' MUSHTAQ HUSSAIN, J.-This petition has been filed by Sardar As* Muhammad Khan Mazarl, his son Sardar Wall Muhammad Khan Mazari, his daughter Sharin Mehr-un-Nisa, and his wife Durre- Shahwar, against the Chairman, Federal Land Commission and others praying for a declaration that the proceedings taken by respondent No, 1 in relation to the petitioners are without jurisdiction, without lawful authority and of no legal effect. It has been further prayed that he be restrained from proceeding further in the matter since he is not permitted to do so under the provisions of law. It has also been prayed that order dated 13th of August, 1974, passed by respondent No, 1 disposing of the preliminary objections raised by the petitioners be declared to have been passed illegally and that it is of no legal effect.
2. The petitioners are landlords and have filed declaration under M. L. R. 115 in respect of land owned by them. Cognizance of the declarations was taken by the Punjab Land Commission and the Chief Land Commissioner and certain order were passed in January/February, 1974.
3. After these orders had been passed, Sidhu Chongli. a resident of Bungalow Ichha, Tehsil Rajanpur, District Dora Gbazi Khan, where the land in dispute blonging to the petitioners is situated, filed certain objections. On the basis of these objections, respondent No, 1 issued a notice in the press on the l0th of August, 1974, calling upon the petitioners to appear before him on the 13th of August, 1974. This notice was issued in the purported exercise of "Revisional Jurisdiction" claimed by respondent No,
1. Any reasons or grounds for issuing the aforesaid notice were not adverted to at all in it except for the vague and bald assertion that there was suspicion regarding some transactions. These left the petitioners high and dry as to the cause for which they were called upon to appear before the Chairman, Federal Land Commission.
4. On the date of hearing, petitioner No, 1 having been served, filed the following preliminary objections before respondent No, 1 :-
(a) Substituted service by publication in newspapers could be resorted to only if it was found and so recorded that the person concerned was deliberately avoiding personal service. Respondent No, 1 had no authority to have ordered substituted service in the first instance without making any attempt to serve the petitioners according to the normal method. It was concluded therefrom that respondent was acting mala fide, particularly, because of the "unholy haste" shown by trim in the matter of service;
(b) the notice having been published on the 10th of August, 1974, should have ordinarily given enough time e.g. At least a month to enable them to appear before the Chairman, Federal Land Commission. The notice, however, directed them to appear within two days i,e, on the 13th of August, 1974, on pain of being proceeded against ex parte. Mala fides were alleged on this basis also; (c)the absence of any charges in the notice -which the applicant was supposed to answer on the 13th of August, 1974, converted the notice into a farce;
(d) respondent No, 1 had already pre-judged the issue by making public announcements that he would resume the land from the petitioners and their family and distribute the same amongst the tenants. He had also condemned the aforesaid family while making these declarations in public and the newspapers had duly taken note of this. It was alleged on the basis of this averment that it would be a denial and a breach of the principles of natural justice relating to 'bias' if the Chairman, despite his conduct vis-a-vis the petitioners, heard the case and disposed of it; (e)the revisional jurisdiction of the Federal Land Commission was exerciseable only qua an order passed by an authority subordinate to it. The scrutiny of declaration forms was outside the pale of its authority wherefor the notice was shorn of jurisdiction and was a nullity.
5. Respondent No, 1 disposed of these objections by an order of even date in which he took up the stand that he held serveral positions, namely that of President of Pakistan People's Party, Punjab, and Minister of the Government of Pakistan; in the latter capacity he held a dual position since he was also a Chairman of the Federal Land Commission. He claimed that he had made the offensive speeches, copies of which had been filed before him of Exhs. R-A and R-B, in his capacity as President of the Pakistan People's Party and as a Minister of the Government of Pakistan. His speeches reflected the party manifesto and the Government Policy aimed at eliminating the Feudal and Capitalist exploitation. According to him "the very measure of the Land Reforms is aimed at breaking up of large estates and improve the economic well-being of the peasantary by transferring to them the resumed land." He also was of the opinion that since he had delivered these speeches before he assumed the office of Chairman of the Federal Land Commission, they did not stand in his way in deciding these cases on their own facts.
6. He did not agree that the Federal Land Commission was bereft of the power of scrutinizing declaration forms.
7. He repelled the objection as to service on the ground that the Civil Procedure Code was not applicable and that "the measure of Land Reforms being a revolutionary measure, their implementation has to be expedited." He declared that rules framed under sub-para. (3) of para. 4-A of M. L. R. 115 made service though notice published in any of the newspapers sufficient. He also observed that in any case, as a matter of abundant caution, the Deputy Commissioner had also been directed to effect personal service. He found that since the petitioner was present and no ex parte proceedings had been taken, this objection did not hold any water.
8. He upheld the objection that the notice was too short and consequently adjourned the case to the 2nd of September, 1974, with a view to providing enough time to the petitioners'.
