MIRZA VIQAS RAUF, J.---This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter to be referred as "Constitution") is in the form of writ of certiorari seeking annulment of the order dated 12th August, 2021, whereby respondent No.3 proceeded to cancel the lease of the petitioner.
WRIT OF CERTIORARI
2. Before touching merits of the case, it would be advantageous to peep in the legislative history of writ of certiorari. The "Constitution", though in specific words, does not define the word "Certiorari" but the literal meaning of word "Certiorari" is "to be certified". Furthermore though in the "Constitution", the word 'certiorari' has not been used, it, seems that, subject to important qualifications, this clause of the Article was intended to confer on the High Courts a jurisdiction similar to that which the King's Bench Division of the High Court in England exercised in certiorari.
Certiorari jurisdiction as already stated is based on. the principle that wherever judicial jurisdiction is exercised by an inferior Court or Tribunal, it is, in cases of abuse or excess, liable to be corrected by the King's Bench Division of the High Court; in other words, the High Court, as a delegate of supreme judicial authority from the Sovereign, is liable for keeping inferior Courts or tribunals exercising judicial power within the limits of their jurisdiction.
3. The first example of its use is found in the printed records in a letter written in 1252, from Henry III to the Mayor of Bordeaux, expressing's readiness to be informed of the grievances of his subjects in that city. As observed by Mr. Justice Scrutton, "the writ of certiorari is a very old and high prerogative writ drawn up for the purpose of enabling the Court of King's Bench to control the action of inferior Courts and to make it certain that they shall not exceed their jurisdiction; and therefore the writ of certiorari is intended to bring into the High Court the decision of the inferior tribunal, in order that the High Court may be certified whether the decision is within the jurisdiction of the inferior Court".
4. Article 199(1)(a)(ii) of the "Constitution" deals with the writ of certiorari, which reads as under:-
199. Jurisdiction of High Court. (1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law-
(a) on the application of any aggrieved party, make an order-
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or
(b) on the application of any person, make an order-
(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office;. or
(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II.
(underlining supplied for emphasis)
It is manifest from the above that through a writ of certiorari, a High Court on the one hand is vested with the power to correct the errors committed by the inferior Courts or Tribunals and on the other hand to annul the acts or proceedings taken by the inferior bodies without any lawful authority.
5. The order of certiorari issues out of High Court, and is directed to the Judge or officer of an inferior tribunal to bring proceedings in a cause of matter pending before the tribunal into the High Court to be dealt with in order to ensure that the applicant for the order may have the more sure and speedy justice. It may be had in either civil or criminal proceedings. The Court issuing a writ of certiorari acts in the exercise of a supervisory and not appellate jurisdiction. As regards the character and scope, certiorari will be issued for correcting error of jurisdiction. In order to explain it more precisely, it can be said that writ of certiorari can be issued in the following circumstances: -
(i) when an inferior Court or tribunal acts without jurisdiction or in excess of it or fails to exercise it.
(ii) when the Court or tribunal acts illegally in the exercise of, its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice.
(iii) if there is an error apparent on the face of the record.
Guidance in this respect can be sought from "Auqaf Department through Chief Administrator Auqaf, Punjab, Lahore v. Secretary. Ministry of Religious Zakat, Ushar and Minorities Affairs Government of Pakistan, Islamabad and 3 others" (2009 SCMR 210). The relevant extract from the same is reproduced below: -
8. As discussed in preceding paragraphs, there are two different kinds of property, one 'Muslim Waqf Property' defined in section 2(e) of the Punjab Waqf Properties Ordinance, 1979 and the other 'evacuee trust property' defined in section 2(1)(d) of the Evacuee Trust Properties (Management and Disposal) Act, 1975. These two properties can be maintained by the concerned functionaries/ authorities under the relevant provisions of law. The Administrator Auqaf is not competent to take over possession, control and management of the 'evacuee trust property', rather it is the Chairman, Evacuee Trust Property Board, who is competent for the same. Learned counsel for the petitioner has not been able to controvert the above provisions of law. The High Court has validly observed that the question as to whether the transfer in 1960 was or was not 'bona fide' cannot be determined because it was not a question of law. The High Court has competently dismissed the writ petition as findings recorded by the respondent/authorities being based on appreciation of evidence could not be interfered with by the High Court in exercise of "extraordinary" constitutional jurisdiction and in regard to finding of fact recorded by the respondent writ of "certiorari" could only be issued, if in recording such findings, the respondent had acted on evidence which was legally inadmissible or had refused to accept admissible evidence or if the findings were not supported by any evidence at all. If in such cases error would amount to error of law. Even otherwise, where there are factual controversies, this Court would also not interfere with the concurrent findings of facts recorded by the lower fora. The impugned order having not suffered from any such infirmity or illegality calling for interference by this Court.
