2005 PLP 1128 (CLC)

Arif Chaudhry for Petitioner. Mian Muzaffar Hussain Legal Advisor of the respondents (L.D.A.) on Court's call. The petitioner has challenged the vires of order dated 27‑12‑2004 through this Constitutional petition.

2. The learned counsel of the petitioner submits that the impugned order is passed by the respondents in violation of parameters prescribed by this Court in the earlier round of litigation. He further submits that the impugned order is not passed by Land Acquisition Collector after application of mind, therefore, the same is not sustainable in the eyes of law.

3. The learned legal advisor of the respondents entered appearance on Court's call, he submits that L.A.C. has passed the order after application of mind and after spot inspection; therefore, the impugned order is valid in the eye of law. He further submits that the impugned order is passed by the respondents in the administrative side, therefore, L.A.C. is not duty bound to decide the controversy as Civil Court, therefore, the impugned order is valid in the eye of law.

4. I have given my anxious consideration to the contentions of learned counsel of the parties and perused the record.

5. In case, the impugned order and documents attached with the Constitutional petition are put in juxtaposition, then it is crystal clear that L.A.C. has decided the controversy between the parties without judicial application of mind which is condition precedent to decide the controversy between the parties after application of mind. After addition of section 24‑A of the General Clauses Act, it is the duty of the public functionaries to decide the controversy between the parties after application of mind. Section 24‑A of the General Clauses Act; which is procedural nature, therefore, the same has retrospective effect as per principle laid down by the Honourable Supreme Court in Zinyar Khan's case 1998 SCMR 2419. The Honourable Supreme Court has interpreted section 24‑A of General Clauses Act and laid down the principle that the public functionaries must have to decide the controversy between the parties after application of mind as per law laid down in Messrs Airport Support Service's case 1998 SCMR 2268. It is also settled principle of law that no body should be penalized by inaction of the public functionaries as per principle laid down by this Court in Ahmad Latif Qureshi's case PLD 1994 Lah.

3. It is also admitted fact that respondent No.4 has decided the controversy between the parties under statutory power, therefore, even if it is administrative order, even then it is open to review by this Court as per law laid down by the superior Court in the following judgments:‑‑ Tariq Transport Co. v. Sargodha Bhera Bus Service PLD 1958 SC (Pak.) 437; N.Q. Industries v. Mst. Bapai Kaikhusro PLD 1968 Kar.

589. The respondent has decided the controversy between the parties in the capacity as Quasi‑Judicial Authority. Lord Denning in Breen's case (1971) 1 All ER 1148 says, "the giving of reasons is one of fundamentals of good administration". The condition to record reasons introduces clarity and excludes arbitrariness and satisfies the party concerned against whom order is passed. To provide a safeguard against the arbitrary exercise of power by the public functionaries, the condition of recording reasons is imposed on them, after addition of section 24‑A in the General Clauses Act. In case, the public functionaries fail to give, reasons in the impugned order, then this Court has laid down the principle after considering all the case‑law on the subject, and laid down a principle that it is violation of principles of natural justice, in unreported judgment, dated 23‑2‑2005 passed in Writ Petition No.2728 of 2005.

6. It is pertinent to mention here that reasons are linked between with the material on which certain conclusions are based and actual conclusions. They disclose how the mind is applied to the subject‑matter for a decision, whether it is purely administrative or quasi‑judicial. It is also pertinent to mention here that Courts insist upon disclosure of reason in support of order on the following reasons:‑‑ "(A) The party aggrieved has the opportunity to demonstrate before the appellate, or revisional Court that the reasons which persuaded the authority to reject his case were erroneous; (B) The obligation to record reasons operates as a deterrent against possible arbitrary action by executive authority invested with judicial power; and (C) It gives satisfaction to the party against whom the order is made. " It is also settled principle of law that Constitution is social binding contract to all the organs of the State i.e. Legislature, Judiciary, Executive and People of Pakistan. The command of Constitution by virtue of Article 5(2) is that every body should obey the command of the Constitution as per, law laid down in Ch. Zahoor Elahi's case PLD 1975 SC

383. It is also settled principle of law that manner of exercising power is also termed as mala fide, as per principle laid down by the Honourable Supreme Court in Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC

14. In the present case, as mentioned above, respondent No.4 has decided the case of the petitioner without adverting to the documents and without reasoning, therefore, the impugned order is not in consonance with law laid down by the superior Courts and in consonance with section 24‑A of the General Clauses Act and Articles 4 and 5 of the Constitution.

7. It is also admitted fact that the petitioner had filed earlier Constitutional petition, which was disposed of by this Court with certain direction to the respondents, therefore, earlier order passed by this Court in Constitutional petition against the respondents is final between the parties on the well known principle of res judicata as per principle laid down by the Honourable Supreme Court in Pir Bakhsh v. Chairman Allotment Committee PLD 1987 SC

145. It is settled principle of law that the principles of C.P.C. are applicable in Constitutional proceedings as per principle laid down by the Honourable Supreme Court in Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC

1. Respondent No.4 has decided the case in violation of parameters prescribed by this Court; therefore, the impugned order is not sustainable in the eye of law.

8. In view what has been discussed above the impugned order is set aside for reasons recorded in judgment, dated 23‑2‑2005 passed in Writ Petition No.2728 of 2005, therefore, the petitioner is directed to appear before the Land Acquisition Collector in his office at 11‑00 a.m. on 9‑5‑2005 who is directed to decide the matter of the petitioner afresh after application of mind strictly in accordance with law keeping in view the provisions of L.A.C. as early as possible.

9. The learned counsel of the petitioner is directed to hand over copy of this writ petition along with all the Annexures to Mian Muzaffar Hussain, Advocate/Legal Advisor of the respondents (L.D.A.), who is directed to send the same to respondent No.4 for necessary action and compliance. With these observations, the writ petition is disposed of. Copy. Dasti on payment of usual charges. M.B.A./J‑71/L Order accordingly.