' MUHAMMAD YUNUS SURAKHVI, C.J.---This appeal, by way of leave of the Court, has been directed against the order passed by the High Court on 19-11-2003 whereby the application filed by the learned Advocate-General on behalf of the respondents for transfer of writ petition from Mirpur Circuit to Muzaffarabad Headquarters was accepted.
2. The necessary facts giving rise to the present appeal are that the business concern of the appellants, herein, was set up at Mirpur and they filed a writ petition in the High Court Circuit Mirpur in which it was averred by the appellants that Siddiqui Flour and General Mills (Pvt.) "Ltd. And Pak Kashmir Flour and General Mills (Pvt.) Ltd. Are private companies having their registered offices at Mirpur which were being run and controlled by a common management. The appellants invested millions of rupees in establishing the aforesaid mills on the incentives of the Government who invited the investors in the industrial and commercial field of Azad Jammu and Kashmir by extending reasonable incentive to the investors. The appellants placing trust on respondent No.1 installed flour mills at Jatlan (Jabbi, District Bhimber) and Dadyal, District Mirpur. Through an agreement, the respondents were bound to provide the supply of 3000 metric tons wheat per month for grinding for the population residing at Kotli, Khuiratta, Bhimber, Mirpur and Dadyal, etc. And the same has been provided to the appellants but the respondents, with mala fide intention, discriminately, illegally and with ulterior motives reduced the quota of supply of wheat to the appellants from 3000 metric tons to 1750. And 1625 metric tons per month respectively vide order No. t...-0-"/ H-6(17)-1218, dated 12-6-2003, addressed to the appellants vide No. DFCM/1189-90, dated 3-10-2003, as such, the appellants on 13-10-2003 challenged the aforesaid orders of respondents through a writ petition in the High Court at Circuit Mirpur. The writ petition was admitted for regular hearing and was fixed for 23-11-2003.
3. The respondents, through the learned Advocate-General, moved an application before the learned Chief Justice of the High Court for transfer of the writ petition from Mirpur to Muzaffarabad.
The learned Chief Justice, without hearing the appellants on the said application, passed the impugned order on 19-11-2003 and transferred the case from Mirpur to Muzaffarabad. The order passed by the learned Chief Justice of High Court may usefully be reproduced below:--- "This application is filed by A.G. For transfer and hearing of the above captioned case from Mirpur to Muzaffarabad on the ground that the respondents in the case are stationed at Muzaffarabad and the impugned notification is also issued from Muzaffarabad, hence it would be convenient for the respondents to place the record and other documents before the Court at Muzaffarabad. The petition stands admitted for regular hearing and fixed for 23rd instant. It shall be sent for and placed before the Court on 24-11-2003. The petitioner shall also be informed."
4. The appellants moved an application at Muzaffarabad for transfer of case from Muzaffarabad to Mirpur by expressing their grievance. However, the application was not responded positively, neither the same was decided.
5. The appellants being adversely affected by the impugned order, dated 19-11-2003 have challenged the same before this Court by way of present appeal with the leave of the Court on the following grounds:---
(i) that the case was transferred from Mirpur to Muzaffarabad on the application of learned Advocate-General without any notice to the appellants and without hearing them;
(ii) that the cause of action arose at Mirpur where the mills are located, the registered office of the same is located at Mirpur and some of the respondents who are most concerned also hold offices and reside at Mirpur. The owner of the mills is also settled at Mirpur and carrying on his business at Mirpur;
(iii) that while accepting the transfer application of the respondents, the Honourable Chief Justice in the High Court did not take into consideration the hardships and inconvenience of the appellants;
(iv) that the appellants have engaged their counsel and paid him handsome amount at Mirpur to conduct the case whereas the respondents have Additional Advocate-Generals at various Circuits even at Mirpur for taking care of and conducting the cases at Mirpur; and
(v) that the respondents, with mala fide intention, illegally and discriminately issued the orders which are challenged in the writ petition and the transfer order has been passed to harass the appellants and to cause financial loss to them.
