Unheard |ruled that a decision made without hearing.
 |
| Unheard |ruled that a decision made without hearing the petitioner violated natural justice principles and remanded the case for a fair hearing. |
اس کیس میں عدالت نے یہ فیصلہ کیا کہ درخواست گزار کو سنے بغیر جو حکم دیا گیا تھا، وہ غیر قانونی ہے، اور اس فیصلے کو منسوخ کرتے ہوئے کیس کو دوبارہ سماعت کے لیے بھیج دیا۔
محمد اسلم بمقابلہ ممبر (کالونیز) بورڈ آف ریونیو پنجاب لاہور اور دیگر (2019 CLC 1141) کے مقدمے کا مرکزی نقطہ قدرتی انصاف کے اصول اور خاص طور پر "آڈی آلٹرم پارٹم" کے اصول (کسی شخص کو سنے بغیر سزا نہیں دی جانی چاہیے) پر مبنی ہے۔ مقدمے کے حقائق کے مطابق محمد اسلم کی زمین کی الاٹمنٹ منسوخ کر دی گئی تھی، اور انہیں اپنا موقف پیش کرنے کا موقع نہیں دیا گیا، جو ان کے منصفانہ سماعت کے حق کی خلاف ورزی تھی۔
فیصلے کی اہم نکات یہ ہیں:
1. قدرتی انصاف کی خلاف ورزی
: درخواست گزار کو بورڈ آف ریونیو کی طرف سے کوئی حکم صادر کرنے سے پہلے سنے جانے کا موقع نہیں دیا گیا، جو کہ پنجاب لینڈ ریونیو ایکٹ 1967 کی دفعہ 164 کی خلاف ورزی تھی۔ اس دفعہ کے تحت یہ لازمی ہے کہ کسی بھی شخص کو متاثر کرنے والا فیصلہ اس کو سنے بغیر نہیں کیا جا سکتا۔
2. آڈی آلٹرم پارٹم کا اصول:
عدالت نے اس اصول کو انصاف اور منصفانہ کارروائی کے لیے بنیادی قرار دیا۔ اس اصول کے تحت کوئی بھی فیصلہ یا حکم فریقین کو سنے بغیر نہیں دیا جا سکتا۔
3. کیس کی دوبارہ سماعت:
چونکہ درخواست گزار کو سنے بغیر فیصلہ کیا گیا تھا، لہٰذا ہائی کورٹ نے بورڈ آف ریونیو کے فیصلے کو باطل قرار دیا اور زیریں عدالتوں کے فیصلوں کو بھی کالعدم قرار دے دیا۔ کیس کو دوبارہ سماعت کے لیے بورڈ آف ریونیو کو بھیجا گیا تاکہ درخواست گزار کو مناسب موقع فراہم کیا جا سکے۔
4. دیگر نکات:
درخواست گزار نے یہ بھی کہا کہ مدعا علیہ کی اپیل وقت کی پابندی کے مطابق نہیں تھی۔ عدالت نے ہدایت کی کہ یہ اور دیگر اعتراضات درخواست گزار بورڈ آف ریونیو کے سامنے دوبارہ سماعت کے دوران اٹھا سکتا ہے۔
تجزیہ
یہ مقدمہ پاکستان کے آئین کے آرٹیکل 10-A کے تحت منصفانہ سماعت اور قانونی عمل کے حق کی اہمیت کو اجاگر کرتا ہے، جو ہر شہری کے لیے منصفانہ ٹرائل اور انصاف کو یقینی بناتا ہے۔
Must read judgement
2019 C L C 1141
[Lahore (Bahalwalpur Bench)]
Before Jawad Hassan, J
MUHAMMAD ASLAM----Petitioner
Versus
MEMBER (COLONIES) BOARD OF REVENUE PUNJAB LAHORE and others----
Respondents
Civil Revision No.336 of 2010, decided on 26th March, 2019.
(a) Punjab Land Revenue Act (XVII of 1967)---
----S. 164, proviso---Allotment of land in favour of petitioner was cancelled by appellate
authority in revenue hierarchy---Plea raised by petitioner was that he was not afforded
opportunity of hearing---Maxim: audi alteram partem---Applicability---Validity---Petitioner
was not afforded opportunity of hearing despite the fact that record was made available to
Board of Revenue and it could have kept in mind that someone may be affected by such
order--- Courts below had dilated upon specific findings on issue which was clear violation
of doctrine of Maxim: audi alteram partem--- High Court set aside order passed by Board of
Revenue as petitioner was condemned unheard and same was declared void ab initio having
no value in eyes of law---Judgments and decrees passed by courts below were set aside and
case was remanded to Board of Revenue for decision afresh after affording proper
opportunity of hearing to all concerned including the petitioner---Revision was allowed
accordingly.
