No Action Detrimental to Interest of any Person can be taken

PLJ 2000 Lahore 1106

Present: MALIK MUHAMMAD QAYYUM, J. HUMAYUN ELAHI SHEIKH and 10 others-Petitioners

versus

FEDERATION OF PAKISTAN through MINISTRY OF COMMERCE AND TRADE, ISLAMABAD etc.-Respondents

W.P. No! 560 of 2000, heard on 9.3.2000. (i) Constitution of Pakistan (1973)--

—Art. 199-Order contrary to principles of natural justice-Effect-Decisions taken by Managing Committee of petitioner Association were annulled by Director Trade Organisation being not in accordance with Memorandumand Articles of Association of petitioner organisation-Validity--No action detrimental to interest of any person can be taken by statutory functionary except after allowing him opportunity of being heard which isminimum requirement of natural justice-Decision of Director Trade Organisation was liable to be struck down on that ground alone.

[P. 1108] A

(ii) Trade Organizations Ordinance, 1961 (XLV of 1961)--

—-S. 15-Constitution of Pakistan (1973), Art. 199-Tenure of Chairman of Trade Organization expiring—Now new Chairman elected—Effect— Managing Committee of such Trade Organization as per terms ofMemorandum and Articles of Association would be competent to take over affairs of Trade Organization and not the Vice-Chairman as directed by Director Trade Organization—Where impugned order was contrary to provisions of law as also natural justice it was not necessary for petitioner to invoke alternative remedy provided by law-Order of Director Trade Organization to the extent of denuding Managing Committee of its powerwas declared to be without lawful authority and of no legal effect-  Managing Committee however, was directed to hold election of Chairmanwithin two weeks from Court's direction.        [Pp. 1108 & 1109] B & C Mr. All Sibtain Fazli, Advocate for Petitioners.

Kh.   Saeez-ud-Zafar,   Deputy  Attorney  General  for  Pakistan  for Respondents Nos. 1 and 2.

Mr. Tariq Shamim, Advocate for Respondent No. 3. Date of hearing: 9.3.2000.

JUDGMENT

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 arises under the following circumstances:

2.     Petitioner  No.   11,   All  Pakistan  Textile  Mills  Association  commonly known as APTMA is a registered trade organization within the meaning of Trade Organization  Ordinance,   1961,  Its  affairs are  being managed by a managing committee which comprises of 27 members and has two years tenure. However, the Managing Committee is required to elect a Chairman of the association for a period of one year. Admittedly Petitioner No. 1 was elected as Chairman for the year 1998/99. His tenure having expired the matter was taken up by the Managing Committee which by its resolution dated 18.10.1999 decided that pending election of the Chairman the affairs will be managed by the Managing Committee of APTMA and Petitioner No. 1, Humayun Elahi Sheikh would be its convener. This decision taken by the committee was annulled by the Director Trade Organization on 13.1.2000 wherein he after referring to an order of Sindh High Court in Suit No. 1346 of 1999 observed that the resolution passed in the meeting held on 18.10.1999 regarding selection of Humayun Elahi Sheikh as convener of APTMA  was  not in  accordance with  Memorandum  and  Articles   of Association of APTMA and therefore, the same stood cancelled. This order of Director Trade Organization has been challenged through this petition having been filed by 10 Members of the Managing Committee.

3.   Mr. Ali Sibtain Fazli, Advocate, learned counsel for the petitioner has argued that the impugned order of the Director Trade Organization cancelling the resolution passed by the Managing Committee is wholly void inasmuch as the petitioners were not afforded any opportunity of being heard. The second contention raised by the learned counsel for the petitioner is that the Director Trade Organization has misdirected himself in observing that the  resolution  dated  18.10.1999 was  not in  accordance with  the Memorandum and Articles of Association of APTMA inasmuch as according to Article 54 of the Articles of Association of Petitioner No. 11 after the expiry of the tenure, the Chairman shall automatically cease to hold the office and has to hand over the charge of the office to the Managing Committee if the election is not held. In the submission of the learned counsel there was no justification for the Director Trade Organization to direct that the affairs of the Association be taken over by the Vice-Chairman.

4.         Kh. Saeed-uz-Zafar, learned Deputy Attorney General has raised a preliminary objection as to the maintainability of this petition on theground that the petitioners have an equally   fficacious relief available 10 them in the form of appeal to the Federal Government under Section 15 of the Trade Organization Ordinance, 1961 and as such this Constitutional petition is not  aintainable. It was further argued by the Seamed Deputy Attorney General and Mr. Tariq Shamim, Advocate, learned counsel for Respondent No.  3 that there was no power vesting in  the Managing Committee to have appointed a convener to take over the affairs of the Association   and   the   resolution   was   violative   of   the   provisions   of memorandum  and  articles  of association  and  was,   therefore,  rightly cancelled by the Director Trade Organization.

5.         It is by now well settled that no action detrimental to the interest of any person can be taken by a statutory functionary except after allowing him an opportunity of being heard which is  he minimum requirement, of natural  justice.   On   this   ground   alone   decision   of   Director   Trade Organization is liable to be struck down,

6.     There is also force in the contention of the learned counsel for the petitioners that in case where the tenure of the Chairman has expired and a new Chairman is not elected under Article 54 of Memorandum and Articles of Association, it is the Managing Committee which has to take over the affairs of the Trade Organization and not the Vice-Chairman as directed by  the Director Trade Organization. Article 54 reads as under - "54. (i) On the expiry of fixed tenure period the Chairman will automatically cease to be the Chairman and will hand over the charge of his office to the newly elected Chairman or to the Managing Committee if the elections have not been held."

7.  Faced with this situation learned Deputy Attorney General and learned counsel for Respondent No. 3 have argued that at least to the extent of appointing a convener the resolution was ultra vires the memorandum and Articles of Association. This position is not contested by the learned counsel for the petitioners who says that Humayun Elahi Sheikh Petitioner No. 1 has since resigned as a convener.