6. In the case of Rahim Shah v. The Chief Election Commissioner of Pakistan and another (PLD 1973 Supreme Court 24) the Hon'ble Supreme Court of Pakistan also outlined the scope of writ of "certiorari" in the following words :- "It may be further observed that although the conditions for grant of certiorari which obtain in English Courts do not apply to High Courts in Pakistan at the same time the extent of this constitutional jurisdiction cannot be enlarged to an appeal on facts, or questions of law. An appeal is a creation of statute and if no appeal is provided by the Legislature the determination of a tribunal of exclusive jurisdiction is final. The scope of interference in the High Court is, therefore, limited to the inquiry whether the tribunal has in doing the act or undertaking the proceedings acted in accordance with law. If the answer be in the affirmative the High Court will stay its hands and will not substitute its own findings for the findings recorded by the tribunal. Cases of no evidence, bad faith, misdirection or failure to follow judicial procedure, etc. are treated as acts done without lawful authority and vitiate the act done or proceedings undertaken by the tribunal on this ground. Where the High Court is of opinion that there is no evidence proper to be considered by the inferior tribunal in support of some point material to the conviction or order, certiorari will be granted."
7. This Court in the case of Bashir Ahmad Khan v. Additional Sessions Judge and others (2020 MLD 42) also observed as under:-- "7..........The person invoking the Constitutional jurisdiction under the above Article seeking issuance of writ of certiorari, by way of setting aside the order, has to show that the order, under challenge, violates the condition mentioned in the above provisions of the Constitution, that the authority/court/tribunal was denuded of jurisdiction whatsoever to pass the order or that the order impugned is unsustainable on account of being result of extremely, improper exercise of jurisdiction or has clearly been passed in violation of any provisions of law or is product of excess or failure of jurisdiction, by the tribunal or that some principle of law laid down by the superior courts, which under Article 189 of the Constitution is binding on the subordinate courts has been violated.
The scope of interference by the High Court is, therefore, limited to the inquiry whether the tribunal has in doing the act or undertaking the proceedings acted in accordance with law. If the answer be in the affirmative the High Court will stay its hands and will not substitute its own findings for the findings recorded by the tribunal. Cases of no evidence, had faith, misdirection or failure to follow judicial procedure, etc. are treated as acts done without lawful authority and vitiate the act done or proceedings undertaken by the Tribunal on this ground."
8. In the nutshell under the above referred article of the "Constitution", a High Court is empowered to interfere in all cases of excess of jurisdiction, whether the person exceeding jurisdiction is a Court, a judicial or a quasi-judicial body or a purely executive or administrative Tribunal or officer, provided such body, authority or officer is performing functions in connection with the affairs of the Federation, a Province or a Local authority. It is trite law that a writ of certiorari cannot be used as a substitute of appeal or revision as its scope is limited and circumscribed to the eventualities noted hereinabove.
