P L D 1959 (W (PLP)

KAIKAUS, J.‑--Muhammad Ishaq and Muhammad Ismail the petitioners in Writ Petition No. 147 of 1956, out of which this reference to the Full Bench arises, were tenants of a house in Hyderabad, by an agreement with the landlord and the Rent Controller too had made an order of allotment in their favour under the Karachi Rent Restriction Act. This was before there was any evacuee legislation applying to the Province of Sind. In 1948 the landlord became an evacuee and the house became evacuee property. The petitioners applied to the Custodian for fixing the fair rent and the Custodian passed orders fixing fair rent. On the 19th March 1955 a warrant of ejectment was issued by the Deputy Custodian on the assumption that the petitioners had failed to pay the rent regularly, an assumption which according to the case of the petitioners, was wrong. This warrant of ejectment was sent for execution to the District Magistrate in his capacity as the Deputy Rehabilitation Commissioner. On a representation made to the Deputy Custodian, this order was cancelled by him on the 22nd March 1955. In the meantime, however, on 19th March 1955, after the receipt of the warrant of ejectment, the Deputy Rehabilitation Commissioner had passed orders of allotment of the house in favour of Dr. Saiduddin Swaleh respondent No. 1 and the papers had been sent to the police for ejectment of the petitioners. At this, the petitioners moved the Minister for Rehabilitation who issued a stay order on the 23rd of March 1955. On the 11th of February 1956, the Rehabilitation Commissioner, treating the representation to the Minister as an appeal to him, set aside the order of the Deputy Rehabilitation Commissioner, thus restoring the house to the petitioner. Against this order there was a revision to the Custodian (exercising the powers of the Central Government) and the Custodian partially set aside the order on the 13th of April 1956, granting the ground floor to the petitioners, and the first floor to the respondent No.

1. Writ Petition No. 147 of 1956 has been filed to challenge this order of the Custodian. It was urged before the Division Bench, before whom this petition came up for hearing, that the order of the Deputy Rehabilitation Commissioner allotting the premises to respondent No. 1 and sending the case to the police for ejectment of the petitioners was void being opposed to the principles of natural justice, for the petitioners had not been afforded any opportunity of showing cause against their ejectment. The petitioners had, however, been heard by the Rehabilitation Commissioner as well as by the learned Custodian who passed the order under dispute and a question arose as to what was the effect of a person having been heard by an appellate or revisional authority where an order was passed in the first instance without allowing an opportunity to show cause. It was represented to the learned Judges who were hearing the writ petition that there was a conflict of authority on this point as one Bench of this Court had held in a case where the party had been heard by the appellate Court that the original orders, being passed without opportunity to show cause, were without jurisdiction, and another Bench had regarded hearing by a revisional Court sufficient for satisfying the principle of natural justice that no order should be passed prejudicial to a party without hearing the party. At this the. learned Judges of the Division Bench referred the matter to a Full Bench. They did not formally frame a question and following is the question which we have framed for this reference:‑ "Whether an order of ejectment passed against a person in possession of evacuee property should be set aside as void on the ground that it was passed without an opportunity to show cause although the party was heard by the Appellate and Revisional authorities". The answer to the question appears to us to be simple. Whether the principle of natural justice, that no order is to be passed affecting the rights of a party without giving him an opportunity to show cause, has or has not been violated, depends upon the particular facts of each case and it is not possible to lay down any general rule. We will have to consider the proceedings as a whole. The question to be decided would be whether any 6 prejudice has been caused by the fact that the party was not heard by the authority that passed the original order. If the objections to his ejectment be of a kind that can very well be disposed of by an appellate or revisional Court the order should be held to be valid. If on the other hand it is found that on account of the lack of an opportunity to show cause before the officer who passed the original order some relevant fact which may have been proved was not proved and this affected the order passed there would be good ground for setting aside the order. Prejudice to; the petitioner would be there if the petitioner could show a reasonable possibility of the order having been different had he been allowed to raise a plea before the first officer. In order to decide whether there has been prejudice the Court will consider what was the plea that the party wanted to take and whether the Rehabilitation Authorities had acted on assumption of facts which were inconsistent with that plea. If they did so act, the party would have a legitimate grievance that he was not allowed to disprove that assumption. Learned counsel for the petitioners contends that an order passed without an opportunity of hearing would he void and what was void could not be validated by an appellate or revisional order. There are two answers to this argument. The first is that an order which is passed in violation of this principle of natural justice is not a void order for what is void has no existence in the eye of law. The bailiff who is directed to execute an order for ejectment cannot refuse to execute it on this ground If' the person affected does not choose to challenge the order it is valid and enforceable. True, the order is described sometimes ash "without