8.    It follows that in absence of fresh election to the office of Chairman the  control   of Trade  Organization  vests  in  the  Managing Committee which is obliged to hold elections immediately. The observation of the Director Trade Organization that the resolution dated 18.10.1999 is in conflict with the Memorandum and Articles of Association is not correct except to the extent of the appointment of convener which is no more a live issue in view of resignation of Hamayun Elahi Sheikh.

9.   So far as the preliminary objection raised by the learned Deputy Attorney General and learned counsel for the respondent is concerned the same does not deserve any serious consideration inasmuch as it standsdemonstrated on the record that the impugned order is contrary to the

2000         An TEXTILE (JHANG) LIMITED v. Govr. OF PAKISTAN   Lah. 1109 (Malik Muhammad Qayyum, J.)

provisions of law as also natural justice. In such circumstances, it is not necessary for the petitioner to invoke the alternative remedy provided by law. Furthermore, the remedy of appeal in the present case appears to beillusory.

As a result of what has been stated above, this petition is allowed to the extent that order dated 13.1.2000 cancelling the resolution dated 18.10.1999 to the extent of denuding the Managing Committee of its power under Article 54 of the Memorandum and Articles of Association is declared to be without lawful authority and of no legal effect. The Managing Committee shall proceed to hold the elections to the office of Chairman within two weeks from today.

(A.A.T.'                                                                          Petition accepted.

Victory of a MBBS Student in a Case

PLJ 1999 Peshawar 57 (DB)

Present: MIAN SHAIKRULLAH JAN AND SARDAR MUHAMMAD RAZA KHAN, JJ. RAZA HASSAN-Petitioner

versus CHAIRMAN JOINT ADMISSION COMMITTEE etc.--Respondents

W.P. No. 119 of 1998, heard on 16.7.1998.

 Constitution of Pakistan, 1973-

—Art. 199—Educational Institutions—Admission in First year of M.B.B.S.-- Petitioner had applied for admission on merits as also on self finance basis-Petitioners name appeared in list of candidates of category 'A' (of ""merit) as well  as categoiy  'C'  (on self finance basis)  and  he alsoparticipated in entry test whereafter only formality of interview was to be fulfilled when admission policy was changed-Petitioner claimed that such change of admission policy proved detrimental to his interest in the sense that had change in Admission Policy not been brought in after due date, petitioner would have been granted admission in First year M.B.B.S. class due to his better merit position over specified respondent- Petitioner admittedly had applied for admission on self finance basis before due date, had participated in entry test and was declared successful, thus vested right had accrued to him of which he had been deprived by way of change in prospectus and that too in view of letter issued by Health Department not in accordance with requirement, of law/procedure-Petitioner having given first preference of admission inKhyber Medical College, Peshawar, be was entitled to admission in said College-Constitutional petition was accepted to the extent that petitioner was directed to be admitted in first year of M.B.B.S. class-Order of his admission however, would not affect admission already granted to specified respondents.    [P. 59, 60, 61 & 62] A, B & C

1986 CLC 1056; PLD 1981 SC 335; PLD 1985 AJ&K 17. ref.

Mr. Yahya Khan Afridi, Advocate for Petitioner.

Mr. Fawad Saleh, Advocate for Respondents Nos. 1 to 3.

Kh. Azhar Rashid, A.A.G. for Respondents Nos. 4 & 5.

Mr. Safeerullah Khan, Advocate for Respondents Nos. 6, 7, 8 & 10.

Mir Qasim Shah, Advocate for Respondents Nos. 9,11 & 12.

Mr. Zeenat Khan, Advocate for Respondents Nos. 14 to 16.

Date of hearing: 16.7.1998.

JUDGMENT

Mian Shakirullah Jan, J.~The petitioner Raza Hassan has moved this Constitutional petition for issuing a writ to the respondents to admit the petitioner on one of the self finance seats in 1st year MBBS in Khyber Medical College, Peshawar according to merit and the rules with further directions not to include those persons in the list for self finance who had not applied on the target date.

2.        The case pertains to the selection of candidates, who had applied for admission on self finance basis for admission to 1st year MBBS Classes inKhyber/Ayub Medical Colleges of the Province for the session 1997-98, but later on the seats allocated to the self finance scheme were reduced at a time when even the result of the entry test had been declared by the concerned authorities and only interview was to be conducted.

3.    From the material available on file it is evident that the petitionerapplied for admission in one of the Medical Colleges of the Province with first preference of admission in Khyber Medical College, Peshawar, both on merit (Category 'A') as well as on self finance basis (Category 'C') in response to the advertisement in the press by the Chairman Joint Admission Committee of Khyber Medical College, Peshawar and Ayub Medical College, Abbottabad. The last date for filing of admission forms was 25.10.1997. List of the candidates with their respective categories was prepared and in the said list the petitioner was shown to have applied for admission on merit as well as self finance basis. The entry test was also held and result of the same was published in the newspapers on 12.11.1997. It was on 29.11.1997 whenin the light of letter No. SO-II(H)/2-2/97 dated 29.11.1997 issued by the Section Officer (Health-H), Health Department, Government of NWFP, the children of doctors were allowed to apply for admission on 12 self finance seats, curtailed from the total 57 seats to be filled-up on self finance basis, reducing the  number of self finance  seats  to  45  only.  Resultantiy, Respondents No. 6 to 17 (except Respondents Nos. 6 and 9, who had already applied for admission like petitioner on both the categories), who had not applied for admission on self finance basis on or before the target date were granted admissions in the 1st year MBBS class in the light of the directions contained in the letter dated 29.11.1997 of the Health Department. The instant petition has been filed on 17.2.1998 after diligent efforts of the petitioner till 10.2.1998 (Annexure-C) to get copies of the merit list and the letter of the Health Department dated 29.11.1997. The grievance of the petitioner, in these circumstances, is that his merit position was much better than Respondents Nos. 12 to 16 and if under the directions of the Health Department contained in letter dated 29.11.1997 the said respondents were not allowed admissions, he would have been selected for admission to 1st year MBBS Class due to his better merit.