FACTUAL BACKGROUND
9. In order to lease out property bearing Khasra No.2546/139-140 measuring 4-Kanal 3-Marla 18 square feet situated at Dhoke Dalal, Rawalpindi (hereinafter to be referred as lease property"), an advertisement was published by the Deputy Administrator Evacuee Trust Property, Rawalpindi (respondent No.3) in prominent newspapers inviting bids from the interested persons. The petitioner participated in the open auction and was declared as successful bidder against the total consideration of Rs.4 crores 46 lacs, which was accordingly deposited. In pursuance thereof, a lease agreement dated 18th September, 2017 was executed between the petitioner and the Evacuee Trust Property, Government of Pakistan through the Assistant Administrator Evacuee Trust Property, Rawalpindi initially for a period of 30 years and possession was handed over to the petitioner. The petitioner then applied for the commercialization of the "lease property" to respondent No.5 after obtaining the no objection certificate (NOC) from the Evacuee Trust Property Board. The commercialization was accorded on receipt of commercialization fee of Rs.89,05,104/-.
It is claim of the petitioner that after commercialization of the "lease property" he also submitted a building plan before respondent No.5, and when he was intending to raise a commercial building his lease has been cancelled through order dated 12th August, 2021 with malafide intent and under political motivation.
10. In the light of averments in the petition and after hearing learned counsel for the petitioner, the petition was admitted for regular hearing vide order dated 26th August, 2021. In order to resist the petition, the respondents submitted their report and parawise comments wherein it is asserted that the lease has been cancelled in exercise of powers under Section 25 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 (hereinafter to be referred as "Act, 1975") as it was to be utilized for public purpose.
ARGUMENTS
11. In support of this petition Malik Qamar Afzal, Advocate submitted that lease of the petitioner has been cancelled in colourable exercise of the jurisdiction. He added that "lease property" was initially not included in the list but on account of political considerations it was later on made part of list to victimize the petitioner. Learned counsel emphasized that the impugned action of the cancellation of lease is unilateral and even no notice was served to the petitioner, enabling him to explain his position. It is argued that cancellation of lease in such a manner is neither permissible under Section 25 of the "Act, 1975" nor the scheme framed thereunder. Learned counsel contended that impugned action has been taken in pursuance to notification dated 27th May, 2021 which cannot be given effect retrospectively. He further contended that the impugned order is the outcome of malice in fact. In order to supplement his contentions, learned counsel has placed reliance on Abdullah and 7 others v. Province of Balochistan through Secretary Education Civil Secretariat and another (2021 PLC (C.S.) 272), Suo Motu Case No.13 of 2009 (PLD 2011 Supreme Court 619) and Dr. Mrs. Nasim Qureshi v. Deputy Administrator, Evacuee Trust Property, Karachi and another (1987 CLC 213).
12. On the contrary, Mr. Sajeel Shahryar Swati, Advocate representing respondent No.1 submitted that "lease property" was admittedly an evacuee property and as it was required for public purpose, so in order to utilize the same for the said purpose, lease was cancelled in accord with law. Learned counsel submitted that the petitioner being lessee has no vested right to seek protection of the same through constitutional petition. Learned counsel further submitted that due compliance to Section 25 of the "Act, 1975" has been made and even if there was some lapse that is curable because said provision was not mandatory. Learned counsel contended that matter in issue falls within the policy making domain of executive, which cannot be subjected to scrutiny under the constitutional jurisdiction. Learned counsel submitted that notification dated 27th May, 2021 was issued in exercise of powers conferred under Section 26 of the "Act, 1975". It is contended 'that case of Dr. Mrs. Nasim Qureshi's supra is quite distinguishable. In order to supplement his contentions, learned counsel has placed reliance on Food Corporation of India and others v.
Jagannath Dutta and others (1993 SCMR 2249), Mian Rafi-ud-Din and 6 others v. The Chief Settlement and Rehabilitation Commissioner and 2 others (PLD 1971 Supreme Court 252), Muhammad Ishaque Chowdhury and another v. Nur Mahal Begum and others (PLD 1961 Supreme Court 426) and Kalua v. The State of Uttar Pradesh (PLD 1958 Supreme Court (Ind.)
