GUL MUHAMMAD KHAN, J.-This petition alongwith W. P. No. 1610 of 1974 contain similar facts and both involve common questions of law. They shall, therefore be decided by a single order.
2. The order being challenged in both the cases is dated 26th May, 1975 passed by the Chairman, Federal Land Commission (respondent No. 1). The petitioners 1 to 5 are declarants under the Land Reforms Regulation, 1972. They are heirs of Sardar Muhammad Khan Leghari and are joint--holders -of the estate. The petitioners 6 to 38 are the alienees. All the alienations except Mutation No. 116 had been made jointly. The Mutation No. 116 dated 24th of August, 1967 was attested at the instance of petitioner No. 5 o-;ly.
3. After the promulgation of Land Reforms Regulation, 1972, the petitioners 1 to 5 filed a joint declaration under its para. 8. It was partly accepted by the Land Commissioner, Multan. The petitioners did not challenge that order further by way of an appeal or revision. Only petitioner No. 5 filed an appeal with regard to. One Mutation No. 116 which had been earlier rejected. The appeal was accepted by the Additional Chief Land Commissioner on 7th of July, 1973 and the mutation restored.
4. On 13th August, 1973, Act No. 62 of 1973, amending the Land Reforms Regulations was passed. According to section 4-A, the Federal Land Commission, consisting of a Federal Minister, nominated by the Federal Government, to be its Chairman and not more than 3 members, to be appointed by the Federal Government, was constituted. Its functions were laid down in section 4-A(2). No power of revision was, however, conferred on the Commission at that stage.
5. .On 23rd October, 1973, the Federal Government issued a Notification under para. 29, authorising the Chairman and Members to exercise revisional powers against the orders of the Provincial Land Commission authorities. It reads as under :- "In exercise of the powers conferred under paragraph 29 of the Land Reforms Regulation, 1.972 the Federal Government is pleased to authorise the Chairman and Members of the Federal Land Commission for the purpose of the said paragraph 29."
6. The respondent No. 1 who was then a Minister was nominated as the Chairman of the Federal Land Commission under the above provision. The main case of the petitioners is that, as no application for revision was filed within the stipulated 60 days which expired on 13th October, 1973, all the proceedings taken and the impugned order passed thereafter, are without jurisdiction and of no legal effect.
7. On 4th July, 1974, an application was made by some tenants against petitioner No. 1 and the family of Sardar Atta Muhammad Khan Leghari who are petitioners in the second petition. It is said to have been ordered to be fixed on the same day for 24th of July, 1974, with a direction calling for the record. On notice, a number of preliminary objections were raised by the petitioners. An application to transfer the case from respondent No. 1 also appears to have been made. The respondent No. 1 disposed of all the objections vide his order dated 13th August, - 1974, and adjourned the case subject to the order of the Prime Minister on the transfer application.
That order was challenged in Writ Petitions Nos. 1609 and 1610 of 1974, but the proceedings were not stayed by this Court. The matter came up before the respond.Nt No. 1 who announced his final order, now impugned in this petition, on 26th May, 1975. Writ Petition No. 1609 was consequently amended to chal)enge the final order as well.
8. The learned counsel has assailed it for the following reasons :-
(i) The application (Annex. `.B') was barred by time and could not have been entertained.
(ii) No time-barred application could have been utilized to take up suo motu revisional jurisdiction particularly when no such specific order was passed.
(iii) No notices were given to the petitioners showing intention that respondent No. I wanted to revise the orders of the Land Commissioner and the Additional Chief Land Commissioner.
(iv) The respondent No. 1 had in view of his speeches and given interest as is shown from the attached affidavits, disqualified himself to adjudicate the matter.
(v) The decision of the respondent No. I while sitting singly was coram non judice as the Notification conferred powers only on the "Chairman and the Members".
(vi) As the impugned order of the respondent No. 1 was malicious, biased and without jurisdiction, it could not be validated -by Ordinance XXIX of 1978.
9. The objections 1 to 3 raised by the learned counsel for the petitioners have no force whatever as discussed below and may, therefore, be rejected straightaway. Admittedly, the respondent No. 1 proceeded originally to assume jurisdiction on the application of nine tenants. It was filed against the holdings of Sardar Muhammad Khan Leghari (deceased) and his son now petitioner No. 1, on 17th April, 1974. Annexure 'C' shows that notices were issued in the name of a number of persons. The reply Annex. 'D' on behalf of only two of them includes the following preliminary objections :-
(i) As the respondent No. 1 is biased against the Leghari family openly and has prejudged the issue, he has disqualified himself to decide the matter.
(ii) The respondent No. I should not decide the matter till the transfer application is decided.
(iii) The notice issued to the petitioners is without jurisdiction for the reasons stated.
10. The respondent No. 1 attended to all the above objections in his order dated 13th August, 1974. As for the objection No. 1 he stated that he had made the speeches, objected to by the petitioners, in his capacity as the President, Pakistan People's Party, Punjab and as a Minister of the Pakistan Government, without making any references to the cases under Land Reforms. The matter in speeches was in line with the policy of the Government and manifesto of the party and every Minister was delivering the same. He admitted that the policy of the Government aimed at eliminating the feudal and the capitalist exploitation, by way of breaking large estates and improving the well being of the peasantry by transferring them the resumed land. As for his capacity as the Chairman, Federal Land Commission, he vowed to do justice according to law.
11. Reverting to the second preliminary objection, given in para. 8 above, the respondent No. 1 stated that he could call for the record of any case for the purpose of satisfying himself as to the legality or propriety of the order passed by the Commission or any other authority. He specifically stated that he wanted to satisfy himself about the order of the Land Commissioner validating the transfers made by the declacants. He dealt with the objection about notice and then allowed the petitioners sufficient time to defend the case. The last portion of the order may be reproduced hereunder with advantage to show that it was suo moto exercise of the power, the grounds of which had been explained and sufficient time allowed for its defence :- "The learned counsel has also contended that sufficient time was not available for the preparation of the cases as the notices were published on the 10th of August, 1974. He also urged that the grounds for the suo motu revision have not been made known to them. These are valid objections. The cases are, therefore, adjourned to 2nd September, 1974 to provide them sufficient time to prepare the cases. The learned counsel for the respondents have now been apprised of the grounds for calling for the record of cases in exercise of suo moto revisional jurisdiction as explained above."