jurisdiction" but this expression should be regarded as being used in a special sense and not in the sense of that which does not exist in the eye of law. The expression is used in such cases as only implying a qualified lack of jurisdiction, that is, the order can be set aside in further proceedings in the same matter, by an appellate or revisional authority or in the exercise of writ jurisdiction, but is valid for the purpose off collateral proceedings. It should be remembered that even in cases of lack of territorial jurisdiction, the judgment of a civil Court (except in cases arising under private international law) is not void. It is not liable to be challenged in collateral proceedings and in fact even before an appellate Court the plea is not open unless prejudice is caused, as is provided in section 211 Civil Procedure Code. Yet the judgment is said to be "without jurisdiction". The second answer to this argument will be available in cases where the appellate or revisional authority can itself pass the original order. In such cases, if there was sufficient opportunity before the appellate or revisional authority the order can be regarded as an original order by the appellate or revisional authority and the only effect of the violation of this principle of natural justice by the authority that passed the original order would be that on appeal or revision which would be competent if the order was originally passed by the appellate or revisional authority would remain competent. Another contention is that there is a difference in the approach of an appellate or a revisional officer or that of an officer who hears a case originally and therefore once a party has not been allowed to represent his case before the officer who passed the original, order he must be deemed to have been adversely affected. Prejudice may be likely, still it will be a matter for consideration in each particular case whether a party has been actually prejudiced because of this difference in attitude. Even learned counsel for the petitioner is unable to maintain that in a case where he relies only on a principle of natural justice and not a statutory provision requiring notice, the order should be set aside without a finding that the petitioner has been prejudiced. The mere fact that the first order was passed without notice does not necessarily mean that the party has been prejudiced. The difference of opinion to which learned counsel for the petitioners referred in his argument before the Division Bench does not exist at all. In Wali Muhammad v. Badrul Jalil (P L D 1956 Kar. 250) an order for ejectment had been made without service of notice which is required to be issued to the person in unauthorised possession of evacuee property by virtue of Rule 6 of the Rules framed under the Rehabilitation Act. An appeal against this order had been dismissed. It was held that the order was without jurisdiction. Learned counsel for the petitioners regards this case an authority for the proposition that if the original order is passed without notice then even if there is an opportunity to show cause before the appellate tribunal the order has to be set aside as it is void. But the order in this case was opposed to a statutory rule and there was no need for the learned Judges to consider the question of prejudice unless a plea was raised that on account of an appeal filed against the original order there had been sufficient opportunity to show cause. No such argument had been put forward and even if that argument had been put forward the distinction between that case and the present case cannot be overlooked. If the statutory provision for notice be mandatory the order without notice may be wholly void If it be directory the Court may still presume prejudice from want of notice till the contrary is shown. In cases where only the violation of a principle of natural justice is pleaded the Court may call upon the party to prove prejudice before it sets aside the order. Here learned counsel for the petitioners accepts that he cannot rely upon any statutory provision and is only basing his argument on the violation of the principles of natural justice. Rule 6 of the Rehabilitation Rules applies only to unauthorised persons. It may be anomaly that unauthorised persons are entitled to statutory notice and tenants are not but we are not concerned with that matter in this reference for before us no argument has been based on the application of this statutory rule. The second case which is an authority against the petitioners is an unreported case New Industries Ltd. v. Rehabilitation Board and others (W P No. 253 of 1956.). In that case only the violation of the principle of natural justice was involved and it was held that as there was a hearing by the revisional authority the party had no grievance. . Our answer to the question is that it will have to be determined in each case whether the principle of natural justice has been sufficiently complied with on account of an opportunity of hearing before an appellate or revisional authority. The fact that the original order was passed without notice does not necessarily mean that the order is to be set aside. WAHIDUDDIN AHMED, J.‑

