1. ' MUHAMMAD ASLAM ARAIN, J.---This judgment will dispose of Constitution Petitions Nos,D-547, 661 and 194 of 1991, which involved same questions of law and fact. In the judgment, the facts are being given from Const. Petition D-547 of 1991.
2. ' By a sanction letter dated 18-2-1991 of respondent No,1, the petitioner was accorded sanction to establish a Sugar Mill at Sanjar Chang Tchsil Tando Allahyar, Distt. Hyderabad with crushing capacity of 4,000 tons of sugar-cane per day. The petitioner named the proposed project as `Bachani Sugar Mills Ltd.' A detailed Feasibility Report as required under condition 3(a) of letter of sanction, was prepared and sent to respondent No,1 within 2 months. A firm commitment regarding financing of project was obtained from Bankers Equity Ltd., one of financial institutions, and conveyed to respondent No,1 within six months, as required by condition No,3(b) of letter of sanction. The Bankers Equity gave firm financial commitment to the extent of Rs,150 millions. The petitioner, in pursuance of condition No,3(c) entered into contract dated 28-7-1990 with Heavy Mechanical Complex (Pvt.) Ltd., Taxila for supply of locally manufactured machinery for Sugar Mills.
3. The petitioner also approached United Bank Limited for financing balance portion of LMM loan and informed respondent No,l. Accordingly. Steps for arranging suppliers' credit from Japanese Company Nisho Awai for supply of foreign components were also taken. The petitioner also paid Rs,7,50,000 to Bankers' Equity as project examination fee. On 16-8-1990 the petitioner purchased an area of 148-25 Acres through registered sale-deed. On 31-10-1990, respondent No,1 cancelled sanction of petitioner to establish a sugar mill and on the same day i,e, 31-10-1990 the respondent No,1 granted sanction to respondent No,2 for establishing a sugar mill at the same location of Sanjar Chang Tehsil Tando Allahyar. The petitioner has sought quashment of cancellation letter dated 31-10-1990 and sought cancellation of sanction to respondent No,2 to establish a sugar mill.
4. ' Before us, the principal submission of the learned counsel for the petitioners was that the order of cancellation was passed in complete violation of the principles of natural justice and total disregard of fair play. It was pointed out that no notice to show cause against cancellation of sanction was ever issued to the petitioners, there was not the slightest hint until the impugned cancellation orders were passed and that there was any proposal to 'cancel the sanctions and the petitioners never had any opportunity either before or after the orders of cancellation were passed.
5. ' The learned Assistant Additional-General, Sindh, who appeared for the Government of Sindh contended that clause (4) of the sanctions did not contemplate and did not require, that any opportunity should be given to the petitioners before an order of cancellation of sanction was passed.
6. ' In order to appreciate the contentions of the learned counsel for the parties, it is necessary to refer to various provisions of West Pakistan Industrial (Control on Establishment and Enlargement)
7. Ordinance, 1963 (Ordinance No,IV of 1963).
8. ' The Ordinance was promulgated in the year 1963. The declared object of the Ordinance is to provide for the organized and planned growth of industries in the Province. Clause (c) of section 2 defines "industrial undertaking" Section 3 provides that no person shall establish or cause to be established any industrial undertaking or enlarge or cause to be enlarged any industrial undertaking except with the previous permission in writing of Government. Then comes section 4.
9. As the main argument of the learned counsel turns upon the provisions of section 4 it is necessary to read the entire section which is as follows:- "4. Check on unauthorised establishment or enlargement of industrial undertaking.--Where the establishment of a new industrial undertaking or enlargement of an existing industrial undertaking is likely to be commenced or has been commenced or has been completed in contravention of the provisions of this Ordinance, Government or the Director, after giving the person responsible therefor an opportunity of being heard, may by order require him:-
(i) to refrain from such establishment or enlargement; of
(ii) to stop further construction and to remove the unauthorized undertaking or part thereof, and the person concerned shall comply with the order within such period as may be specified."
10. ' This section embodies the actions that can be taken by the Government or Director on the undertaking. It enables the Government or Director to order to refrain from such establishment, or enlargement or to stop further construction and to remove the unauthorised undertaking or part thereof. The main objection to the validity of the cancellation orders is that the respondents did not afford the petitioners reasonable opportunity to show cause why their sanctions should not be cancelled.
11. ' Mr. K.M. Nadeem contended that condition No,4 of the sanctions did not require that opportunity should be given to the petitioners before an order of cancellation of sanction was passed. The submission of Mr. Nadeem was that when the question was of one of the actions provided under section 4 of the Ordinance expressly provided for an opportunity being given to the undertaking whereas condition No,4 of the sanction letter did not provide for such an opportunity and, so, by necessary implication, it must be considered that the principle audi alteram partem was excluded.
12. We are unable to agree with the submission of the learned Assistant Advocate-General. It is not always a necessary inference that if opportunity is expressly provided in one provision and not so provided in another, opportunity, is to be considered as excluded from the other provision. We do not think the mere absence of provision in condition No,4 in the sanction letters as to notice can override the principle of natural justice that an order affecting the rights of a party cannot be passed without an opportunity of hearing that party.
13. ' It is well-settled rule that when an order, whether by a judicial or administrative authority, is passed, adversely affecting a person or property or other right vested in him or enjoyed by him, then an opportunity of hearing has to be given to him before the adverse order is passed against him. In Chief Commissioner, Karachi and another v. MRs, Dina Sohrab Katrak PLD 1959 SC 45 it was observed:- "The rule of justice embodied in the maxim: audi alteram partem: "No man shall be condemned unheard" is not confined to proceedings before Courts but extends to all proceedings, by whatsoever held, which may affect the person or property or other right of the parties concerned in the dispute. As a just decision in such controversies is possible only if the parties are given the opportunity of being heard, there can be as regards the right of hearing, no difference between proceedings which are strictly judicial and those which are in the nature of a judicial proceeding though administrative in form."
14. ' This principle was reiterated in Messrs Faridsons Ltd., Karachi and another v. Government of Pakistan and another PLD 1961 SC 537, Commissioner of Income Tax, East Pakistan v. Sayeedur Rahman PLD 1964 SC 410. Sh. Abdur Rahman v. The Collector and Deputy Commissioner, Bahawalnagar and others PLD 1964 SC 461, The Province of Fast Pakistan v. Kshiti Dhar Roy and others PLD 1964 SC 636, The University of Dacca and another v. Zakir Ahmad PLD 1965 SC 90, Abdul Wadud Khan v. Chief Land Commissioner and others PLD 1966 SC 536 and Christian Edu. E. Trust v.
15. Dy. Commissioner, Lahore, and others PLD 1983 SC 183.
16. ' In the present case too the sanctions could not be cancelled without affording opportunity to the petitioners to be heard.
17. ' For facts and reasons stated above, we are of the view that orders of cancellation were not valid for the reason that the petitioners were condemned unheard. We, therefore, allow the petitions and declare the impugned orders cancelling the sanctions as being without lawful authority and of no legal effect. However, the respondents may issue show-cause notices to the petitioners in respect of cancellation of sanctions and take further steps, if necessary, strictly according to law. Since we have allowed the petitions only on the above ground, we do not propose to express any opinion on other contentions which might prejudice either side.