4. According to the prospectus for the year 1997-98 of Ayub Medical College, Abbottabad, the Board of Governors can change any or all the rules and regulations given in the prospectus without prior notice whenever considered necessary. Similar are the provisions with regard to change in the Prospectus of Khyber Medical College, Peshawar except that instead of the Board of Governors the right to change the rules/regulations of the Prospectus is with the Government of NWFP. The Governor of NWFP is the Chairman of the Board of Governors, Ayub Medical College. Both the Prospectuses at Page No. 13 to 64 clearly provides that no application after the given date and time will be entertained. The amendment in the Prospectus whereby the children of doctors, who had not filed applications for admission on self finance basis on or before the notified date i.e. 25.10.1997 were allowed to contest on self finance seats obviously amounts to change of rules/regulations in the Prospectus with regard to the admission policy and its effectiveness over the right of the petitioner is an important factor for determination in this case. Admittedly, the petitioner had applied for admission on self finance basis before the last date for filing of application. The petitioner also appeared in the entry test and passed thesame. At the relevant time i.e. on the last date of filing applications or before that or even before the entry test, no meeting of the Board of Governors was held for the alleged change in the Prospectus and it was after the completion of the above-mentioned process when the required approval was accorded at much belated stage probably due to the issuance of the letter of the Health Department wherein the Section Officer concerned had communicated the decision of the Competent Authority simply in a letter from and not in a proper from of a notification to be published in the Official Gazette. No doubt, the Section officer is empowered to sign an order or instrument of Government under the Rules of Business, but where an order amounts to change of the rules/regulations of the Prospectus, then it is the responsibility of the department concerned to have circulated the order in form of a notification and not as a letter of ordinary routine. The petitioner's name appears in the list of candidates of category 'A' as well as 'C' and he also participated in the entry test whereafter only the formality of interview was to be fulfilled when the admission policy was changed through letter dated 29.11.1997 followed by the approval of the Board of Governors, both after the relevant date i.e. 25.10.1997 for filing the admission forms, as aresult of which some of the candidate-respondents, who had not applied for admission, having less marks than the petitioner were allowed admissions in 1st year MBBS Class and thus a vested right of admission, which had accrued to the petitioner, stood infringed by such modification in the admission policy after the crucial date and the argument of the learned I counsel for the respondents that mere application for admission does not 1 create a vested right in favour of a candidate is not worth acceptance in this ' case, as the admission policy was changed at a time when the process for ! admission in the two Medical Colleges of the province had nearly been : completed and only the interview was to be held and moreover through the said change, those candidates who had not applied for admission on self ',finance basis were made eligible for admission contrary to the clear cut i provisions of the two prospectuses of the said Colleges and which change ! proved detrimental to the interest of the petitioner in the sense that had the

change in the admission policy not been brought in after the due date, the i petitioner would have been granted admission in the 1st year MBBS Class I due to his better merit position over-respondents Nos. 12 to 16. In Ghulam \Mustafa vs. The Chairman University of Engineering and Technology,Jamshoro and 7 others (1986 CLC 1056) it was observed as under:-"The determination of such date is necessary as once a vested right is created any amendment in the admission Rules affecting such vested right cannot be allowed. The admission policy is announced by publication of the prospectus. On the basis of such prospectus the applications are invited upto a particular date. These applications are considered and scrutinized immediately on the expiiy of the last date for their submission. The applicants are thaninterviewed and selected for admission. In this process for admission the moment date for submission of application expires the applicant becomes entitled to be considered for admission. This seems to be a reasonable and proper approach to the problem. After the expiiy of the last date no one can apply for admission. The applicants are to be considered on the basis of conditions, categories and criteria laid down in the prospectus or rules of admission. If the concerned, authorities are allowed to amend the rules or policy after the last date and at any time before the admission process is completed, then it is likely to result in serious abuses, malpractice, manipulation and favouritism. Even if the authority honestly and bona fide amends during this period it is likely to be viewed with suspicion and will injury the reputation and prestige of august bodies like Syndicate. Amendment after the expiiy of the date for submission of application is fraught with , serious consequences and likely to cause mistrust. The possibility cannot be ruled out that after scrutiny if it is found that in the normal course a candidate is not likely to be admitted, then to accommodate him the Rule is changed to the detriment of other applicants who on the basis of unamended Rules were likely to get the admission. Such uncertain situation creating atmosphere of suspicion and mistrust should be avoided by public bodies 

................... The candidates thus acquired a vested right to be considered for the admission on the basis of admission policy/rule existing on the expiry of the last date for filing the application The learned counsel for the Respondents Nos. 1 and 2 contended that after lapse of about one year the petitioner cannot be granted admission. The present petition was filed without delay and as it was necessitated due to the unlawful and un-authorised act of the Respondent No. 1, it cannot take shelter on this technical ground. In Munir Ahmad vs. Government of Baluchistan PLD 1981 SC 335 in similar situation appellant was declared entitled to admission.The learned counsel then contended that if the petition is allowed it will cause displacement of some respondents as new seat cannot be created. This submission amounts to stating that petitioner may be substituted for Respondent No. 12. Such a prayer made to the Court in Munir Ahmad v. Government of Baluchistan PLD 1981 SC 335 was refused."Like above, petitioner had applied for admission on self finance basis before the due date, had participated in the entiy test and was declared successful and thus a vested right had accrued to the petitioner of which he has been deprived by way of change in the prospectus and that too in view of a letter issued by the Health Department not in accordance with the requirement of law/procedure. The objection of the learned counsel for the respondents that sufficient time has elapsed since the closing of the admissions for the session 97-98 is also without any force, as the petitioner has deligently pursued his cause throughout and in view of the judgment reported in 1986 CLC 1056 cited above.