347).
13. Learned Law Officers representing the Federation as well as Province and learned counsel for respondents Nos.2 to 4 adopted the arguments advanced by learned counsel for respondent No.1.
14. On the contrary, Mr. Muhammad Naeem Siddique Bhatti, Advocate representing respondent No.7 submitted that his client moved a petition under Section 10 of the "Act, 1975" which is still pending. He added that pending reference, any decision on this petition would prejudice the rights of his client.
15. Heard. Record perused.
FINDINGS
16. Before dilating upon the matter in issue it would be expedient to observe that from the facts and respective contentions of learned counsel for the parties, there emerges two moot points which require determination of this Court which are as under :-
(a) Nature and scope of Section 25 of the "Act, 1975", and
(b) competency of constitutional petition under the lease agreement.
17. As regards point (a) it is observed that the petitioner after being declared as highest bidder in the open auction was bestowed with the leasehold rights of the "lease property" through lease agreement dated 18th September, 2017 initially for a period of thirty years and possession was handed over to him. After obtaining the property on lease, the petitioner applied for its commercialization before respondent No.5 on obtaining a no objection certificate (NOC) from the Evacuee Trust Property Board but in the meanwhile a drive was initiated by the Prime Minister of Pakistan to promote the education and health services in the country as a sequel of which the Federal Cabinet after considering summary dated 24th February, 2020 directed the Secretary, Religious Affairs and Interfaith Harmony to finalize immediately all the requirements, including framing of Rules for utilization of Evacuee Trust Property Board's Urban lands for the purpose of education and health. Later on, the Federal Cabinet accorded the approval of utilization of evacuee trust properties/lands for education and health purposes in principle. In furtherance thereof, through Notification No. S.R.O. 71 (KE)/2020 dated 09th October, 2020 in exercise of the powers conferred by Section 30 of the "Act, 1975" the Evacuee Trust Property Board, with the prior approval of the Federal Government introduced certain amendments in the Scheme for the Management and Disposal of Urban Evacuee Trust Properties, 1977 (hereinafter to be referred as "Scheme, 1977").
The amendments include clause 18-E as well, which reads as under :- "18-E Development of and evacuee trust land for education and health purpose for public sector and Government philanthropic institutions:- If use of evacuee trust rural or urban agricultural land or property is declared for public purpose, by the Federal Government and is required to be developed for educational and health purpose the following procedure shall be adopted by the Board, namely:-
(a) request for lease by the Federal Government, or the Provincial or Local Government as the case may be, shall be addressed to the Division to which business of the Act stands allocated;
(b) terms and conditions, monthly rent and goodwill money and non-refundable security shall be determined by the Board on case to case basis; and
(c) final approval shall be granted by the Federal Government."
This followed issuance of Notification No.S.R.O. 691 (1)/2021 dated 27th May, 2021 whereby the Federal Government in exercise of powers conferred under Sections 26(1) of the "Act, 1975" delegated its powers in respect of Sections 4, 11, 12, 23, 25, 29 and 30 of the said Act to the Minister- in-charge of the Division to which business of the evacuee trust property stands allocated. In furtherance whereof, the Minister of Religious Affairs and Interfaith Harmony vide notification dated 14th July, 2021 proceeded to declare fifty-seven evacuee trust properties/lands to be utilized for public purpose including the "lease property". In furtherance of above development, the Evacuee Trust Property Board proceeded to cancel the lease of the petitioner by way of order dated 12th August 2021 and approved the process for reimbursement of non-refundable security to the petitioner. The Finance Department Government of the Punjab through letter dated 24th August, 2021 sanctioned and released an amount of rupees 88,000 million through technical supplementary grant for the scheme titled "Establishment of Govt. Associate College for Women, Dhoke Dalal, Rawalpindi". It is, however, not disputed by the respondents that initially fifty seven properties were earmarked in which "lease property" was not included and it was added in the year 2021.
