P L D 1961 (W (PLP)

(a) that because of the wrong basis, on which the property has been offered various parties and because of the transfer of portions, which are not in possession of the respective trans ferees, all the transactions carried out in respect of this property should be cancelled. (b) that I regard Mr. A. R. Pasha solely responsible for bringing this situation about through his constant misrepresenta tions and, therefore, I direct that a case is registered against him for forgery and for removing documents from the official records. There is also a prima facie case against him for misrepresenta tions as for as his first application to the Reh. Minister is con cerned and for obtaining a decision which has brought undue gain to him at the expense of the genuine applicants for this property. (c) That property should now be offered to all the genuine applicants excluding Mr. A. R. Pasha, who has forfeited his rights, if he had any at all, on account of what has been stated in sub‑para (b) above in accordance with the new scheme published in respect of burnt damaged property. (d) All the transfer deeds issued so far should be cancelled. (e) The case of Mr. A. R. Pasha should be reported to the Minister for Reh. Chief Settlement Commissioner, Settlement Commissioner and all Deputy Settlement Commissioners in Lahore, in order to put them on guard against any future misrepresentation that Mr. A. R. Pasha might like to make. All files pertaining to this case will be kept under lock and key." It is against this decision that the petitioner has filed this writ petition.

3. Ch. Karam Elahi Chauhan, learned counsel for the petitioner, contended that the order of the Additional Settlement and Rehabilitation Commissioner dated the 5th of March, 1960 was ultra vires, illegal and void, inasmuch as the officer concerned did not hear the petitioner at all while giving the aforesaid decision. The copy of the order Annexure B shows that, in fact, the learned Additional Settlement and Rehabilitation Commissioner did not hear the petitioner at all. He himself has remarked as follows: "In actual fact, I have not even heard the learned counsel for the respondent Mr. A. R. Pasha who is present. This is because I am convinced that the basis of transfer of this property is so obviously wrong that it would be sheer waste of my time to go into the merits of the cases of the various parties." Musammat Talia Bibi and others had filed their appeals under section 19 of the Displaced Persons (Compensation and Rehabilita tion) Act, 1958. Admittedly a notice had been issued to Abdur Rahman Pasha petitioner and in response to that notice he had appeared before the Additional Settlement and Rehabilitation Commissioner, Lahore. Under section 34 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the petitioner was entitled to attend and to be duly represented by his duly recognised agent. He had, therefore, appeared before the officer concerned along with his counsel.

4. The question which arises for determination is whether the Additional Settlement and Rehabilitation Commissioner, Lahore could have decided these appeals against the petitioner without hearing him or his counsel. In view of the provisions of section 34, he had the right of appearing before the officer and representing his case. This was a statutory right of which he bad been deprived by the Additional Settlement and Rehabilitation Commissioner. It is true that section 19 of the Displaced Persons (Compensation and Rehabilitation) Act, does . not provide in so many words that the appellant or the respondent shall be heard, but the right of appeal is a statutory right given to the person Concerned who is aggrieved by an order specified in this section and in, my opinion, it clearly implies that the appellant is entitled to be heard before his appeal is dismissed. In case the appellate authority is inclined to accept the appeal, then also, I am of the view that it is the statutory right of the respondent, that he should be heard. It was held by their Lordships of the Supreme Court of Pakistan in Chief Commissioner Karachi v. Mrs. Dina Sohrab Katrak (P L D 1959 S C (Pak) 45) that:‑ "It could not have been the intention to give the person aggrieved the right of appeal and at the same time to leave it to the discretion of the Appellate authority to consider or not the very representation in appeal. The acceptance of that argument would in effect negative the right of appeal itself . . . . When a statute gives a right of appeal it should be understood as silently implying when it does not expressly provide that the appellant shall have the right of being heard." By parity of reasoning, I am of the opinion that the principle laid down in this ruling extends to the case of the respondent as well, if the decision is to be given against him.

