P L D 1962 (W (PLP)

S. A. MAHMUD, J.

Chargul petitioner instituted a suit in the Court of the Extra Assistant Commissioner and Additional District Magistrate, Barkhan, against Amir and Musa, defendants Nos. 1 and 2 for possession of khasra No.

28. The allegations in the plaint were that Musa, defendant No. 2, wanted to sell certain lands to the plaintiff, which he wanted to buy, but Amir, defendant No. 1, persuaded him not to buy that land and to buy instead land bearing Khasra No. 32/1, which he had bought from Rahman, and that the petitioner agreed to buy it on the condition that he (Amir) would not purchase Khasra No. 28 from defendant No. 2 and that in consequence he did not purchase the land from Musa, defendant No.

2. It was further alleged that Amir, defendant No. 1 had also agreed not to purchase Khasra No. 32/1 from defendant No. 2 and that if he violated this agreement (which was reduced to writing) by purchasing the land from defendant No. 2, he (Amir) would hand over the land to the plaintiff. It was prayed that as defendant No. 1 had purchased the said land from defendant No. 2 for Rs. 6,000 in violation of the agreement, the plaintiff was entitled to obtain possession of the land in dispute on payment of Rs. 6,

000. In support of his claim, the plaintiff relied on a written agreement. A decree for possession of the land in suit against Amir, defendant No. 1, was, therefore, prayed for.

2. The Extra Assistant Commissioner and Additional District Magistrate referred the case under section 8, Frontier Crimes Regulation, to a Jirga for decision. The parties appeared before the Jirga. The defendants denied that they had entered into any agreement with the plaintiff. The plaintiff produced witnesses in support of his claim. The Jirga, having come to know that Wadera Nur Khan Auliani knew what the truth was, examined him, and relying on his statement, held that the plaintiff was entitled to possession of the suit land on payment of Rs. 13,000 which the plaintiff was ordered to pay within three months. Out of the sum, Rs. 10,000 was to be paid to Musa and Rs. 3,000 to Amir, because he was proved to have paid this amount to Musa. The award of the Jirga having been delivered, the parties appeared before the Extra Assistant Commissioner and Additional District Magistrate, and accepted the award. The Extra Assistant Commissioner and Additional District Magistrate thereupon passed a decree in favour of the plaintiff, accepting the award dated the 28th April 1959. The decree-holder paid the decretal amount to the defendants and obtained possession of the land from Musa. Although Amir defendant had accepted the award before the Extra Assistant Commissioner and Additional District Magistrate, Barkhan, he went up in revision against toe decree to the Com missioner, F. C. R., under section 49, Frontier Crimes Regulation. The Commissioner, F. C. R., Quetta, by his order dated the 5th November 1950, accepted the revision, and set aside the decree passed in favour of Chargul petitioner, without hearing him or issuing a notice to him. The grounds on which he set aside the decree are that a material irregularity had been committed because the ikrarnama on which the lower Court had based its order had not been ratified by the Arga, which was necessary, because the ikrarnama affected the pre-emption rights of others and as in such a case, in all fairness to others, it was not right to accept the ikrarnama. The ikrarnama was declared null and void, it was observed that the 'parties might execute a fresh ikrarnama if they so wished, but they were warned that it would only be acceptable if it was ratified by the Jirga and was in accordance with the local Biwaj and was filed along with a statement from all the pre-emptors that their rights or claims were not jeopardized. On the making of this order; Amir made applications to obtain possession of the land in suit from Chargul. On his application, the Commissioner, F. C. R., made another order that as the decree in favour of Chargul bad been set aside, he was not entitled to keep the land in his possession, and It should be handed over to the original owner Musa or Amir, whoever bad possession of the land before its delivery to Chargul. Against these orders Chargul plaintiff has moved this Court in writ jurisdiction.