9. The petitioners are, however, not satisfied with granting of the adjournment either, and their grievance is that out of them, Durre-Shahwar, petitioner No, 4, was undergoing medical treatment in England at that time and despite their best efforts to persuade the Chairman to grant sufficient time to enable her to complete the treatment and return to her country for pursuing the case, their entreaties did not find favour with him.
10. They do not accept the correctness of the findings of the Chairman of the Federal Land Commission and have consequently challenged that order through this writ petition as has already been referred to above.
11. A preliminary objection has been raised by the Chairman of the Federal Land Commission in the written statement filed on his behalf which to the effect that since final orders have already been passed in the Case by the Chairman, Federal Land Commission on 26th of May, 1975, e attack on the preliminary objection dated 13th of August, 1974, ha oat its validity and that the petition should be dismissed as infructuous.
12. It has been admitted by respondent No, 1 that a petition, of which he has notice, had already been moved before this Court (C. M. 4 f 1975) for permission to take up fresh grounds, in the petition, arising from the final order passed by respondent No,
1. Even if this application a not accepted, the writ petition does not become infructuous as the question whether respondent No, 1 at all had any jurisdiction in the matter out of which this petition had arisen remains as alive as it was at any time ding by this Court that the order on the preliminary objections is not sustainable would affirm the position taken up by the petitioners that be as no jurisdiction and any further proceedings including the so-called al order passed by respondent No, 1 would automatically go by the board. The writ petition could have become infructuous only if its disposal it her way would have had no effect on the matter in issue. Since that is of so, it is not possible to uphold the objection of respondent No, 1 on his score.
13. Reference in this connection may be made to Gurmukh Singh and others v. Malik Shiv Ram and others (1). In this case it was categorically held that the right cannot be taken away by a final decree being passed neither before or after the presentation of an appeal from the preliminary
(1) AIR 1935 Lah. 482 decree. It was held that if that appeal is accepted, the final decree falls with the preliminary decree.
The case of a preliminary objection could without any fear of contradiction be equated with the passing of a preliminary decree in a civil suit. The objection taken by respondent No, 1 is consequently repelled. [AIR 1926 Lah. 534].
14. The question whether respondent No, 1 could have ordered service of summons on the petitioners through post loses its importance by the fact that the petitioners presented themselves before respondent No, 1 on the first date of hearing fixed by him either personally or through counsel. They cannot, therefore, claim to have suffered any prejudice from the irregularity alleged by them to have been committed by respondent No,
1. In the absence of such prejudice the petitioners do not have any cause of action on that score. It would have been a different matter if the petitioners had remained ignorant of the notices published in the newspaper and had consequently absented themselves from the hearing leading to an ex pane order against them.
That has fortunately not happened.
15. Be that as it may, the objection of the petitioners on this score is not well-grounded in law. They have referred to the provisions of the Punjab Land Reforms Rules, 1972. Rule 6 of these Rules provides for the issuance of summons and their service in accordance with the provisions of the Code of Civil Procedure, 1908. These rules have been made by the Punjab Land Commission which is a body different from the Federal Land Commission which is constituted under section 4-A of the Land Reforms Regulations, 1972, while the former has been brought into existence under section 4.
Section 4-A empowers the Federal Land Commission to make rules to regulate its procedure. The rules made by the Punjab Land Commission though binding upon it, cannot have the effect of overriding similar rules made by the Federal Land Commission in exercise of the powers conferred upon the latter by section 4-A(3).
16. Learned counsel for respondent No, 1 submitted that the Federal Land Commission framed its own rules which are known as "The Federal Land Commission Rules, 1974" and which were published in the Gazette of Pakistan, Extraordinary, Part II on the 5th of September, 1974. As against the provisions in the Punjab Land Commission rules applying the Civil Procedure Code in respect of service of process, rule 3(8) in Chapter 11 of the Federal Land Commission Rules, 1974, empowered the Chairman, Members and every officer of the Federal Land Commission exercising his functions under the Regulation for the purpose of making an enquiry or hearing a revision to summon and enforce the attendance of any person and to examine him on oath or affirmation. It further empowered them to provide manner of service for the expeditious disposal of the cases.
17. It has been contended on behalf of respondent No, 1 that provision has been made in pursuance of this power to effect service by publication in newspapers. Learned counsel referred to rule 4(7)
(d) in Chapter III of these Rules which reads as follows:- "(7) Service of any notice, summons, or order issued or made under the Land Reforms Regulation shall be deemed to be sufficient if effected in any one of the following methods, namely-
(d) by publication in a newspaper, or proclamation by beat of drum or other customary method in the locality."
