1. ABDUL KADIR SHAIKH, A. C. J.--The petitioner, Mst. Hajra, has challenged the order of the Additional Commissioner (Judicial) Karachi, dated the 6th of July 1970, passed in the delegated exercise of authority under section 3 of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956, requisitioning her property, namely Bungalow No, C-45, Kutchi Memon Co- operative Housing Society, Karachi.
2. The first contention raised by the learned counsel for the petitioner was that no notice as required under section 3(1) of the Act was given to the petitioner, and she was thus deprived of the precious right of being heard to show cause against the proposed action; the impugned order thus being contrary to law is liable to be quashed on this ground alone.
3. It was then contended 'that the Additional Commissioner of Karachi not being the Commissioner, was not even competent to pass the impugned order.
4. The learned counsel next contended that it was necessary that the purpose for which the property was requisitioned, should have been stated in the impugned notification itself, because no order under subsection (1) of section 3 could be passed, unless in the opinion of the Provincial Government or its delegate it was necessary or expedient to requisition the property. In other words, the contention was that the impugned order is not in consonance with the terms on which power can be exercised under the law.
5. It was finally contended that the Bungalow in question was leased out to one Illahi Bux, son of Haji Abdul Kadir Dehri of Nawabshah, and on the termination of the lease, that is on the 30th of June 1970, the petitioner was in the process of carrying out certain repairs to the Bungalow so as to make it suitable for her own personal use and occupation, and on these facts and circumstances, the order under section 3 could not be passed due to the embargo contained in the fourth proviso of the section that no owner in occupation of a residential house shall be required to vacate it.
6. It may be said that this petition was filed in this Court on the 8th of July 1970, and during the proceedings, the Act was amended on the 5th of August 1970, by the West Pakistan Requisitioning of Immovable Property (Temporary Powers) (Sind Amendment) Ordinance, 1970. By this Ordinance, the provision contained in section 3(1) with regard to the owner being given an opportunity of being heard and showing cause against the proposed action of requisition of property was deleted with retrospective effect from the 1st of July 1970, and instead subsections 2(a) and 2(b) were added. These are to the following effect: "2(a) Any person aggrieved by an order made under sub-section (1) requisitioning any building, may make an appli-cation to the authority making the order, to review the order, and on such application being made, such authority, after giving the applicant an opportunity of being heard and adducing evidence in support of his application, may confirm, modify or rescind the order.
7. 2(b) An application for review under subsection 2(a) shall be made- (i)in the case of an order made on or after 1st July 1970, but prior to 6th August 1970, not later than 23rd August 1970; and (ii)in the case of an order made on or after 6th August 1970, within fourteen days of the making of the order."
8. It would be seen from the above that whereas the Amending Ordinance, on one hand, omitted the provision contained in section 3(1) of the Act with regard to an owner being given opportunity of being heard before the proposed action is taken, on the other hand, it provided a right to any person aggrieved by the order under section 3(1) to file a review application to the authority making the order, and on his doing so, duty was cast on the authority to give the applicant an opportunity of being heard and adducing evidence in support of the claim and then confirm, modify or rescind the order. A remedy has thus been made available to the petitioner by the Amending Ordinance itself, of making the grievance against or challenge to the order questioned in this petition. The alternative remedy being an adequate one, it must be exhausted in the first instance before challenge to the order by way of this Constitutional petition can be entertained. On this ground alone the petition must fail.
9. No doubt on the date the impugned order was passed, it was the requirement of section 3(1) that the petitioner should have been granted an opportunity of being heard and showing cause against the proposed action. The right of hearing has been maintained, but with this difference that it is made available only after the action is taken. The learned counsel for the petitioner on this aspect of the case contended that the right vested in the petitioner on the day the order was passed, could not have been taken away retrospectively.
10. In order to appreciate this contention, it would be necessary to examine the nature and the scope of the right granted under section 3(1). The provision with regard to opportunity of hearing to show cause against the proposed action was made in the Act, so that there is no offence to the well established principle of audi alteram partem, that is, "no man shall be condemned unheard." The Courts of law having recognised this principle to be fundamental that even in absence thereof, it is to be read in every statute that provides for the making of an order affecting a right in property or status or a penal consequence against any person.
11. On the question whether this right has to be granted to or construed in favour of an aggrieved person, before or after the action is taken, the answer must necessarily depend upon what the Legislature wishes to achieve in a given situation and circumstances. As to whether such a right is to be applied or construed. Hamoodur Rahman, J., (as he then was) observed in the case of Abul A'la Maudoodi v. Government of West Pakistan : "In my view, the nature of the thing to be done, the manner in which it is to be done and the1 circumstances in which it is to be done are important considerations which must be taken into account in determining whether the above-mentioned principles (audi alteram partem) should be applied in a given case or not."