3. The grounds of attack in this writ petition are that the order of the Commissioner, F. C. R., is ultra vires, illegal and beyond his jurisdiction, as it was made in favour of Musa, who was not a party to the suit, as Amir had accepted the Jirga award, as no material irregularity or illegality in procedure bad occurred in the disposal of the case by the Jirga, and as the Commissioner in setting aside the decree without notice to the petitioner has contravened the principles of natural justice embodied in the maxim audi alteram partem-no one shall be condemned unheard. It was urged that the Commissioner was bound to bear the petitioner before setting aside the decree made in his favour, that the Commissioner's order also suffered from an error apparent on the face of the record in so far as the decision of the Jirga was not based on the ikrarnama but on the evidence of Wadera Nur Khan Auliani, that ratification of the ikrarnama by the J9rga was not necessary and that in any case as the award was not based on the ikrarnama, there was no irregularity in the E.A.C. & A.D.M. making the decree, which should not have been set aside, as the parties had accepted the award. In reply to the respondent's contention that this Court has no jurisdiction to interfere with the order of the Commissioner, as the case relates to Special Areas, it is urged that this Court has jurisdiction as the order of the Commissioner was passed at Quetta.

4. Learned counsel for respondent No. I argued that as the order of the Commissioner, F. C, R. under section 49 was purely executive or administrative and neither judicial nor quasi judicial, it was not necessary for him to hear the petitioner before setting aside the decree. It was urged that the Commissioner was the best judge of what was a material irregularity and whether it had been committed or not, and that this Court cannot hold other wise in writ jurisdiction. It is conceded that there is an error fn the Commissioner's order to this extent that the award of the Jirga and the order decreeing the plaintiff's claim were not based on the ikrarnama. The learned counsel for the respondent was unable to refer us to any provision in the F. C. R., or any circular letter or instruction in the Green Book which laid down that it was necessary for the Jirga to ratify the ikrarnama. The jurisdiction of this Court to set aside the order of the Commissioner was challenged on the ground that the suit land was situate in and the parties belonged to Special Areas, and reliance was placed on clause 2 (2) of the Laws (Continuance in Force) Order, 1958, read with Article 178 of the Constitution of Pakistan, since abrogated.

5. Since this writ petition involved important questions of law, it was referred to and has been heard by a Division Bench.

6. Whether the order of the Commissioner, F. C. R., made at Quetta is amenable to writ jurisdiction of this Court is the first question which falls for determination. Arguments have been addressed to us at length by Mr. Zahoorul Haq on behalf of respondent No. 1 and Mr. Yahya Bakhtiar has assisted us as amicus curiae by his able arguments.

7. The land in suit is situate in the Special Areas and the parties also reside in the Special Areas. Section 7 (1) of the Estab lishment of West Pakistan Act did not confer jurisdiction on the High Court in the Special Areas. Article 178 of the Constitution of Pakistan, since abrogated, also provided that notwithstanding anything in the Constitution, neither the Supreme Court nor a High Court shall, unless Parliament by law otherwise provides, exercise any jurisdiction under the Constitution in relation to the Special Areas. On its abrogation, Art. 2 of the Laws (Con tinuance in Force) Order, 1958, preserved the existing jurisdiction of the High Court by enacting that subject as aforesaid all Courts in existence immediately before the Proclamation shall continue in being, and, subject further to the provisions of this Order, in their powers and jurisdiction. Therefore, the High Court has no jurisdiction "in relation to Special Areas". The award of the Jirga and the decree passed by the Extra Assistant Commissioner and the Additional District Magistrate, Barkhan, having been delivered in the Special Areas, are not amenable to the writ jurisdiction of this Court.

