Identical Writ Petitions 44-R-2007, 57-R-2007, 86-R-2008, and WP 10266-R-2007 raising similar questions of law and facts claiming almost same relief are being disposed of together by means of this consolidated order.
2. The precise background & history of the case is that Asghar Ali petitioner in WP 44-R-2007, claiming himself to be a displaced persons from Ferozabad India was in possession of verified claims of 5456 and 5505 PI Units by means of claim form No,135 and 4132 respectively filed an application in terms of Sections 10 & 11 of the Displaced Persons (Land Settlement) Act 1958 against Khurshid Ali Shah with reference to his bogus allotment, which was accepted by EASO Additional Settlement Commissioner with powers of Chief Settlement Commissioner Sialkot vide order dated 30.5.1978 by allotting 1285 Kanals 7 Marlas land vide Khhata No,RL-II No,18 & 29 Narowal, which was confirmed on 16.11.1978.
3. Khurshid Ali allottee, being aggrieved of the aforesaid order dated 30.5.1978 invoked the Constitutional Jurisdiction and the same was accepted by this Court vide order dated 30.10.1988 setting aside the order impugned dated 30.5.1978, which was assailed by the petitioner through CPSLA 794 of 1990, whereby the order of this Court dated 30.10.1988 was upheld. Thereafter, petitioner filed a Review Petition 76L-1992 seeking review of CPSLA 794 of 1990, but that too was dismissed by this Court by way of order dated 10.11.1992 with the observation that petitioner's request soliciting satisfaction of his claim be considered sympathetically.
4. In the light of the observations of this Court enumerated in order dated 10.11.1992, petitioner filed an application before Member/Chief Settlement Commissioner Punjab (Respondent No, 3) seeking allotment of alternate land, but it remained undecided, and thus, petitioner moved a Writ Petition 130-R of 1993, which was disposed of by this Court vide order dated 7.7.1993 directing the authorities concerned to dispose of petitioner's pending application, and that is how, petitioner moved an application dated 24.7.1993, and the matter was purportedly entrusted to Deputy Settlement Commissioner for further proceedings in the matter. And in terms of letter dated 25.8.1993 record was requisitioned from the office of the Deputy Commissioner Narowal and eventually on 8.9.1993, statement of Zulfiqar Ali Naib Tehsildar was recorded by Deputy Settlement Commissioner so as to endorse the validity of the claim of Petitioner No,
1. Subsequently, it appears that the matter was entrusted to AC/Notified Officer Sheikhupura by the Chief Settlement Commissioner vide order dated 29.3.1995 and on consideration of all the pros & cons of the issue, the Notified Officer allotted alternate land to Petitioner No, 1 in village Farooq Abad district Sheikhupura, vide order dated 14.2.1996, but it was subsequently recalled on 13.3.1996 on the ground that the land allotted to the petitioner was not available for allotment. Hence, the Notified Officer Sheikhupura again became seized of the matter, who in terms of order dated 15.9.2003 allotted land to Petitioner No, 1 and similar allotments were also made through order dated 14.5.2003.
5. Against the aforesaid allotment orders dated 15.9.2003 and 14.5.2003, as many as four Writ Petitions 114-R-2003, 133-R-2003, 151R-2003 and 8 R-2004 were filed before this Court from time to time, and while disposing of Writ Petition 151-R-2003 through order dated 25,3.2004, it was observed that petitioners therein could approach the Member Board of Revenue to the extent of land allegedly in their respective possession.
6. Being aggrieved of the order dated 25.3.2004, petitioners in WP 151-R-2003 preferred an ICA 154- 2004, but it was dismissed by a Division Bench of this Court at limine stage of the hearing of the case vide order dated 27.5.2004 concluding that "this Court issued direction to decide the application filed pursuant to the said observations of the Apex Court. Notified Officer has passed the said order accordingly. Now to our mind, by all means he has acted in accordance with the said command of Honorable Supreme Court, and it does not lie in our domain to sit in judgment over the said order of the Honorable Supreme Court.