12. Fresh notices were thereafter issued to all the concerned persons through 'Nawa-i-Waqt' dated 14th December, 1974. There is no grievance that any one of the interested persons was left out. The case had to come up on 17th December, 1974. Another notice dated 28th December, 1974 issued through 'Pakistan Times' showed that the case was fixed for 6th January and the petitioners were informed that they can inspect the record at any time before the above date.
13. On 25th January, 1975, the petitioners made another application praying that specific grounds on which the respondent No. 1 decided to proceed in the matter may also be communicated so that they knew well as to what case they had to meet. They further suggested that each one of the petitioners be served personally than throup)- the newspaper and more time be allowed to them to collect the necessary record and brief their counsel.
14. The respondent No. 1 attended to the above submissions vide his order of the same date. He observed that the onus to prove the genuineness and bona fide of the transactions rested on the declarants under para. 7 of the Land Reforms Regulation 115. He also referred to explanation 3 under the said paragraph which contained grounds to be taken into consideration. He, therefore, asked the petitioners to justify the validity of the transactions. He also assured them that more time will be allowed by him if any situation for it would crop up.
Simultaneously, he observed that the petitioners had been granted number of adjournments just to meet the ends of justice and had they examined the record, they would have equipped themselves with the information needed in reply to the notices. He added that the entries of the transactions and the relevant record were suspected to be false and anti-dated and informed the petitioners to come prepared on that aspect of the case also.
15. The above facts go to show that the respondent No. 1 had abandoned his original position to proceed on the basis of the applications made by the tenants before him. On the other hand, he proceeded suo motu and did inform the petitioners of the facts that were required to be proved or considered by him. He also told them that he had called for the record under paragraph 29 of the Land Reforms Regulation and would look into the legality and propriety of the orders already passed. In this view of the matter, I do not find any justification and force in the objections (i), (ii) and (iii) raised by the petitioners.
16. The question raised at (i) and (ii) above can be looked at from another angle also with (he same result.
Para. 29 provides making of an application, within a prescribed period, by an aggrieved person. Admittedly, the original applicants against the petitioners were tenants of some land. It is no where stated that they were the only tenants under the petitioners. In any case, under the Land Reforms Regulation a tenant has no right till such time the declaration of a declarant is considered and decided and he, after exhausting his right of `exchange' and `option to retain' particula land, surrenders specified or particular land. This position has been settled by this Court in Muhammad Hayatullah Khan and others v. Federal Land Commission through its Chairman and another (PLD 1977 Lah.166). At any rate, only such tenants shall be entitled to that land after the first part of the proceedings is concluded, who are occupants of that particularly surrendered land. The tenants/applicants thus were not persons aggrieved. The application made by them need not be within the prescribed time and any action taken on that information would be a suo nsotu exercise of power.
17. Again, the respondent No. 1 after hearing the objections of the petitioners unequivocally stated that he was exercising his suo motu powers. He gave specific notice of that intention, allowed more time and also provided them with the grounds. It is to be noted that before doing all that respondent needed some information from some source to act. This could be conveyed to him through an application or a letter by any person. The information could come to him through his subordinates or even superiors. It may be communicated to him by a friend or he may act just at random. The same view was taken in Amir Begum's case (PLD 1961 Lah.360). 1n any cace the petitioners will not be in a position to object to the source if an action was taken.
18. The learned counsel for the petitioners had also relied on a number of judgments in this regard. In the case of Ashiq Muhammad Khan Mazari (PLD 1977 Lah.46!), a learned Judge of this Court held that 'so long as an authority has not been moved by a person to act, the person, not being necessarily aggrieved himself, the authority would be deemed to have proceeded of its own motion'. It goes on that a person, particularly one who is aggrieved, moves an authority in the matter, any action taken by that authority consequent upon such application cannot by any stretch of imagination be dubed as action of "his own motion".
19. It is submitted with respect That apart from the fact that the observation is not in accord with para. 29, which lays down that only an aggrieved person could make the application for that purpose, it is also in conflict with the view taken in Amir Begum's case. It also runs counter to the principle laid down by the Supreme Court in Tufail Muhammad v. Zia-Ullan Khan (PLD 1965 SC 269). It was held in that case that if an authority possesses two different powers in the same field, he, while acting must show consciously which of the two powers he is exercising. That has been done by the respondent No. 1 in this case. He, particularly noticed that he was exercising his suo motu power, despite the said application made before him. Again, a Division Bench of this Court held in Ghulani Mehr v. Chief Land Com--missioner (PLD 1974 Lah.520) that there were valid suo motu proceedings when an application for the purpose had been made, registered and proceedings started thereon. Finally, the Supreme Court in Sahibrai's case (PLD 1957 SC 63) settled this controversy by upholding the proceedings as suo motu review in a situation similar to the one in hand.
20. So far as whether the tenants were persons aggrieved the learned counsel referred to the case of Sh. Amir- ud-Din (PLD 1968 SC 165). It was held in that case that a person, being a party to the proceedings in which impugned order was passed and having a real interest in defending an order in the collateral proceedings, which had a direct bearing on the case, had a locus standi. As said, the interest of the tenants in this case was only contingent and that too uncertain and too remote. Similarly, the Supreme Court in the case of Fazal Din (PLD 1969 SC 223) recognised the standing of that petitioner who could show that the order to be passed would result in loss of some personal benefit or advantage or curtailment of a privilege or liberty or franchise. As said above, none of the above features is available in this case. In another case of Associated Cement Companies Ltd. v. Pakistan (PLD1978SC151), the Supreme Court observed that an aggrieved person must show that his right recognised by law has been invaded or denied.