18. In order to comprehend the true import and scope of Section 25 of "Act, 1975" same is reproduced below :- "25. EJECTMENT:- The Chairman, an Administrator, a Deputy Administrator, or an Assistant Administrator may eject or cause to be ejected any person in possession or occupation of any evacuee trust property whose possession or occupation is not authorized by or under any of the provisions of this Act or who contravenes or may have contravened any of the terms and conditions under which the property is held by him, or who has failed to pay public dues, or has caused damage to any such property, or any person in occupation or possession of any evacuee trust property which is required for an object which is considered to be a public purposes by the Federal Government, after giving him notice, and for the purpose or such ejectment may use or cause to be used such force as may be considered necessary."
From the bare reading of Section 25 it is manifestly clear that the Federal Government is competent to eject any person in possession or occupation of any evacuee trust property if it is required for an object, which is considered to be for public purpose.
19. Power of the Federal Government to eject the petitioner from the "lease property" is even not seriously disputed by the petitioner. The impugned order of cancellation is mainly questioned on two grounds; firstly that ejectment cannot be equated with the termination of lease and secondly that no notice as was required under Section 25 of the "Act, 1975" was ever served to the petitioner.
It is oft repeated principle that preamble of a statute always plays a leading role for understanding its object and scope. As per preamble of the "Act, 1975" it was promulgated to provide for the management and disposal of evacuee trust properties attached to the charitable, religious or educational trusts or institutions. With all reverence to the principles laid down in the cases of Abdullah and 7 others v. Province of Balochistan through Secretary Education Civil Secretariat and another (2021 PLC (C.S.) 272), Suo Motu Case No.13 of 2009 (PLD 2011 Suprem e Court 619) supra relied upon by learned counsel for the petitioner, it is observed that said principles are hardly attracted to the present case and as such reliance on the said judgments is of no avail to the petitioner.
20. Now coming back to Section 25 of the "Act, 1975" in the light of preamble it can safely be inferred that the evacuee trust properties are mainly meant to charitable, religious and educational purposes. The question as to whether a property is required for public purpose exclusively falls within the domain of Federal Government.
21. So far contention of learned counsel for the petitioner that the word "ejectment" does not include ;the termination; suffice to observe that it is apparently misconceived in the light of definitions of the word "eject" provided in the Advanced Law Lexicon 5th Edition and Black's Law Dictionary Tenth Edition, which read as under :- Advanced Law Lexicon 5th Edition "Eject. To send away; to thrust out. As applied to a person to compel him against his desire to leave a place.
To evict from property [Ss. 112, Prov. And 114, T.P. Act (4 of 1882]; to throw out [S. 443, I.P.C. (45 of 1860)]"
Black's Law Dictionary Tenth Edition "eject, vb. (15c)
1. To cast or throw out.
2. To oust or dispossess; to put or turn out of possession.
3. To expel or thrust out forcibly (e.g., disorderly patrons). --- ejector, vb."
The ultimate consequence of ejectment and termination is thus similar and akin.
22. Attending the second limb which is relatable to non-issuance of notice, it is observed that in the light of well-entrenched principles of interpretation of statutes a provision of law can only be termed as mandatory when on account of its non-compliance some penal consequences are also provided. In absence of any penal consequences generally such provision can be treated as directory. Guidance in this respect can be sought from The State through Regional Director ANF v.
Imam Bakhsh and others (2018 SCMR 2039). The relevant extract from the same is reproduced below :- "11. To distinguish where the directions of the legislature are imperative and where they are directory, the real question is whether a thing has been ordered by the legislature to be done and what is the consequence, if it is not done. Some rules are vital and go to the root of the matter, they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance. The duty of the court is to try to unravel the real intention of the legislature. This exercise entails carefully attending to the scheme of the Act and then highlighting the provisions that actually embody the real purpose and object of the Act. A provision in a statute is mandatory if the omission to follow it renders the proceedings to which it relates illegal and void, while a provision is directory if its observance is not necessary to the validity of the proceedings.