8. In this writ petition neither the award of the Jirga nor the decree passed by the Extra Assistant Commissioner and the Additional District Magistrate, Barkhan, are being challenged. It is the order of the Commissioner, F. C. R., under Chapter VI, passed at Quetta, which is impugned, and it is contended that this Court has jurisdiction because the order was made at Quetta and not in the Special Areas. It is argued that if the order in revision had been made by the Commissioner in the Special Areas, it would not have been amenable to writ jurisdiction of this Court, but as it has been made at a place, which is within the jurisdiction of this Court, the Court has power to interfere in writ jurisdiction, and reliance is placed on the decision of the Supreme Court of Pakistan in Plao Gul v. The State (P L D 1960 S C (Pak.) 307). In this case the Political Agent having held all the proceedings against Piao Gul under section 8(a) and section 8(b) of the North-West Frontier Province Corps Law, 1941, at Peshawar, delivered judgment at Jamrud Fort, which, is in the Special Areas. A writ of habeas corpus was filed in the High Court, calling in question the detention of Piao Gul in the Central Jail, Dera Ismail Khan, under a warrant Issued by the Political Agent, Khyber Agency. Relying on the observations of A. R. Cornelius J. (now Chief Justice of Pakistan) in Dosso v. The State (P L D 1958 S C (Pak.) 533), the learned Judges of the High Court dismissed the petition on the ground that the High Court had no jurisdiction to issue a writ, as the judgment was pronounced and the order of detention was issued from Jamrud Fort, which is in the Special Areas. In the appeal before the Supreme Court Dosso's case was relied upon by the State. Commenting on this case the learned Judges of the Supreme Court observed as follows :- "The case (Dosso's case) was, however, different from the case of Piao Gul in one respect, namely, that there, as the judgment shows, `the trial and all proceedings up to the convic tion were held in a' special areas `over which the High Court has no jurisdiction.' In the present case it is admitted that all the proceedings of the case were held in Peshawar, and it was only for the pronouncement of the judgment that the Political Agent Mr. Faridullah Shah took the case to Jamrud Fort. We do not consider that the case falls within the observations made in the precedent case with reference to cases which arise and are wholly tried in a special areas." Mr. Yahya Bakhtiar argues that though the proceedings in the instant case, held In the special areas, cannot be challenged, the revision was considered and decided by the Commissioner at Quetta and can be challenged, because all the proceedings in revision were taken at Quetta. The instant case is not on all fours with the case of Piao Gul. Though in this case the trial of the case by the Jirga was held in the Special Areas, the revision was decided wholly at Quetta within the jurisdiction of this Court, and if the venue of the particular proceeding is the deciding factor, this Court has jurisdiction. Thus the principle underlying the decision of the Supreme Court in Piao Gul's case gives us jurisdiction.

9. Since Article 178 of the abrogated Constitution provided that a High Court shall not exercise jurisdiction under the Con stitution "in relation to the Special Areas", unless Parliament by law otherwise provides, learned counsel for respondent No. 1 argues that the jurisdiction is barred, as the decision of the Commissioner related to the special areas. It is urged that the jurisdiction is barred not only in cases happening in the special areas, but also in all matters arising from and pertaining to the special areas. But Mr. Yahya Bakhtiar replies that "in relation to special areas" means no more than what takes place in the special areas and not what happens outside its boundaries. In support of his contention he relies on a Full Bench decision of five learned Judges of this Court in Messrs Pakistan Industrial and Mining Syndicate Ltd. v. Messrs Pakistan Industries Ltd. (P L D 1961 Kar. 437) decided on the 6th February 1961. The question referred to the Full Bench was as under :- "Whether or not the jurisdiction of the High Court under the Civil and Criminal Procedure Codes is excluded under Article 178 of the defunct Pakistan Constitution of 1956." The facts giving rise to the reference were that Messrs- Pakistan Industrial and Mining Syndicate Limited, through one of its directors, obtained an order under section 145, Cr. P. C., from the District Magistrate, Chagai, against Messrs Pakistan Industrial Limited for attachment of 1715 acres of mining land situate at Dalbandin in the Special Areas of Baluchistan on the ground that they were In their exclusive possession. The order having been discharged by the District Magistrate, Messrs Pakistan Industries Limited instituted a suit for the recovery of Rs. 3,69,612-2-0 as damages in the Court of the District Judge, Quetta, against Messrs Pakistan Industrial and Mining Syndicate Limited, alleging that the order of attachment was obtained maliciously and it had resulted in heavy loss and damage to their business. The defendant challenged the jurisdiction of the District Judge to hear the suit on the ground that the land in dispute was situate in the Special Area. The learned District Judge overruled the preliminary objection and assumed jurisdic tion, having held that his jurisdiction was not barred by any law, but that the jurisdiction of the High Court was barred by section 7 of the Establishment of West Pakistan Act, 1955. This order was challenged in revision by Messrs Pakistan Industrial and Mining Syndicate Limited, and it was urged that the District Judge had no jurisdiction in the matter and in the alternative that the jurisdiction of the High Court in the matter had not been taken away. In view of the importance of the question involved, civil revision was referred to a Full Bench consisting of five Judges. In answering this question the learned Judges relied on two decisions of the High Court of West Pakistan Dosso v. The State (P L D 1957 Quetta 9) and Abdul Sami Khan v. Subedar-Major Mamesh Gut and another (P L D 1958 Lah. 1039) and section 20, C. P. C. Having held that the decision of the Full Bench in case Sher Muhammad v. The State (P L D 1956 Lah. 1056) was not relevant, the learned Judges answered the question as under :- "That the jurisdiction of the High Court is not barred in civil or criminal matters arising from the orders passed by the subordinate Courts under its jurisdiction although the parties happened to be residents of a special area and the property in respect of which the money suit has arisen happens to be in a special area. But the High Court is not competent to entertain appeals or revisions from the orders passed by authorities in special areas in any civil or criminal matter."

