2002 PLP 1953 (MLD)

(1)??????? Ch. Muhammad Siddique v. Deputy Collector (1992 SCR 110). (2)??????? Abdul Jamil v. Registrar of Trade Union (PLD 1971 Lahore 220) I have heard the learned counsel for the parties and gone through the record carefully. So far the first contention of the learned counsel for the petitioner is concerned it is on the record as well as in the written statement that excessive extraction of the Kuth has been made. The aforesaid excessive extraction is stated to be violative of the Kuth Regulations as well as contrary to the other policies laid down by the Government from time to time. The Government in a high level meeting held on 28‑4‑1998 regulated the matter with the consultation of the Finance Department, the notification is still holding the field The Government is a competent authority to regulate the same even in view of the delegation of Financial Powers Rules, 1994. A proper action also appears to have been ordered against the local employees posted at the relevant time. This action has its source under the E&D Rules, therefore, is justified and is also properly backed 6y. the statutory rules. It has rightly been contended by Raja Muhammad Hanif Khan, the learned counsel for the petitioner, that no source of power is shown in the notification dated 24‑2‑2000. Where the vested rights of the parties are likely to be infringed or taken away by the executive order/notification A then the law requires that such a notification/order must have been issued in exercise of some statutory rules. The proposition came under consideration before the Division Bench of this Court in a case titled Syed Sharif Hussain Bukhari v. Azad Government and 3 others (PLD 1983 AJ&K 10). In the aforesaid case, a notification was issued by the Government whereby a restriction was imposed on accommodation facilities in guest houses and MLA hostels. The Division Bench of this Court opined as under:‑‑ "Coming to the points raised by the learned counsel for the petitioner, it may be observed that according to the contents of the impugned order. it was issued by the Section Officer Services, in compliance of some directions. It is not evident from the impugned order as to who had issued the direction which resulted in the impugned order. Even if it is assumed that the impugned order was issued in pursuance of direction by the Government, it still remains to be seen as to wh6ther Government had any such powers under any statutory provisions. No law has been cited by the learned, advocate General that Government had power to make any such order under any law on the Statute Book of the Azad Jammu and Kashmir State. If an order issued by the Government which affects the right of a citizen adversely, is not shown to have been made in pursuance of some statutory provisions, that order, being without any lawful authority, is to be struck down, especially when it offends against any Constitutional provisions. It may be observed that the aforesaid Disqualification Ordinance does not visualize any, such restrictions on the disqualified politicians. Even if it is assumed for the sake of arguments that such an order can be issued in exercise of executive authority of the Government without any backing of law, the question arises that if the impugned order offends against the right of equality before law, how it can be held to be a valid order, passed in exercise of executive authority." The matter also came under consideration before the Lahore High Court in the case of M.D. Tahir v. Federal Government (PLD 2000 Lahore 251), Federal Government ‑in that case constituted the Khidmat Committees in exercise of . executive powers through a Notification and no source of power was mentioned in the Notification setting up such Committees and the Lahore High Court observed that such a Notification is violative of law, A similar proposition came under consideration before Karachi High Court in the case of Muhammad Bhai v. Islamic Republic of Pakistan (PLD 1980 Karachi 166). It is useful to reproduce the relevant portion of the judgment which is as follows:‑‑ "It was argued that the policy decision though not incorporated in the rules will have the force of rules as it has been taken by the rule‑making authority. The leading case on this subject is Pakistan v. Abdul Hamid PLD 1961 SC 105 in which Office Memoranda printed as appendices to the rules were held to have the force of statutory rules as in many respects, they possessed the characteristics of formal rules framed and were issued by the Authority competent to frame rules. The test laid down for official instructions to be given the effect of the Rules was that they must be expressed in precise terms which are capable of being ‑applied with particularity to a great variety of cases. The text of the policy decision relied upon has not been placed on the record and we are, therefore, unable to examine the validity of