Thus, some parts of a statute may be mandatory whilst others may be directory. It can even be the case that a certain portion of a provision, obligating something to be done, is mandatory in nature whilst another part of the same provision, is directory, owing to the guiding legislative intent behind it. Even parts of a single provision or rule may be mandatory or directory. "In each case one must look to the subject matter and consider the importance of the provision disregarded and the relation of that provision to the general object intended to be secured." Crawford opined that "as a general rule, [those provisions that] relate to the essence of the thing to be performed or to matters of substance, are mandatory, and those which do not relate to the essence and whose compliance is merely of convenience rather than of substance, are directory." In another context, whether a statute or rule be termed mandatory or directory would depend upon larger public interest, nicely balanced with the precious right of the common man. According to Maxwell, "Where the prescription of statute relates to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed or in other words as directory only. The neglect of them may be penal indeed, but it does not affect the validity of the act done in disregard of them." Our Court has held while determining the status of a mandatory or directory provision that "perhaps the cleverest indicator is the object and purpose of the statute and the provision in question." And to see the "legislative intent as revealed by the examination of the whole Act."
23. In order to properly understand the proposition in question it would be more beneficent to have a recourse to the book written by Justice Fazal Karim Former Judge, Supreme Court of Pakistan "Judicial review of Public Actions" Volume 2 (Second Edition) where at page No.915 he while dealing with the effect of non-hearing wrote as under:-- "Effect of Non-Hearing We have seen that the English cases do not draw a line between cases in which the right of hearing is given by a statute or statutory instrument and cases in which the basis is the maxim, audi alteram partem. Failure to give hearing in either class of case produces the same result. The reason seems to be that a right of hearing is implied, and what is implied is a necessary part of the statute. In Dina Sohrab case (PLD 1959 SC (Pak) 45) and in Imran Ullah v. Crown (PLD 1954) FC 123) also, no such distinction was made.
There are, however, cases in Pakistan which take the view that denial of the right of hearing is a procedural error or omission. To quote Muhammad Munir CJ from Tariq Transport Co. case [PLD 1958 SC (Pak) 437, 451], "it is a sound rule, recognized by almost all general codes of procedural law and absolutely essential for the preservation of all duly considered verdicts, that an omission or error in procedure, unless it has occasioned a failure of justice or prejudiced a party in the presentation of his case, is not a sufficient ground for reversing the decision. This view was followed in Zafarul Ahsan case [PLD 1960 SC (Pak) 113].
This view, we venture to think, proceeds on the narrow original meaning of 'jurisdiction', namely that if there is authority to enter upon an enquiry then nothing that happens during the course of the enquiry will affect the validity of the final decision. That theory, we have seen, has long ceased to be valid. However that may be, the words in the above quotation `for the preservation of all duly considered verdicts' are very significant. Can a verdict reached in complete disregard of the fundamental principle of justice that nobody shall be condemned unheard be said to be a duly considered verdict? The answer plainly is in the negative.
The position as regards the courts in Pakistan was summed up in Collector Sahiwal v. Muhammad Akhtar (1971 SCMR 681) which has been noticed above, and in which the violation was of a provision in the Constitution of 1962, namely that no person in the civil service could be dismissed etc without an opportunity of being heard: "The Courts in Pakistan have, however, taken the view that where the giving of a notice is provided for by the statute itself, then the failure to give such a notice is fatal and cannot be cured. But where there is no specific statutory provision and reliance is only placed on the principles of natural justice and audi alteram partem, there if at some stage or other the person aggrieved has been given a fair opportunity of representing his point of view, then the defect, if any, in the initial order may be deemed to have been cured. Thus, in the case of Muhammad Ishaq v. Dr. Saiduddin Swaleh, PLD 1959 Karachi 669, it was pointed out that each case will have to be determined on its facts. If the statutory provision of notice be of a mandatory nature, then an order without any notice would be wholly void; but if there be no such provision or if the provision be merely of a directory nature, then, wherever a violation of this principle of natural justice is alleged, the Court may call upon the party alleging the same to prove prejudice before it sets aside the order. Such prejudice would obviously not be there if it is found that the party has been actually given a full hearing by the appellate or revisional authority and afforded every opportunity of showing cause against the allegations made. To the same effect is the view of the Peshawar High Court in the case of Charsaddah Sugar Mills v. Government of Pakistan PLD 1971 Pesh. 210."