21. The third objection raised by the learned counsel was about lack of notice about what the respondent No. 1 wanted precisely to do while exercising his suo motu jurisdiction. It was argued that according to para. 29 of the Land Reforms Regulation, the respondent No. 1 should have stated in the notice itself that he wanted to scrutinize the order of the Land Commissioner instead of saying that he wanted to go into the declaration. As said in para. 13 above, the petitioners particularly required of the respondent No I in their objection to inform them of the grounds on which he had decided to proceed or wanted to satisfy himself about.
22.The respondent No. 1 in his order dated 25th January, 1975 did inform them as said in para. 14 above, that he desired to satisfy himself about the legality and propriety of the order of the Land Commissioner. He also told them that the onus lay on them to prove the genuineness of the very Transaction- as included in the declaration made by them. No specific form of notice has been laid out. Anyhow, I do not think either the intention or the purpose of law had not been carried out or the petitioners had been prejudiced in the defence of their cause.
Reliance is placed on the case of Atta Muhammad Qureshi (PLD1971SC61). Reference be also made to Daris v. Careiv-Pole ((1956) 2 All E R 524) and Russel v. Duke of Norfolk ((1949) 1 All E R 109), which support the proposition that the petitioners must show in such a jurisdiction that their case had been prejudiced for lack of anything in such a notice. It was held there that where a party has actual knowledge of the legal and factual issues involved at the hearing and those issues are fully litigated, a party suffers, no real harm. It is to be noted that throughout his arguments before us, the learned counsel did not go to the merit of the transactions in question despite the fact that he was particularly asked if he would do so.
23. The main point which the learned counsel very strenously argued is of bias. It has been stated above at Serial No. IV of para. 8 above. In fact, the learned counsel for the petitioners built up his main case on it. He went through the relevant portions of the newspaper cuttings which are as Annex. 'E', 'E/1', 'E/2' and 'E/3' to show that respondent No. 1 publicly pronounced that he will annihilate the 'Legharis' and 'Mazaris' and that he will throw them off the People's Party though they had joined it mala fide and surruptitiously. He also declared them to be public enemies of the masses and peasants and that they will not be permitted to deceive any one.
24. The learned counsel also relied on the affidavits, Annex. F, F/l, F/2, F/3, F/4, F/5, F/6, F/7 and F/8 again to show that the respondent No. 1 was determined to eliminate all the big landlords, particularly 'Legharis' and 'Mazaries' and that he wanted to take lands from them so as to distribute the same among the peasants any petty land holders. All these deponents were the workers of the People's Party and attached to the group of the respondent No. 1. It may be noted here that the petitioners were also members of the same Party.
25. The learned counsel had relied on the cases of Ashiq Muhammad Khan Mazari (PLD 1977 Lab. 461), where a learned Single Judge of this Court inter alia held that the order of the Chairman, Federal Land Commission on precisely the same or similar facts was void as it was passed without fulfilling the pre--requisites and in violation of principles of natural justice. The learned Single Judge quoted exclusively from the Administrative Law by Garner who had cited General Medical Council v. Spaekman ((1943) 1 All E R 289 ) and Frankin v. The Ministry of Town and Country Planning (1948 A C 87). The latter was a case decided by the House of Lords. The circumstances in which it arose were that while New Towns Bill was still before Parliament the Minister responsible went to the town of Stevenage and made a rather provocative speech proclaiming his plan to designate the area as a new town in spite of objections. An inquiry was duly held, and the Minister finalised the scheme. The objectors challenged the validity of the inquiry on the grounds that the Minkter had prejudged the issue, rendering the inquiry a farce.
26. The House of Lords upheld the minister Lord Thankerton, in whose judgment all other members concurred, painted out, in effect, that 'bias' is built into the system since the minister Would hardly initiate a proposal to which he was not committed The Minioter's only duty under the Act was to hold an inquiry and give objectors a fair hearing to which no objection had been raised. His functions, it was held, are administrative rather than judicial. Lord Thankerton concluded that it had not been established that the minister had fore judged any genuine consideration of the objections or that he had not genuinely considered the objections at the later stage when they were submitted to him'.
27. It may be noted that the decision in Franklin's case as such did not help the petitioners. Reliance was placed only on the finding that there the Minister was performing administrative functions when in the case under review, they were held to be judicial or quasi judicial. It is to be noted that in English law the distinction between administrative and quasi-- judicial jurisdiction has become blurred, as even the administrative authority has to act fairly. Reference be made to In re : H. K. (An Infant) ((19677 2 Q B 617 ) R. v. Immigration Officer ((1969) 1 Q B 333,) and Re: Muhammad Arif ((1968) A I C 643). The same view is now established in our Courts, see Ikram Bus Service's case (PLD 1963 SC 564 )
28. At any rate, applying the finding in the above case, the learned Judge concluded that the respondent Chairman was acting ,in judicial or at-least quasi judicial (and not administrative) capacity. He referred to speeches made by him at Dera Ghazi Khan saying that the 'Legharis' and 'Mazaris' had no right whatsoever in the produce from the lands which was the result of tillers' labour. He also referred to respondent claiming that if the conditions had been better when the then Prime Minister took his office no signs of the 'Jagirdars' and Capitalist would have been left by that time. He also referred to one of the affidavits where the respondent is alleged to have said that he will not rest content unless he distributed the lands of 'Legharis' and 'Mazaries' amongst the tillers. In view of all above, the learned Judge held that in such a situation, the respondent could not 'divorce himself from commitments in such a way "as to repel the probability of bias from a decision". Thus the question to be answered is whether the impugned decision can be quashed on the ground that there was a probability of bias ?
29. It maybe stated at the outset that the prevailing views, in this country as well as in the foreign jurisdictions, administering laws simila to Pakistan, do not permit a decision being quashed on the ground that there was a probability of bias. In R. v. Camborne Justices ((1955) 1 Q B 41 ), Slade J., reviewing the relevant case-law held that notwithstanding dicta suggesting, that mere suspicion of unreasonable persons would be enough, to establish bias on the part of a Judge, the right test is that prescribed by Balckburn J., namely, that to disqualify a person, from acting in a judicial or quasi--judicial capacity, upon the ground of interest (other than pecuniary or propriety), in a subject-matter of the proceedings, a real likelihood of bias must be shown. It is to be noted that the learned Judge, mentioned a number of cases in that country in which test of Balckburn, J. Had been applied from 1908 to 1939. The above case was approved by the Supreme Court in Mr. ZuYtqar All Bhutto v. State (PLD 1978 SC 125).