' These Rules were published on the 5th of September, 1974, and by virtue of rule 1(2) came into force at once. In other words, they were not applicable retrospectively. The process in this case was published in the newspapers on the 10th of August, 1974, i,e, about 25 days before these Rules came into force and they cannot, therefore, sanctify it. Crazies in the Fifth Edition of his classic 'On Statute Law' observes at page 105 that t "If a statute is passed for the purpose of enabling something to be done, but omits to mention in terms some detail which is of great importance (if not actually essential) to the proper and effectual performance of the work which the statute has in contemplation, the Courts are at liberty to infer that the statute by implatation empowers that detail to be carried out. Thus in Cookson v.
Lee (1854) 23 L J Ch. 473, a private act vested certain lands in trustee for the purpose of enabling them to sell the lands for building purposes, but the Act contained no express power to expend any portion of the purchase moneys in setting out the lands or in making roads. Under these circumstances the Court held that, having regard to the object of the Act namely, the sale of the property as building land such power ought to be implied."
The importance of service of process for carrying the provisions of paragraph 29 into effect can hardly be underestimated. Particularly in view of its second proviso making the affording of an opportunity of being heard a condition precedent for revising an order affecting any person. That being so, the power to issue process would inhere in the Commission. D Service of process by publication in press is a known and accepted method and its use in this case cannot be nullified on any reasonable ground.
18. The notice referred to above does not contain any reason whatsoever wherefore the present petitioners have been asked to appear Mort respondent No, 1 except the meaningless reference to "suspicion". It is axiomatic that if a person has to answer a charge he must be apprised clearly of its contents which should be elaborate enough to make the respondent understand its gravamen and give him sufficient indication of the case that he is supposed to answer so that he is in a position to meet the same in a manner such as to make his defence clear and be able to support it with the necessary evidence. It is not and could not have been denied by respondent No, 1 that the notice impugned before this Court did not even remotely fulfil these requirements and contained just a b rid direction to appear before the Commission. This must have left the petitioner guessing as to the necessity for summoning them and they would have not even the slightest indication of the case that they would be expected to meet on appearing before the Commission. This point was taken up in the preliminary objections before respondent No, 1 and a perusal of paragraph 1(d) of his order which runs as follows, will clarify the whole situation : "The learned counsel has also contended that sufficient time was not available for the preparation or the cases as the notices were published on the 10th of August, 1974. He also urged that the grounds for the suo moto revision have not been made known to them. These are valid objections.
The cases are, therefore, adjourned to 2nd of September, 1974, to provide them sufficient time to prepare the cases. The learned counsel for the respondent has now been apprised of the grounds for calling for the record of the cases in exercise of suo motu revisional jurisdiction as explained above."
The objection having thus been upheld and the grievance relating to the ignorance of the petitioners about the grounds having been removed, the very basis of the objection taken up before me is knocked out.
19. The purpose of the issuance of notice to a party whose rights are to be determined is that he should not be condemned unheard. Hearing of course requires that the person to be heard should be in the know of the case that he has to meet. So far as the principles of natural justice are concerned, therefore, the requirement has been amply fulfilled; now for the law itself.
20. Notwithstanding what has been stated above, if there was a provision in Martial Law Regulation 115 requiring specification in the notice of the ground on which action is sought to be taken the question would adopt a completely different hue. It may in that case be argued that since the notice does not conform to the statutory requirements it is hit by the dictum of Nazir Ahmaa's case
(1) which requires that action to be valid must conform to the letter and spirit of the law which is sought to be invoked and that it should proceed either in accordance with it or not at all.
21. Paragraph 29 of the Land Reforms Regulation, 1972 confers upon the Federal Government, or any person authorised by it in that behalf, to call for the record of any case or proceedings described in it for the purpose of satisfying itself or himself about the correctness, legality or propriety o such an order. The second proviso requires that : "No order shall be passed under this paragraph revising or modifying an order affecting any person unless such person has been afforded an opportunity of being heard."
This does not provide for the form which the notice must take. So long, therefore, as "an opportunity of being heard" is provided in accordance with law the mere fact that a notice has nut been prepared in a particular fashion would not nullify the proceedings or detract from the validity of the order passed in such proceedings.
22. In these circumstances, the petitioners' grievance against the absence of the grounds from the notice on which action was sought to be taken does not have the backing of law and can, therefore, not be upheld.
23. It is not denied that Dune-Shahwar the wife of petitioner No, 1 who is herself petitioner No, 4 in this case, was undergoing medical treatment in London at the time the notice was received. It was not, however, asserted that de was not represented before respondent No, 1 in the impugned proceedings by counsel and Mukhtar. It has been rightly submitted before me on behalf of respondent No, 1 that keeping in view the status of the petitioners, the fact that petitioner No, 4 is a lady and the normal manner in which such large estates, as the one in question, are managed by absentee landlords, the lady could not be supposed to be knowing anything about the matters involved and could not be expected to assist or help
(I) A IR 1936 P C 253 (2) the Commission, her counsel or her Mukhtar in the preparation of the case. Her husband, formerly a high officer in the Government of this country, would be the only person out of the four of them who could respresent the case and help in its preparation and it is not denied that he did so Hypertechnically speaking, it may be correct that petitioner No, 4 has her own individual identity in the eye of law and that she must have been afforded an opportunity to take personal interest in the case.