5. But even if it be held that a respondent in an appeal has no statutory right of being heard, then also the omission to hear him is in violation of one of the principles of natural justice which is enshrined in the maxim‑"audi alteram partem " which means that "no man shall be condemned unheard." A judicial officer and a quasi‑judicial officer are expected to decide matters which come up before them with the sense of responsibility of a Tribunal whose duty it is to mete‑out justice, and in doing so they must act in accordance with the rules of natural justice. One of the well recognised principles‑of natural justice is the maxim referred to above and the irreducible minimum requirement of this principle is that a party be heard before any order to his prejudice could be passed. The rights of a party to a judicial or quasi‑judicial proceedings cannot be trampled upon by the unfettered and arbitrary exercise of powers. After a detailed discussion of the aforesaid maxim their Lordships of the Supreme Court of Pakistan observed as follows in Chief Commissioner, Karachi v. Mrs. Dins Sohrab Katrak :‑ "No man shall be condemned unheard is not confined to proceedings before the Courts but extends to all proceedings, by whomsoever held, which may affect the person or other right of the parties concerned in the dispute. As a just decision in such controversies is possible only if the parties are given the opportunity of being heard, there can be as regards the right of hearing, no difference between proceedings which are strictly judicial and those which are in the nature of a judicial proceeding, though administrative in form." Admittedly this principle of natural justice was not complied with by the Additional Settlement and Rehabilitation Com missioner. In my opinion, a decision taken in the exercise of jurisdiction without complying with this principle is no decision at all and is illegal and void. Major Ishaque Muhammad Khan, D Settlement Commissioner, (Legal), who appeared before me on behalf of the Chief Settlement Commissioner, conceded that the order of the additional Settlement and Rehabilitation Com missioner, was in violation of this principle of natural justice, but he contended that the petitioner had his remedy of filing a revision petition against this order and, therefore, this Court should not exercise its writ jurisdiction in his favour by issuing a writ of certiorari. In support of his contention he relied on Chand Miah and another v. Income‑tans and Sales‑tax Officer II, Narayanganj Circle and another (P L D 1960 Dacca 523) where it was held by a Division Bench of the Dacca High Court that where a statute creates a right and also provides a machinery for the enforcement of that right, the party complaining of a breach of that statute must first avail himself of the remedy provided by the statute for such breach before he applies for a writ or an order in the nature of writ. The facts of that case were that the Sales Tax Officer had sent two notices demanding payment of Rs. 300 and Rs. 500 as additional sales‑tax but the petitioner in that case challenged these notices of demand on the ground that their business did not bring them within the scope of Sales Tax Act and that the transaction carried on by them did not fall within the meaning of the word " sale " occurring in the said Act. The learned Judges referred to the relevant authorities of the Supreme Court on this point and held that it was a case of erroneous exercise of jurisdiction and not lack of jurisdiction and that there was no error apparent on the face of the proceedings, and hence they held that as the petitioners had a right of appeal under the provisions of the Sales Tax Act and they had not availed of that remedy, they would not issue a writ of certiorari for quashing the notices of demand. In the present case, however, as pointed out earlier, it is a clear case of abuse of jurisdiction. The Additional Settlement and Rehabilita tion Commissioner in the exercise of his jurisdiction had acted arbitrarily when he refused to hear the petitioner at all. If a Tribunal acts in daring disregard of the well known forms of procedure, it becomes a clear case of abuse of jurisdiction which is only one form of excess of jurisdiction. The result is that I am constrained to hold that an illegality had been committed by the E officer concerned which is apparent on the face of the record. The petitioner is therefore entitled to apply for a writ of certiorari for quashing the order, although an alternative remedy of filing revision petition against this order may have been available to him.