30. The same test of real likelihood has been approved by the Indian Supreme Court in Manak Lal v. Prem Chand (AIR1957SC425 ). The view taken is that it is necessary to consider whether there was a reasonable ground for assuming the possibility of a bias and whether it was likely to produce in the mind of the litigant and of general public a reasonable doubt about the fairness of the administration of justice.
31. The Supreme Court of Pakistan very recently considered the question of bias in the case of Zulfiqar A.I Bhutto v. State (PLD1979SC53). The appellant therein had raised allegation of bias, partiality and prejudice against the learned Acting Chief Justice who led the Bench which convicted and sentenced him to death. The details of allegations which pertained to period prior to and during the trial are given in para. 856 of the judgment. The effect of the allegations was considered in paras. 856 to 911 to see if they could have influenced the judgment at all. In para. 908 their Lordships approved the law laid by the Federal Court in Anwar v. Crown (PLD 1955 FC 185). In para. 913 of the report a few judgments of the Supreme Court were referred to lay down a true test of bias. It was ruled that "mere suspicion of bias, even if it is not unreasonable, is not sufcient to render a decision void. A real likelihood of bias must be established." So a mere apprehen--sion, in the mind of a litigant that he may not get justice, such as is based on inferences from circumstances, is not sufficient. The conclusion arrived at in para. 915 may be reproduced with advantage to show that their Lordships tested the result of the so-called biased mind to ascertain if any extraneous or subjective consideration at all went in. To reach that end their Lordships also laid aside, the till then established principle that even if one out of a body, considering a matter, was disqualified for any reason, the entire deliberation vitiated :-
(6) PLD 1977 Lab. 461 "915. In the light of the declared law and, the facts discussed above I have reached the conclusion that although some of the orders made by the trial Bench in the day to day conduct of the case may not have been correct on a strict view of the law; and some others may not have been fully called for in the facts and circumstances of the case, yet these were all matters within the discretion of the Court, and mere error therein cannot amount to proof of bias. The appellant was unfortunately misled into thinking from the very start of the case that the learned Acting Chief Justice was biased against him. There was, in fact, no factual basis foc such an apprehension. In any case there was no such apprehension in respect of any of the other four learned Judges constituting the Bench. The trial of the appellant has by and large been conducted substantially in accordance with law, and the conclusions reached by the High Court on the merits of the case have been found to be correct on detailed analysis of the evidence and the law. I would therefore, repel the contention that the trial was, in any manner, vitiated by reason of bias on the part of the Presiding Judge of the Bench. (Emphasis* supplied)."
32. There is another important aspect of this case which requires consideration. The respondent-I also was the Chairman Pakistan People's Party Punjab and a Minister of the Central Government. In his order dated 13th August, 1974, passed on an application of the petitioners, raising preliminary objections, the respondent No. 1 made his position clear to state that his speeches as a Minister were in line with the manifesto of the party and policy of the Government and that every Minister was making such speeches. He also admitted that the policy of the Govern--ment was to eliminate the feudal lords and capitalists by breaking large estates and improving the well-being of peasants. It is of interest to note that petitioners are members of the same political party.
33. The preamble of the Land Reforms Regulation, 1972 reads as under:- "Whereas Islam enjoins equitable distribution of wealth and economic powers and abhors their concentration in a few hands; And whereas it is in the supreme national interest to improve the economic well-being of the peasantry, by making agriculture a profitable vocation;"
This regulation was promulgated by the Government of which the present parties are members. Para. 8 of the Regulation laid down the maximum limit of holdings, while para. 7(1x6) provided that the transfers made bet-- ween 1st March, 1967 and 19th December, 1971 by a person holding the maximum permissible land shall be void unless the same were declared to be bona fide by the commission. It was here that the respondent No. 1 came to look into the legality and propriety of the orders passed by the lower authorities. What he had stated in his speeches and otherwise as per affidavits has been summed up in paras. 23 and 24 above and the same also finds a place in paras. 54 and 55 of the judgment of Ashiq Muhammad Khan Mazarl's case. There is nothing in them to say that even the rights guaranteed to the petitioners or others by law shall be taken away.
The assertions are of general nature with political overtones and can be broadly placed under the purpose and contents of the Land Reforms Regulations.
34. It is also to be noted that no personal animosity is urged against the respondent No. 1 and he did not have any personal interest in the matter either. His public speeches and talks to his party workers, being relied upon for the purpose, contain general references to a class and no individuals or particular cases had been mentioned. The kind of bias that can be attributed to him on that basis may be classed as-
(i) pre-judgment,
(ii) prior involvement, or
(iii) official policy.
However, as will be seen from the following review of case-law, the material relied upon has never formed a basis for quashing such decisions at all.
35. A decision-maker may be disqualified only if be. Prejudges the merits of a particular case, as considered In re: Godden ((1971)3 All ER20). In that case 'B' certified that 'G' was unfit for duty. When the question of termina- -petition of G's employment came up later, 'B' was debarred from certifying as to G's condition as he had already formed a view on the matter. Admittedly, the respondent No. 1 did not talk of any case or merit of any transaction. There were in the present case speeches with political tone and bias, if any. In N. L. R. B. v. Donelly Garment Co. (330US219), the same Court held that an examiner was not disqualified by having previously announced a position concerning an appraisal of particular facts.
36. The disqualification cannot be rested on mere voicing of opinion as in Singh v. London County Bus Service ((1976) 111 T R 131), but must be grounded on a much deeper degree of involvement with the merits of a case.