7. Likewise, Writ Petition 114-R-2003 was dismissed as withdrawn and WP 8.R-2004 was dismissed and in WP 133-R-2003, case was remanded for consideration in the light of the observations enumerated in WP 28-R-1997. It may be stated that against the aforesaid remand order, Petitioners 1 and 2 herein filed CPLA 2818-2004, which is stated to be still pending before the Apex Court.
8. It is the claim of the petitioner that allotment was made in his favour through Mutation No, 1829 dated 15.7.2003, 1618 dated 15.7.2003 and Mutation No, 1275 dated 28.7.2003, whereafter, he alienated part of the land in favor of Petitioners No, 2 to 4 herein, vide Mutations No, 1830,1621 and 1276 respectively showing the Petitioners 2 to 4 duly incorporated in revenue record as owners in possession since then.
9. On 28.7.2004, a miscellaneous application was filed on behalf of Ghulam Farid Respondent No, 4 herein before the Senior Member Board of Revenue, which was entrusted to Member (Judicial III)
Notified Officer Lahore, whereby report and parawise comments were solicited, and apart from Petitioner No, 1, reply and parawise comments were also furnished by the District Officer Revenue Sheikhupura and the Settlement Clerk reiterating that after dismissal of ICA 154-2004 the issue was pending decision before the Apex Court, which had to be awaited.
10.However, on 13.4.2005 the Member (Judicial III) reported to the Chief Settlement Commissioner on the executive side suggesting that the matter be referred to the Chief Settlement Commissioner on the executive side first to ascertain the current situation of the case still subjudiced before the Apex Court and thereafter to proceed further in the matter after soliciting legal advice.
11.In the above backdrop, apparently the matter remained pending with the executive side so as to await the verdict of the Apex Court and at one point of time on 12.4.2007, the matter was placed before the Chief Settlement Commissioner who passed an order dated 30.4.2007 recalling the orders of the AC/Deputy Settlement Commissioner Sheikhpura dated 14.2.1996 and 13.3.1996 and those of the District Officer Revenue/Deputy Settlement Commissioner Sheikhupura dated 14.5.2003 and 15.9.2003. Hence, this petition.
12.It is contended that Respondent No, 3 has passed the impugned order arbitrarily & unilaterally which is predominantly illegal, unwarranted and without jurisdiction. It is next asserted that order impugned has been passed in flagrant disregard of the principles audi alterm partem without application of judicial mind on the executive side. Adds that the impugned order is palpably coram non judice and devoid of any lawful authority & jurisdiction. Further contends that after repeal of the evacuee laws through Evacuee Property & Displaced Person (Repeal) Laws Act No, (XIV of 1975), no power of review/revision was available enabling Respondent No, 3 to pass the order impugned dated 30.4.2007 and being the Notified Officer could not proceed to annul the orders passed by the other Notified Officer. It was next contended that power to review an order is a substantive right and not a matter of mere procedure, and that power to review is not available unless specifically conferred by statute. Above all, legality and validity of the impugned order is challenged on yet another ground that it proceeds to set aside the judgments already upheld by a division Bench of this Court in ICA No, 154-R-2004 which is not only manifestly contemptuous but also calls for initiation of appropriate action. Adds that undue & indecent haste has been deployed in passing the impugned order notwithstanding recurring observations on the file requesting Respondent No, 3 to await the final decision of the Apex Court, but Respondent No, 3 proceeded to pass the impugned order condemning Petitioners 2 to 4 unheard and hence the same is a nullity in the eye of law.
13.The learned counsel appearing on behalf of respondent Barrister Mehmood A. Sheikh intended to argue on the point as to whether in the facts & circumstances emerging from the instant case, the right of hearing "audi alteram partem" is available to the petitioners and with mutual consent of the learned counsel for the parties, case was adjourned for being argued as prayed for.