Messrs Blue Star Spinning Mills Ltd. v. Collector of Sales Tax and others 2013
SCMR 587; Ali Muhammad v. Allah Ditta and others 1985 CLC 2817; Moulana Atta ur
Rehman v. Al Hajj Sardar Umar Farooq and others PLD 2008 SC 663 and Chief
Commissioner, Karachi and another v. Mrs. Dina Sohrab Katrak PLD 1959 SC (Pak.) 45 ref.
(b) Constitution of Pakistan---
----Art. 10-A---Due process of law and right of fair trial---Maxim: audi alteram partem---
Connotation and applicability---Scope---Natural justice, principles of---Scope---Every
person to get a chance of being heard---Maxim: Audi alteram partem means 'hear the other
side' or 'no man should be condemned unheard' or 'both sides must be heard before passing
any order'---Maxim itself says 'no person should be condemned unheard'---No case or
judgment can be decided without listening to point of another party---Natural justice means
that justice should be given to both parties in a just, fair and reasonable manner---Both
parties are equal before the Court and have an equal opportunity to represent them--- Natural
justice is concept of common law which implies fairness, reasonableness, equality and
equity---Principles of natural justice are grounds of Art. 10-A of the Constitution that every
person should be treated equally--- Law and procedure must be of a fair, just and reasonable
kind--- Principles of natural justice come into force when prejudice is caused to any
administrative action---Principle of audi alteram partem is basic concept of principle of
natural justice and states that "no one should be condemned unheard"---Maxim ensures a fair
hearing and fair justice to both the parties and both parties have right to speak---No decision
can be declared without hearing both parties---Object of Maxim: audi alteram partem is to
give an opportunity to both parties to defend themselves--- No proposition can be more
clearly established than that a man cannot incur loss of liberty or property for an offence by a
judicial proceeding until he has had a fair opportunity of answering case against him--- No
party is to suffer in person or in purse without an opportunity of being heard---Maxim: audi
alteram partem is first principle of civilized jurisprudence and is accepted by law of men---
Generally, said maxim includes two elements (a) notice; and (b) hearing---Before any action
is taken, effected party must be given a notice to show cause against proposed action and
seek his explanation and is a sine qua non of right of fair hearing---Any order passed without
giving notice is against principles of natural justice and is void ab initio---Second ingredient
of Maxim: audi alteram partem (hear the other side) is rule of hearing---If order is passed by
authority without providing reasonable opportunity of being heard to person effected by it
adversely, such order is invalid and must be set aside--- Reasonable opportunity of hearing
which is also well-known as 'fair hearing' is an important ingredient of audi alteram partem
rule--- Such condition may be complied by authority by providing written or oral hearing
which is discretion of authority unless statute under which action is being taken by authority
provides otherwise.
Bank of Punjab v. Accountability Courts Nos.1 and 2 others PLD 2014 Lah. 92 rel.
A.R. Aurangzeb for Petitioner.
Asif Mahmood Pirzada for Respondents.
Jam Muhammad Afzal Gasoora, Assistant Advocate-General.
Date of hearing: 26th March, 2019.
JUDGMENT
JAWAD HASSAN, J.----Through this Civil Revision Petition, filed under section
115 of the Code of Civil Procedure, 1908 (C.P.C.), the Petitioner has challenged the validity
of impugned judgments and decrees dated 04.10.2005 and 12.01.2010 passed by the Civil
Judge, Bahawalpur and Additional District Judge Bahawalpur. He also prayed for setting
aside the order of the Member (Judicial-I) Board of Revenue, Punjab Lahore Camp
Bahawalpur (the "Member BOR") dated 24.03.1997.
2. The facts succinctly revealed from the petition are that the Petitioner was allotted
agricultural land on Temporary Cultivation Scheme measuring 100 Kanals situated in Goth
Mehroo Tehsil and District, Bahawalpur vide order dated 11-4-1975, passed by the Assistant
Commissioner/Collector Bahawalpur which was confirmed vide order dated 08.01.1978
passed by the Deputy Commissioner Bahawalpur and the Petitioner deposited all the dues
concerning to the same land. The tenancy period was extended from time to time. The
Petitioner submitted application in the year 1995 for the grant of proprietary rights on the
prescribed form in time according to directions/instructions of the Board of Revenue. In the
meanwhile, the said land was acquired for "Jinnah Abadi" and the revenue staff reported the
matter accordingly. The Petitioner being aggrieved made request for allotment of alternate
land in Chak No.112/DNB Tehsil Yazman District Bahawalpur by describing that square
No.46 Killa Nos.14-25 and 13 half total 100 Kanals of land (the "Disputed Land") but the
Assistant Commissioner Bahawalpur showed his inability being out of Tehsil Bahawalpur on
09.04.1992. Against which the Petitioner filed an Appeal before the Additional
Commissioner (Revenue) Bahawalpur with a prayer to allot the land which was State land as
per report of revenue staff which was allowed and the Petitioner in the year 1993 got
possession of the Disputed Land which was barren, vacant and State land (Baqaya Sarkar);
paid all the outstanding dues in terms of lease money and made it cultivable after spending
huge amount. When the Petitioner applied for ownership rights after fulfillment of all the
formalities, the Respondent No.4 claimed that actually he was entitled to the Disputed Land.