' In the facts and the circumstances of this case, however, it would amount to making a fetish out of a technicality divorced from all actualities. It has not been demonstrated, even remotely, that the absence of the lady from this country in any manner affected her rights which were being adjudicated upon in the impugned proceedings. It cannot be lost sight of that this Court is dealing with this case in the exercise of its Special Original Jurisdiction, which, though enshrined in the Constitution, has equitable over-tones, and orders passed by statutory tribunals can hardly be tempered in the exercise of it, unless a case of lack of lawful authority could be made out. The objection of the petitioners on this score also can, therefore, not be maintained.
24. Martial Law Regulation 115 was gazetted on the 11th of March, 1972. It was extensively amended by the Land Reforms (Amendent) Act LX1I of 1973; this can be found in PLD 1973 Central Statutes at page 623.
25. The Federal Land Commission which has already been set up before the 13th of August, 1973, without there being any authority to do so in the unamended Regulation, was validated by section 11 of this Amending Act which runs as follows:- "11. Validation.-The Federal Land Commission in existence at the commencement of this Act shall be deemed to have been constituted under the Land Reforms Regulation, 1972 aad everything done, action taken or order passed by the Federal Lard Commission shall be deemed to have been validly done, taken or passed, as if this Act were in force on the day on which the Federal Commission was constituted or such thing, action or order was done taken or passed."
26. Section 3 of this Amending Act inserted a new paragraph 4-A in the Land Reforms Regulation of 1972. This section runs as follows:- "4-A. Constitution of Federal Land Commission, etc.-(1) For the purpose of this Regulation there shall be constituted a Commission to be known as Federal Land Commission, consisting of a Federal Minister nominated by the Federal Government, who shall be its Chairman, and not more than three members to be appointed by the Federal Government.
(2) The Federal Land Commission shall exercise and perform all such powers and functions as may be necessary for the implementation of this Regulation throughout the areas to which it extends and shall, in particular,-
(I) assist the Federal Government in deciding any dispute or difference referred to in sub- paragraph (7) of paragraph 4 and in giving any approval or direction under sub-paragraph (8) of that paragraph;
(ii) assist the Federal Government in the exercise of its revisional powers urder paragraph 29 ;
(iii) co-ordinate the work of the different Commissions to ensure that a uniform policy is followed in all the Provinces in implementing the provisions of this Regulation ; and (iv)lay down general guidelines to be observed by the Commission in carrying out their duties and functions under this Regulation and issue from time to time such instructions as may be considered necessary.
(3) The Federal Land Commission may make rules to regulate its procedure and appoint its own officers and servants and confer powers upon, and assign duties, to them.
(4) The Federal Land Commission may direct that the powers exercise-able by it under this peragraph may, subject to such conditions, if any, as may be specified by it, be exercised also by any of its members or officers empowered by it in this behalf."
' As is apparent from the aforesaid provision, the Federal Land Commission was to consist of a Chairman who was to be a Federal Minister and not more than three members to be appointed by the Federal Government. It had the power to direct the exercise of specific powers by any of its members or officers. Since the authority to set up a Federal Land Commission was conferred for the first time by this statute and it was also charged with the duty to "assist the Federal Government in the exercise of its revisional powers under paragraph 29" the latter paragraph was re-framed by the authority of section 7 of this Act. The re-constituted paragrah runs as follows :- "29. Revisional powers of the Federal Government.-The Federal Government, or any person authorised by it in that behalf, may at any time, of its or his own motion or otherwise, call for the record of any case or proceeding under this Regulation which is pending or in which a Commission or any other authority appointed under this Regulation, other than the Federal Land Commission constituted under paragraph 4-A, has passed an order, for the purpose of satisfying itself or himself about the correctness, legality or propriety of such an order, and may pass such order in relation thereto as the Federal Government or, as the case may be, such person thinks fit r ' Provided that the Federal Government may, from time to time, specify the cases or class of cases in which it desires to pass final orders ' Provided further that no order shall be passed under this paragraph revising or modifying an order affecting any person unless such person has been afforded an opportunity of being heard ' Provided further that the record of any case or proceedings in which a Commission or other authority has passed an order shall not be called for under this paragraph by the Federal Government or the person authorised by it-
(a) of its or his own motion, after the 14th day of August 1974, or
(b) on the application of any aggrieved person made after the expiration of sixty days from the date of such order or from the enactment of the Land Reforms (Amendment) Act, 1973, whichever is later, excluding the time requisite for obtaining a copy of such order."