14.Barrister Mehmood A. Sheikh, representing the Settlement Department contended that "the rule of audi alteram partem" is not an absolute rule, rather the same is somewhat flexible and would only be applicable in a rare & exceptional cases with peculiar facts & circumstances. Adds that the petitioners would have to show their legal right before asking for the said remedy as the rule of audi alteram partem is not a benefit to be granted in favor of the litigants, rather as a matter of fact it is for the Court, Officers, Authority and the Tribunal etc to see that by violating this rule, any prejudice has been caused to the petitioners or not. Further canvasses that this maxim can only be agitated at appellate stage, and the petitioners has a legitimate right in law to file an appeal, so no interference warranted at this stage to decide the lis on merit after scrutiny of the record. Adds that the rule of audi alteram partem is the requirement of the Court and not the litigant. To substantiate his assertions, learned counsel relies on the following judgments AIR 1985 SC 1416 Union of India & others Vs Tulsi Ram Patel AIR 1997 Supreme Court 965 The Chairman Board of Mining Examination and Chief Inspector of Mines and another Vs Ramjee, 1977 MLD 2874 Rehana Mehmood and 3 others Vs Azad Government and 5 others, AIR 1987 SC 593 R.S. Pass Vs Union of India and others, 1994 SCMR 859 Export Promotion Bureau and others Vs Qaisar Shafiullah, PLD 1997 SC 351 Province of the Punjab through Secretary Health Department Vs Dr. S. Muhamamd Zafar Bokhari, 1988 SCMR 516 Zamir Ahmed and others Vs Bashir Ahmed and other, PLD 1991 SC 1029 Abdul Qadir and others Vs Settlement Commissioner and others.
15.Conversely, learned counsel for the petitioner namely Mr. Shahzed Shaukat Advocate contends that it is admitted on record and also from the findings of the order impugned herein that neither any notice issued to the petitioners nor any right of hearing or defending themselves was afforded, and the order impugned herein is liable to be set at naught on the score of audi alteram parterm.
Further contended that the allotment was made in favor of the petitioners by the respondent department after detailed scrutiny, and the inquiry was initiated on an application filed by one Ghulam Farid, wherein no opportunity to even submit the record pertaining to the case was provided to the petitioner, Learned counsel also referred the judgment of this Court and that of the Apex Court in the instant case, whereby in a Civil Review Petition 76-L-1992 the learned Judges of the Apex Court on the request of the petitioners observed that case of the petitioners for satisfaction of unsatisfied claim may however be considered sympathetically. Further contended that the petitioner in view of the said observations filed application for the satisfaction of his claim, and after the valid allotment, petitioner became the lawful allottee of the property in question thereby vested right having been accrued in his favor, so the condemnation of the petitioner being unheard is not supported by any law and rule.
16.Lastly contended that the allottee/petitioners have already disposed of the property by way of valid transactions but those subsequent bona fide purchasers have not been summoned or provided any opportunity to present their version/defence. Reliance is placed on 1994 SCM R 2232 Mrs. Anisa Rehman Vs PIAC and others, 2005 SCMR Hazard (Hilltract) Improvement Trust through Chairman and others Vs Mst. Qaisra Elahi and others, KLR 1987-L-S Pakistan Vs Public at Large.
17.Without commenting or adverting to the facts of the case I would confine and focus myself to decide the matter merely on the question of audi alteram iartem so as to determine whether any right of hearing was provided to the petitioners and that the same was required by law.
18.Undeniably, in the instant case the inquiry was initiated on an application filed by one Ghulam Farid to the Chief Secretary Punjab, Senior Member Board of Revenue Punjab and Chief Settlement Commissioner Punjab, the said application was marked to Member Judicial III/Notified Officer. An other identical application was also filed by one Rashid Ahmed to the Minister Colonies Punjab and the same was also finally referred to the Notified Officer. The record reveals that a notice was issued by the Member Judicial in the name of the petitioner (Dr. Asghar Ali) on 30.4.2004. The record further transpires that the petitioner also filed reply to the application filed against him on 1.9.2004. Thereafter, a notice by Member Judicial/Chief Settlement Commissioner namely Ch. Zafar Iqbal was issued in the name of Tehsildar City whereby he was directed to inform the petitioner regarding the fixation of the case for 30.4.2007. The said notice was sent to Tehsildar City through registered AD and not in the name of the petitioner. The aforesaid record was submitted by the learned counsel for Settlement today in the Court and candidly stated that no other record is available as regards issuance of notice to the petitioner.
19. The learned counsel for the department has already submitted that he is arguing the case considering that no notice was issued to the petitioner before passing the order impugned herein.
