P L D 1965 (W (PLP)

Sarwar Nawab Haji Muhammad Khan v. Commissioner, F. C. R., Quetta and others P L D 1964 Lab. 401 fol. Yehya Bukhtiar for Petitioners. Muhammad Ahmed Mirza for Respondents Nos. 3 to

11. Date of hearing : 15th June 1964. The petitioners Qadir Bakhsh and Nihal Khan sons of Shafi Muhammad filed a suit in the Court of A. D. M. E. A. C., Sibi on the 13th of December 1958 for possession of land bearing Khasra Nos. 505, 506 and

527. Later on these Khasras were changed into two Khasras Nos. which are 436 and

728. The claim was that Lath Bandi rights in the land in dispute were owned by their father Shafi Muhammad and their uncle Qadir Bakhsh. That Qadir Bakhsh died issueless and their father Shafi Muhammad became exclusive owner of the property. That he died in 1935 when the petitioners were minors. (Lath Bandi rights seem to be some sort of occupancy rights.)

2. The defendants contested this suit on the ground that they had purchased this property from Ali Muhammad and Wazir Muhammad by means of an Iqrarnama dated the 4th January 1946. The suit was referred to a Jirga which found that the vendors had wrongly stated in the Iqrarnama that Shafi Muhammad had died issueless and they were his heirs. That the plaintiffs undoubtedly were the sons of Shall Muhammad and had inherited the Lath Bandi rights in the land in dispute after the death of their father. However, the Jirga finally recommended that the sale in favour of the vendees should be upheld. That the plaintiffs were entitled to whatever consideration had been received by the vendors which was Rs. 1,900 in cash and some other land which was given in exchange by the vendees to the vendors. The Iqrarnama dated the 4th of January 1946 is a composite sale and exchange deed because the property in dispute was transferred to the vendees in lieu of Rs. 1,900 and some land the details of which are mentioned in the order passed by the A. D. M. E. A. C., dated the 4th of February 1960, accepting the recommendations of the Jirga. It will be advantageous to quote the exact words of the order of the learned A. D. M. E. A. C.

3. The vendors defendants‑respondents Nos. 1 to 8 did not challenge this order of the learned A. D. M. E. A. C. However, the plaintiff‑petitioners filed a revision petition against this order before the Commissioner. The learned Commissioner by his order dated the 22nd of November 1961 upheld the dismissal of the suit so far as Khasras Nos. 436 and 628 were concerned. He further set aside the portion of the order of the learned A.D.M. E. A. C. which entitled the petitioners to lathbandi rights in Khasras Nos. 603, 700, 701 and 701/1. The relevant portion of his order is as follows :‑ "I further observe that no formal declaratory suit was filed by the petitioners in respect of lands bearing Khasras Nos. 603, 700, 701 and 701/1 in mauza Chandia. In the absence of such a plaint/claim it was illegal and uncalled for to pass a decree for the possession of these lands in favour of the petitioner. 1, therefore, set aside this portion of the order under revision and the result will be that these lands shall remain in the possession of the person who held them immediately before passing of the order under revision. It is, however, open to the petitioners to report to a declaratory decree in respect of these lands if they have any claim of proprietary rights over them. But if only occupancy tenancy rights be involved the petitioners have no claim as the aforesaid principle governing the tenancy equally applied in the case also." This petition has been filed under Article 98 (2) of the Constitu tion challenging the orders of the A. D. M. as well as learned Commissioner.