The respondent No.4 moved to the Collector for the allotment to which he refused. Feeling
aggrieved thereby the Respondent No.4 filed an Appeal which too was dismissed vide order
dated 10.11.1986 by the Additional Commissioner, Bahawalpur. The Respondent No.4 then
filed revision petition in the year 1995 before the Member BOR which was, accepted.
3. Feeling aggrieved by the order of the Member (Judicial-I) Board of Revenue, the
Petitioner filed a civil suit which was contested by all the Respondents and ultimately the
same was dismissed and Appeal there-against was also met to the same fate vide the
impugned judgments and decrees.
4. During the pendency of the instant petition, the name of the Respondent No.4 has
been rectified from Muhammad Ramzan to Muhammad Shabbir through C.M. No.1350/2018
filed by the Petitioner.
5. Learned counsel for the Petitioner inter alia submitted that the impugned judgments
and decrees are against the law and facts; that both the Courts below have not taken into
consideration the facts and law in its true perspective; that the Appeal as well as Revision of
the Respondent No.4 before the revenue hierarchy were badly time barred but this aspect of
the matter has never been taken into consideration by the Member BOR as well as both the
Courts below; that the Member BOR had passed the order dated 24.03.1997 in favour of the
Respondent No.4 without affording any opportunity of hearing to the Petitioner, as such
there is sheer violation of principle of natural justice and that too this ground has not been
discussed by both the Courts' below as well despite agitation before them; that valuable
rights had been accrued in favour of the petitioner in shape of the allotment and possession
of the Disputed Land, therefore, he was necessary party but he was condemned unheard, as
such his fundamental rights are being infringed; that the Disputed Land was allotted to the
Petitioner after fulfillment of all the requisite formalities and accordingly possession was
delivered to him and that too he made the Disputed Land cultivable by spending huge
amount and he is still in possession whereas the Respondent No.4 has failed to show that
legal formalities have been fulfilled towards his claim, therefore, he cannot be deprived from
his valuable rights. To fortify his contentions, the learned counsel for the Petitioner has
placed reliance on the case titled Messrs Blue Star Spinning Mills Ltd. v. Collector of Sales
Tax and others (2013 SCMR 587), Ali Muhammad v. Allah Ditta and others (1985 CLC
2817), Bank of Punjab v. Accountability Courts Nos.1 and 2 others (PLD 2014 Lahore 92)
Moulana Atta ur Rehman v. Al Hajj Sardar Umar Farooq and others (PLD 2008 Supreme
Court 663) and Chief Commissioner, Karachi and another v. Mrs. Dina Sohrab Katrak (PLD
1959 Supreme Court (Pak.) 45).
6. On the contrary, learned Law Officer as well as learned counsel appearing on behalf
of the Respondent No.4 vehemently controverted the arguments advanced by the learned
counsel for the Petitioner and prayed for dismissal of the petition on the grounds that the
impugned judgments and decrees have rightly been passed; that the Respondent No.4 was
already allotted the Disputed Land, therefore, any subsequent allotment in favour of the
Petitioner has no value in the eye of law.
7. I have heard the arguments of both the sides and perused the record.
8. The basic grievance of the Petitioner is that the Member BOR has passed the order
dated 24.03.1997 in favour of the Respondent No.4 without affording any opportunity of
hearing to the Petitioner and has been condemned unheard, as such there is a clear violation
of principle of natural justice and that too this aspect of the matter has not been discussed
and resolved by the Courts below who passed the impugned judgments and decrees. Proviso
to Section 164 of the West Pakistan Land Revenue Act, 1967 (the "Act") clearly reveals as
under:
"Provided that no order shall be passed under this section reversing or modifying any
proceedings or order of a subordinate Revenue Officer affecting any person without
giving such person an opportunity of being heard."
9. From the above it is very much clear that the affecting person should not be
condemned unheard and should be allowed opportunity of hearing in case any order is passed
against him/her. Admittedly, the allotment of the Disputed Land was made in favour of the
Petitioner and undoubtedly that fact was incorporated in the revenue record prior to passing
of the order dated 24.03.1997 by the Member BOR. The minute examination of the order
dated 24.03.1997 by the Member BOR vividly depicts that only the Respondent No.4 was
heard and Abdul Ghani, Colony Clerk was also present with record. The Petitioner has not
been afforded opportunity of hearing despite the fact that the record was made available to
the Member BOR and he could have kept in mind that someone may be affected by his order.