the contention advanced by the learned Additional Advocate ?General. We have perused the letter produced in this behalf by the petitioner in Petition No.1432 of 1978 which merely refers to the latest Government Policy which required that the detenu Mir Muhammad was to complete 14 years' substantive sentence excluding remissions. Besides any policy decision contrary to the Remission Rules which have been framed under the provisions of the statute cannot be held to have been amended by an inconsistent policy decision. If the intention of the Government was to amend the Rules by the so‑called policy decision, the necessary amendment could have been made in the Rules. We cannot, therefore, attribute to the Government any intention that the policy decision was intended to alter or amend the existing Rules. Be that as it may, even if the decision relied upon is regarded as having the effect of amending the Rules, clearly the amendment in the Rules, extending the minimum period of actual substantive sentence to be undergone by the life convicts from 10 years to 14 years, cannot be given retrospective effect as to operate against the detenus in these petitions, as already held by us." The Supreme Court of Azad Jammu and Kashmir also approved the tame view in the case of 'Azad ('government and another v. Saif Ali and 10 others' in Civil Appeal No. 138 of 2001, decided on 15‑10‑2001. The observation of the Supreme Court is as under:‑‑ "Even if it is assumed for the sake of argument that the High Court had the jurisdiction in the instant case to entertain the writ petition, the fact remains that in view of rule 3(a) of the Rules of 1983, the High Court was not legally justified to 4old that the concerned authorities were bound‑ to post the respondents as Private Secretaries and Personal, Assistants to the Ministers and others by giving them preference over others. For elucidating the matter, it would be expedient to reproduce below rule 3(a) of Rules of 1983 and the Notification dated 30‑12‑1999:‑‑ Rule 3(a) reads as under: "

3. Methods of Recruitment: (a)??????? (i) Appointment to the posts detailed in the Part 1 of Schedule shall be made, as the case may be, at the discretion of the President, Prime Minister/Chief Executive, Ministers, Advisors and the Presidential Assistant out of the regular service of Azad Jammu and Kashmir. These appointments shall be purely on temporary basis and the appointments shall, on the President, Prime Minister/Chief Executive, Minister Advisor or Presidential Assistant, on whose discretion they were appointed, ceasing to hold such office, be reverted to their parent cadres, if the successor no longer requires their services, or if there is no successor. (ii)??????? ?????????????????? ??????????? (b) ????????????????.. It is evident from the rule that under rule 3(a) the Private Secretaries and Personal Assistants are to be appointed from regular service of the Government. Therefore, no embargo could be placed on rule 3(a) of the said rules by the notification dated 30‑12‑1999, which has been interpreted by the High Court to mean that in the first instance the Private Secretaries and Personal Assistants to the Ministers etc., must be appointed from the cadre of the respondents; such restriction being contradictory to the statutory rules would have no legal effect " As mentioned in the earlier part of the judgment, the Government has amended the Notification by issuing another Notification dated 2‑12‑2000 whereby it is shown that the Notification dated 24‑2‑2000 shall be deemed to have been issued under the provisions of Pakistan Commission of Inquiry Act, 1956 (hereinafter shall be referred as the Act). The learned counsel contended that this amendment has been made after his objection in the writ petition, therefore is a mala fide. Moreover, the learned counsel contended that a Notification could only be issued in view of section 3 of the Pakistan Commission of Inquiry Act, 1956. For the proper perception of the matter, section 3 of the Act is reproduced as under:‑‑ ?3???????? Appointment of Commission. ‑‑‑(1) The Central Government may, if it is of opinion that it is necessary so to do, by notification in the official Gazette, appoint a Commission of Inquiry for the purpose of making an inquiry, into any definite matter of public importance and performing such functions and within such time as maybe specified in the notification, and the Commission so appointed shall make the inquiry and perform the functions accordingly. (2)??????? The Commission may consist of one or more members appointed by the Central‑ Government, and where the Commission consists of more, than one member, one of them may be appointed as the President thereof." A perusal of the above provision reveals that a Notification could only be issued in the circumstances enumerated in the section for the purpose of public importance. A perusal of the aforesaid