It was held as far back as in 1878 In R. v. Alcock ((1878) 37 LT 829), under English law that preconceived opinion, or even. Expression of such opinion did not follow that the evidence and the argument adduced at a hearing would be disregarded by the decision-maker. Consequently, in Ex parte : Wilder ((1902) 66 J P 761), a conviction for driving a motor-car in excess of 12 miles per hour was upheld even though the Magistrate had a prejudice against motor cars and their drivers and considered that it would be a good thing if the motor car industry was destroyed.
37. There may be pre-involvement of the decision-maker in a matte because of the frequent combination in the administrative process of the adjudicative function such as inter alia, the tasks of prosecution and investigation.
The reason is that where a man has buried himself in onside of an issue he may not be able to bring to an adjudication the dispassionate judgment required. However, it may not be possible within the administration of an individual agency to effect a complete separation of the formulation of policy from the task of its enforcement and sub--sequent adjudication though it may lead to a suspicion that an esprit de corps may bind together loyalties in an invidious mixture.
38. In R. v. Australian Stevedoring Industry Board etc. ((1953) 88 C L R 100), a delegate who was empowered to cancel registration of an employer, because of his negligence in supervision, made a statement to the press about the same matter. It was held that the delegate was not disqualified from holding the inquiry on the ground of bias because before bias of that kind amounts to a disqualification there must be strong grounds for supporting the quasi judicial officer cannot be expected fairly to discharge his duties. This is what the delegate had said "'We don't expect them' (i.e. The employer) 'to be able to hold the men on the job but we do expect them to exercise proper supervi--sion to find out whether men on their pay roll are missing. If they can wander away without the Company's knowledge, it suggests lax supervision and that's why we are holding the inquiry'."
39. It will be useful to* quote from another judgment of the same Court in Queen v. The Commonwealth Conciliation etc. (122 C L R 546)
"The expression of an attitude of mind by members of the Commis--sion which tended to favour the adoption of the principle of equal pay and even the fact that a step has been taken in furtherance of such a principle were not sufficient to engender a reasonable suspicion in the minds of those who came before the tribunal, or in the minds of the public, that the tribunal or its members might not bring fair and unprejudiced minds to the resolution of the question arising before the tribunal. Accordingly, the application for prohibition was refused."
40. Next is the bias arising from official policy. It is true that t have a policy means a predisposition to decide particular cases falling within it in a particular way and if this is 'bias', then to have a police is to be biased. It is, therefore, mistaken to regard policy as constitution bias of the kind which may invalidate a decision, though it does no mean that a Minister cannot be held to be biased because of some personal I relationship between himself and the matter in issue-a financial benefit for example or actual malice but interest inherent in advancing a police cannot of itself connote bias. Where the Minister of Health compulsorily acquired land for a hospital from a political opponent, it was not invali--dated on the ground of bias since he is the only person in the world who. Is legally able to act and the machinery of the Government cannot be paralysed. See Jeff v. Newzealand Dairy Bard ((1967) 1 A C 551).
41. In Horn v. Minister of Health ((1936) 2 All E R 1299), a deputation from the local authority visited the Minister shortly after and before the confirmation of compulsory purchase by the local authority to discuss generally the provisions of houses in their district under the Housing Act, 1935. The visit had been arranged before the public local inquiry but had no reference to the subject-matter of the inquiry. The Court of Appeal held that as the Minister was acting in his administrative capacity when he discussed the matter at the interview, there was no ground for quashing the order passed by him later in his quasi judicial capacity confirming the compulsory purchase. Slesser, L.
1. In that case recognised the two powers of the Minister i.e. To give advice and then to confirm order, which have to be carried out by the Minister.
A similar duty of the Minister was recognized in Offer v. Minister of Health ((1936) 1 K B 40).
42. In United State v. Mongan (313 U S 409), the Secretary of Agriculture vigorously criticized, a decision of the Supreme Court remanding a case to him for rehearing, in a letter to the New York Time. The petitioner in its challenge to the decision given after remand pleaded that the Secretary was disqualified from rehearing and deciding in view of his bias as disclosed in his letter. The Supreme Court summarily rejected the plea saying "But intrinsically, the letter did not require the Secretary's dignified denial of bias. That he not merely held, but expressed, strong views on matters believed by him to have been in issue, did not unfit him for exercising his duty in subsequent proceedings ordered by the .Court."
The Court further observed that both Cabinet Officers and Judges may have an underlying philosophy in approaching a specific case.
43. Again, the U. S. Supreme Court refused to interfere in another case on the ground that the act of the Commissioners who made public addresses, did not amount to prejudging the issues and that even if one of them was personally biased, they were not disqualified to decide the matter.
See Skelly Oil Co. v. F. P. C. ((390) U S 747). The Court held that "nothing in the record disturbs the assumption that the two Commissioners are men of Conscience and intellectual discipline, capable of judging a particular controversy, on the basis of its own circumstances."
44. Reference be also made to Federal Trade Commission v. Cement Institute ((1948) 333 U S 683), which is a very important and famous case on the point. The respondent Marquette had charged that the Commission, which had previously prejudged the issues, was prejudicial and biased against the Port-land Cement Industry generally. Numerous exhibits had been produced to support the charges. They included testimony given by members of the commission before congressional committees opining that operation of multiple basing point system, was the equivalent of price fixing in restraint of trade. Black, J. At page 701 observed "The fact that the Commission had entertained such views as the result of its prior ex parte investigation did not necessarily mean that the minds of its members were irrevocably closed on the subject of the respondent's basing point practices. Here, in contrast to the Commission's investigations, members of the cement industry were legally authorised participants in the hearing. They produced cvidence-volumes of it. They were free to point out to the Commission by testimony, by cross-examination of witnesses, and by arguments, conditions of the trade practices under attack which they thought kept these practices within the range of legally permissible business activities."
45. The position in India also appears to be the same. The Supreme Court in Gullappalli Nageswara Rao v. A. P.
(AIR 1959 SC 1376), held that the statements made by the Chief Minister about the general policy of nationalization adopted by the Government without particular reference to particular cases did not disqualify him. It was however, suggested by the learned Judge (Subba Roo, J.) that had the reference been made to the area in question and the transport services therein, the Court might have interfered. The application of the suggestion to the present case would merely mean that there should have been reference to the merit of the transactions or transfers made by any of the petitioners to attract disqualification.
