2005 PLP 1394 (YLR)

The petitioners have challenged the vires of order of respondent (L.A.C.), dated 27-12-2004 through this constitutional petition.

2. The learned counsel of the petitioners submits that the respondent No.1 (LAC) passed the impugned order in violation of parameters prescribed by this Court in the earlier round of litigation vide order, dated 29-9-2004 passed in Writ Petition No.13715-2003 along with connected writ petitions. He further submits that the petitioners have filed various documents before respondent No.1 (LAC) before deciding the case in terms of direction of this Court, which are at pages Nos.12 to 78, but the same were not considered by the Land Acquisition Collector in the impugned order. He further submits that he mentioned this fact in paragraph No.2 of the impugned order, but respondent No.1 did not discuss and take notice to those documents in the operative part of the impugned order, therefore, the impugned order is without lawful authority. He further submits that it is the duty and obligation of Land Acquisition Collector to decide the controversy between the parties with reasons. The impugned order itself reveals that the Land Acquisition Collector has decided the matter without application of mind.

3. The learned legal advisor of the respondents entered appearance on Court's call, he submits that the impugned order contains reasons. The learned Land Acquisition Collector has decided the controversy between the parties within parameters prescribed by this Court. He further submits that the impugned order is in accordance with policy of the respondents. He further submits that this Court has no jurisdiction to resolve the disputed question of fact in constitutional jurisdiction. He further submits that the Land Acquisition Collector has decided the controversy in the administrative side, therefore, it is not expected from him that he has passed the impugned order as judicial officer, therefore, he has decided the same after noting, mentioning and perusing the documents and after spot inspection of the premises in-question, hence, the impugned order is valid and the writ petition is liable to be dismissed.

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

5. In case, the documents attached with the constitutional petition, contents of writ petition and impugned order are put in juxtaposition, then it is crystal clear that the Land Acquisition Collector 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. It is pertinent to mention here that the public functionaries are deciding the cases without application of mind that is why the competent legislative authority has added Section 24-A in the General Clauses Act, which is procedural in nature, therefore, the same has retrospective effect, as per principle laid down by the Honourable Supreme Court in "Zainyar Khan v. The Chief Engineer, WAPDA and others" (1998 SCMR 2419). It is the duty and obligation of public functionaries to decide the controversy between the parties after application of mind as is envisaged by Article 4 of the Constitution read with Article 5(2) of the Constitution and section 24-A in the General Clauses Act, as per principle laid down by the Honourable Supreme Court in "Messrs Airport Support Service v. The Airport Manager, Karachi" (1998 SCMR 2268). It is also settled principle of law that no body should be penalized by inaction of public functionaries, as per principle laid down by the this Court in "Ahmed Latif Qureshi v. Controller of Examination. Board of Intermediate, Lahore" (PLD 1994 Lahore 3). The respondent 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) and "N.Q. Industries v. Mst. Bapai Kaikhusro" (PLD 1968 Karachi 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 AIR 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 concern 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. It is also settled principle of law that if the statute requires recording of reasons, then it is statutory requirement and therefore, there is no scope for further inquiry. But even when statute does not impose such an obligation, it is necessary for quasi judicial authority to record reasons as it is the only visible safeguard against the possible injustice and arbitrariness and affords protection to the person who adversely affected. The reasons are the links between materials 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. They should reveal rational nexus between the facts considered and conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable. In arriving to this conclusion, I am fortified by "Union India's case" (AIR 1974 SC 87). It is 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 appellant, 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.