24. There is yet another important aspect that generally before taking any punitive action it is imperative to afford an opportunity of hearing to the affected person as is ordained in principle of "audi alteranl partem" but there is an exception to the said principle. When through a decision it is to be adjudged as to what the public interest requires such a decision cannot be termed as termination of civil rights and obligations. Similarly if the facts leadings to the impugned action are incontrovertible and admitted and despite affording an opportunity of hearing no other inference is deducible from the facts and circumstances, mere non-issuance of notice cannot be made basis for setting at naught such action as a rule of universal application. The above term has also been elaborated by Queen's Bench Division, Divisional Court on the application of Alconbury Developments Ltd v. Secretary of State for the Environment, Transport and the Regions and other cases (2001 UKHL 23) in the following words:- "Apart from authority, I would have said that a decision as to what the public interest requires is not a 'determination' of civil rights and obligations. It may affect civil rights and obligations but it is not, and ought not to be, a judicial act such as art 6 has in contemplation. The reason is not simply that it involves the exercise of a discretion, taking many factors into account, which does not give any person affected by the decision the right to any particular outcome. There are many such decisions made by courts (especially in family law) of which the same can be said.
Such decisions may nevertheless be determinations of an individual's civil rights (such as access to his child: compare W v. UK (1987) 10 EHRR 29) and should be made by independent and impartial tribunals. But a decision as to the public interest (what I shall call for short a 'policy decision') is quite different from a determination of right. The administrator may have a duty, in accordance with the rule of law, to behave fairly ('quasi-judicially') in the decision-making procedure. But the decision itself is not a judicial or quasi-judicial act. It does not involve deciding between the rights or interest of particular persons. It is the exercise of a power delegated by the people as a whole to decide what the public interest requires."
25. In the case of Justice Khurshid Anwar Bhinder and Others v. Federation of Pakistan and another (PLD 2010 Supreme Court 483) the Hon'ble Apex Court has also delved into the matter in issue and held as under :- "40. It is also an admitted legal 'position that "reversing an action taken initially without issuing a show-cause notice was not a principle of universal application. Undoing of such an act was also refused where the facts leading to the impugned action were uncontrovertible and admitted and where despite a prior hearing, the results could and would not have been any different. Reliance is placed on the following authorities:-- S.L. Kapoor v. Jagmohan and others AIR 1981 SC 136, Muhammad Ishaq v. Said-ud-Din PLD 1959 Kar. 669, Abdul Haq Indhar and others v. Province of Sindh and others 2000 SCMR 907."
Besides the reasoning as given above, it may not be lost sight of that the applicants were never made respondents in Const. Petition No.9 of 2009 and Const. Petition No.8 of 2009 and no specific relief whatsoever was sought against them in person. The removal of the applicants is fall out of the judgment impugned which cannot be questioned individually."
26. In somewhat similar circumstances the Supreme Court of India in the case of Punjab National Bank and others v. Manjeet Singh and another (AIR 2007 Supreme Court 262) ruled as under:- "18......... The principles of natural justice were also not required to be complied with as the same would have been an empty formality. The Court will not insist on compliance of the principles of natural justice in view of the binding nature of the award. Its application would be limited to a situation where the factual position or legal implication arising thereunder is disputed and not where it is not in dispute or cannot be disputed. If only one conclusion is possible, a writ would not issue only because there was a violation of the principle of natural justice."