' The following questions arise for determination out of the legislation quoted in the preceding paragraph
(a) Could the revisional powers of the Federal Government contained in paragraph 29 be exercised by a person not authorised in this behalf by the Federal Government ;
(b) Was such authority conferred at all ;
(c) If it was conferred, was the Federal Land Commission as such its recipient or could it be exercised by its Chairman or members acting individually ;
(d) Where the provisions of the first proviso to paragraph 29 complied with ;
(e) If not, did it amount to lack of jurisdictional fact so as to make the impugned order without lawful authority.
(f) Was, in the instant case, the authority exercised suo motu ;
(g) If not, was it exercised on the basis of an application of an aggrieved person made within limitation ;
(h) If the period of limitation had expired, would the order be without jurisdiction.
27. Paragraph 29 of the Regulation which confers the power of revision on the Federal Government makes it exerciseable by the said Government, 'or any person authorised by it in that behalf'. An objection has been raised that no such authority was ever conferred by the Federal Government on the Chairman of the Federal Land Commission and consequently the orders are riot intra vires. It has been submitted that the power given in Article 4-A to the Federal Land Commission as is clear from subparagraph (2) (ii) is only- "to assist the Federal Government in the exercise of its revisional powers under paragraph 19."
' It has been argued that this does not empower the Commission or for the matter of that its Chairman to exercise the revisional power itself to the exclusion of the Government.
28. Learned counsel for respondent No, 1 rightly conceded that section 4-A provides for assistance by the Commission and that this applies to a situation where the Federal Government were to hear the revision petition itself and, therefore, is not attracted to the facts of this case. He, however, bases his stand on a notification issued by the Federal Government under paragraph 29 (No 7/18/72/Cord. I dated 23rd of October 1963) whit authorises the "Chairman and Members" of the Federal Land Commission to exercise the powers of the Federal Government conferred by paragraph 29. The question now is whether a power exerciseable by the "Chairman and the Members" could be exercised by the Chairman alone or only by the whole Federal Land Commission in which the Chairman and the Members had to be included.
29. Learned counsel for respondent No, 1 submitted that rules 3, 4 and 5 expressly speak of distribution of work of the Commission by the Chairman amongst its officers etc. He submitted that it was under this power that the Commission delegated its authority by way of distribution of work to the Chairman. This is an impossible argument, for more than one reason. It needs no reiteration that a delegate cannot further delegate the power which has been delegated to him by the principal and it is succinctly summed up in the maxim "delegates non protest est delegate". Even if therefore, it has been so done by the Commission, it had no authority to do so.
30. The rules referred to by learned counsel deal with the distribution of work which the statute has entrusted to the Commission. It has no relevancy to the powers delegated to the Chairman and the Members of the Commission. What the Commission could not do directly it could also not do indirectly. If under the law it had no authority to delegate delegated authority, it could not under the cloak of distribution of work achieve the same objective.
31. The word "and" is normally used conjunctively and not disjunctively. It is no doubt true, as Maxwell points out at page 232 of his Treatise, that-"to carry out the intention of the Legislature it may be necessary to read "and" in place of the conjunction "or", and "vice versa". It has, therefore, to be shown that the Legislature so intended before a Court can be asked to hold that the word "and" has in a particular sentence been used disjunctively and not conjunctively.
32. Learned counsel for respondent No, 1 has failed to satisfy me on this score and in fact he could not do so because the manifest intention of the Legislature is that such revisional authority, which was to be exercised after a number of authorities, including high-powered ones, had adjudicated upon a particular matter, should be exercised by the whole Federal Commission.
33. It was pointed out that when the meanings of a particular sentence are clear there is no room to apply the principles of interpretation which are merely presumptions in cases of ambiguities in the statute as Scott L. J. Observed in Croxford v. Universal Insurance Company (1). In fact, there are strings of judicial precedents which point in the same direction.
34. Learned counsel referred to Article 192 of the Constitution which speaks of the constitution of a High Court consisting of a Chief Justice and so many other Judges. He submitted that similarly the Federal Land Commission consisted of a Chairman and the members and since the jurisdiction conferred on the High Court was exerciseable, by one Judge, two Judges, several Judges or the whole Court, similarly, the power conferred upon the Chairman of the Federal Land Commission and its members was exerciseable by one of its members or more of them.
35. This submission completely loses sight of the fact that the authority conferred by the Constitution upon the High Court is conferred directly and not by delegation. Consequently, the same can be exercised by as many Judges as the Court decides. Moreover, the Letters Patent which continues to be good law, specifically says so. The present case, however, is one o delegated authority. The same having been delegated under the provisions of a statute to persona designata i,e, "Chairman and Members", and it has consequently to be exerciseable by all of them or not at all and the example given by learned counsel is completely irrelevant.
36. I have, therefore, no choice but to hold that the authority delegated under the notification under paragraph 29 was not exerciseable by the Chairman sitting singly and orders passed by him in the present case are,
(1) (1936) 2 K B 253 therefore, completely devoid of jurisdiction. My answer to this problem therefore, in favour of the petitioners.