12. Referring to the English case of 'Ridge v. Baldwin and others ', his Lordship observed:-- "But even in this case one of the Noble Lords was con-strained to observe that 'it has been said many times that the exact requirements in any case of the so-called principles of natural justice cannot be precisely defined; that they depend in each case on the circumstances of that case,' and to point out that even the decisions on this point were not uniform nor was it possible 'to extract from them the means of propounding a precise statement of the circumstances or of the cases in which the principles can be invoked before the Courts.' I respectfully agree with these observations, as they coincide with my own views in this matter."
13. It may be further pointed out that it is well established that it is even open to a competent Legislature to specifically take away such rights by making the intention clear in this regard. In the present case, the competent Legislature deemed it fit to provide for remedy to an aggrieved person to apply in review against an order made under section 3(1) of the Act to the authority making it, and a duty was cast on the authority of giving the applicant an opportunity of being heard and adducing evidence in support of the application, and then confirm modify or rescind the order. It is also noteworthy to point out that the scope of challenge to the order has been widened to extent to any person aggrieved by the order, instead of the position that obtained before the Amending Ordinance which limited the giving of opportunity of hearing only to the owners of the property.
14. The change brought about by the Amending Ordinance in real effect is the shifting of the grant of opportunity of hearing from a prior stage to a later stage in the proceedings. This by no means can be said to be a denial or the deprivation of the right. No principle of rule-making that has thereby been offended was pointed out. There is, therefore, no scope for an argument that the change involves deprivation of a vested right.
15. We therefore, find no substance in the first contention raised by the learned counsel for the petitioner.
16. The next contention was based on the language of Notification No, Judl. 1-16(21)/60 dated 16th June 1962, by which the power to take action under section 3(1) was delegated to the Commissioner. The Act does not define "Commissioner", but we find that aid can be obtained from the West Pakistan General Clauses Act, 1956, which in its section 2(17) defines "Commissioner" to mean-- "the Chief Officer-in-charge of the revenue and general administration of a Division, and shall include an Additional Commissioner of such Division."
17. In this connection we may refer to yet another argument of the learned counsel for the petitioner that the subsequent amendment in the definition of "Commissioner" brought about by Act VIII 1964, by which an Additional Commissioner was included, would not affect the notification as it was issued much earlier in the year 1962. This contention is also without substance as on the date the impugned order was passed, the Additional Commissioner was the Commissioner within the meaning of section 2(17) of the West Pakistan General Clauses Act, 1956, reference to which must necessarily be made to interpret the word "Commissioner".
18. The third contention raised by the learned counsel for the petitioner was resisted by the learned Advocate-General appearing for the respondent on the ground that, the impugned order was passed by the learned Additional Commissioner strictly in the-form prescribed under the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Rules, 1962 and the words used are identical to those that appear therein.
19. Reference to Form C appended to the rules, does indeed show that the impugned order was2 passed in conformity with it. There can be no scope for an attack on the language of the order if it is couched in the terms the law requires it to be so. Moreover, in the counter-affidavit, the learned Additional Commissioner has categorically stated that the disputed bungalow was requisitioned by him for the residence of Mr. Manzoorul Hassan, Joint Secretary to the Government of Sind in the Finance Department. The order passed cannot, therefore, be said to be outside or beyond the purpose for which the property can be requisitioned under section 3.
20. The last contention raised by the learned counsel would require investigation into disputed facts, as it has been asserted on behalf of the respondent that the bungalow was lying vacant on the day it was requisitioned, and that it was not in the possession of the petitioner. In this connection it was pointed out to us from the records that Mr. Manzoorul Hassan had categorically stated in his application that the bungalow was lying vacant, and the learned Additional Commissioner took the action believing that information to be correct. However, since the petitioner has been provided with an alternative remedy of making an application for review, in which proceedings she would have not only the right of being heard, but also of adducing evidence in support of this assertion. it will not be appropriate for us to resoive this factual controversy in these proceedings.
21. For these reasons, we find no substance in this petition. It is accordingly dismissed, but in the circumstances we leave the parties to bear their own costs. We wish to make it clear that the interim order dated the 9th July 1970, directing maintenance of status quo stands vacated forthwith. PLD 1964 SC 673 1963 All E B. 66