It is also notable that prior to the order impugned here, an inquiry was conducted on 13.4.2005 by the Member Judicial Ill/ Notified Officer but the said inquiry is also silent as to whether any notice was issued to the petitioner or any opportunity was provided to him to participate in the proceedings. Further order impugned is also silent regarding issuance of notice, its service or otherwise issuance of any ex parte order, thus it is sufficient to understand that the petitioner was not served with any notice, nor the opportunity to defend or participate in the proceedings was provided to the petitioner by the. Notified Officer, which is of course violative of principal of natural justice. Learned counsel to substantiate his assertions referred the aforesaid judgments. Few references from the judgments cited by the learned counsel for the department AIR 1985 SC 1416, relevant portion reproduced: Though the two rules of natural justice, namely, nemo judex in causa sua and audi alteram partem have now a definite meaning and connotation in law and their content and implications are well understood and firmly established, they are nonetheless not statutory rules. Each of these rules yields to and changes with the exigencies of different situations. They do not apply in the same manner to situations which are not alike. These rules are not cast in a rigid mould nor can they be put in a legal stra jacket. They are not immutable but flexible. These rules can be adapted and modified by statute and statutory rules and also by the Constitution of the Tribunal which has to decide a particular matter and the rules by which such tribunal is governed. There is no difference in this respect between the law in England and in India". AIR 1977 SC 965 "Natural justice is no unruly horse, no lurking land mine nor a judicial cure-all. If fairness is shown by the decision maker to the man proceeded against, the form, feature and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Un-natural expansion of natural justice without reference to the administrative realities and other factors of a given case, can be exasperating." 1997 MLD 2864 "Audi Alterant partem--application-opportunity of being heard-For earning a right of hearing, a person must show that he was deprived of some right vested in him--an order without jurisdiction does not create any vested right and does not entitle person concerned to claim personal hearing AIR 1987 SC 593 Page 605 "These principles audi alterant partem do not apply to all cases and situation. Application of these unmodified rules are often excluded by express provision or by implication. This right can also be excluded where the nature of action to be taken, its object and purpose and the scheme of relevant statutory provisions warrant its exclusion, nor can the audi alterant partem rule be invoked if importing it would have the effect of paralysing the administrative process or where the need for promptitude or the urgency of taking action so demands."
PLD 1991 SC 1029 Maxim "audi alterant partem. Right of opportunity of hearing is not merely a technical right, it is linked with the tangible, factual and legal aspects of the case and it would deleted upon the facts and circumstances thereof as to whether or advance of the technical rule of audi alteram partem by a however 'round and the ritualistic performance in this behalf would serve the ends of justice or it would negate the ends of justice. It the forum before which such a question is raised is able to examine 'he merits, there would be nothing wrong in deciding the matter finally and refraining from multiplicity of proceedings which as in and-- product also causes' injustice and misery in so far as he expenses and anxiety are concerned"
With all respect to the judgments referred to above, the ratio of the sair.0 may be summarized that applicability of the rule of audi alteram partem is to be applied and construed in the circumstances & facts of each case, the rule is flexible and can be ignored if a prompt action to meet the end of injustice is required. If this rule is specifically excluded from the statute, this rule can be ignored if aggrieved person cannot show his legal right. 20.Mr. Shehzad Shaukat, Advocate for the petitioner elaborating his arguments on the point of right of hearing, it would be relevant and necessary to reproduce the relevant portion of the law laid down in the case reproduced 1994 SCM R 2232-- F Article 199 Maxim audi alteram pertem --employees of statutory corporation--reversion-- absence of statutory rules--remedy--corporation while taking action against its employee neither issuing show-cause notice to him nor giving him opportunity of hearing--corporation having violated principles of natural justice its action in reverting employee was declared to be without lawful authority and of no legal effect. That corporation would have action to take fresh action against employee in accordance with law. In the case reported as 2005 SCM R 678 Para 12 It has been held: that where adverse action is contemplated to be taken against the person/persons he/they has/have a right to defend such action, notwithstanding the fact that the statute governing their rights does not contain provisions of natural justice and even in absence thereof it is to be read/considered as a part of said statute in the interest of justice. It is important to note that principle of natural justice is now made inbuilt part of civil contract like the one under discussion.
