1. ' MUNAWAR ALI KHAN, J.--The factual background of this petition is that Doulat Boman Irani, sister of the petitioner Shah Behram Irani inherited 5/21 share in the property bearing No.271, Victoria Road Karachi, following the death of her parents; father and original owner of the property, Boman Abadan Irani and mother Motibai Boman Irani. On 29-8-1974 Doulat Boman Irani, an Iranian national, gifted her share in the aforesaid property to the petitioner through a registered deed.
2. However by notification, dated 24-3-1977, the Federal Government in exercise of the powers conferred by rule 185 (1)(b) of Defence of Pakistan Rules vested her gifted share in the Custodian of Enemy Property as .being the property of enemy (i.e. a resident of India). The petitioner on his behalf and as an attorney on behalf of his sister Mrs. Doulat Boman Irani approached the Federal Government for vacating the vesting order referred to above but without any success. He was informed by the letter dated 10-8-1977 that his representation against the vesting order had been rejected. Similar representation made by Mrs. Doulat Boman Irani herself from Tehran also met with the same fate vide letter dated 18-10-1977. It is said that on 23-2-1978 the petitioner and his brother Faridoon Boman Irani sold their share (16/21), in the disputed property, leaving the gifted share (5/21), which however continued to be intermeddled with by the Custodian of the Enemy Property.
3. However in supersession of the notification dated 24-3-1977 vesting the gifted share of Mrs. Doulat Boman Irani in the Custodian of the Enemy Property, two notifications No.S.R.O-1119(1)/78 and No.S.R.0-1120(1)/78 were issued on 19-9-1978 under rules 185(2) and 181(1) read with section 2 of the Enemy Property (Continuance of Emergency Provisions) Ordinance, 1977, whereby not only the gift made by Mrs. Doulat Boman Irani was declared void but also the share of her property covered by the said gift was vested in the Custodian of the Enemy Property. The latter subsequently agreed to sell the said ,share (5/21) of Mrs. Doulat Boman Irani to a third party. Hence this petition has been filed seeking declaration that the aforementioned notifications are void, illegal and without lawful authority.
4. ' We have heard the learned counsel for the parties in support of their respective view points and with their assistance have also perused the relevant documents.
5. ' Although initially the learned counsel for the petitioner raised a number of contentions, he ultimately confined himself only to the argument that the impugned notifications were issued without giving notice or opportunity of hearing to the petitioners and as such principle of natural justice having been violated, the notifications are rendered illegal and are without lawful authority.
6. In support of this argument, the learned counsel has relied upon some precedent cases. In order to appreciate his argument in this connection, we may reproduce hereunder the provision of law (i.e. rule 185(1)(b) of Defence of Pakistan Rules) under which the impugned notifications were issued: "185. Collection of debt of enemy firms and administration of property:-
(1) with a view to preventing the payment of moneys to an enemy firm, and to provide for the administration and disposal by way of transfer or otherwise of enemy property and matters connected therewith or incidental thereto, the Central Government may appoint a Custodian of Enemy Property for Pakistan and one or more Additional Custodians, Deputy Custodians and Assistant Custodians of enemy property for such local areas as may be prescribed and may by order:- (a)................................................
(b) vest, or provide for and regulate the vesting, in the prescribed Custodian of such enemy property as may be prescribed: (c)
7. (d).............................................
(e) ................................
8. (f)..............................................
9. ' The above rule is clear on the point that no notice is required to be given to the affected party before the action envisaged by the rule is taken in respect of the said party's property. But the argument of the learned counsel was that even though there is no express provision in the aforesaid rules yet it is to be read in it on the principle of natural justice. In this connection he placed reliance on the following authorities:
(1) Saiyyid Abul Ala Maudoodi and others v. Government of West Pakistan and another PLD 1964 SC 673.
(2) The University of Dacca v. Zakir Ahmed PLD 1965 SC 90.
(3) Abdus Saboor Khan v. Karachi University and another PLD 1966 SC 536.
(4) Moosa Hassan Amlani v. Government o Pakistan and 4 others PLD 1978 Kar.
10. 883.
11. ' In the first case of Saiyyid Abul Ala Maudoodi in reply to the argument that the impugned notification was issued in violation of the principles of natural justice, it was held by the Supreme Court: "It is true that one of the principles of natural justice is that no one shall be deprived of his right without an opportunity to be heard."
12. ' In support of the above observation reference has been made by their Lordships to the passage from Maxwell, Vlth Edition, page 638 which reads as under:- "In giving judicial powers to affect prejudicially the right of person or property a statute is understood as silently implying, when it does not expressly provide, the condition or qualification that the power is to be exercised in accordance with the fundamental rules of judicial procedure, such, for instance, as that which requires that, before its exercise the person sought to be prejudicially affected shall have an opportunity of defending himself."
13. ' Proceeding further the Supreme Court has held in the same judgment: "If an order affects rights in property or status or has penal consequences there must be an opportunity to show cause even if the order is passed in an administrative capacity, although the manner in which the opportunity is afforded will vary with different classes of cases."
14. ' In the second case of University of Dacca, it was held: "Wherever any person or body of persons is empowered to take decisions after ex post facto investigation into facts which will result in consequences affecting the person, property or other right of another person, then in the absence of any express words in the enactment giving such power excluding the application of the principles of natural justice, the Courts of law are inclined generally to imply that the power so given is coupled with a duty to act in accordance with such principles of natural justice as may be applicable in the facts and circumstances of a given case."