37. The first proviso to paragraph 29 requires that "The Federal Government may, from time to time specify the cases or class of cases in which it desires to pass final orders.' It was submitted that no such specification having admittedly been made, the Federal Government could not make any deflation of power under paragraph 29 to hear a case falling under that paragraph nor could any such delegate exercise that power. I am afraid, I do not see eye to eye with learned counsel for the petitioners on this point. In fact, this proviso would apply to a situation where the Federal Government authorises any person under paragraph 29 in that behalf but wants to exclude a case or a class of cases from the jurisdiction of the person so authorised. It would then do so by specifying them under the first proviso so that the Government alone could pass final orders in the cases so specified.
38. The question pertaining to jurisdictional fact mentioned in clause (e) above, would, therefore, not arise.
39. I now come to the question whether the authority purported to have been exercised in passing the impugned order was exercised suo motu or at the instance of an applicant.
40. Paragraph 29 under which the authority is purported to have bean exercised lays down in its third proviso that the power may not be exercised either-
(a) of its or his own motion after the 30th of September 1975 ;
(b) on the application of any aggrieved person made after the expiration of sixty days from the date of such order or from the enactment of the Laud Reforms (Amendment) Act, 1973, whichever is later excluding the time requisite for obtaining a copy of such order.
41. The expression "of its or his own motion" is not unknown to law. It is a term of art and is meant to clothe an authority with the power to ac even when it has not been moved by anybody to do so.
Information readirg to such action would ordinarily be expected to come to the knowledge of an authority during an inspection of the office of the subordinate authority or during the course of any other proceedings. So long as an authority has not been moved by a person to act, the person not being necessarily aggrieved himself, the authority would be deemed to have proceeded of its own motion.
42. When, however, a person, particularly one who is aggrieved, move an authority in the matter, any action taken by that authority consequent upon such application cannot by any stretch of imagination be dubbed a action of "its or his own motion". The importance of this distinction would partly rest upon whether the circumstances in which an authority can move of its own motion and those in which it moves on an application being presented' are subject to different limitations.
43. In the case before me, different periods of limitation have been prescribed for the purpose of suo motu action and action on the presentation of an application. If any proof was needed of the intention of the Legislature to make and keep such a distinction, it is provided, apart from the language of the paragraph itself, by the fact that the action in one case can be taken within a particular time prescribed in the paragraph itself while in the other, the period of time prescribed is quite different.
44, In other words, a person aggrieved presenting an application for action under paragraph 29 after the period of limitation has expired, cannot ask the authority to proceed with the matter as if it was acting "on its own motion".
45. The reason is not far to find. The intention of the Legislature is that orders passed by subordinate authorities, some of whom, under this piece of legislation enjoy a very high status, must become final as between the parties by passage of time in the normal course. The doctrine of finality of orders is thus preserved and applied.
46. The tendency of law as well as the practice is to put an end to litigation between parties as quickly as possible by attaching finality to orders passed at a certain stage either by reference to a period of time within which they can be challenged or by reference to a particular authority whose orders cannot be subjected to further scrutiny. It is in keeping with this principle that clause (b) to the last proviso to paragraph 29 was enacted, and it is one of the reasons for me to hold that the exercise of authority under clause (a) and clause (b) or the aforesaid proviso is not interchangeable and cannot be intermingled.
47. In the present case, it has been alleged by the petitioners that the whole proceedings started on an application presented by Sidhu Chongli respondent No, 2 who is not of the tenants of the petitioners. It has not been controverted or denied by respondent No, 1 whose only answer to it in his written statement is as under t- "The interpretation put in this paragraph is misconceived. The suo mot jurisdiction can be initiated by any process and restrictions being advocated by the petitioners are totally erroneous. The suo rnotu powers under para. 29 can be initiated on any information irrespective of the source of information."
It has not been denied that these proceedings were initiated on an application presented by Sidhu Chongli, one of the tenants and probable beneficiaries in case of the acceptance of his application by respondent No, 1 and, therefore, an aggrieved person. It may be noted that respondent No, 1 as has stated' anywhere in his reply that Sidhu Chongli is not a person aggrieved. This admission on behalf of respondent No, 1 clinches the matter so far as this point is concerned ; and since it is not denied that the period of limitation for calling of the record under paragraph 29 last proviso (b) had expired on the date Sidhu Chongli moved in the matter, the order impugned before men is patently without jurisdiction.
48. To put any other interpretation would amount to negating the expressed policy of the Legislature and setting the period of limitation enshrined in paragraph 29 completely at naught, for it would empower the authority acting under paragraph 29 to do so, even on the basis of an application presented by an aggrieved person after the period of limitation has expired and after the impugned order has become final. Clause (b) would thus be rendered nugatory and it is permissible for a Court of Law to uphold such an interpretation, particularly, when no power exists in the Federal Land Commission or the Federal Government as an executive authority to enhance as the period of limitation prescribed by the paragraph, an authority which has been left only to the Legislature.