5. Relying upon an authority in the case of Syed Muneeb Nazir Shah vs. Azad Kashmir Government through its Chief Secretary and another (PLD 1985 Azad J & K 17) the learned counsel for the respondents candidates urged that a vested right has also accrued to Respondents Nos. 6 to 17 because they have been nominated for admission and have also started studying in the 1st year MBBS Class on such nomination and nearly one year has already elapsed, therefore, it would not be fair to disturb their studies at this stage of the proceedings. Keeping in view the dictum laid down in the above said authorities and also alive to the extreme hardship that may becaused to the respondents, who are studying in the 1st year MBBS Class on Self Finance basis, we find ourself in agreement with the contention of the learned counsel for the respondent candidates that their admission should not be disturbed at this stage. However, it was brought to our notice that though in the session 1997-98, almost one year has elapsed, but still, according to the learned counsel for the petitioner, the supplementary examination of the First year MBBS has not been held. It means that the opportunity of taking part in the supplementary examination could be availed by the petitioner. As the petitioner had given first preference ofadmission in Khyber Medical College, Peshawar, therefore, he is entitled to admission in the said college.

6. For the aforesaid reasons, this writ petition is accepted to the extent that the petitioner is directed to be admitted in the first year of MBBS corresponding to Session 1997-98. The order of his admission would not, as such, affect the admission already granted to Respondents No. 6 to 17. No orders as to costs.

(T.A.F.)                                                                          Petition accepted.

Matters of allotment or grant of lease of Government Lands

PLJ 1999 Karachi 510

Present: SHAIQ USMANI, J, ELECTRIC LAMP MANUFACTURER OF PAKISTAN-Plaintiff

versus

GOVERNMENT OF SINDH and 2 others-Defendants

Civil Misc. Application No. 470 of 1998 in Suit No. 1570 of 1997, decided on 21.8. 1998.

Colonization of Government Lands (Sindh) Act, 1912 (V of 1912)--

—-S. 36-Civil Court-Ouster of jurisdiction by Section 36 of Colonization of Government Lands (Sindh) Act; 1912-Whether perpetual in nature- Where in matters of allotment or grant of lease of land, there is an obvious avowed or express interference in favour of a particular person by a superior Government official or a person holding an important political office, in supersession or relaxation of Rules to detriment of another person, pursuance of departmental remedies provided under relevantstatutes, would be an exercise in futility because of increasing trend of obsequiousness amongst Government officials-Such officials hearing appeal/review, are likely, to be hesitant to apply their minds to cases judiciously in view of intimidating influence of their departmental or political superiors-Ousted jurisdiction of Civil Courts, by Section 36 of Coloriizatiou of Government Lands (Siiidb.) Act, 1912 would not be barred in such circumstances.       [P. 515] A & B

Mr. Nadctni Akhtar, Advocate for Plaintiff. Mr. Khalil-ur-Rekman, Advocate for Defendant. Date of hearing : 21.8.1998.

ORDER

This is an application under Order 7, Rule 11, C.P.C. whereby Defendant No. 4 seeks rejection of the plaint on grounds that this suit is barred under Section 36 of the Colonisation of Government Lands (Sindh) Act, 1912 (hereinafter referred to as the Act).

The facts of the case as brought out by the plaint are that Survey Nos. 179 and 489 of Deh Gujro, Taluka and District Karachi measuring 21 Acres and 13 Ghuntas were acquired by associates of plaintiff on or about 26.1.1948 through a sale-deed from its owner who was a Hindu. Since the Hindu owner migrated from Pakistan, the properly was declared evacuee property and that the sale in favour of plaintiffs association was confirmed only in 1957, vide order, dated 10.10.1957 of Additional Custodian (Judicial) Evacuee Property, Karachi. Thereafter, the plaintiff enjoyed peaceful possession of the entire property except for a brief interlude when hisownership of part of his property that is 80 Acres under Survey No. 89 became disputed at the time of renewal of lease. Nevertheless, the lease was finally renewed on 20.10.1976 for further period of 30 years with effect from 9.. 12.1968 but in respect of 15 Acres and 21 Ghuntas. However, these disputes, irrelevant for purpose of decision of this application, about 8 Acres of his property were finally resolved by 11.12.1990 and the plaintiff since then had unquestioned title to the said 8 Acres as well. The plaintiffs troubles began when the Chief Minister of Sindh at the time unilaterally and illegally allowed the application of Defendant No. 3 for allotment of 35Ghuntas (4235 sq. yds.) of prime land in Deh Gujro District East, vide, letter, dated 12.4.1996 at Rs. 200 per sq. yard. Defendant No. 3's application was then marked to Defendant No. 1 for necessary action. After doing the normal rounds in the corridors of bureaucracy the application reached the Secretary, Government of Sindh, Board of Revenue, Land Utilization Department who in exercise of power under Section 10(1) of the Act directed the leasing of an area of 0.35 Ghuntas from Deh Gujro District East Karachi to the Defendant No. 3 at a throw away price of Rs. 100 per sq. yrds. when the prevailing market price of the land was about 30,000. The Secretary wrote to the Deputy Commissioner, Karachi East, that is Defendant No. 2, on 23.4.1996 as under :—

"In exercise of the powers conferred under Section 10(i) of the Colonization of Government Lands (Sindh) Act, 1912 read with condition No. 3(2) of the statement of conditions notified on 12.5.1975, the Government of Sindh in Land Utilization Department with the prior approval of the Chief Minister, Sindh, has been pleased to lease out an area of 0.35 Ghuntas from Deh Gujro District Karachi East 011 99 years in favour of Hcy'i Shaukat Islam subject to availability of land at the rate of Rs. 100per sq. yrds. (!) for commercial, industrial and residential purposes in relaxation of condition No. 14 (ibid) and existing ban."