Notifications even otherwise reveals that no reasons are listed or given in the Notifications. In this regard, the learned counsel has placed reliance on the case of Azad Government v. Kh. Abdul Aziz (PLD 1982 SC (AJ&K) 16) wherein in the similar circumstances, the apex Court of Azad Jammu and Kashmir upheld the judgment of the High Court by declaring the Notification under section 3 of the aforesaid act to be without lawful authority and alien to the scheme provided in section. Leaving aside the controversy whether the Notifications referred above have rightly been issued or not there is‑still another lacuna which affects the very issuance of the Notifications and the conduct of the inquiry. Section 3. reproduced above provides that Notifications for the appointment of a Commission of Inquiry shall be published in the Official Gazette. I have perused the Notifications, they have not been published in the Official Gazette nor have been sent to the Controller, Government Printing Press for Publication. Therefore, the very issuance of the Notifications is void and the constitution of the Committee and proceedings conducted in pursuance thereof becomes without lawful authority. The point has finally been set at rest by the superior Courts that where law requires the performance of function in a specific manner that function must be performed in that manner alone. I am supported in this regard by the dictum of the Supreme Court in a case reported as PLD 1978 SC (AJ&K)

37. The question of publication of the Notification also came under consideration before the High Court of Azad Jammu and Kashmir in the case of Ghulam Nabi Mir v. Sarkar (PLD 1971 Azad J&K 118). The relevant observation is as under:‑‑ ?????????? "As it was mandatory that the Government Order under section 11 of the Criminal Law Amendment Act empowering officers to grant sanction for prosecution under this Act of the staff removable by them, to be published in the Official Gazette and as the same has not been so published, this order, in the lighting of the wording of rule 10 of the Rules of Business, has not come into force so far. The result is that there is no sanction of valid sanction in the present case. Sanction in such cases invests the Court with jurisdiction; that without such a sanction the Court has no jurisdiction to try the accused and the proceedings are invalid, require no authorities as the matter is itself very clear. However, reference may be, made to PLD 1954 FC 248, PLD 1954 Lah. 37 and AIR 1949 Mad.

710. The sanction granted by Mr. A.R. Saleem the Deputy Commissioner of the time for prosecution of the appellant being thus without proper authorization, is therefore, ineffective and illegal." The Supreme Court of Azad Jammu and Kashmir in the case of Alam Din and 12 others (1989 CLC 578) also approved the same view‑and observed as under:‑‑ The controversy emanating from the facts confines to interpretation of meanings of the term 'notification' as contemplated under section 6 of the Azad Jammu and Kashmir Waqf Properties Act, 1960 (hereinafter referred to as the Act). The grammatic meanings of word 'notification' were examined by the learned Judges in the High Court, in the light of its definition described in Webster's 'New International Dictionary'. The relevant definition is reproduced:‑‑ Notification means:‑ "To bring before the public, as for sale or distribution; to print, or cause to be printed and to issue from the press, either for sale or general distribution, as .a book, newspaper, piece of music, engraving etc." On going through the definition described above it has to be accepted that significance of word 'notification' is quite exhaustive. Its scope is wide enough as its emphasis is on bringing of a matter in the notice of public in the shape of its print, publication in the press, as a book, newspaper, piece of music and engraving etc. The object is to bring a matter in limelight and clear notice of the public. An action shortfall or in derogation to aforesaid description would not bring such action within the scope and framework of the term 'notification'." Again it is observed at page 583:‑‑ "It is evident from the language of the provisions that the Legislature framed an adequate scheme of law for assumption of control and management of Waqf property and providing of opportunity, procedure and forum to an, interested person in such Waqf property for the redress of grievance, if any. Under section 6, Administrator was empowered to take over any Waqf property but the section laid a condition precedent that it shall be taken over after a notification has been issued. Action of taking over of Waqf property follows issuance of notification and not otherwise. Next it was postulated under section 7(1) that any interested person in such Waqf property in respect of which notification has been issued may bring his claim in the District Court within 30 days