50. Reference may in this connection be made to Craies on Statutory Law, 6th Edition, page 266 where it has been stated: "That when a statute confers jurisdiction upon a tribunal of limited authority and statutory origin, the conditions and qualifications annexed to the grant must be strictly 'complied with'."
' And it has been held in 4ta Muhammad Qureshi v. Settlement Commissioner (1) that "If such an order is made without fulfilment of its pre-requisite, it would certainly lack jurisdiction."
51. I consequently find accordingly.
"The common lawyers, however, have used the expression 'natural justice' with surprising precision of meaning, as referring to two important but narrow principles only, namely, audi alteram partem (hear both sides), and nemo judix in causa sua potent (no one can be judge in his own cause)."
' Says Garner in Administrative Law, First Edition, page 99.
' As common law developed, he continues,- "These principle came to be applied also to the decision of administrative bodies acting judicially whereby the royal Courts exercised a supervisory jurisdiction over them, primarily by means of the former prerogative writs.
' The importance of the application of the principles of natural justice rests not merely on the insistence on due compliance with simple or elementary procedural rules, but also on the fact that a decision which has been arrived at in circumstances where the principles of natural justice have not been observed will be void, ' If the principles of natural justice are violated in respect of any decision, it is, indeed, immaterial whether the same decision would have been arrived at in the absence of departure from the essential principles of justice. The decision must be declared to be no decision.' (General Medical Council v. Spackman (1943) 2 All E R 437. ......
' The justification for the application of the natural law principles to administrative bodies is based on the ultra vires doctrine : the Court will not readily believe that Parliament intends an administrative agency to come to a decision in such a manner as would flout natural justice ; therefore, if a particular body does so act, it must be exceeding the powers conferred on it by Parliament.
' Not only is a person affected by an administrative decision entitled to have his case heard by the agency seized with its determination, but he may also insist on his case being heard by a fair judge, one free from 'bias'. Bias in this context has usually meant that the adjudication must have no financial interest in the matter under dispute, but it is not necessarily so limited, and allegations of bias have been upheld in circumstances where there was no question of any financial interests" as held in Franklin v. Minister of Town and Country Planning (1947) 2 All E R 289."
(1) PLD 1971 SC 61 ' and as Garner explained at page 108 t "The interest may merely amount to a real or apparent desire to further a particular policy."
' As Lord Thankerton observed in Franklin's case in the House of Lords : "He must come to his adjudication with an independent mind, without inclination or bias towards one side or the other in the dispute."
' At the King's Bench Division stage Collins, J. Said "No doubt, the Minister is put in a difficult position. To act fairly in a matter about which one has, before hearing and considering all the evidence and arguments, formed and expressed views requires a firm mind and enough moral courage to say one was mistaken. But are those qualities not required of a Minister of the Crown ? I should be loth to think so, or to suppose that those who passed the New Towns Act did not have that faith in the Minister. I see nothing in this statute which drives to conclude that the Minister is giving his decision after a public enquiry, is acting only in an administrative capacity. He was bound, in my judgment, to bring to bear on the controversy between himself, as Minister, and the objectors, as the complainants of his administration, a mind open to conviction.
' The next question is, did the Minister do so ? If I am to judge by what he said at the public meeting which was held very shortly before the Bill, then published, became an Act of Parliament, I could have no doubt but that any issue raised by objectors was forejudged.
' The Minister's language leaves no doubt about that. ........................................
' It is either to say that the Judge has functioned properly. If all that he has done is to see that the case is conducted in seeming fairness (without, for example, hearing one party behind the back of the other and so on), and even to apply his mind to the evidence, unless he has also brought an open mind to the decision. Any other view would reduce the necessity for fairness, or the appearance of it, to a farce I am convinced that he did not consider the question : Aye or no should the order be confirmed ?' With an open mind, but that he meant to confirm it whatever the force of the objection might be trusting that some solution would be found. This, in my judgment, involves a denial of natural justice, and I accordingly, quash the order, with costs."
' The House of Lords disagreed with Collin, J.'s order and the reason can be found at page 296 of the speech of Lord Thankerton "It seems probable that the learned Judge's mind was influenced by his having already helu that the respondents' function was quasi-judicial, which would raise the question of bias, ....
' And because his Lordship was of the view that "The passages quoted from the speech of the Minister were not inconsistent with an intention to carry out any statutory duty imposed on him by Parliament. ' the House of Lords, it is, therefore, clear, affirmed the reversal of the decision of Collins, I. On the bases-.
(a) it did not agree that the function of the minister was quasi-judicial
(b) it found that the tenor of the minister's speech did not indicate that the issue had been fore- judged.