It is evident from the above letter that the area where the said 35 Ghuntas of land has been leased to Defendant No. 3 had not been specified, yet the Defendant No. 3 proceeded to illegality occupy on 6.10.1996 a substantial portion of plaintiff's land arid upon enquiry maintained that he had done so under the directive of the Chief Minister.

Later upon change of Government an enquiry was instituted by the Government of Sindh to probe into the validity of allotment of lands by the previous Government. Apparently the name of Defendant No. 3 figured prominently in the published list of the beneficiaries of such allotment. During the course of enquiry it was found that the land in question had been sold by Defendant No. 3 to Defendant No. 4 by way of sale-deed, dated 6.10.1997. Through this suit plaintiff claims title over the said land in occupation of Defendant No. 3/4, and prays for cancellation of title documents of the said defendants.

t

According to the plaint the plaintiff disputes the title of the Defendant No. 3/4 on the following grounds

"(a) The Preamble of the said Act mentions that the said Act is 6, to make better provision for the colonization and administration of Government Lands'. It does not apply to non-Government Lands or the land already leased out to any person by the Government; as in the case of Haji Shaukat Islam (Defendant No. 3) a portion of Survey No. 179 Deh Gujro was given to him which was already in possession of the plaintiff on 30 years   lease, as is explained in subsequent paragraphs.           <

(b)Section 3 of the said Act defines 'Colony' as an area to which the said Act shall be applied by order of the Provincial Government. It is submitted that the 35 Ghuntas allotted to Haji Shaukat Islam (Defendant No. 3) did not come under the definition of Colony.                                                                                              

(c)              Section 4 of the said Act mentions that the said Act applies to certain types of Government lands notified by the Provincial Government. It is submitted that the 35 Ghuntas allotted to Haji Shaukat Islam (Defendant No. 3) did not come within the scope of Section 4 of the said Act and as such the said Act is not
all applicable to the allotment made in him.

(d)       Section 10(1) of the said Act lays down that 'The Board of Revenue subject to the general approval of the Government may grant land in colony to any person on such conditions as it thinks fit'. It is submitted that Syed Abdullah Shah, the then Chief Minister of Sindh, illegally purported to exercise in this matter powers conferred upon the Provincial Government under Section 10(i) of the said Act in spite of the fact that none of the provisions of the said Act, including Section 10(i), was applicable to the facts and circumstances of this case. This facts  ; alone establishes collusion between Syed Abdullah Shah, the then   Chief  Minster   of  Sindh,   and   Haji   Shaukat  Islam Defendant No.  3) and other officers and the offence of      ;corruption and corrupt practices as defined in Section 3 of the Ehtisab Act, K of 1997 prima facie appears to have been committed by all of them.                                                                              '          '       

(e)    Section 10(2) of the said Act gives powers to the Provincial Government  to   'issue  a   statement  or   statements   of the conditions on which it is willing to grant land in a colony to  tenants'. It is submitted that condition No. 14 was relaxed as well as existing ban prevailing at the relevant time was lifted in

this particular case was mentioned in Annexure 'P-3' without assigning any reason whatsoever for doing the same or for showing this concession of Hqji Shaukat Islam (Defendant No. 3)."

In so far as the Defendant No. 4 is concerned, in his application under Order VTI, Rule 11, C.P.C. for rejection of plaint, he has relied on various provisions of law, however, at the time of hearing his counsel's main thrust of the arguments was that this Court was no jurisdiction to try this suit under the provisions of Section 36 of the Act In effect Mr. Khalil-ul-Rehman, the learned counsel for Defendant No. 4 contends that under the statement of conditions notified under Sindh Government Notification No. KB-1/1/30/72/7096, dated 12.5.1975 as required by Section l<Xi) of the Act the Government (of Sindh) has absolute discretion in the grant of leaseand selection of lessees. He then goes on to say that as held in the case of Muhammad Asghar v. Sofia Begum PLD 1976 SC 435 these "statements of conditions" so issued constitute statutory instruction having the force of law". Consequently, since the lease was granted to Defendant No. 3 by the Chief Minister, who is the head of Sindh Government, it was validly granted and the Defendant No. 4, having purchased the land by a sale-deed, has now a valid title to the said land. If the plaintiff had any objection to it their remedy lay in appealing to the Commissioner under Section 161 of Land Revenue Act, 1967 within the limitation period and if unsuccessful seek revision of the adverse orders under Section 164 of the said Act by Central Board of Revenue. But under no circumstances, the argues, the plaintiffs couldapproach the Court for this purpose as its jurisdiction is ousted by Section 36 of the Act, which reads as under :--

"Section 36. Jurisdiction of Civil Court barred as regards matter arising under the Act.--A Civil Court shall not have jurisdiction in any matter of which the Collector is empowered by this Act to dispose and shall not take cognizance of the matter in which the Provincial Government, Board of Revenue or Collection or any otherRevenue Officer exercises any power vested in it or in him by or under this Act.

In response Mr. Nadeem Akhtar, the learned counsel for the plaintiff relied on the averments in the plaint that have been quoted above which basically relate to the land in question not being subject to the Act and to lack of authority of the Chief Minister to grant such lese and to his mala fide, which is manifest. He also relied on Section 9 of Civil procedure Code to show that the Civil Court will have jurisdiction to try the suit because of the fraudulent manner in which the lease was granted.

I am constrained to note that none of the counsels cited any authorities in support of their contentions and in fact did not give proper assistance to the Court.