15. ' The above case of Univerity of Dacca was followed in the case of Abdus Saboor Khan, wherein it was held: 'No one can be condemned unheard' is one of the settled principles of law, and such a principle will be read into the relevant law, unless its application is excluded by express words. A duty is cast on every administrative Tribunal to act fairly and justly and with due regard to the principles of natural, justice, unless specifically exempted from such a limitation. Mere omission from the relevant law, of a provision for notice, would not affect this position. Reference in this connection may be made to the cases reported as Chief Commissioner Karachi v. Mrs. Dina Sohrab Katrak PLD 1959 SC (Pak.) 45, Messrs Faridsons Ltd. v. The Government of Pakistan and another PLD 1961 SC 537 and Abdur Rahman v. Collector and Deputy Commissioner, Bahawalnagar PLD 1964 SC 461."
16. ' In the fourth case of Moosa Hassan Amlani, the impugned notification was issued under the rules 182(1)(b) of the Defence of Pakistan Rules, 1965, purporting to vest the agricultural land in question in the Additional Custodian of Enemy Property. The notification was challenged inter alia on the ground of want of show-cause notice. It was held: "The ' rule is now well-laid down that no statutory functionary can pass an order affecting the rights of a citizen in property or person without providing him an opportunity of being heard. Observance of the rule of natural justice has been held to be a fundamental requirement in such cases even in absence of an express provision to that effect in the statute."
17. 'Keeping in view the above authorities, it may be reiterated that nothing can be done in any shape or form in judicial or quasi-judicial or even in an administrative capacity, which is capable of prejudicing any right of a person without giving opportunity of showing cause toA that person unless of course the giving of such opportunity is excluded by express provision in the relevant law.
18. In the instant case, as has been pointed out above, the relevant law is rule 185 of Defence of Pakistan Rules, under which the impugned notifications have been issued. Although it does not provide for giving of notice or opportunity of hearing to the affected person, it does not either exclude the giving of such notice or affording such opportunity of hearing. Accordingly on the basis of law laid down in the aforesaid authorities, the rule with regard to notice or giving opportunity of hearing will be read in the said rule 185 of the Defence of Pakistan Rules. We are, therefore, in complete agreement with the learned counsel for the petitioner that prior to issuing of the impugned notifications which are obviously destructive of the rights that accrued to the petitioner pursuant to his sister's gifting of her 5/21 share in the disputed property, it was necessary to give notice or opportunity of hearing to the petitioner. It is an admitted position that neither such notice was served on the petitioner nor he was afforded opportunity of hearing before issuing of the above notifications which would, therefore, be held to have been issued in disregard of rule of natural justice.
19. ' The learned Deputy Attorney-General however stated that in absence of an express provision with regard to notice all that is to be seen is that the affected person is provided reasonable opportunity of showing cause. According to him it was immaterial if the opportunity is given before or after the impugned action. In this connection he invited our attention to two representations: one made by the petitioner and the other by his sister, seeking vacation of the vesting order as contained in the impugned notifications. It was submitted by the learned Deputy Attorney-General that since the objections raised by the petitioner and his sister in their representations vide paras.
20. 12 and 15 of the Memo. of petition were duly considered and rejected by the Federal Government, no complaint can be made for non-compliance of the rule of natural justice.
21. ' In reply to the above argument of the learned Deputy Attorney-General, the learned counsel for the petitioner contended that the representations of the petitioner and his sister cannot be substituted for giving notice or opportunity of hearing to the petitioner. He contended that although it was immaterial if the opportunity of showing cause was given before or after the impugned action yet it was a must and initiative should have come from the competent authority namely the Federal Government. According to the learned counsel the representations referred to by the learned Deputy Attorney-General, in these circumstances, are of no consequence and cannot do away with the requirement of giving of the opportunity of showing cause on the principle of natural justice. In support of this argument the learned counsel placed reliance on the case of Abdus Saboor Khan referred to above. In the reported case special leave to appeal was granted by the Supreme Court to consider the question whether the petitioner was, on principles of natural justice, entitled to show-cause notice before infliction of the impugned penalty or not. The factual position in that case was that the petitioner had been debarred from appearing at any examination of the University and from admission to any class in the University or affiliated colleges for a period of two years. He was however not given show-cause notice before infliction of the said penalty on him. As neither show-cause notice nor opportunity of hearing was given to the petitioner, the impugned order passed by the University was declared as not sustainable in law. The suggestion of the learned counsel who appeared on behalf of the University authorities that the appellant was afforded such an opportunity in so far as he had actually made two representations to the University was not accepted by the learned Supreme Court, holding that the suggestion was devoid of all substance as the appellant was all the time protesting against what were ex parte `proceedings against him taken without informing him of any charge or the evidence by which it was supported.
22. ' Thus in view of the above Supreme Court authority in Abdus Saboor Khan's case the representations made by the petitioner and his sister against vesting order were not enough and cannot be held as due compliance of the principles of natural justice. Since the petitioner was not given show-cause notice nor afforded an opportunity of hearing before taking ex parte action against him by issuing the impugned notifications, the said notifications cannot be sustained in law and, therefore, we declare the same to be illegal and without lawful authority. In result the petition is accepted with no order as to costs.
23. NAIMUDDIN, J.--I agree.