of the publication of the such notification. Here aggrieved person is provided with remedy of petition to District Court against notification. The limitation for preferring petition is 30 days. It starts running with effect from the publication of such notification. It is permissible to construe the meaning of 'notification' by reference to the scheme of law regulating the procedure to be adopted by Administrator in assuming the control and management of Waqf property; likewise the procedure to avail remedy against the action of Administrator. In view of the complete scheme of the law the meaning of 'notification' used in section 6 by necessary implication would include its publication. Thus we have to assign popular meaning to the word 'notification' accompanying the word 'publication' as used in section 7(1) of the Act. Next we examine the meaning of word 'publication'. In dictionary the word 'publication' is described as: 'Communication to the public: public announcement: legal notification: the act or process of issuing copies for general distribution to the public: a published work: the distribution in print esp. In technical journals of a taxonomic name together with such descriptive or illustrative material as will characterize and distinguish the organism of group named:' It is agreed that there is no reference to publication of notification in the Official Gazette. One may agree that publication of notification does not mean necessarily its publication in the Officials Gazette but its non‑publication in one of the manners, listed above, cannot be reconciled with its true meanings. Simply drawing of an order on the file of Administrator Waqf Property and not making it public, as in this case, would not give it legal character of notification in the popular use of the term. Therefore, agreeing with the contention of the learned counsel for the appellants, it is maintained that provisions of section 6 were only to be compiled with when control and possession of Waqf property was taken over in consequence of a notification duly published in one of popular methods of publication, as described above. This is not shown to have been done; or it is claimed as such by the respondents." In view of the aforesaid precedent of the Supreme Court, it can safely be held that the notifications have been issued without lawful authority and the very constitution of the Committee and the subsequent proceedings conducted by the Committee are also declared as such. The contention of the learned counsel for the petitioner that this client has not been provided an opportunity of hearing by the Committee needs not to be dilated upon for the reason that the notifications are declared illegal in view of the aforesaid legal position. Be that as it may the findings of a Commission that too in absence of a party does not carry any legal value. The issuance of the aforesaid notifications and constitution of the Committee also appears to be purposeless in presence of the notification dated 29‑6‑1998. In this constitution the Government has already directed to proceed under E&D Rules against the responsible persons. If, the Government so wishes, it can proceed against any person as is mentioned in the notification dated 29-6‑1998. The contention of the learned counsel that a vested right has accrued in favour of the petitioner, in view of above needs not to be discussed. The argument of the learned counsel for the respondents that the petitioner was directly responsible for the excessive extraction of the Kuth and he has committed irregularities arid illegalities is to be looked into by the authority in view of the notification dated 29‑6‑1998. The letter of the Chief Conservator Forests referred to in the earlier part of the order extenuated the petitioner. The fact remains that even then the authority of the Government is there to proceed against any person if it is of the opinion that any misconduct is committed by a civil servant during his posting. The stand of the learned counsel is even contradictory to the Government Notification dated 19‑6‑1998, hence is devoid of any force. I have considered the authorities cited by the learned counsel for the respondents. Altogether different proposition is laid down in the aforesaid authorities. The facts in the authorities are distinguishable, hence not applicable to the controversy involved in the present case. In view of what has been stated above, the writ petition is accepted and the notifications dated 24‑2‑2000 and 2‑12‑2000 are declared to have been issued without lawful authority. The proceedings taken by the‑ Committee constituted in pursuance of the aforesaid notifications are also held to be without lawful authority. It may be observed that observations made in this judgment will not stop the Government to implement the notification dated 19‑6‑1998. No order as to costs. ??????????? Petition accepted. H.B.T./33/AJ&K