Now it is settled law that a plaint an be rejected only if from the averments in the plaint the suit is found to be barred by any law and the defence put up by the defendants should not be the determining factor.

Needless to say that a similar criteria applies when determining whether a Court has jurisdiction in a matter or not In the plaint it is specifically averred that the action of the Chief Minister in approving the lease of land to Defendant No. 3 was unilateral and illegal inasmuch as he purposed to exercise powers under Section 10(1) of the Act, when the said Act was not applicable to this land. It is also averred that such act of the Chief Minister was mala fide inasmuch as he allowed the grant of lease at a rate much below the market value of the land and he did so in relaxation of condition 14. It is also averred that subsequently an enquiry was conducted about the irregularity in the grant of lease to Defendant No. 3. These averments prima facie point to the fact that the grant of lease to Defendant No. 3 was unusual and even possible irregular. The question, thus, arises that given the facts averred in the plaint, is the jurisdiction of this Court ousted by Section 36 of the Act ?

The question of ouster of jurisdiction under Section 36 of the Act has been considered in various reported cases though none of these were brought to my notice by the learned counsel for the parties. I give below brief excepts from some of these cases.

In the case of Karim Dad v. Arif and another PLD 1978 Lah. 679 it was held that :--

"............... Approached from this angle Section 36 of the (Act), which bars jurisdiction of Civil Courts should present no difficulty, inasmuch as that section will apply only where authorities concerned acted within the power and four corners of their jurisdiction and not where their acts are ultra vires or without jurisdiction or void or in excess of their jurisdiction."

In the case of Anjuman Tahirul Islam (Regd.) Sheikhupura v. Province of West Pakistan Punjab Province and 2 others PLD 1983 Lah. 294 it was held that :--

"......that if it can be shown that the order passed cannot be accommodated within the ambit of power of authority of a particular authority, the Civil Court would intervene. Similarly, the Civil Court can intervene in case of fraudulent and mala fide orders. In this view of the matter, jurisdiction of the Civil Court would only be ousted if it was found that the order passed by the statutory functionary lay within the ambit of its power and was neither based on fraud nor mala fides."

In the case of Muhammad Shaft v. Punjab Province 1982 CLC 55 somewhat differently and rather stridently was held that :--

"the jurisdiction of the Civil Court cannot be made dependant on the correctness of the litigants contentions. What is to be seen is whether the authority passing the order was empowered under the Act to pass such an order."

To summarise the above citations, it would appear that the Superior Coons nave been consistently of the view that the jurisdiction of Civil Courts is indeed ousted by Section 36 of the Act, save in circumstances where the person passing the order was not authorised to pass such an order or the order passed was based on fraud ormala fides. Indeed, I would go farther and say that where in matters of allotment or grant of lease of land, there is an obvious avowed or express interference in favour of a particular person by a superior Government officials or a person holding an important political

 office, in suppression or relaxation of rules to the detriment of another person, the pursuit of departmental remedies provided under the relevant statute would be an exercise in futility because of the increasing trend of obsequiousness amongst the Government servants. Thus, such officials hearing the appeal/review are likely to be hesitant to apply their minds to V the case judiciously in view of intimidating influence of their departmental or political superiors. Consequently, I am inclined to hold that under such circumstances as well as jurisdiction of the Civil Courts will not be barred.In the instant case going by the averments in the plaint, as I must, I find that the allegations, to the effect that the Chief Minister of Sindh did not have the requisite authority to grant the lease and/or that in acting, thus, his motives were mala fide have been greatly emphasises. Moreover, it is apparent from the averments in the plaint that in grant of the lease of the suit land there was an avowed interference by the Chief Minister in favour of Defendant No. 3 in derogation of rules to the detriment of plaintiff. Consequently I am of the view that in these circumstances without an issue being cast with regard to jurisdiction and without evidence being led on that point it is not possible to hold at this stage that the jurisdiction of this Court is ousted under Section 36 of the Act. I, therefore, dismiss Civil     Miscellaneous Application No. 470 of 1998.

(TAJ.)                                                                           Appeal dismissed.

Judgment on Article 4 of Constitution

PLJ 2011 Lahore 455

Present: Syed Mansoor Ali Shah, J.

MAQBOOL AHMAD and 4 others--Petitioners

versus

DISTRICT OFFICER (REVENUE)/DISTRICT COLLECTOR, FAISALABAD and 3 others--Respondents

W.P. No. 20305 of 2009, decided on 16.3.2010.

Constitution of Pakistan, 1973--

----Art. 4--Due process clause--Protection of law or to be treated in accordance with law--Basket of legal principles--Principles of natural justice, fairness, procedural propriety, procedural due process, reasonableness, transparency, openness, participation, inclusiveness are all embedded in Art. 4, which is, therefore, a citadel of administrative and judicial governance in the country--Art. 4(2)(A) of the Constitution moves from "citizen" to "any person" and announces further protection when it states that "no action detrimental to life, liberty, body, reputation or property of any person shall be taken except in accordance with law" Art. 4 is a Constitutional reminder especially for the government and its functionaries to treat everyone in accordance with law.           [P. 457] A

Constitution of Pakistan, 1973--

----Art. 4--Fundamental law--Public functionaries while exercising discretion or taking administrative action must be constantly reminded of the principles so that their discretion and administrative actions are aligned with the basic fundamentals of Constitution.

            [P. 459] B

Colonization of the Government Land Act, 1912--

----S. 32--Constitution of Pakistan, 1973, Art. 4--Notice of dispossession issued by DOR--Assailed--Writ petition--When action proposed is detrimental to life and property of a person--Held: Section 32 of Colonization of Government Land Act, cannot even begin to be put in motion unless the test of procedural due process provided in Art. 4 of the Constitution alongwith all its concomitant principles are first exhausted--Notice of dispossession under Section 32 of Colonization of Government Land Act has been issued in blatant violation of Art. 4 of the Constitution and cannot be permitted--Petition allowed. [P. 460] C

NLR 1991 Rev. 21, NLR 1991 Rev. 99, NLR 2003 Rev. 90 &
PLJ 2003 Lah. 1273, rel.