46. The same Court in H. C. Narayanappa and others v. .State of Mysore (AIR 1960 SC 1073), held that if the Government or the authority to whom the power is delegated acts judicially in proving and modifying the scheme of nation--alization, the approval or modification is not open to challenge on a presumption of bias. Further that unless there is reliable evidence to show that the officer who is interested with the power to hear objections is biased, his decision will not be called in question merely because he is a limb of the Government. In Birajmohan Das Gupta v. State of Orissa etc. (AIR 1967 SC 158 ), the same Court repelled a contention that as the Minister, who later heard the objections of the petitioner, had already declared in reply to a question that the Government had decided to take over all the routes, eliminating all the private operators, he was disqualified on account of bias. '
47. Thus though bias was presumed from proved pecuniary direct personal interest of the decision-maker, yet from the constitutional point of view it would never disqualify a decision-maker in such a situation in America.
Prof. Schwarts in his book "A Commentary on the Constitution of the United States", 1977, Part 111, Vol. I, page 93 has summed up the position slightly more rigidly as under :- "If there is no statute in the state concerned providing for disqualifica--petition of a Judge for relationship or personal prejudice, and a Judge does sit in a case where there is relationship or personal prejudice, that does not contravene the Due-Process Clause of the Fourteenth Amendment. Similarly a Judge's prior connection with a case or one of the parties will generally be considered to render him far from impartial, in the common understanding of the term. But such Judge will be permitted to preside at the trial without any violation of due process."
He has also relied on the observations of Chief Justice Taft in the case of Tumey (273 U S 523)
"It should, however, be noted that these types of bias do not raise constitutional issues. This was stated expressly by Chief Justice Taft in Tumey case: `All questions of judicial qualification may not involve constitutional validity. Thus matters of kinship, personal bias, state policy, remoteness of interest, would seem generally to be matters merely of legislative discretion'."
48. As discussed above, ~he rule about bias is based not on law or constitution but on natural justice. However, if bias is to be defined to mean the total absence of preconception in the mind of a Judge, then no one has ever had a fair trial and no one ever will. Kennet Culp Davis in his book "Administration Law Text" at page 245 has to say the following :- "The concept of "bias" has a multiplicity of meaning which shade into each other but which must nevertheless be distinguished if problems of disqualification of deciding officers are to be solved. One meaning of bias is a preconceived point of view about issues of law or policy. In this sense, most Americans have a bias for democratic methods, the pre-1937 Supreme Court was thought by many to have had a bias in favour of property interests, and the present Court may have a bias in favour of judicial self restraint permitting govern-- ment regulation of economic life. All men who have thought about controversial issues necessarily have biases in this sense. A Judge may, have a bias on a question of law because he decided the question in a previous judicial opinion; the Judge who has the most biases in this sense may be the best Judge."
Julius Stone in "Legal System and Lawyers' Reasonings," on the same subject states as under :- "In all these circumstances the mere truism that a Judge should not act on his own bias, or idiosyncrasy, does not tell us in very many cases how we, or even he himself, can be sure that he has excluded these from his interpretations of philosophy, history, tradition, sociology, or the prevailing mores, much less how to exclude them from his preference for some of these approaches over the rest."
49. Cardozo in his book "The Nature of the Judicial Process" at page 12 writes :- "We are reminded by William James in a telling page of his lectures on pragmatism that every one of us has in truth an underlying philosophy of life, even those of eis to whom the names and notions of philosophy are unknw%: f3 or anathema. There is in each of us a stream of tendency, whether you chose to call it philosophy or not, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals. All their lives, forces which they do not recognise and cannot nacre, have been tugging at them-inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlook on life, a conception of social needs, a sense in James's phrase of "the total push and pressure of the cosmos," which, when reasons are nicely balanced, must determine where shall fall. In this mental background every problem finds its setting. We may try to see things as objectively as we please. Nonetheless we can never see them with any eyes except our own."
50. . What we conclude from the above is that
(i) A mere probability, possibility or a reasonable suspicion of bias shall furnish no ground to quash a decision.
According to Indian and English Courts' view, a decision-maker may be disqualified only if there is reasonable or real likelihood of bias from facts proved.
(ii) It is impossible to find a totally unbiased mind. However, with their experience, training and sense of duty, the decision-makers are able to get over their biases and prejudices to render a correct decision.
(ill) Again, bias per se is no ground for disqualification except when it is proved that the decision-maker had a direct substantial pecuniary or personal interest and that he passed an incorrect order. No presumption of bias arises in matters of law or policy.
Thus the view of the Supreme Court in Z. A. Bhutto v. State (P-L D 1979 S C33), is a happy combination of the above three rules and is the most practical, realistic and juristic approach to the problem. The rule in Anwar v.
Crown approved by the Supreme Court in Bhutto's case laid down a diaghostic test as under :-
(a) Bias in a Judge is the paralysis, complete or partial, of judicial faculties and, therefore, the allegation of bias against a Judge would be wholly unfounded unless it be shown that the proceedings held by him were irregular and one-sided or the conclusion reached by him were wrong and reasons given in support thereof erroneous.
(b) Bias in judicial matters may be caused by the judgment, order or observations of a superior Court or it may spring from personal, political religious, communal, racial, commercial or economic con--siderations. But whatever may be the cause of it, it can .Never be held to be proved in the case of a Judge whose judgment is right because the fact that his decision was correct is a complete, refutation of the allegation that his judicial faculties were paralysed. A biased Judge producing a correct result is a contradiction in terms.'
It may again be noted here that the respondent No. 1 throughout the proceedings allowed the petitioners every opportunity to defend the case and the order passed by him has not been challenged on the factual or other legal plane despite the fact that we asked the learned counsel if he would do so. We, therefore, presume that the petitioners had no objection to the correctness of the very findings about the transactions.