27. Though learned counsel for the petitioner has heavily relied upon the case of Dr. Mrs. Nasim Qureshi's supra but same is distinguishable on the grounds firstly that in the said case there were two properties and only notice was issued to one of the lessees, secondly nothing was brought on the record that properties were required for public purpose. In this context case of The Tariq Transport Company, Lahore v. (1) The Sargodha-Bhera Bus Service, Sargodha, (2) The Regional Transport Authority, Lahore and (3) The Provincial Transport Authority, Lahore (PLD 1958 Supreme Court (Pak.) 437 is also quite relevant, which clinches the issue. The relevant extract from the same is reproduced below:-- "The learned Judge seem to have acted on the assumption that the provisions of S. 57 being mandatory any departure from them, however immaterial in the circumstances of a case, is sufficient to vitiate the entire proceedings. This, to, my mind, is not the law because the violation of a procedural rule regulating the hearing, if it results in an error so minor as not to amount to the denial of a fair hearing, cannot be a ground for quashing the, proceedings, if, in fact, by the irregularity no prejudice has been caused to the petitioner for a writ. This is how S. 57 has been construed by the administrative appellate authority and, in my opinion, it is a sound rule, recognized by almost all general codes of procedural law and absolutely essential for the preservation of all duly considered verdicts, that an omission or, error in procedure, unless it has occasioned a failure of justice or prejudiced a party in the presentation of his case, is not a sufficient ground for reversing the decision. In the present case, the appellant was fully heard in support of his objection to the further grant of permits for the Sargodha-Bhera route and that general objection, if accepted, would have affected the appellant as well as the other applicants for the same route, and it not being the respondent's case that he had any particular objection to urge against the appellant personally, the irregularity in procedure which did not influence the decision, which would have been the same even if the respondent had objected to the appellant's application, did not vitiate the proceedings."
Reference in this respect can also be made to Muhammad Ishaque Chowdhury and another v.
Nur Mahal Begum and others (PLD 1961 Supreme Court 426).
28. As already observed that in pursuance to Section 30 of the "Act, 1975" the "Scheme, 1977" was framed. Chapter VII of the said Scheme is very relevant. Clause 24 authorizes the Chairman to terminate the tenancy of any person if the property is required for any public purpose, which is reproduced below :- "24. The tenancy of any person may be terminated by the Chairman, if the property is required for any public purpose."
29. Adverting to point (b) it is observed that the petitioner is holder of lease rights under the agreement dated 18th September, 2017, which was made subject to the provisions of the "Act, 1975" and "Scheme, 1977" as well as instructions of the Evacuee Trust Board issued from time to time. Law is well settled that a lessee has no vested right to get it enforced through constitutional petition. In other words terms and conditions of the lease agreement cannot be implemented by resorting the constitutional jurisdiction of this Court. Even otherwise it is petitioner's own case that he has been made victim of malice in fact, which by itself is a question requiring factual determination. It is trite law that writ jurisdiction cannot be exercised for determining a question of fact. As per petitioner's own estimation the impugned action was taken with object to cause him financial loss as narrated in ground (F) of the petition. If this is the position then he may have a resort to the suit for recovery of damages. Reliance in this respect can be placed on Pakcom Limited and others v. Federation of Pakistan and others (PLD 2011 Supreme Court 44).
30. It is apparent from the record that impugned action of cancellation of lease is founded on a public purpose and the "lease property" is not the only property, which has been earmarked for the said purpose. As already observed that powers are vested with the Federal Government to take over the possession of any evacuee property for the public purpose, so the determination of suitability of property clearly vests with the executive/government. No fetters can be put to the powers of the executive to utilize such property for public welfare only on the whims and caprice of the lessee. Needless to observe that this whole exercise will not cause prejudice to the rights, if any, of respondent No.7 as the "lease property" is now no more available.
31. The nutshell of above discussion is that under the circumstances impugned order of cancellation of lease of the petitioner cannot be termed as without lawful authority as per contemplation of Article 199(1)(a)(ii) of the "Constitution". Resultantly this petition fails and is dismissed with no order as to costs.