction shall remain operative till further orders.