' Let us now apply the dictum of this case to the one before me.
52. In the order passed by respondent No, 1 on 13th of August 1974, he observed : "In any case sitting as Chairman, F. L. C., I have to do justice according to law considering the facts of each case "
[Paragraph (b))
Respondent No, 1 thus admitted that he was Ming in a judicial capacity for to do justice according to law on the facts of each case is the duty of a Court or a Tribunal. Learned counsel appearing for respondent No, 1 rightly conceded that his client was acting quasi-judicially in the matter. It can also not be lost sight of that he was exercising revisional jurisdiction under the Land Reforms Regulation, 1972 which provides an elaborate procedure for hearing at the original stage, the appellate, the revisional and the review stage before the Provincial set ups and it is a determination made during such proceedings that has been subjected to revision under the powers conferred in paragraph 29. He had two parties and a lis before him and the rights of a party in immovable property were to be affected.
It would be obviously incorrect to say that respondent No, 1 was not acting in a judicial or at least quasi-judicial capacity.
53. That being so, the very reason for which the House of Lords differed with Coffins, J. And reversed his decision is not present in the case before me. The facts of this case are in this respect in line with the assumption made by Collins, I. Which led him to the conclusion that the Minister in that case was biased. The dictum of the House of Lords in Franklin's case, therefore, far from supporting the case of respondent No, 1 knocks the very bottom out of it.
54. The speech delivered by the Minister on the 24th of October 1972, at Dera Ghazi Khan clearly contained aspersions against, inter alia, the petitioners, and were vituperative in nature. He clearly stated that the Legharis and Mazaris had no right whatsoever in the produce from the lands which was the result of the tillers' labour (Annexure P-3). He said "the Jagirdars are wolves and if the conditions had been better when the present Prime Minister took the office no sign of the Jagirdars and the Capitalists would have been left by now, but this would be done now". (Annexure P-4). In his speech in Multan on 22nd of October 1972 (Annexure P-5) he again called the landlords 'wolves'.
55. Annexure P-6 which is an uncontroverted affidavit shows that in one of his speeches respondent No, 1 stated that he will not rest content unless he distributed the lands of Legharis and Mazaris amongst the tillers. This is supported by similar affidavits Annexures P. 8, P. 9, P. 10, P. 11, P. 12, P. 13, P. 14 and P.
15. The speeches here unlike the one by the Minister in the case cited above, were directed against particular persons Q including the petitioners and as already indicated above, they were extremely supercharged with emotions of hatred, inter alta, for the petitioners. As observed by Garner in his book on Administrative Law, page 1051 "It should be noticed that the appearance of bias is regarded as seriously by the supervising Court as is factual bias ; the Judge who appears to have or who has a bias may have the most excellent and upright motives and may not in fact allow his judicial discretion to be impaired in any way by the vitiating 'interest', but the Courts will still find that there has been a breach of natural justice ' It is of fundamental importance that justice should not only be done but should manifestly and undoubtedly seem to be done'."
' At page 108 he points out "The interest may merely amount to a real or apparent desire to further a particular policy."
In such circumstances, I, for one, find myself unable to hold that the person who made such speeches could divorce himself from them in such a way as to repel the probability of bias from a decision.
56. This is highlighted by the fact that although the more proper course for respondent No, 1, who is a lawyer by profession and knows the law on the subject, would have been to effect service in the first instance through process-server or registered post, he took the extreme and extraordinary step of having it published in the newspapers in the first instance.
57. The fact that only two clear days were given in the Notice to the petitioners to appear and defend the case is an extremely abnormal step, particularly, when no charges, which they were required to answer, were mentioned in them.
58. These facts singly and taken together present a clear picture of 'bias' in respondent No, 1 and I hold accordingly.
59. Learned counsel for respondent No, 1 wanted me to go through the merits of the declarations made by the petitioners. I declined to do so because it was and remains the function of the Land Commission or other authority appointed under M. L. R. 115 and this Court is not in the least concerned with it.
60. He also made an attempt to submit that by accepting the petition this Court would be setting at naught the order of the Supreme Court in Mahreen Zaibun Nisa case. Such an argument can be advanced only on the preposterous assumption that the orders of this Court can have any effect whatsoever on the orders of the Supreme Court. The orders of the latter are under Article 189 of the Constitution, to the extent that they decide questions of law or are based upon or enunciate a principle of law, binding on all other Courts in Pakistan, and I for one always bow before them with respect. The questions argued before me and the order with respect to which they were argued had never been before the Supreme Court in any controversy whatsoever.
61. The result is that the writ petition is accepted with costs and the order passed by the Chairman, Federal Land Commission on 13th of August 1974, is declared to be without lawful authority and has no legal effect as are all subsequent orders passed in the proceedings in which jurisdiction was assumed on the basis of the rejection of the objections of the petitioners in the order dated 13-8- 1974 and referred to above.