But he totally ignored the same and passed 'the order unilaterally. The record also does not
show that the Courts' below in the impugned judgments have dilated upon their specific
findings on this issue which is clear violation of the doctrine of audi alteram partem.
10. The Latin maxim, 'Audi Alteram Partem' is the principle of natural justice where
every person gets a chance of being heard. Audi alteram partem means 'hear the other side',
or 'no man should be condemned unheard' or 'both the sides must be heard before passing any
order'. Meaning thereby the maxim itself says no person shall be condemned unheard. Hence,
no case or judgment can be decided without listening to the point of another party. Natural
justice means that justice should be given to both the parties in a just, fair and reasonable
manner. Before the court, both the parties are equal and have an equal opportunity to
represent them. Natural justice is the concept of common law which implies fairness,
reasonableness, equality and equity. In our country, the principles of natural justice are the
grounds of Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 (the
"Constitution") which Article enshrines that every person should be treated equally. The law
and procedure must be of a fair, just and reasonable kind. The principle of natural justice
comes into force when prejudice is caused to anyone in any administrative action. The
principle of audi alteram partem is the basic concept of the principle of natural justice. This
doctrine states the no one shall be condemned unheard. This ensures a fair hearing and fair
justice to both the parties. Under this doctrine, both the parties have the right to speak. No
decision can be declared without hearing both the parties. The aim of this principle is to give
an opportunity to both the parties to defend themselves. No proposition can be more clearly
established than that a man cannot incur the loss of liberty or property for an offence by a
judicial proceeding until he has had a fair opportunity of answering the case against him. A
party is not to suffer in person or in purse without an opportunity of being heard. This is the
first principle of civilized jurisprudence and is accepted by laws of men. Generally, this
maxim includes two elements: (A) Notice; and (B) Hearing.
(A) Notice:
Before any action is taken, the affected party must be given a notice to show cause against
the proposed action and seek his explanation. It is a sine qua non of the right of fair hearing.
Any order passed without giving notice is against the principles of natural justice and is void
ab initio. Before taking any action, it is the right of the person to know the facts. Without
knowing the facts of the case, no one can defend himself. The right to notice means the right
of being known. The right to know the facts of the suit or case happens at the start of any
hearing. Therefore, notice is a must to start a hearing. A notice must contain the time, place
and date of hearing, jurisdiction under with the case is filed, the charges, and proposed action
against the person. All these things should be included in a notice to make it proper and
adequate. Whenever a statute makes it clear that a notice must be issued to the party and if no
compliance or failure to give notice occurs, this makes the act void. Non-issue of the notice
or any defective service of the notice do not affect the jurisdiction of the authority but
violates the principle of natural justice.
(B) Hearing: - Oral or Personal Hearing- How Far Necessary:
The second ingredient of audi alteram partam (hear the other side) rule is the rule of hea ring.
If the order is passed by the authority without providing the reasonable opportunity of being
heard to the person affected by it adversely will be invalid and must be set aside. The
reasonable opportunity of hearing which is also well known as 'fair hearing' is an important
ingredient of the audi alteram partem rule. This condition may be complied by the authority
by providing written or oral hearing which is the discretion of the authority, unless the statue
under which the action being taken by the authority provides otherwise. It is the duty of the
authority who will ensure that the affected party may be given an opportunity of hearing.
However, the above rule of fair hearing requires that the affected party should be given an
opportunity to meet the case against him effectively.
11. Reliance in this regard can be placed on the Bank of Punjab case supra in which this
Court while relying upon the principles enunciated by the Hon'ble Supreme Court of
Pakistan, has held as follows:
"Such principle is applicable to judicial as well as non-judicial proceedings and
executive acts and it has to be read into every statute subject to certain exceptions. If
right of hearing has not been expressly provided in a statute, provisions of the
Constitution can be put into service."
12. In view of the above situation, admittedly, as the Petitioner has been condemned
unheard by the Member BOR vide its order dated 24.03.1997, therefore, the same is hereby
declared void ab initio having no value in the eye of law. Furthermore, the impugned
judgments are also silent in this regard, consequently, the impugned order dated 24.03.1997
as well as the impugned judgments and decrees are hereby set aside. The instant petition is
hereby allowed. Resultantly, the case is remanded to the Member BOR for its decision afresh
after affording proper opportunity of hearing to all the concerned including the Petitioner.
Both the parties are directed to appear before the Member BOR on 11.04.2019.
13. It is also pertinent to mention here that along with the ground of being unheard, the
Petitioner has also made various other grounds against the order dated 24.03.1997 including
time barred Appeal and revision etc., therefore, the Petitioner should better agitate all his
pleadings/grounds/objections before the Member BOR in support of his claim who shall
decide the same after hearing both the parties in detail and keeping in view the record
pertaining to the case in hand.
MH/M-70/L
Case remande