This principle originates from Islamic system of justice as evident from historical episode, when "Iblis was scolded for having mislead Hazrat Adam PBUM into disobedience of Allah's command, Almighty Allah called upon Iblis to explain his conduct and after having an explanation from him which was found untenable he was condemned and punished for all times to come" Thus it is held that the principle of natural justice has to be applied in all kinds of proceedings strictly and departure therefrom would render subsequent actions illegal in the eye of law.
21.On careful consideration of the facts and circumstances of the instant case and the law laid flown by this Court from time to time, it can safely be said, that the right of hearing cannot be denied if substantially an adverse order is being passed. The Constitution has adequately safeguarded the protection to the properties of the citizens while inserting Article 24 therein. A citizen or a person to whom a right has been accrued qua the title of the property in consequence of a procedure available, the said title or the right to retain the ownership of the property can be Withdrawn but in due course and in accordance with law. The provisions of General Clauses Act and the judgments delivered by the Honorable Supreme Court of Pakistan in relation to the principles of audi alterant partem which has become of substantive part of every statute, the said right of title of property can only be interfered or taken away after proving opportunity of hearing and defending. Anyhow, the right of hearing or defending in any case should have been given particularly before taking any punitive/adverse action with the assumption that the person whose title or right is being withdrawn could have satisfied the concerned authorities by producing documents in support of his title.
22.Now having a glance on the facts of the instant case, admittedly, the petitioner was given the allotment by the Settlement Department obviously after fulfilling and complying with all codal/procureal formalities on the subject and if the allotment made by the Department is required to be withdrawn at subsequent stage, at least the petitioner was entitled to be served a notice. In this case, firstly notice was issued in 2004 and the petitioner in response thereto, to save his property filed the reply of the notice as well as the application filed against him but thereafter, after a long time, no further action was-initiated nor the petitioner was informed as to the hearing or its date, but all of a sudden impugned order was passed. Even the impugned order is totally silent as to whether any notice was issued to the petitioner; in case of non appearance any action as required by law was taken. The respondent functionary who passed the impugned order has not even uttered a single word to the effect that in the presence of the available record, the presence of the petitioner was not required.
23.The department after the allotment of the land to the petitioner remained inactive & indolent for a considerable period of time, and suddenly became vigilant and cancelled the same by way of order impugned in defiance of universally acknowledged fundamental and inviolable right of audience. In our judicial system and also vogue in sub continent it is mandatory even for an executing Court to provide an opportunity of hearing to the judgment debtor by issuing a notice to file the objections, and if the objections are filed, the executing Court cannot proceed further without finally deciding the same. It is notable that in the above proposition, the decree by providing fair opportunity of hearing to the parties is passed but the law makers at every step of the lis has taken care of the fundamental right of a litigation. To my mind, the incorporation of Section 151 CPC also supports the proposition. The word inherent jurisdiction had a wide connotation and meanings in the sphere of the administration of justice. A Court from its very inception is equipped with the inherent powers to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the Court. A bare perusal of Section 151 CPC reveals that the Court has to use the inherent powers to meet the ends of justice. So in any case it is the fundamental requirement of every decision that both parties must be accorded fair opportunity of hearing and defending themselves before arriving at a definite conclusion, and there is no cavil with the proposition that justice should not be done but seem to have been done.
24. Adverting to the circumstances & facts emerging from the instant case, the allotment order in favour of the petitioner is being cancelled/withdrawn of the same authority/department and functionary and ultimate beneficiary would be the department, therefore, it was a sine qua non that losers be provided fair and reasonable opportunity of hearing and to defend themselves against the unilateral adverse action. It has been laid down in a number of judgments by this Court and the Apex Court that even an encroaches having no title should not be thrown away but in due course of law.
For the foregoing facts & reasons, I am of the considered view that it is a fit case for interference and invalidation of the impugned order which is palpably not sustainable in the eye of law, and thus by accepting these petitions, I set aside the same being violative of the principle of audi alteram partem. The parties to the lis at hand shall appear before the Chief Settlement Commissioner on 25.7.2008 who shall decide the case afresh on merit after providing fair and full opportunity of hearing to the parties to defend themselves.