2009 CLD 257




Per Syed Hamid Ali Shah J–

Constitution of Pakistan (1973) Chap. 1

(Arts. 8 to 28) & 199– r/w Financial Institutions

(Recovery of Finances)

Ordinance (XLVI of 2001)–

The mere fact that the provision of section 69 of the Transfer of Property Act, is century old law and has not been declared invalid over such a long period, by itself would not be a justification for validation of another enactment, empowering the mortgage with the same powers to deal with the mortgage property as the Acts referred to are strictly not in pari materia and there are several exceptions in this context.  The Legislature in its wisdom, distinguished banking transactions being complex and intricate in nature, has not equated it with simple transactions of mortgage, inter se two individuals.  The provisions of section 69 of Transfer of Property Act, 1882 were therefore, found insufficient to cover the disputes of mortgage in a banking transactions and thus, a change was made by adding a proviso to subsection (2).  This itself clearly establishes that the legislature itself felt the need to amend the Transfer of Property Act, 1882, consequently, the proviso was incorporated through Presidential Order No. 4 of 1975.  Therefore, it is clear that Transfer of Property Act was inadequate to deal with banking matters and to harmonize it with the present banking transactions an amendment was incorporated.  It is also noteworthy that the Constitution is the  supreme law of the land and any law in conflict with any provision of the same cannot hold field. The rights enacted in the Constitution contain an over-riding effect qua all other laws, therefore, any provision in any other law, which is in conflict with the supreme law, especially the fundamental rights cannot survive. The provisions of Transfer of Property Act, no matter how old they are, hardly remain a justification for the validation and constitutionally of Section 15 of Ordinance, 2001.  We may go further and say that Transfer Property Act was enacted when the constitutional provisions regarding fundamental rights of the citizen were  not the part of the Constitution and conditional sales were permissible under law.  Provisions of Transfer of Property Act, will, therefore, be irrelevant consideration to validate impugned provision of the Ordinance. [p. 290]E

Considering the validation of provisions of section 15, on the basis of above referred provision in other statues, will be wholly conjectural inference.

Again under these provisions, decisions of Reconciliation Committee and findings of Governor, State Bank of  Pakistan, are made subject to the orders of High Court.  As against these provisions (which are enacted for recovery of outstanding amounts/loans of Financial Institutions), the provision of subsection (12)of section 15, purport to take away from the High Court its power of judicial review.

The Constitution being the supreme law has guaranteed fundamental rights of the citizens. Can these rights be compromised on the above please, which the respondents have raised in defending the impugned provision of law, when the provision of law, is clearly in conflict with the fundamental rights and tantamount to shut the door of justice to ordinary individuals by placing a class of persons in a derogatory, position while at the same time elevating the status of co-litigant as an adjudicator?  To answer this proposition, the reference to the cases of “Aftab Shahban Mirani” (supra), “Al-Jehad Trust” (Supra) and “Sharaf Faridi” (supra) will be pertinent and instructive, where the apex Court has observed that access to justice is a fundamental right, anything to the contrary is not permissible and the tribunals of limited jurisdiction are required to follow

due process of law.  It has been enunciated that the phrase “due process of law” means that individuals are not required to be only dealt with in accordance with law but it qualifies further that the process adopted in this context is open, fair and transparent, therefore, due determination of the default by an unblessed Tribunal or a Court is sine qua non and anything to the contrary is offensive to the legal parameters settled by the apex Court. [p. 293, 294] G, H, I

Shahid Ikram Siddiqui, Barrister Zafar Ullah Khan

Salman Aslam Butt, Iftikhar Ullah Malik, Gohar

Siddiq, Nadeem Ahmad Sheikhand Abdul Hameed Chauhan

for Petitioner.

Iftikhar Hussain Shah, Deputy Attorney General of Pakistan

Uzair Karamat Bhandari and Mian Muhammad Kashif for Respondent

Dates of hearing 23rd, 26th, 27th May, 9th June and 12th

September, 2008.

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