P L D 1960 (W (PLP)

QADEERUDDIN AHMAD, J.‑

The petitioner borrowed Rs. 3,00,000 from Respondent No. 1, Sind Provincial Co‑opera?tive Bank Limited, in 1955, against the security of a piece of land and a cinema building, which was to be constructed on it with the borrowed money. The loan was payable within one year, together with interest at the rate of Rs. 6 percent per annum on the principal amount. Re‑payment was not made on the ground that building material was not available, and, therefore, time for repayment was extended by the Bank, respondent No. 1, on the condition that the petitioner would pay interest at the rate of 9 percent per annum. The petitioner failed to repay the loan, and therefore the dispute between the parties was referred under section 54 of the Bombay Co‑operative Societies Act of 1925, to arbitration "in or about August 1957." The Registrar, Co‑operative Societies, Karachi, respondent No. 2, nominated Masood Mirza to be the arbitrator. The nominee called upon the petitioner and the Bank, respondent No. i, to nominate their respective arbitrators, by his letter dated the 6th of September 1957. The petitioner, in the meantime, pre?vailed upon the Bank, to extend time for the payment of the debt. The Bank, therefore, wrote a letter to the petitioner on the 4th of January 1958, attached to the writ petition and marked "A". The terms accepted by the Bank were as follows: "With reference to your extension application we have to inform you that the Board of Directors in their meeting held on 3‑12‑1957 have been pleased to allow you to repay Bank's loan in monthly instalments of Rs. 6,000 each commencing from December 1957, and the full loan outstanding is to be repaid by 25th September 1958." The parties did not appoint their respective arbitrators, and the letter of the Bank was produced by the petitioner before Mr. Masood Mirza. On the basis of the letter, he gave an award on the 11th of February 1958, a copy of which is attached to the writ petition and is marked "C". The relevant part of the award is as follows: "Now, we having summoned the parties and duly con?sidered the matter referred to us do hereby order that the defendants' representative, Mr. Abdul Aziz, has given an undertaking before the Board of Arbitrators (Directors 7) that he will pay an additional amount of Rs. 4,000 on each alternate month over and above the monthly instalments fixed by the Board of the Bank. The Additional amount will be paid for two times only payable upto May 1958. If the defendant fails to pay any of the instalments, or the additional instalments, the plaintiff can file the arbitration case without any notice," This award, given by the nominee of the Registrar, was modified by the Registrar in exercise of his powers under section 54‑A of the Bombay Co‑operative Societies Act of 1925, on the ground that the language of the award was ambiguous and amounted to the dismissal of the Bank's claim, while the intention was that facility in payment of the claim was to be provided to the defendant (the present petitioner). The modified award was as follows: "Now, we having summoned the parties and duly con?sidered the matter preferred to us do hereby order that defendant do pay to the plaintiff the monthly instalments as fixed by the Board of Directors of the Bank and additional instalments of Rs. 4,000 as undertaken by her on each alternate months regularly. If she fails to pay any two instalments consecutively or the additional instalments the award can be executed by the Bank.' The petitioner failed to pay the instalments, and therefore the Assistant Registrar, Co‑operative Societies Karachi, sent a certificate of non‑payment of the dues to the City Deputy Collector, Karachi, for recovering the dues as arrears of land revenue in terms of section 59 (1) (b) of the Co‑operative Societies Act, 1925. Thereupon the petitioner approached the Collector of Karachi, respondent No. 3, and induced him to allow her to pay the outstanding debt by instalments of Rs. 4,000 per month. The Collector's order permitting payment by instalments is dated the 27th of March 1959; a copy of it is attached to the writ petition and marked "E". The Bank, respondent No. 1, felt aggrieved by the order of the Collector and preferred an appeal to the Chief Commissioner of Karachi, against the order of the Collector. The appeal was not decided by the Chief Commissioner, for the Collector, respondent No. 3, modified his order against which the appeal was preferred, by his order dated the 7th of October 1959, and raised the amount of the instalments from Rs. 4,000 to Rs. 25,000 per month. A copy of that order of the Collector is attached to the writ petition and is marked "E‑1". The Administrator of Karachi, respondent No. 4, therefore, wrote to the Bank on the 11th of November, 1959, as follows: "The Collector of Karachi has since raised the monthly instalment to be paid by Mst. Khatobai (petitioner) from Rs. 4,000 to Rs. 25,000 per month. In the circumstances it is presumed that the Bank would not press the appeal." The petitioner felt aggrieved by the revised order and preferred an appeal against it to the Administrator, Karachi, respondent No. 4, who directed, without giving an opportunity to the Petitioner to be heard, that the appeal be dismissed. The order of dismissal was communicated to the petitioner by the Assistant Secretary to the Administrator of Karachi, by his letter dated the 11th of November 1950, as follows:-- "The Administrator of Karachi is of the view that enough leniency and concession have already been shown to Mst. Khatoobai w/o late Ali Muhammad and that she should have paid of all her dues long ago. He has therefore directed that her appeal be dismissed." The petitioner made an application for review of the order of dismissal, which was also rejected without giving an opportunity to the petitioner to be heard. In consequence, the petitioner has filed this writ petition on the 21st of December 1959, against the four respondents mentioned above, with a prayer that the award as modified by the Registrar, marked C‑1, the certificate issued by Assistant Registrar, Co‑operative Societies to the Collector for recovering the dues from the petitioner, marked D, the order of the Collector raising the amount of the instalments from Rs. 4,000 to Rs. 25,000 per month, marked E‑1, and the order conveying the dismissal of the petitioner's appeal, marked F, be quashed by issuing writs in the nature of certiorari. She has asked for a writ of mandamus against all the respondents to exercise their jurisdiction according to law and for a writ of prohibition against respondent No. 3, the Collector, to restrain him from making recoveries in terms of his order dated the 7th of October 1959, marked E‑1.