Mr. M.A Ghaffar-ul-Haq, Advocate for Petitioners.

Malik Abdul Aziz Awan, Asstt. Advocate General for Respondents.

Date of hearing: 16.3.2010.

Order

Brief facts of the case are that the petitioners are admittedly encroachers of land Measuring 4 Kanal 1 Marla 8 Sirsai in Chak No. 252-RB Tehsil & District Faisalabad, however they are in possession of the said land since 1947 and have raised construction thereon since the year 1995. When, earlier, the Revenue Department tried to demolish the said construction, petitioners filed W.P. No. 10594/1995 wherein on 29.10.95 interim relief was granted to the petitioners to the effect that their possession should not be disturbed. The said petition was disposed of on 15.09.1997 with the direction to decide the claim of the petitioners in accordance with law and rules expeditiously. This direction was not complied with. Despite the same, Deputy District Officer (Rev) vide impugned order dated 11.04.2009 under Sections 32 and 34 of the Colonization of Government Land Act, 1912 passed the following order:

"Now, therefore, I                                     Deputy District Officer Revenue/Collector, Tehsil Sadar, Faisalabad in exercise of the powers vested on me u/S. 32/34 of the Colonization of Government Land Act of 1912, hereby authorize Tehsildar/Naib Tehsildar Faisalabad to forthwith re-enter upon the land and resume possession of it and take possession of the crops, trees or building material, without payment of any compensation, whatsoever, the case may be."

2.  The learned Asstt. Advocate General submitted that an alternative remedy against the said order is available under Section 164 of the Land Revenue Act, 1967. He further submits there is a civil suit pending regarding the same subject matter filed by Petitioner No. 1.

3.  Arguments heard. In the earlier round of litigation between the same parties the Collector was directed vide order dated 15.09.1997 passed in Writ Petition No. 15094/1995 to decide the claim of the petitioners in accordance with law and rules expeditiously latest by 30.10.1997. This order admittedly has not been complied with to date. Inspite of the said direction Respondent No. 2 without issuing notice and affording opportunity of hearing to the petitioners and without complying with the above mentioned order in the earlier round of litigation passed the impugned order under Sections 32 & 34 of the Colonization of Government Land Act, 1912. The impugned order is therefore in violation of order dated 15.09.1997 of this Court.

4.  Even if the petitioners are encroachers, trespassers or squatters they have the inalienable right to enjoy equal protection of law and to be treated in accordance with law. This right is constitutionally guaranteed to them (every citizen) under Article 4 of the constitution and they cannot be deprived of the same. Article 4 of the constitution is our DUE PROCESS CLAUSE. Protection of law or to be treated in accordance with law carries in it a basket of legal principles. Therefore the principles of natural justice, fairness, procedural propriety, procedural due process, reasonableness, transparency, openness, participation, inclusiveness are all embedded in Article 4, which is, therefore, a citadel of administrative and judicial governance in the country.

5.  Article 4(2)(a) of the Constitution moves from "citizen" to "any person" and announces further protection when it states that: "no action detrimental to life, liberty, body, reputation or property of any person shall be taken except in accordance with law." Article 4 is a constitutional reminder especially for the Government and its functionaries to treat everyone in accordance with law.

6.  As explained above "law" carries all the principles of law including principles of natural justice including the maxim audi alteram partem. Reliance is placed on "Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri" (PLD 1969 SC 14), "New Jubilee insurance Company Ltd., Karachi v. National Bank, of Pakistan, Karachi" (PLD 1999 SC 1126), "Aftab Shahban Mirani v. President of Pakistan and others" (1998 SCMR 1863) and "Government of Pakistan through Director-General, Ministry of Interior, Islamabad and others v. Farheen Rashid" (2009 PLC (CS) 966).

7.  Justice (Retd) Fazal Karim writes in his book Judicial Review of Public Actions, (Volume-2, Page 1331) that "Nevertheless, the general consensus of the judicial opinion, seems to be that, in order to ensure the "elementary and essential principles of fairness" as a matter of necessary implication, the person sought to be affected must at least be made aware of the nature of allegations against him, he should be given a fair opportunity to make relevant statement putting forward his own case and to correct or controvert any relevant statement brought forward to his prejudice. In order to act justly and to reach just ends by just means the Courts insist that the person or authority should have adopted the above elementary and essential principles unless the same had been expressly excluded by the enactment empowering him to so act."

Lord Reid in Ridge v Baldwin (1963) 2 All ER 66 said:

"Time and again in the cases I have cited it has been stated that a decision given without regard to the principles of natural justice is void.......I see no reason to doubt these authorities. The body with the power to decide cannot lawfully proceed to make a decision unless it has afforded the person affected a proper opportunity to state his case."

In A.G. v. Ryan (1980) AC 718 Lord Diplock held:

"It has long been settled law that a decision affecting legal rights of an individual which is arrived at by a procedure which offends against the principles of natural justice is outside the jurisdiction of decision making authority."

8. In "Collector Sahiwal v. Muhammad Akhtar" (1971 SCMR 681) the Supreme Court of Pakistan held:

This Court has gone to the extent of pointing out that the mere absence of a provision in a statute as to notice cannot override the principle of natural justice, that an order affecting the rights of a party cannot be passed without an opportunity of hearing and also held that where the giving of a notice is a necessary condition for the proper exercise of jurisdiction then failure to comply with this requirement renders the order void and the entire proceedings which follow also become illegal.

