Through this petition under Article 199 of the Constitution order, dated 14-11-1990, passed by the learned Member (Consolidation) Board of Revenue, Punjab, Lahore/respondent No. 14 has been called in question whereby he dismissed the revision petition, filed by the petitioner.
2. The consolidation scheme of Village Nikki Gujjran, Tehsil Shakargarh, District Sialkot was confirmed by the Consolidation Officer on 21-2-1983. The petitioners felt aggrieved of the same, and filed appeal before the Collector of Consolidation which appeal was partially accepted on 13- 10-1984. On this an appeal was filed by the respondents in the Court of Additional Commissioner (Consolidation), who accepted the same vide order, dated 13-4-1985. The petitioners, thereafter, filed revision petition before the Board of Revenue which was dismissed by the learned Member, Board of Revenue vide impugned order, dated 14-11-1990.
3. Learned counsel for the petitioners contends that the revision has been dismissed on a date which was not the date of hearing of the petition and that too without hearing the counsel for the petitioner. It is contended that the hearing in the revision petition took place before Mr. Hafizullah Ishaq, Member Consolidation on 28-8-1990 and the case was adjourned to 26-9-1990 for judgment and orders. On the adjourned date i.e. 26-9-1990, the case was adjourned again for judgment as the learned Member was on leave on the said date. It is contended that on 14-11-1990, the son of one of the petitioners went to enquire about the judgment and orders when it transpired that the learned Member (Mr. Hafizullah Ishaq), who had heard the case, has since been transferred and that Mr. Jehangir Khan has taken over in his place. When the case was called the petitioner's son, who was present there was asked to argue his case and was put certain questions by the learned Member about the case, on which he requested for time to bring his counsel but was declined this opportunity and the revision petition was dismissed. The grievance of the learned counsel is that the case was fixed for orders only which had to be announced by Mr. Hafizullah Ishaq, learned Member, Consolidation, who had heard the arguments of the parties and it was not fixed for hearing of the revision petition on 14-11-1990 and in any case if the successor-in-office was inclined to hear and decide the case expeditiously, he should have allowed the opportunity to the petitioners, so that they could be represented through their counsel.
4. Vide order, dated 17-8-1991, when this case was heard at motion stage, respondent No.14 was directed to submit report and parawise comments which have been filed. The perusal of the same shows that the assertion and the contention of the learned counsel for the petitioners are not contradicted.
5. The admitted position is that the petition was heard by Mr. Hafizullah Ishaq, the learned Member Consolidation, Board of Revenue on 28-8-1990. It was adjourned to 26-9-1990 for orders. On 26-9- 1990, since the learned Member was not available and was on leave, it was adjourned again for 14- 11-1990 for "orders". On 14-I 1-1990, thus, the order was to be announced by Mr. Hafizullah Ishaq, who had heard the case and had been adjourned for that purpose. In the meantime, if the learned Member had been transferred and his successor had taken over, he was obliged to notify the parties for hearing of the case by him and, thereafter, to decide the case. However, the learned Member, instead of adjourning the case for hearing by him, asked the son of the petitioner to argue, who had gone just to enquire about the order as a result of hearing, dated 28-8-1990 by Mr. Hafizullah Ishaq. This was not fair or appropriate on the part of the respondent No.14 nor called for as the case was not fixed for hearing on the said date. The learned Member could have adjourned the case for hearing with notice to the parties or their counsel and to decide it after hearing them.
On account of somewhat hasty decision the litigation, instead of coming to end, has prolonged for such a long time and the case is to be remanded back to the respondent No.14 for hearing afresh.
Such disposals of the cases is not warranted by law and also results in wastage of time and prolongs the agony of the parties. This was a revision under section 13 of the Consolidation of Holdings Ordinance, 1960, a statutory remedy, but the manner in which it has been dealt with, amounts to rendering the remedy as nugatory.
6. There is a passage at page 364 in the Text Book of Constitutional and Administrative Law by Brian Thompson (1995 Edn.), which can be made use of in such like situations:-- "Where there is a hearing it can be regarded as unfair if insufficient notice of it is given, as this reduces the time in which a defence can be prepared. A conviction was quashed on this basis (R . v Thames Magistrates' Court, ex parte Polemis (1974) 1 WLR 1371.
The presence of a person at a hearing or the adequacy of a person's representations may be improved if an adjournment is granted. In two cases the refusal of an adjournment was held to be unfair. The reasons which should have secured adjournments were that the time clashed with a job appointment (R v South West London Supplementary Benefits Appeal Tribunal, ex parte Bullen (1976) 120 SJ 437 and a breakdown in communication about the suitability of the hearing date between an appellant and her adviser which meant that the appellant was absent (R v Diggines, ex parte Rahmani (1985) 1 QB 1109.
It would have been quite an appropriate for the learned Member, Board of Revenue to adjourn the case for hearing on 14-11-1990, when he dismissed the revision without giving opportunity of hearing. "
7. In Crescent Sugar Mills and Distillery Ltd., Faisalabad v. Central Board of Revenue, Islamabad and 2 others PLD 1982 Lah. 1 in somewhat similar situation when the hearing had taken place before one officer and order was passed by his successor in office without affording opportunity of hearing the order was declared as illegal for the reason that "the same cannot be considered to be a fair opportunity of hearing provided to the appellant-- Company". Needless to state that the hearing contemplated by law has to be by the same person or authority who has to pass the order. If one officer has heard the case and the order is passed by the other officer, the hearing given by the first officer cannot be considered to be the hearing by the other one and the order would be without lawful authority, in violation of the principle of natural justice.
8. In the present case, the learned Member; who had heard the case could not pass the order on account of his transfer, whereas his successor, who has passed the impugned order, has not given opportunity of hearing to the petitioners. The order, therefore, is liable to be set aside and to be declared as having been passed without lawful authority. The case is, therefore, remitted to Board of Revenue where the learned Member shall pass the order after hearing the parties in accordance with law.
9. In this view of the matter, the petition is accepted in the above terms.
No order as to costs. .