10. In arriving at the above answer, the learned Judges referred to Article 178 of the abrogated Constitution and held as follows :- "Undoubtedly on the language of the aforesaid provision this High Court is not competent to exercise any jurisdiction in relation to the Special Areas, and it Is perfectly clear that this High Court is not competent to entertain any appeal or revision from the orders passed by any authority in a Special Area whether in a civil or criminal matter. But this does not resolve the difficulty which is involved in the question referred to the Full Bench. The case under consideration was Instituted in Quetta and incidentally arises out of a dispute relating to the land situated in the Special Area. The civil revision, there fore, is not against the orders of the authorities in the Special Area, but against the order of a Court functioning at Quetta. It is strongly urged that the words 'in relation to the Special Areas' have a wider import and include those matters which indirectly affect person, property and orders passed by authorities in that area. After hearing the learned counsel for the parties it is quite clear to us that the jurisdiction of the High Court under Article 178 was not intended to be taken away In respect of such cases."

11. The following observations of S. A. Rahman, C. J. were quoted with approval :- "Article 178 excludes the jurisdiction of this Court and the Supreme Court but not of the subordinate Courts in relation to Special Areas-a truly anomalous position. Surely, in such a case if there be an appeal or revision to this Court, there would be nothing to prevent this Court from pronouncing on the correctness or otherwise of the decision of the subordinate Court on such an issue. It would thus appear that this Court is not debarred from expressing an opinion upon the legality or otherwise of orders passed by the relevant authorities in a Special Area, in all conceivable cases. Apparently what Article 178 enacts is that this Court shall not entertain any appeal or revision from the orders passed by the authorities in a Special Area, whether in a civil or criminal matter. In our opinion, while deciding the present petition, we shall be exercising our jurisdiction under Article 170 not in relation to any Special Area but in relation to the area within our own jurisdiction inasmuch as the petitioners are now confined in a jail which is located within that jurisdiction. The case is, there fore, taken out of Article 178 in terms and the bar is no longer applicable."

12. The learned Judges of the Full Bench went on to hold that the conditions precedent in the exercise of jurisdiction in such cases would be whether any part of cause of action arose within the territorial jurisdiction of this Court or whether the order complained of was in respect of a matter instituted within the jurisdiction of this Court. Upon this test, this Court has jurisdiction because the revision was filed before the Commissioner at Quetta and was decided by him at Quetta, which is within the jurisdiction of this Court. The petitioner is aggrieved by an order made against him at Quetta. Consequently, this Court has jurisdiction.

13. Sub-clause (2) of clause 2 of the Special Areas (Restoration of Jurisdiction) Order, 1961, confers power on the High Court of West Pakistan to have the same jurisdiction as would have been exercisable by the High Court of West Pakistan on the 14th day of October 1955, as if sub-clause (1) of clause (a) of section 2 of the Establishment of West Pakistan (Amendment) Act, 1955, and Article 178 of the Constitution of the 23rd day of March 1956, had not been enacted, but this Act shall come into force on such date as the Central Government may by notification in the official Gazette appoint.