I agree. QADEERUDDIN AHMAD, J.‑--I have the advantage of having read the judgment written by my learned brother Kaikaus, J, 1 was a party to the reference which was made to the Full Bench. It was made by a short order but it contained the question that was to be answered by the Full Bench. It has apparently escaped the notice of my learned brother. The question was formulated by us as follows:‑ "When notice has not been given to a party by the lowest tribunal, notice not being required by statute, but that party has been heard by a higher tribunal in revision or appeal, is the order of the higher tribunal liable to be set aside on the ground of failure of natural justice". Kaikaus, J., has framed the question differently. His question is narrower in scope than the above question but the final answer given to it is free from the restrictions which are found in the question and therefore it can be taken to be the answer to the above question also. I hesitate for fear of creating misgivings, to agree in the present context, with the following observation of my brother:‑ "Whether the principle of natural justice . . . . has or has not been violated, depends upon the particular facts of each case and it is not possible to lay down any general rule". It is true that violation or observance of the principles of natural justice is firstly a question of fact and thereafter only a question of law. One cannot say without ascertaining the facts whether the essential requirements of justice can at all be said to have been complied with or disregarded in a given case, but once the facts are established it is a question of law whether they should be construed as sufficient and adequate compliance of the principles or not. The answer to the present reference, however, does not require the ascertainment of facts because the facts forming the background of the question framed by the Division Bench can be taken for granted for answering it unless they are found to be erroneous, I am, however, in entire agreement with the observation of my brother which follows next after the above‑quoted observation and which is "We will have to consider the proceedings as a whole". My agreement is based on the assumption that it means the proceedings beginning from the commencement of the hearing before the first tribunal upto their termination before the last tribunal that heard the case should be considered as a whole in order to find out whether the principles of natural justice were observed. The reason for this view shall be given by me later. For the present, I wish to revert to another observation of my brother which he has made next after the last quoted observation and which has compelled me to express my view separately. It is as follows:‑ "The question to be decided would be whether any prejudice has been caused by the fact that the party was not heard by the authority that passed the original order". As I understand the principle that "no man shall be condemned unheard", the right to be heard is not dependent on ultimate prejudice or absence of prejudice. This right imposes a corres ponding duty on all judicial and quasi‑judicial tribunals to give adequate hearing, so that absence of prejudice to the man who is judged is no excuse for denying the right to him. It is easy to conceive of men who are incapable of defending themselves, or unable to secure the services of another person to defend them or whose case is so bad that no kind of defence may be of any help to them. These reasons, however, do not excuse those who may sit in judgment over them for failing to afford to them adequate opportunity of being heard, nor do these reasons deprive those who suffer from these handicaps to claim a fair hearing. In Errington and others v. Minister of Health (1935 1 K B 249), the Minister of Health after holding public inquiry had held a private inquiry to which the owners of the building regarding which a "clearance order" was made were not invited and therefore the Court quashed the order. Maugham, L. J., while quashing the order recognised that there was no proof that the statements made to the Minister during the private inquiry had affected his decision. He held that the Minister had acted in public interest, yet the mere fact that a principle of natural justice was violated was sufficient to invalidate the order. I reproduce his own words in order to indicate the importance that he attached to the default. He said:‑ "The only question that remains is whether the Court should come to the conclusion that the interests of the applicants have been substantially prejudiced by what has been done, because the quashing of the order is, of course, a matter of discretion of the Court. I do not think it has been proved that the statements which were made to the Ministry in fact affected the decision of the Minister, or of his officials, and I certainly have no reason to doubt that the officials were acting in what they thought to be the public interest. On the other hand, it seems to me a matter of the highest possible importance that where a quasi‑judicial function is being exercised, under such circumstances as it had to be exercised here, with the result of depriving people of their property, especially if it is done without compensation, the persons concerned should be satisfied that nothing unfair has been done in the matter, and that ex parte statements have not been heard before the decision has been given without any chance for the persons concerned to refute those statements. That seems to me a matter of the greatest possible public importance, and if I am right in the view that I have expressed as to the functions of the Minister being of a quasi‑judicial character, I think it follows that in the special circumstances of this case, as I understand them to be, the Court has no option but to quash the Order, as my brother has suggested". The language of Lord Wright in General Medical Council v. Spackman (1943 A C 627) is clearer still. He said: "If the principles of natural justice are violated in respect of any decision, it is, indeed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision". If this is the correct view, and I have no doubt that it is, then there must be some explanation for the use of these expressions found in some judgments of the highest Courts, which create an impression that ultimate prejudice occasioned to the cause of the man who is not given due hearing determines whether the proceedings are vitiated or not. For example, in Imranullah v. The Crown (P L D 1954 F C 123) there are expressions which, I think, may be erroneously interpreted to suggest that absence of prejudice to the case of the appellant was a consideration which weighed with the Court; for Akram, J. has observed in it "There is nothing which can be reasonably urged against the conviction and the sentence of the appellant for the murder of Tajwar deceased". The grievance of the