6. But in this case I am not satisfied that under the provisions of the Displaced Persons (Compensation and Rehabilita tion) Act an alternative and efficacious remedy of filing a revision against the order of the Additional Settlement and Rehabilitation Commissioner was available to the petitioner. Just as section 19 of the Displaced Persons (Compensation and Rehabilitation) Ac provides a right of appeal to the aggrieved party, it is nowhere laid down in this Act that a person aggrieved by an order of the appellate authority has got a statutory right of filing a revision petition against that order. It is no doubt true that under section 20 (3) of that Act, Settlement Commissioner, who is specialty empowered in this behalf by the Chief Settlement Com missioner, may at ‑any time call for the record of any case or proceedings under this Act in which an Additional Settlement Commissioner or a Deputy Settlement Commissioner or an Assistant Settlement Commissioner under his jurisdiction has passed an order, for the purpose of satisfying himself as to the correctness, legality or propriety of such order and may pass such order in relation thereto as he thinks tit, but such a right has not been given to the aggrieved party. It is nowhere laid down in this section that the aggri ved party can, as of right, move the Settle ment Commissioner and ask him to send for the record. It is purely discretionary with the Settlement Commissioner who may send for the record or not. In this connection I would like to point out the corresponding provision of the Pakistan Rehabilita tion Act, 1956. Section 11 (4) of that Act provides that the Rehabilitation Commissioner may, at any time, either of his own motion or on perusal of an application made to him in this behalf, call for the record of any proceeding . . . . . . for the purposes of satisfying himself as to the legality or propriety of any order passed in the said proceeding. In view of this provision, the aggrieved party is at least given the right of submitting an applica tion to the Rehabilitation Commissioner for exercising his revisional jurisdiction, but the expression "on perusal of an applica tion made to him in this behalf " does not find place in section 20 of the Displaced Persons (Compensation and Rehabilitation) Act. Similarly section 21 of the Displaced Persons (Compensation and Rehabilitation) Act, which deals with the power of review, provides that the Settlement Commissioner and the other officers specified therein may, either of their own motion at any time or on an application made in that behalf, review and, while so reviewing, modify, reverse or confirm an order passed by them. This provision also specifically mentions that expression "on an application made in that behalf".

7. Under the circumstances it is indeed very significant that this expression does not find place in section 20. 1 am, therefore, of the considered view that the petitioner had no statutory right of filing a revision petition before the Settlement Commissioner, and as such he had no alternative and efficacious remedy against the order passed by the Additional Settlement and Rehabilitation Commissioner. But even if he had such a right yet in the circumstances of the present case he could have come to this Courtl straight, praying for the exercise of writ jurisdiction for the issuance of a writ of certiorari for quashing that order, because, as I have already pointed out, the order, on the face of it, is illegal and ultra wires. In. the well known case of The Tariq Transport Company, Lahore v. The Sargodha Bhera Bus Service etc. (P L D 1958 S C (Pak.) 437) the learned Chief Justice of Pakistan while dealing with a similar t question, observed as follows :‑ " If a Tribunal has no jurisdiction either in respect of the subject‑matter of litigation or the parties before it, or the territory to which the dispute relates or because of its own defective constitution or the illegality of the order, the proceed ings are void ab initio, and an appeal in such a case is an unnecessary step and mere prolongation of the proceedings which eventually the Court trust hold to be void for lack of jurisdiction. In such cases certiorari acts as would a Court of Equity . . . But where appeal does lie, in order to quash a proceeding by a certiorari it is necessary that the lack of jurisdic tion should appear on the face of the record." The aforesaid observations were again referred to and applied by the Supreme Court of Pakistan in Messrs S. A. Haroon v. The Collector of Customs, Karachi (P L D 1959 S C (Pak.) 177).

8. In the light of the principle laid down by their Lordships of the Supreme Court of Pakistan in the above‑mentioned rulings, I am clearly of the opinion that on account of the illegality apparent on the face of the record, certiorari will lie, in the present case, even if it be held that a right of revision has been conferred by the statute.

9. For the reasons stated above, I regard it a fit case for the exercise of writ jurisdiction and I accordingly issue a writ of certiorari and quash the order of the Additional Settlement and Rehabilitation Commissioner, Lahore Division 11, dated the 5th of March, 1960. The result is that the appeal in which the decision had been given by the Additional Settlement and Rehabili tation Commissioner shall be heard again and decided in accordance with law. The petitioner is entitled to have his costs from respondent No.

2. A. H. Order quashed.