6. Arguing the case on behalf of counsel for the appellants, ehemently appellants, Ch. Jahandad Khan, t. e learned ehemently contended that on the day when the application for transfer of the case was moved, on the same day the same was entertained and the order of transfer of the case from Mirpur to Muzaffarabad was made by the learned Chief Justice of the High Court. The order of transfer passed by the learned Chief Justice is illegal, bad in law and as such is liable to be set at naught. The learned counsel contended that before transferring the case from Mirpur to Muzaffarabad , the appellants were not issued any notice nor they were heard by the learned Chief Justice, as such, the principle of audi alteram partem was violated. . The learned counsel contended that the bare reading of section 24 of the Code of Civil Procedure envisages that if the case is transferred on the application of a particular party, the opposite Party must be given a notice for filing its objections on the said application, but no such opportunity was provided to the appellants to file their objections on the said application and providing them a right of hearing
7. The learned coun el also emphasized that by now it sta s settled that even if the right of heatiing is not provided in the relevant statute, it shall be presumed to have been existing in the said statute unless the same is expressly barred or excluded. The learned counsel for the appellants referred to rule 111 of the High Court Procedure Rules, 1984, wherein the details of executive and administrative orders have been mentioned but the transfer application has not been shown as an administrative order in Chapter XVIII, rules 111 and 112 of the High Court Procedure Rules. The learned counsel also placed reliance on cases reported as Devichand v. Rikhab Chand and another AIR 1957 Rajasthan 255 and M/s. Wilsons Pharmaceuticals v. Glaxo Ltd. And another 1994 MLD 2273.
8. On the other hand, Mr. Abdur Rashid Abbasi, the learned counsel for the respondents, by controverting the arguments raised by the learned counsel for the appellants, submitted that the order of transfer is an administrative order in nature as visualized under section 43(1-A) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 read with Azad Jammu and Kashmir High Court Procedure Rules. The apex Court should not interfere in the administrative orders of the High Court which principle of law has been laid down and followed by the Supreme Court of Pakistan as well as the Supreme Court of Azad Jammu and Kashmir. The learned counsel also contended that the appeal has been filed with mala fide intention and ulterior motives to prolong the case so as to gain the advantage of the stay order issued by the High Court while admitting the writ petition to regular hearing. The appellants could have got the case finally resolved by filing a replication on 22-1-2004 and arguing the case before the High Court. It was also pressed into service by the learned counsel for the respondents that the appellants are not entitled to any relief in view . Of their conduct as they did not press their application for transfer of case to Mirpur which had been filed by them on 6-1-2003 and had been submitting to the jurisdiction of the High Court at Muzaffarabad without objection till the time the case was matured for hearing. The learned counsel also contended that since the transfer application does not fall under section 24 of the Code of Civil Procedure but, as contended by him, is under the provisions of Constitution, therefore, there was no need of hearing the appellants.
9. After giving our due consideration to the arguments advanced by the learned counsel for the parties and perusal of the relevant record, it may be stated that the writ petition was filed by the appellants before the High Court at Circuit Mirpur which was admitted for regular bearing by a learned Jude of the High Court at Mirpur. After admitting the writ petition filed by the appellants, the respondents were given notice to appear before the Court and to file their objections, documents etc. If any. During pendency of the writ petition, the case was transferred from Mirpur to Muzaffarabad vide impugned order passed by the learned Chief Justice of the High Court on 19-11- 2003. The perusal of the impugned order reveals that on presentation of the transfer application before the learned Chief Justice, the same was admitted for regular hearing on the same day and the next date was fixed as 24-11-2003 at Muzaffarabad. Thereafter, without passing any formal order of transfer, the case was being processed at Muzaffarabad on various dates. Suffice it to mention that the order, dated 12-1-2004 recorded by the learned Chief Justice of the High Court would make it clear that the case is being heard at Muzaffarabad without passing any formal order for the transfer of the case. The order passed by the learned Chief Justice on 12-1-2004 for the purpose of convenience is reproduced below:--- "It is stated that Sardar Rafique Mahmood Khan, Advocate is busy in Supreme Court.