appellant was that adequate hearing was not given by the High Court to counsel for the appellant. The majority view was that the Federal Court was not entitled to re‑hear criminal cases in appeal but was only a Court of error, yet the Court allowed to counsel for the appellant "full liberty to address us (the Federal Court) on every aspect of the case" in order to redress the grievance that full hearing had not been granted to the appellant and then came to the conclusion that there was "in substance no grievance" and that the points of criticism had "received sufficient consideration at the hands of the learned Judges in the High Court". The grievance that substantial hearing was not afforded was mainly founded in that case on the language of section 423, Criminal Procedure Code, and not on principles of natural justice, but Akram, J., considered it chiefly from the angle of "universal rules of natural justice irrespective of there being miscarriage of justice". Even so, the sum total of the decision of the Court was that there was neither miscarriage of justice nor breach of the rules of natural justice. If the jurisdiction of the Federal Court was found to be limited and as such the Court was precluded from interfering with the result of a case so long as there was no miscarriage of justice, then it did not reflect a limited concept of the operation of fundamental rules of justice. I am convinced that where a man is not granted due hearing, ultimate harm done to his cause is not material by itself, and in such a context references to prejudice, occasioned to his case are generally and in reality references to the prejudicial course of the proceedings themselves. O. D. Basu has pointed out in his commentary on the Constitution of India at page 137 of Vol. II, (3rd Ed.) that where decisions ultimately rest on administrative policy the right of those whose claims are adjudged to know whether certain types of information are used against them, is curtailed. The reason undoubtedly is that in such cases hearing is not given to those whose interest may be involved to enable them to criticise the policy but only to let them urge whatever they may have to urge subject to the policy. As against this Lord Loreburn has envisaged a procedure to be followed by an administrative body in Board of Education v. Rice (1911 A C 179) which has received wide acceptance but Lord Atkin has expressed a doubt in General Medical Council v. Spackman, that his words afforded "a com pleted guide to the General Council in the exercise of their duties" because he did not think "that the procedure which may be just in deciding whether to close a school or an unsanitary house is necessarily right in deciding a charge of infamous conduct against a professional man". The variations which are introduced in the procedure to suit the gravity of an occasion, purposes of the inquiry, nature of the tribunals which adjudicate and considerations of maintaining public confidence in their decisions have drawn from eminent Judges disparaging remarks as to the precision of meaning and efficacy of "principles of natural justice" as for instance the remarks of Lord Shaw in Local Government v. Arlidge (1915 A C 120) and the remarks of Lord Hamilton in Rex v. Local Government Board, Ex parte Arlidge (1914 1 K B 160) yet, with all those variations that are introduced and irrespective of whether the first principles of justice have their origin in the natural reason of man or supernatural scheme of justice, they embody as much truth as can be embodied in any maxim. That no man shall be condemned unheard, conveys no uncertain meaning. It means that everybody must be `heard' before he is subject to an unfavourable decision of any consequence: `Heard' means heard in reality and not merely given a pretence of hearing. In other words, a man who is judged, if the judgment is going to affect him adversely on any material question should have a fair opportunity of saying all that he is entitled to say, by following his own method of presenting his case before an impartial tribunal. If he is not afforded such an opportunity whether on account of absence of sufficient notice, absence of impartiality or substantial obstruction of any kind in the presentation of his case then he has not been given his right and such proceedings must be declared invalid. But the defects of the proceedings may be remediable and if they are such, then judicial propriety requires that attention be paid to discover whether they were remedied or should be remedied without declaring them invalid or not. In Jones v. National Ceal Board ((1957) 2 A E R 155), the appellate Court set aside the decision of the trial Court because the trying Judge caused excessive interruption in the cross‑examination of witnesses which amounted to weakening its effectiveness. The harm done could not be cured. In Yuill v. Yuill ((1945) 1 A E R 183); the trial Judge took a large part in the examination of witnesses but the appellate Court did not, consider it as having created a substantial defect in the. proceedings. 10 Imranullah v. Crown (P L D 1954 F C 123) the appellate Court tried, as explained above, to redress the grievance that counsel for 'the appellant was not heard fully; but came to the conclusion that in substance there was no grievance. What faults of procedure are remediable is a question of detail and whether the defects of any particular proceedings were actually removed or not, depends upon the facts of each case. On principle my answer to the question which has been referred to the Full Bench is: If the party to whom notice was not given by the first tribunal was able, taking the original, appellate and revisional proceedings together and as a whole, to present his case substantially as he wanted and was entitled to present it, then the decision of the last tribunal is not bad merely on the ground that notice was not given by the first tribunal. I believe that the above answer is essentially the same as that given by Kalkaus, J., at the end of his order. A. H. Reference answered.