Reliance is placed with advantage on University of Dacca through its Vice Chancellor etc. v. Zakir Ahmad (PLD 1965 SC 90), Chief Commissioner Karachi and another v Mrs. Dinao Sohrab Katrak (PLD 1959 SC 45) Amanullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others (PLD 1990 SC 1092), Mrs. Anisa Rehman v. P.I.A.C. and another (1994 SCMR 2232) and Hazara (Hill Tract) Improvement Trust through Chairman and others v. Mst. Qaisra Elahi and others (2005 SCMR 678).

9.  Article 4 of the Constitution carries more. "Law" under the said article must reflect the constitutional ethos of a welfare sate. The principles of democracy, freedom, equality, tolerance and social justice given in the Objective Resolutions and the Preamble of the Constitution are essential ingredients of "Law" under Article 4 of the Constitution. It is obvious that our Constitution does not envisage a "Law" i.e. un-democratic, against freedom of the people, intolerant or opposed to equality and social justice. Therefore, public functionaries while exercising discretion or taking administrative actions must be constantly reminded of the principles mentioned above, so that their discretion and administrative actions are aligned with the basic fundamentals of our Constitution. To be treated in accordance with law and to enjoy the protection of law under Article 4 should be all embracing fully engulfing the spirit and fundamental principles of the Constitution of our welfare state.

10.  In the present case a pre partition law i.e., Colonization of Government Lands (Punjab) Act, 1912 has been given effect to as if this land is still a colony of the British and the public functionaries are officers of the British Raj. The public functionaries enforcing the said law forgot that colonial legacies of the past have been thrown to the wind and we are now an independent democratic country with robust and dynamic fundamental rights and watchful constitutional Courts to ensure their enforcement. PEOPLE of Pakistan and their well-being is at the heart of our Constitution and therefore the top and foremost constitutional obligation of the Government. Constitution of 1973 is, therefore, people-centric and the daily functioning of the Government can have no other goal more sacrosanct than to improve the well being of its people.

11.  Justice Bhagwati in Ramana Shetty vs. International Airport Authority (AIR 1979 SC 1628) speaking for the Court said:

It is "unthinkable that in a democracy governed by the rule of law, the executive government or any of its officers should possess arbitrary power over the interests of the individual. Every action of the executive government must be informed with reason and should be free from arbitrariness. This is the very essence of the rule of law and its bare minimum requirement".

12.  Section 32 of the Colonization of Government Land Act, 1912 states:

32. Power of re-entry in case of squatters and trespassers.--When the Collector is satisfied that any person has taken or is in possession of land in a colony to which he has no right or title, the Collector may, in addition to any other powers he may possess, forthwith re-enter upon the land and resume possession of it and take possession of all crops, trees and buildings thereon on behalf of Government without payment of any compensation whatsoever.

13.  The word "SATISFIED" in this section will be incomplete if the satisfaction arrived at by the public functionary is behind closed doors without hearing the person against whom the action is being proposed. Participation and inclusiveness is an essential part of decision making in any democratic state. Without hearing the other side, the officer cannot be said to have been SATISFIED. In particular when the action proposed is detrimental to life and property of a person. Therefore, Section 32 of the Act cannot even begin to be put in motion unless the test of procedural due process provided in Article 4 of the Constitution alongwith all its concomitant principles are first exhausted. In this case notice of dispossession under Section 32 of the Act has been issued in blatant violation of Article 4 of the Constitution and cannot be permitted. Reliance is placed on "Muhammad Sharif etc. v. A.C. Samundri, etc" (NLR 1991 Revenue 21) "Madad Ali Shah v. Revenue Minister, etc" (NLR 1991 Revenue 99), "Muhammad Zafar etc. v. Yousaf Ali, etc", (NLR 2003 Revenue 90) and "Muhammad Zafar and 23 others v. Yousaf Ali and others" (PLJ 2003 Lahore 1273).

14.  The other aspect of the matter entails the concept of HEARING. Hearing is not a mere mechanical and perfunctory ritual or a desultory cosmetic requirement that has to be hurriedly complied with. There is a deeper meaning to a hearing. Hearing first of all requires that the person against whom the action is proposed is made a part of the decision making process and the officer exercising discretion has given due weightage to the submissions made during the hearing. Additionally, in built in a hearing is the wisdom that there might be alternative choices available to resolve the problem, which can surface once the hearing takes place. As every law is in the public interest and made for the welfare of the people, this inherent and intrinsic welfare embedded in every law necessitates that alternatives or options are be deliberated   upon   in the   public  interest.  For  example,  in  this  case, dispossession might not be the only option. Once the public functionaries keep the welfare of the people supreme, they can consider a host of possibilities and alternates. In this case alone dispossession need not be the only answer. Allotment of alternate land, sale or at least grant of time to vacate the land can be possible options. It is with such sensitivity and passion that public administration wins the heart of the people and builds ownership amongst the people. However, if the public functionaries are fully satisfied after the hearing that there is no other alternative but to invoke Section 34 of the Act, the officers have all the right to proceed further subject to compliance of due process under the law.

15.  Without going into the question of the current status of the possession as the learned Law Officer submits that after the impugned orders, the possession of the land in question was taken over by the respondents. This fact is controverted by the counsel for the petitioner, who submits that the petitioners are in possession. Be that as it may, the impugned orders have been passed without due process of law as enshrined under Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, therefore, the same are set aside, Respondents are directed to grant petitioners a fair hearing and then pass a speaking order under the Colonization of Government Land Act, 1912 and the scheme prepared there under especially policy circulated vide No. 426-94/1677-CLIV, dated 25.05.1994, so that the long standing claim of the petitioners be decided within a fortnight from the receipt of this order strictly in accordance with law.

16.  This petition is therefore, allowed and the impugned orders are set aside in the above terms.

(M.S.A.)           Petition allowed.