6. It is also settled principle of law that the rule requiring reasons to be given in support of order is, like principle of audi alteram partem, a basic principle of natural justice which must conform every quasi judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law as observed in Union India's case supra. It is also settled principle of law that State functionaries are expected to act fairly and justly, in manner which should not give to any one any cause of complaint on account of discriminatory treatment or otherwise was per principle laid down in "Shaukat Ali and others v. Government of Pakistan and others" (PLD 1997 SC 342). It is pertinent to mention here that the aforesaid principle of law is founded on the premises that the public functionaries providing authority from or under the law, are obligated to act justly, fairly, equitably, reasonably without any element of discrimination within parameters of law as clear applicable in given situation. The deviation, if any substance can be corrected through the appropriate order under Article 199 of the Constitution. It is also settled principle of law that the public functionaries are duty bound to pass the order by careful application of relevant laws to the facts of a case. Further the conclusions that flow as a result of this process should manifest by themselves by proper application of mind, as per law laid down in "Masha Khan v. Selection Committee, Bolan Medical College and 2 others" (1981 CLC 634). Reference may also be made to the following judgments:-- Raipur Development Authority's case (AIR 1990 SC 1426), Institute of Chartered Accountants of India's case (AIR 1987 SC 71), Harinagar Sugar Mills' case (AIR 1961 SC 1669); M.P. Industries case (AIR 1966 SC 671), Mukarji's case (AIR 1990 SC 1984), Collector of Monghyr's case (AIR 1975 SC 2226), Bhagat Raj's case (AIR 1977 SC 567), Mohinder Singh Gill's case (AIR 1978 SC 851), Neelima Misra's case (AIR 1990 SC 1402), Sudarshan Trading Company's case (AIR 1989 SC 890), Neelkantan and Brother's case (AIR 1988 SC 2045) and Padfield's case (1969) Vol. 1 All E.R. 694). The law relating to "speaking order" on the basis of section 24-A in the General Clauses Act and gist of law laid down by the Superior Courts are as follow:-- (1) Where a statute requires recording of reasons in support of the order, it imposes an obligation on the adjudicating authority and the reasons must be recorded by the authority. (2) Even when the statute does not lay down expressly the requirement of recording reasons, the same can be inferred from the facts and circumstances of the case. (3) Mere fact that the proceedings were treated as confidential does not dispense with the requirement of recording reasons. (4) If the order is subject to appeal or revision (including special leave petition under Article 185 of the Constitution), the necessity of recording reasons is greater as without reasons the appellate or revisional authority cannot exercise its power effectively inasmuch as it has no material on which it may determine whether the facts were correctly ascertained, law was properly applied and the decision was just and based on legal, relevant and existent grounds. Failure to disclose reasons amounts to depriving the party of the right of appeal or revision. (5) There is no prescribed form and the reasons recorded by the adjudicating authority need not be detailed or elaborate and the requirement of recording reasons will be satisfied if only relevant reasons are recorded. (6) If the reasons recorded are totally irrelevant, the exercise of power would be bad and the order would be liable to be set aside. (7) It is not necessary to record reasons by the appellate authority when it affirms the order passed by the lower authority. (8) Where the lower authority does not record reasons for making an order and the appellate authority merely affirms the order without recording reasons, the order passed by the appellate authority is bad. (9) Where the appellate authority reverses the order passed by the lower authority, reasons must be recorded, as there is a vital difference between an order of reversal and an order of affirmation. (10) The validity of the order passed by the statutory authority must be judged by the reasons recorded therein and cannot be construed in the light of subsequent explanation given by the authority concerned or by filing an affidavit. "Orders are not like old wine becoming better as they grow older". (11) If the reasons are not recorded in support of the order it does not always vitiate the action. (12) The duty to record reasons is a responsibility and cannot be discharged by the use of vague general words. (13) If the reasons are not recorded, the Court cannot probe into reasoning of the order. (14) The doctrine of recording of reasons should be restricted to public law only and should not be applied to private law, e.g. arbitration proceedings. (15) The reasons recorded by the statutory authority are always subject to judicial scrutiny. It is also settled principle of law that law is not confined to statue law alone but is used in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the Superior Courts as per law laid down in "Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri" (PLD 1969 SC 14). It is settled principle that law always gives guidance to only law abiding citizens. In fact awareness has been given to the world 1400 years ago by Almighty Allah in the Holy Book Qur'an. Almighty Allah in Sura Rehman warned the human beings not to disturb balance in any sphere of life. Otherwise destruction is must. The aforesaid command is embodied in Article 5(2) of the Constitution that everybody is bound to obey the command of the Constitution as the law laid down by the Honourable Supreme Court in Ch. Zahoor Ellahi's case (PLD 1975 SC 383). The public functionaries are also duty bound to act in accordance with law in view of Article 4 read with Articles 189, 190 and 201 of the Constitution. Meaning thereby to act within the framework of law and Constitution as the law laid down by the Supreme Court in Zahid Akhtar's case (PLD 1995 SC 530). Laws are made not to make them merely on the statute book which are framed to act upon them which is in consonance with the Holy Qur'an as enshrined in Sura Baqra. It is not only the duty of the Courts to provide justice to the people of Pakistan but it is the duty of every organ and functionary to provide justice by discharging his/its duties in accordance with law without fear, favour and nepotism. In case the Tribunal constituted under the law would decide the cases after application of mind then the workload of this Court shall be reduced automatically and people will be happy and prosper and avoid to come to knock the doors of the Courts. This purpose could be achieved only and only in case everybody should work according to law after application of mind putting himself in place of the aggrieved person then nobody can decide the matter against his conscience.

7. The impugned order as mentioned above, is passed by the Land Acquisition Collector, without application of mind and without referring the documents produced by the petitioners, in the impugned order, which is not in consonance with earlier order passed by this Court in Writ Petition No.13715-2003 along with connected writ petitions vide order, dated 29-9-2004. It is admitted fact that order of this Court has not been challenged by any of the parties before any higher forum, therefore, the same 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), therefore, the Land Acquisition Collector is duty bound to decide the controversy between the parties in terms of order, dated 29-9-2004 passed in the aforesaid writ petitions.

8. In view of what has been discussed above, the impugned order, dated 27-12-2004 passed by LAC, is set aside. Therefore, the petitioners are directed to appear before the Land Acquisition Collector in his office at 11-00 a.m. on 3-3-2005, who is directed to decide the matter of the petitioners afresh after application of mind strictly in accordance with law keeping in view of the provisions of Land Acquisition Act, as expeditiously as possible. With these observations, the writ petition is disposed of. Copy dasti on payment of usual charges. M.B.A./Z-68/L Order accordingly.