2. The respondents have submitted their replies, and have not disputed any material fact stated by the petitioner in her writ petition. We have heard counsel for the parties and found that there is no substance in her prayer for a writ of mandamus. Moreover that prayer was not pressed before us. The petitioner's prayer for writs in the nature of certiorari to quash four orders was obviously made without much thought. The revised order of the Registrar, marked `C‑1', was made in April 1958, but it was not questioned by preferring an appeal or in any other manner until the present writ petition was filed in December 1959. It was, on the contrary, accepted as correct by the petitioner when he applied to the Collector for instalments and obtained an order for paying off her dues by instalments of Rs. 4,000 per month, vide the order of the Collector, marked "E". There is no explanation for the delay made by the Petitioner in questioning the legality of the revised award of the Registrar, marked `C‑1". We do not see any justification for executing the delay made by the petitioner in questioning the revised award after having accepted it and having made payment of instalments of Rs. 4,000 per month from the date of the order of the Collector up till now. The fact that, she has made payments has been admitted by counsel for the petitioner at the Bar. The certificate, marked "D", to the Collector certifying non‑payment of the dues by the petitioner was a consequence of the award of the Registrar and, therefore it cannot be questioned if the revised award is allowed to stand. We would not interfere with the revised award and there is no ground for interfering with the certificate of non‑payment.

3. The order of the Collector, by which he raised the amount of the instalments from Rs. 4,000 to Rs. 25,000 marked `E‑1', was the subject matter of the petitioner's appeal, which was dismissed by the Administrator, vide the order communicated by the Assistant, Secretary, marked `F'. The main contention raised by learned counsel for the petitioner, which impressed us as having force in it was that the appeal of the petitioner was dismissed by the Assistant Secretary to the Administrator of Karachi without giving an opportunity to the petitioner to present her point of view before the Administrator. If the order of dismissal conveyed by the Assistant Secretary to the Adminis?trator is not valid and should be quashed on that ground, then the order of the Collector, which was the subject‑matter of the appeal, need not be considered by us because the Administrator would consider the objections which the petitioner may raise against it, at the time of the disposing of the appeal.

4. We accordingly proceed to examine the validity of the order conveyed by the Assistant Secretary to the Administrator, by his letter, marked `F'. Counsel for the petitioner contended that the principles of natural justice required that the petitioner's appeal should not have been dismissed, if there was any substance in her right to appeal, without giving an opportunity to her to express her point of view in support of the appeal. He referred to Hussain Haji Ahmad v. S. Ashad Ali and another (P L D 1957 Kar. 874) and Chief Commissioner Karachi v. Dina Sohrab Katrak (P L D 1959 S C (Pak.) 45). The Supreme Court's judgment in respect of section 10 (2) of the Sind (Requisition of Land) Act of 1947 is an authority, which fully supports the contention of learned counsel. It was argued before their Lordships that section 10 (2) of that Act did not specify that the appellant or his pleader should be heard and that, therefore, the right of being heard should be taken to have been denied to the appellant. Moreover, the common law principle was applicable to judicial proceedings, and not to proceedings before the Chief Commissioner, which were administrative in character. Further, "the decision as to whether the property was to be requisitioned or not was left to the subjective decision of the Rent Controller, and, therefore, the report of the Rent Controller furnished adequate material for the decision of the appeal and therefore it was not necessary for the Chief Commissioner to hear the appellant. While repelling these contentions their Lordships pointed out that there was no provision in subsection (2) of section 10 of that Act which made it obligatory on the Appellate authority that the representation in writing made by the appellants need be perused. Their Lordships observed: "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 decision of the appellate authority to consider or not the very representation in appeal. The acceptance of Mr. Raymond's argument in this respect would thus in effect negative the right of appeal itself. There is nothing in this section which can be said to deny the appellant the right of being given an opportunity of being heard." Further: "It cannot be disputed that it is a principle of natural justice that no one should be dealt with to his material disadvantage or deprived of his liberty or property without having an opportunity of being heard and making his defence. That being so 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." Further: " ????. the above rule of justice is not confined to pro?ceedings before Courts but extends to all proceedings, by whomsoever held, which may affect the person or property 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."