14. It has been strenuously urged by the learned counsel for the respondents that the order of the Commissioner under B section 52 of the Frontier Crimes Regulation, is a purely executive pr administrative order and is neither judicial nor quasi-judicial in character and consequently the petitioner had no right to be heard) in revision by the Commissioner before setting aside the decree passed in his favour. With regard to the distinction between judicial or administrative tribunals, Muhammad Munir, C. J. of Pakistan, observed in The Tariq Transport Co., Lahore v. Sargodha Bhera Bus Service, Sargodha and others (P L D 19f8 S C (Pak.) 437) that "the question whether an act is judicial, quasi-judicial or administrative is clouded by a confusion, which it is extremely difficult to resolve and no clear-cut distinction between these three functions can be discovered from the large number of reported cases and the divergent opinions expressed therein. In modern States where expertise is the dominating feature of the Government more than one function is combined in administrative Tribunals, and more often than not an administrative agency discharges not only legislative and administrative but also judicial functions. The true question in the case of such tribunals always is whether the act which is complained of is a judicial act and not whether the procedure adopted by the tribunal is judicial or quasi-judicial or whether the dominant or general aspect of the tribunal is that of a judicial, quasi-judicial, or administrative body. A tribunal is not always furnished with the trappings of a Court, nor will such trappings make its action judicial. The character of the action taken in a given case and the nature of the right on which it operates must determine whether that action is judicial, ministerial or legislative or whether it is simply the act of a public agent. A tribunal acts judicially in the full sense of the term if (t) it has to determine a dispute ; (2) the dispute relates to a right or liability which, whatever its immediate aspect, is ultimately referable to some right or liability, recognised by the Constitution or statute or by custom or equity which by the domestic law is declared to be the rule of decision ; (3) since every right or liability depends upon facts, the tribunal is under an obligation to discover the relevant facts ; (4) the ascertainment of the facts is in the presence of the parties either of whom Is entitled to produce evidence in support of its respective case and to question the truth of the evidence produced by his opponent ; and (5) after an investigation of the facts and hearing legal arguments the tribunal renders a judgment which so far as the tribunal is concerned terminates the dispute. In the case of an administrative tribunal, however, the emphasis is on policy, expediency and discretion to enable it to achieve the object with which it was set up. In the case of such a tribunal the approach in determining the relevant facts is, therefore, often subjective and not objective, there being generally no lis before it in which the parties are arrayed against each other for the enforcement of a private right or liability and who for that purpose are entitled to produce evidence and adduce legal argument. The word `quasi' as prefixed to the word judicial' may either indicate that the tribunal is not acting purely administratively or that it is acting In a manner in which a judicial tribunal is expected to act."

15. Mr. Brohi in his book "Fundamental Law of Pakistan" stares his conclusion thus "In other words, if the law permits a subjective approach to the determination of the conditions limiting the exercise of power as a sole judge as to their existence, writ of certiorari will not lie but if, on the other hand, those conditions have themselves to be determined objectively then they become `conditions-precedent' to the exercise of the power and their existence cannot be said to be conclusively demon strated merely because the officer exercising the power says that such conditions exist. Judicial Tribunals must treat legal rights and liabilities as pre-existing, because such tribunals declare themselves bound by a fixed objective standard, they profess not to confer rights or impose liabilities themselves but only to do what is dictated by law. But administrative tribunals which act upon policy and expediency themselves dictate what Is policy and expedient ; they are not concerned with pre-existing rights and liabilities that they enforce."

16. Muhammad Munir C. J., laid down the following test :- "In certiorari the initial question is whether the official whose action is called in question was acting under a law. If he was not, the act was that of a mere public agent and action at law and not certiorari is a remedy. If, however, public functionary has acted in exercise of a statutory authority, then the question to be determined is whether he was the sole judge of facts and of the necessity, expediency, advisibility or reasonableness of the action to be taken. If the reply be in the affirmative, he was not acting judicially and his discretion is not liable to judicial review. But if he was under an obligation to find the facts in a judicial or specially prescribed manner, a material departure from the procedure which has adversely affected the rights of a party would render his action liable to judicial review, even if, on the facts to be so found, the action to be taken depended on his discretion. These cases are distinguish able from those where, whatever be the nature of the tribunal, the order made is illegal in the sense that the tribunal was not competent to make it or when on the facts found, whether subjectively or objectively the order in question could not have been made or an order should have been but has not been made or where the tribunal suffers from lack of jurisdiction."