51. We have seen above that the English & Indian Courts do not g to the correctness of the decision if the facts show that there was a real likelihood of bias. Some of our Courts are also following the same view despite Anwar's case. This concept however, has done incalculable damage to the cause of justice, image of the judiciary and the confidence of the people in them both. There is hardly any decision these days which is not being challenged on account of bias or malice, as one of the grounds. The number of applications for transfer of cases from one to the other forum on the basis of bias and mala fides are increasing tremendously. One may start concluding from this alarming situation that probably most of the decision-makers are acting for reasons other than doing justice between the parties. Accepting bias, therefore, as a rule would amount to extending judicial recognition to the fact that most of the decision-makers lack integrity and are likely to crumble either under the weight of their own passion or from an external pressure or temptation. If that be so, would we need any judicial system at all? It, however, looks strange that though malice and bias have been figuring so prominently in litigation, the diagnostic test of bias in Anwar v. State remained inoperative.
52. In view of the above, it is necessary that we should have since long forgotten the English concept of bias or the assumption that it is part of the rule of natural justice. In fact there appears to be a tendency of reversal of that thought even in English Courts and we may quote in support a passage, of Slade J. In R. v. Camborne Justices ((1955) 1 Q B 41)
"The frequency with which allegations of bias have come before the Courts in recent times seems to indicate that Lord Hewart's reminder in the Sussex Justices case that it `is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done' is being urged as a warrant for quashing convictions or invalidating orders upon quite substantial grounds and, indeed, in some cases upon the flimsiest pretexts of bias. Whilst endorsing and fully maintaining the integrity of the principle reasserted by Lord Hewart, this Court feels that the continued citation of it in cases to which it is not applicable may lead to the erroneous impression that it is more important that justice should appear to be done than that it should in fact be done."
53. It is important to note that this concept of bias is repugnant to Islamic Law. The Holy Qur'an, enjoins upon decision-makers to adjudica in every matter dispassionately without fear or favour. It exhorts to prepar themselves for the doing ,of the job than be discouraged. The purp behind is to build up such a character in decision-makers that they are able to do justice irrespective of the parties before them or their personal like or dislikes of the parties or the subject-matter. Further, it also wants t inculcate in the litigants a habit of accepting a fact for ever that no injustice shall visit them even though the decision-maker is a close relation, a friend o enemy of any one of them.
54. In Chapter XXXVIII, Verse 27 Qur'an commands "O David Lo I We have set the a viceroy in the earth, therefore, judge aright between mankind, and follow no desire that it beguile the from the way of Allah, Lol those who wander from the way of Allah have an awful doom, for as much as they forgot the day of Reckoning." Verse 153, Chapter VI provides: "Give full measure and full weight in justice. We task not any soul beyond its scope And if ye give your word, do justice thereunto; even though it be (against) a kinsman; and fulfill the covenant of Allah. This He commandeth you that haply ye may remember."
Similarly in Chapter IV, verse 135, it is laid down: "O ye who believel Be ye staunch in justice, witnesses for Allah, even though it be against yourselves or (your) parents or (your) kindred, whether (the case of) a rich man, or a poor man, for Allah is nearer unto both (than ye are). So follow not passion lest you lapse (from truth) and if ye lapse or fall away, then lol Allah is ever informed or what ye do."
Chapter V, verse 8: " O ye who believe! Be steadfast witnesses for Allah in equity, and let not hatred of any people seduce you that ye deal most justly. Deal justly, that is nearer to your duty. Observe your duty to Allah. Lo I Allah is informed of what ye do."
55. It wilt be seen from the above provisions that God Almight enjoins upon the judges not to let their passions lead them astray or away them from the path of justice set down for thew The only exception mad is that if a decision-maker thinks that he will not be able to do justice in given situation, he may decline to take up that job, for God Almighty do not task any soul more than its scope. However, if he gives a word i.e. Undertakes and does not decline to do that, he shall be answerable if h does not perform it dispassionately. Consequently, the lapse or otherwise of a decision-maker is to be judged from the decision itself and not fro other circumstances.
Again a decision may be quashed by a higher authority in appeal or revision on the ground that it is not correct or valid but I will not be interfered with for the reason that there was real likelihood of bias in view of the facts surrounding the decision-maker viz-a-viz that case. Rather, the decision-maker may be personally liable in case there is a deli--berate lapse.
56. In view of the above, it is not only desirable but highly imperativ that we repose more confidence in the decision-makers than presume that they are likely to succum to any pressure or temptation. Mr. Neil Mac Cormick in his book "Legal Reasoning and Legal Theory" states at page 17 as under :- "In the absence of much good evidence it seems reasonable to suppose that judges and lawyers are like all humans, capable of occasional fits of humbug and hypocrisy, or of interpreting rooted prejudices as revealed truths. But equally, they are more commonly honest and honourable, capable of real efforts at, if never total achievement of, impartiality and, objectivity; through practice, moreover, they have normally done, more to develop habits of impartiality than many of those who are more strident in their denunciation."
Allen. C. K. In "Aspects of Justice" page 9 says "Distrust of bias in a judge is carried very far in our law. 'hhe best suspicion of self-interest is sufficient to disqualify . . . . All of us have often to split our personalities in different capacities which we occupy. However, our law takes heed not only of the fraility of average human nature but of mere suspicion of it, well-founded or not. . : ."
Again, if the law is to always take a situation as that why should, the superior judiciary be asked to take oath in the following terms "That I will not allow my personal interest to influence my official conduct or my official decisions; And that, in all circumstances, I , will do right to all manner of people, according to law, without fear or favour, affection or ill-will."
Is it not a great contradiction?
57. The (vl objection raised was that the decision of the respondent No. 1, Chairman, sitting singly was coram non judice. Reliance was placed on the words: "The Federal Government is pleased to authorise the Chairman and Members--of Federal Land Commission for the purpose of the said paragraph 29" and the way it has been interpreted by a learned Single Judga in Ashiq Mohammad Khan Mazari and 3 others v.