3. The learned counsel for the petitioners urged that both these orders were illegal in so far as the petitioners were never heard as the time of the passing of these orders. I will deal with this objection separately as far as the two orders are concerned. As regards the order passed by the learned A. D. M. I find no force in this contention of the learned counsel. Section 8 (1) of the F. C. R. clearly provides that the Council‑of Elders will come to finding on the matters in dispute after making such enquiry as may be necessary and after hearing the parties. Subsection (3) of section 8 provides the procedure which the Deputy Commissioner has to adopt on receipt of the findings of the Council‑of‑Elders. Subsection (d) provides: "Pass a decree in accordance with the finding of the Council, or of not less than 3/4th of the members thereof on any matter stated in the reference." This provision clearly indicates that it was not the intention of the Legislature that the Deputy Commissioner will pass a decree after hearing the parties otherwise it must have been provided in subsection (3) as has been provided in subsection (1). The learned counsel relied on serial No. 29 and 63 in support of his contention. Para. 2 of serial No. 29 deals with the hearing and it says that so far as possible and certainly in criminal cases it is desirable that the whole of the proceedings should take place before the officer who is to give the final order. This only means that in criminal cases it was desirable that the parties should be heard by the officer passing the final order but so far as the civil cases are concerned, there is no such direction that the parties must be heard before the officer passes a final order in accordance with the reference made by the Jirga. In serial No. 63 1 do not find anything which makes it obligatory on the Deputy Commissioner to hear the parties in civil cases before passing the final orders. I am, therefore, of the view that the order passed by the learned A. D. M. E. A. C. is not in any manner illegal due to the fact that he did not hear the petitioners before passing the final order.

4. So far as the order passed by the learned Commissioner is concerned, this order has two parts. By one part he dismissed the revision petition of the petitioners so far as their claims to Khasras Nos. 436 and 628 was concerned. He thus upheld the order of the learned A. D. M. E. A. C. in that respect. This portion of the order of the learned Commissioner is not bad because I am of the view that it was not obligatory upon him to give a personal hearing before dismissing the revision petition. The petitioners filed the revision and the learned Commissioner could after going through the grounds of revision dismiss the revision petition without hearing the petitioners. If the learned Commissioner after going through those grounds formed an adverse opinion against the respondents and wanted to decree the suit of the petitioners in that event it would have been incumbent upon him to hear the respondents before passing any adverse order against them. The second part of the learned Commissioner's order whereby he amended the order passed by the learned A. D. M. E. A. C. to the detriment of the petitioners is similarly open to, objection because lie could not have passed an adverse order against the petitioners without giving them an opportunity to show cause as to why he should not set aside the order of the learned A. D. M. E. A. C. which was passed in their favour. The learned counsel for the respondent contended on the basis of Muhammad Akram and others v. The State (P L D 1963 S C 373) that the High Court in exercise of writ jurisdiction could not interfere with an order passed by a Commissioner in revision. This judgment was not given by the Supreme Court under Article 98 (2) of the Constitution and this judgment has been specifically dealt by a Full Bench of the High Court in Sarrvar Naivab Haji Muhammad Khan v. Commissioner, F C. R., Quetta and others (P L D 1964 Lah. 401) and it has been held by the High Court that whenever there is a violation of any law or any, rule the High Court in exercise of its jurisdiction under Article 98 (2) of the Constitution can interfere in the order even if it is passed in exercise of the powers under the F. C. R. I am in respect ful agreement with this pronouncement of the High Court. This is an elementary principle of administration of justice that no order adverse to a party can be passed without giving that party an opportunity of being heard. In the present case it' the learned Commissioner has contended himself with the dismissal of the revision petition and maintaining the order harassed by the learned A. D. M. E. A. C. his order would have been unassailable but I find that in addition to that he passed :n order adverse to the petitioner and thereby deprived them Of what had been given to them by the Jirga as well as by the A. D. M. If he was so minded which no doubt was open to him it was his duty to call upon the petitioner to show cause as to why the orders of the learned A. D. M. E. A. C. be not amended. I am, therefore, of the view that so much of the order of the learned Commissioner by which he set aside a part of the order of the learned A. D. M., E. A. C. is without jurisdiction. I would consequently quash that part of his order. The learned Commissioner will rehear the revision petition in the light of the observations made in the judgment after hearing the parties. There will, be no order as to costs. S. Q. Petition accepted.