17. In the light of the test laid down, it is clear that the Commissioner, acting under section 52 of the F. C. R., act at least quasi-judicially if not judicially. No doubt a Jirga who decides a civil dispute is not bound to hear arguments and the parties are not entitled to be represented by counsel or to address legal arguments; but there is a lis and the parties are entitled to lead evidence. The Jirga is not bound to decide on the evidence produced before it by the parties, but may act on private Information or on the evidence of some person not cited by the parties, as happened in this case. When the Jirga has given its award In favour of a party, the Deputy Commissioner may pass a decree in accordance with the finding of the Council-of-Elders under clause (d) of subsection 3 of section 8 of the F. C. R. When a decree had been passed, it operates as a final settlement of the case with regard to the matters stated in the reference and to that extent and subject to the provisions of the regulations relating to revision, has the same effect as a decree of a Civil Court of ultimate resort and is to be enforced by the Deputy Commissioner as a decree of a Court. When a decree has been passed a right has been created in favour of a party, and that right cannot be taken away without giving notice to him and without hearing him and this is the requirement of the rule of "natural justice." The Commissioner acting In revision under section 52 of the F. C. R , is not the sole judge of the necessity, expediency, advisibility or reasonableness of the action to be taken. The law has Imposed restrictions on the exercise of the power because the Commissioner cannot vary or set aside a decree or order passed in civil proceed ings, unless he is of the opinion that there has been a material irregularity or defect in the proceedings or that the proceeding has been so conducted as to occasion a miscarriage of justice, or that the decision, decree or order is contrary to good conscience or public policy. He is required further under section 53 of the F. C. R., to record his reasons for varying or setting aside a decree. Thus though be has to form an opinion, the approach is not purely subjective, and that opinion must relate to the requirement of the law, namely, the commission of material irregularity or defect in the proceedings, or that the proceedings have been so conducted as to occasion miscarriage of justice or that the decree is contrary to good conscience or public policy. Thus the power to interfere is limited to particular grounds stated in section 52 of the F. C. R., and is not left to the whim, discretion or expediency. Our attention has been drawn to the observations of A. R. Conelius J. (now Chief Justice of Pakistan) in Samundar v. Crown (P L D 1954 F C 228) that the proceedings before a Jirga were not to be regarded as proceedings in justice but were to be regarded as proceedings before an administrative agency, specially provided in the settlement of the criminal cases and specifically adapted to the conditions prevailing in frontier districts, "but these observations are relatable to the proceedings before the Jirga and not to the proceedings of the Commissioner under section 52 of the F. C. R. Our attention has also been drawn to his Lordship's observations in State v. Dosso that `the mode of review of conviction and sentences which has been laid down in the Frontier Crimes Regulation is appropriate to the requirement', but these observations cannot be construed as meaning that the Commissioner acts administratively or in executive capacity. In the view of sections 52 and 53 of the F. C. R., which we take, we are clearly of the opinion that the Commissioner acting in revision in civil cases, and in setting aside a decree, acts quasi-judicially if not judicially. There is a Its before him and he decides the rights of the parties under a law, which pro vides for conditions under which he can Interfere.

18. The question whether the action is judicial or qatasi judicial or administrative in form is not of any particular Import ance in the context of the requirement of rule of justice that no one shall be condemned unheard. "Ance by the passing of a decree in favour of a party, a right is conferred on him, he must be heard before he is deprived of that right. It has been laid down by the Supreme Court of Pakistan in Chief Commissioner, Karachi v. Mrs. Dina Sohrab (P L D 1959 S C (Pak.) 445) that the maxim : audi alteram partem, namely, that `no one shall be condemned unheard', applies to judicial as well as administrative bodies, specially where the proceedings taken may affect the person or property or other rights of the parties concerned in the dispute. Their Lordships of the Supreme Court further observed in Messrs Farid Sons Ltd., Karachi and another v. The Government of Pakistan and another (P L D 1961 S C 537) that the principle that "No man shall be condemned unheard" is of universal application where the statute itself prescribed no specific procedure for ascertaining the necessary facts Und no express exclusion of the principle can be spelt out of the words of the statute. Byles J., observed in Cooper v. Wandsworth Board of Works (143 E R 414) that "altheugh there are no positive words in a statute requiring that the party shall be heard, yet the justice of the Common Law will supply the omission of the Legislature". The rule is not confined to the conduct of the strictly legal tribunals but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals. Similar principles were laid down in Staford v. Minister of Health ((1946) 1 K B 621) and the Board of Education v. Rice ((1911) A C 179). The failure to follow the principles of natural justice vitiates an order passed by an authority or tribunal, who decides the rights of a party. In the present case, the Commissioner acting in exercise of power under section 52 of the F. C. R., set aside a decree passed in favour of the petitioner and thereby adversely affected a right conferred on him by a decree, which was to operate as a decree of a Court of ultimate resort. Though there is no express provision in the F. C. R., that the parties should be heard, but the justice of the Common Law supplies the omission of the Legislature, there being no indication in the provisions of the F. C. R., excluding the opertion of the principle of natural justice. The Commissioner was, therefore, bound to near the petitioner before setting aside the decree passed in his favour. His order is vitiated for his not giving an opportunity to the petitioner to be heard. Where a decree or order made in favour of a party, which confers on him a right, has to be set aside, he has a right to be heard as a rule of justice before the order or decree is set aside. Of course if the matter or a right has been decided against a party and that order is to be confirmed, he need not to be heard, as held in Mst. Amir Begum v. Urrtar Din (P L D 1961 Lab. 360) by Shabir Ahmad J. and one of us.