Chairman, Federal Land Commission, Islamabad and 4 others (PLD 1977 Lab. 461), Mir Haji Ghulam Murtaza Khan Talpur and others vChairman, Federal Land Commission, Islamabad (PLD 1978 Kar. 919) and Khair Mohammad v.Chairman, Federal Land Commission, Islamabad and 2 others (PLD 1979 Kar. 210). We have--the greatest respect for those views but it is our misfortune that we could not persuade ourselves to agree with the same. It appears that a very important aspect of the matter was not brought to their Lordships' notice.
The notification uses phrases "Chairman and Members" of the "FederalLand Commission". The two phrases when read together would show that the first is a part of the second. The collective name of the "Chairman and Members" is recognised as "Federal Land Commission" by section 4-A of the Act 62 of 1972, referred to in para. 4 above. If we accept the other view, the notification would be deemed to be reading "Federal Land Commission of the Federal Land Commission" which would amount to absurdity. The Legislature could thus simply say 'Federal Land Commission' if it really intended what is imputed to it. There was no need to waste the words 'Chairman and Members'. Resultantly, "Chairman and Members" of the Federal Land Commission meant not the Commission itself but Chairman and Member separately. Thus to avoid redundancy and absurdity and to give to the words their clear meaning, we must read 'and' as 'or'.
58. Even otherwise, it is not a conclusive rule of interpretation that the word 'and' is to be always used conjunctively. In fact it is for the Court to interchange these words to save redundancy, anomaly absurdity or to conform to the clear intention of the Legislature. A Division Bench of this Court in Mohammad Hussain v. The Additional District Judge (PLD 1966 Lab. 128) held that the conjunction 'and' in section 17(1) of the Payment of Wag Act, 1936 has to be read as 'or' in the disjunctive sense. Similarly, in Salehon v. State (PLD 1969 SC 267 ) the Supreme Court observed "The governing rule, however, is to carry out the intention of the Legislature. It may be found necessary to read the conjunctions 'or' and 'and' one for the other depending on the consequences intended by the Legislature". The same view was taken in Badsha Mian v. The State (PLD 1966 Dacca 1), where word 'and' in section 5(1) of the Eas Pakistan Anti-Corruption Act, 1957 was read to mean 'or'.
59. The following portion from Maxwell on the Interpretation of Statutes, 12th Edn., pages 232-233 may be reproduced in support:- "In ordinary usage, "and" is conjunctive and "or" disjunctive. But to carry out ' the intention of the Legislature it may be necessary to read 'and' in place of the conjunction 'or', and vice versa.
The Disabled Soldiers Act, 1601, for example, in speaking of property to be employed for the maintenance of "sick and maimed soldiers," referred to soldiers who were either sick or maimed, and not only to those who were both.
The expression "local and public authorities" in section 4(2) of the Prevention of Corruption Act, 1916 has been held by Winn, J. Not to "mean authorities which are both local and public. . . (but) authorities which are either local or public.
By section 48(1) of the Mines and Quarries Act, 1954: "It shall be the duty of the manager of" every mine to take, with respect to every road and working place in the mine, such steps by way of controlling movement of the strata in the mine and supporting the roof and sides of the road or working place as may be necessary for keeping the road or working place secure". Lord Reid said that he could not "suppose that it was intended that in every case the manager must both attempt to control movement of the strata and provide support. .The natural meaning of the words of the section is that one or other of the prescribed methods must be adopted in every case."
The last question raised was that as the impugned order was malicious, biased and without jurisdiction it could not be validated by Ordinance XXIX of 1978. This contention also has no merit. As discussed above, we have not been able to find any fault with the impugned order to begin with. There should, therefore, be no need to go into the objection or in any case, to the validatory doctrine on that score. Secondly, the controversy before the High Court in Ashiq Mohammad Khan Mazari's case and the two Karachi cases was only about the interpretation of a phrase. The view of the respondent was that the word "and" in "Chairman and Members" conveyed the meaning of 'or' so that Chairman and every individual member could proceed to decide the matter severally. The Courts of Karachi and Lahore gave different meaning. It was at that stage that the validating enactment was, introduced with the specific object of conferring validity on the actions despite any order or decision of a Court.
61. The learned counsel for the petitioners could not deny the competence of the Legislature and its power to enact retrospectively so as to take away even the vested right. He, however, relied on the case of Zia-ur- Rehman where it was held that Article 281(2) of the Constitution does not validate acts which are coram non judice, without jurisdiction or done mala fides, for the reason that the said Article of the Interim Constitution did not contain express words ousting the jurisdiction of the Courts similar to those in clause (1) of the same Article.
Their Lordships approved the view "that where jurisdiction is in fact ousted, then an allegation of mala fides will not restore jurisdiction". The above view was approved in Federation of Pakistan v. Saeed Ahmad (PLD1974SC151).
62. Thus the rule laid down is not that orders which are coram non judice, without jurisdiction or mala fide cannot be validated but that in absence of clear intention of the Legislature to that effect, it will be presumed that normally no Legislature would like to perpetuate such orders. The preamble and the validating clause read as under : "Whereas it is expedient to validate certain orders passed by the Chairman or a Member of the Federal Land Commission;
(2) Validation.-Notwithstanding any order or decision ' of any Court, any order passed by the Chairman or by a Member of the Federal Land Commission at any time before the commencement of this Ordinance and puporting to be in exercise of the authority conferred on the Chairman and Members of the Commission by an order of the Federal Government under paragraph 29 of the Land Reforms Regulation, 1972, shall be deemed to have been validly passed and shall have, and shall be deemed always to have had, effect accordingly."
63. A look at the above provisions would show that the very purpos of enacting the same was to validate the orders already passed by the Chairman or the members while exercising powers conferred on them unde para. 29 of the Land Reforms Regulation, 1972. Thus in view of the rule referred to in para. 61 above, the impugned order stood expressly validated and was operative.
64. In view of what has been said above, we do not find any merit in this petition and dismiss the same.
However, as there have been differing opinions on the questions involved in this petition, we leave the parties to bear their own costs.