Representative of the petitioners seeks time for filing replication. He may file replication on or before next date of hearing. To come up on 22-1-2004."
The above stated order indicates that the case has)been virtually transferred and the same is being heard at Muzaffarabad without providing an opportunity of hearing to the appellants. The contention of Ch. Jahandad Khan, the learned counsel for the appellants, appears to be correct that at the time of transferring the case from Circuit Mirpur to Muzaffarabad, neither any notice was served nor an opportunity of hearing was afforded to the appellants. Thus, the principle of audi alteram partem which is a rule of universal application was violated. We are supported in our view by a Full Bench case of this Court titled Sardar Muhammad Azim Zia v. Nazir Ahmad Qadri and 3 others 2003 PLC (C.S.) 887 wherein it was observed at page 54 as follows:--- "It is settled principle of law that principle of natural justice is supposed to be the part of every statute having the force of law. So it is the demand of natural justice that before condemning any person in any judicial or quasi-judicial proceedings, the concerned persons, whose interest is involved, must be heard."
' Our aforesaid view is supported by various authorities of this Court. Out of them only a few may usefully be referred:---
1. Inspector-General of Police and 3 others v. Auranzeb and 4 others 2002 PLC (C.S.) 785.
2. Abdul Rashid v. D.E.O. And another 1998 PLC (C.S.) 304; and
3. M/s. Rasab and Brothers v. Deputy Collector Excise and Taxation and others 1993 SCR 346.
In an identical case titled Abdul Wadud Khan v. Chief Land Cottunissioner and others PLD 1983 SC 183, it was observed by the Supreme Court of Pakistan that rules of natural justice are to be read in every enactment unless contrary is expressly provided in law.
10. Ch. Jahandad Khan, the learned counsel for the appellants also pressed into service the submission that if the contention of Mr. Abdur Rashid Abbasi, the learned counsel for the respondents, is presumed to be correct that to insist upon al particular case to be heard at a particular place itself shows that the transfer is essential, in that situation the same principle squarely applies to the case of the respondents because it is they who insist upon and had moved an application for transfer of the case from Mirpur to Muzaffarabad. Thus, the argument of Mr. Abdur Rashid Abbasi seems to be unreasonable as it is the respondents who want that the case should be heard at Muzaffarabad and not at Mirpur. So it was for them to e)tplain as to why they insist upon hearing of he case at Muzaffarabad instead of Mirpur. The authorities cited by Mr. Abdur Rashid Abbasi, the learned counsel' for the respondents, have nothing common with the facts and circumstances of the case and as such the same need not be reproduced and discussed in detail.
11.
12. #TBS
13. G
14. H
15. #TBE
16. However, it will be useful to cite an authority from Indian jurisdiction reported as Devichand v.
Rikhab Chand and another AIR 1957 Rajasthan 255 wherein it was observed that transfer under section 24 of the Code of Civil Procedure may be ordered either on the application of a party in which case notice is issued, parties are heard and order is passed or it may be ordered by the District Judge, or the High Court on its own motion for which no notice to any party is required. Such transfer is generally for administrative reasons but all the same it was observed that even though the transfer may be for administrative reasons, it is still an order under section 24 and therefore a judicial order. So respectfully following the above authority be the order of transfer of the case from one Circuit to another an administrative or judicial, in our view, if the proceedings have been initiated on the application of a party, then the party who is being adversely affected by the transfer must be heard and should not be deprived of its right of natural justice.
In the light of what has been stated above, by accepting the appeal, we set aside the impugned order. Passed by the High Court on 19-11-2003, whereby the application filed by the Advocate- General on behalf of the respondents for the transfer of the writ petition from Mirpur Circuit to Muzaffarabad was accepted. The writ petition shall be sent back to Mirpur Circuit before the same Judge who was seized with the matter for hearing and disposal. In the circumstances of the case, we pass no order as to the costs.