5. Mr. Valiani, for the Administrator of Karachi, opposed the contention of learned counsel for the petitioner by taking a curious stand. His argument was that the petitioner had no right of appeal and that, therefore, the order of the Administrator was a nullity which could be disregarded. He contended in the alternative that all the material on the basis of which the appeal could be decided was before the Administrator and therefore in view of the decision in the case of Tayat Vidal Moosa v. Central Board of Revenue and others (P L D 1960 Kar. 469), the petitioner had no right to be heard. That judgment is distinguishable on facts and circumstances of that case, but it is not necessary to do so in view of the observations of the Supreme Court, referred to above, which are clearly applicable to the present cage. Their Lordships have drawn no distinction for the purposes of the right to be heard on considerations of whether all necessary material was or was not available before the authority who had to decide an appeal. Apart from this, there is nothing on the record of this writ petition to entitle Mr. Valliani to contend that nothing more could be urged before the Administrator on behalf of the petitioner than what was contained in the documents that were before him. The argument of counsel deserved the criticism that it was advanced in support of an order which was not even made by the Adminis?trator himself, and the letter, marked `F' by which it was communicated appeared to have indications in it that the Adminis?trator did not even apply his mind to the petitioner's appeal. We do not think that, on the material that 'is on the record of this writ petition we can come to the conclusion that all that could possibly. be urged before the Administrator had been placed before him; nor can we in view of the judgment of the Supreme Court referred to above, accede to the contention that for purposes of an appeal under section '203 of the Land Revenue Code, the question of ampleness of the material or otherwise that was before the appellate authority is a proper consideration for granting the right of hearing to the appellant.

6. Mr. Valliani did not lay as much stress on the above argument as on his contention that there was no right of appeal and that, therefore, the order of the Administrator in question was a nullity. His reasoning was that only an order or a, decision made by a Revenue Officer was appealable under section 203 of the Sind Land Revenue Code, 1879. The order by which the Collector fixed instalments was not an order, according to counsel, because the Collector had no authority as an executing, officer under the Land Revenue Code to fix instalments. The Collector's duty was simply to take proceedings to recover the dues as arrears. of land revenue. 'if he legitimately took those proceedings he merely carried out the orders of the authority who had the jurisdiction to determine the amount of recoverable dues, the proceedings taken by the Collector thus could not amount to a decision or order. He referred to the commentary under section 203 of the Bombay Land Revenue Code by K. S. Gupte, where the learned author has pointed out that a notice of demand was not a decision or order.

7. This argument of learned counsel was obviously inappro?priate. In the present case, the Collector did not issue a notice of demand, but ordered' firstly that the dues be paid in instalments of Rs. 4,000 per month and subsequently, that they should be paid by instalments of Rs. 2 5,000 per month. These clearly were orders and, therefore, fell within the scope of section 203 of the Land Revenue Code. Besides, the argument advanced by counsel had the effect of leading to the conclusion that the orders of the Collector fixing the amounts of instalments were ultra vires of his powers and as such of no effect. We would not like to express any opinion regarding the validity of those orders of the Collector, because if the order by which the appeal of the petitioner was dismissed under the directions of the Administrator of Karachi was invalid and ineffective, the appeal has not been disposed of, and during the course of the decision of that appeal, the question of the validity of the order of the Collector fixing the instalment of Rs. 25,000 per month can be considered and decided.

8. Our conclusion from the foregoing discussion is that the dismissal of the appeal of the petitioner under the directions of the Administrator was in violation of the principles of natural justice and unsustainable. We accordingly quash the order of dismissal and leave the appeal to be decided by the Administrator, in accordance with law, after giving adequate opportunity to the petitioner of being heard.

9. Lastly, we may mention that we do not consider the petitioner entitled to a writ in the nature of prohibition against the Collector because the petitioner can apply to the Adminis?trator for stay of the execution proceedings. Counsel for the petitioner emphasised that the petitioner should be given the benefit of the order of the Collector by which instalments of Rs. 4,000 per month were fixed until the decision of the Petitioner's appeal by the Administrator. Without expressing any opinion regarding that order, we do not consider it a matter of such urgency as to call for a writ in the nature of prohibition against the Collector until the petitioner applies for stay of the execution proceedings and gets an order on her application from the Administrator.

10. The writ petition is accepted only to the extent stated in paragraph 8 above. The rest of the prayers made in the writ petition are rejected and the parties are left to pay their own costs. A.H.???????????????????????????????????????????????????????????????????????????????????????????????????? Petition accepted.