19. The Green Book containing various instructions issued from time to time makes it clear that satisfaction of the parties to a dispute is a primary and fundamental requirement for settle ment of disputes under thy F. C. R., and that for this purpose it is necessary to hear the parties before deciding against a party. This is a sound principle because if a person has been heard, he is less likely to feel the pinch, if the decision goes against him. It has also been observed by A. R. Cornelius, Chief Justice of Pakistan, in Messrs Faridsons Limited, Karachi and another v. The Government of Pakistan and another (P L D 1961 S C 537), that justice should not only be done but that it should also be seen to be done, which cannot be the case if a right conferred on a party is taken away, without hearing him, especially in a case where a tribunal has decided in his favour, and that decision has matured into a decree. The Commissioner considers the case ex post facto. He can only interfere as stated already in case of commission of a material irregularity that is not every kind of irregularity, but one which is material, or for a defect in the proceedings or if the proceedings have been so conducted as to occasion a miscarriage of justice or that it is contrary to good conscience or public policy. His approach is not purely subjective. The emphasis under the law is not on policy, expediency and discretion enabling him to do whatever he likes in the light of administrative require ment. The emphasis under the law in case of civil dispute, is on the settlement of disputes to the satisfaction of the parties according to their rights under the local riwaj. There is, therefore, no force in the respondents' contention that the Commissioner acts in revision administratively and executively and is entitled to decide the rights of the parties in any manner as he choses.

20. This case illustrates the advantages that may accrue by hearing a party to be affected, and it is amply clear in this case that the Commissioner by not giving an opportunity to the petitioner to be heard, fell into an error, which Is patent on the face of the record, and this has even been conceded by the learned counsel appearing for the respondents. The Commissioner has stated that the award of the Jirga was based on the Uqrarnama.' A perusal of the record shows that this is not the case. The award of the Tribunal is in fact based on the enquiries made from Wadera Noor Khan Auliani. The Commissioner further observed that the Iqrarnama should have been ratified by a Jirga, before it could have been accepted and acted upon, but we have not been referred to any instructions in the F. C. R., much less any provision of F. C. R., making it necessary for the Jirga to ratify the 1qrarnama. It was further stated that the Iqrarnama affected pre-emption rights of many persons and in all fairness to them ail, it was not fair to accept the `Iqrarnama'. We are told that under the Riwaj, a suit for pre-emption can only be filed within a year, and if no one else bad claimed the right of pre emption in the land by the 5th of November 1960, when the Commissioner gave his decision, it could not be said that the pre-emption rights of others were subsisting and had been affected by the Jirga's acceptance of the Iqrarnama. Amir respondent had also accepted the Jirga's award before it was accepted and became a decree. As it had been accepted, could Amir be allowed to challenge it by revision? Thus there was no case for interference in revision.

21. For the reasons given above, we hold that the Commis sioner, F. C. R., was bound to give notice to the petitioner and should have heard him in the revision before setting aside the decree duly made in his favour. As he did not hear him, there has been a violation of principles of natural justice, which vitiates his order. In exercise of powers of certiorari, we quash the order of the Commissioner dated the 15th of November 1960, and the consequential order directing delivery of possession of land to Amir or Musa. We accept this writ petition with costs. This order shall be communicated to the parties. K. H. A./A. H. Petition accepted.