1989 PLP 1022 (MLD)

Nemo for Respondent No.1 I.H. Zaidi for Respondent No.2. Date of hearing: 23rd November, 1988. SAEEDUZZAMAN SIDDIQUI, J.‑‑The petitioner has challenged in this petition the order of Respondent No.1 rejecting their review petition, communicated to them by respondent No.2 vide its letter dated 20th October, 1979 The following is the background of controversy in the above petition. The petitioner's factory known as Haroon Cotton Ginning and Pressing Factory, was taken over by the Federal Government on 17‑7‑1976 upon promulgation of Cotton Ginning and Control Ordinance, 1976 (Ordinance XXVI of 1976). The factory was later on denationalised under the provisions of Cotton Ginning Control and Development (Repeal) Ordinance, 1977 and accordingly respondent No.2 vide its letter dated 21‑6‑1978 called upon the petitioner to pay a sum of Rs.3,44,430.26 alleged to have been determined as the `present value' of the factory. The petitioner has alleged specifically in paragraph 20 of the petition (there are two paragraphs 20 in the petition) that he first referred the matter to the Federal Government on 29‑6‑1978 and thereafter on 20th July, 1978 he submitted a review petition before respondent No.2 disputing the net worth value of the factory and the claim made by the Cotton Trading Corporation against the petitioner in connection with the return of the factory. It is specifically alleged in the petition that neither he was heard in connection with the reference which was made on 29‑6‑1978 nor in connection with review application dated 20th July, 1978. In the counter‑affidavit filed on behalf of respondents the allegations made by the petitioner that he was neither heard in connection with his review petition nor the reference made to the Federal Government, are not, denied. The learned counsel for respondent No.2 however, urged that all the contentions raised by the petitioner were duly considered and a credit of Rs.52,910 was allowed to them. It is also contended by the learned counsel for Respondent No.2 that the petitioner has challenged in this petition only the order passed on his review application while the order passed by the Federal Government on his representation dated 29‑6‑1978 has not been challenged. Be that as it may, there is neither anything in the counter‑affida6t nor in the material brought before us in the case to show that the petitioner was heard in connection with his earlier reference made on 29 6‑1978 by the Federal Government or in connection with his review petition which he submitted to Respondent No.2 on 20th July, 1978. Subsection (6) of section 3 of Cotton Ginning Control and Development (Repeal) Ordinance, 1977 provides that in the case of any dispute between the previous management of an establishment and the Corporation regarding the assets or liabilities of the establishment the matter shall be referred to the Federal Government whose decision shall be final. There is a specific allegation in the petition that the reference made by the petitioner to Federal Government on 29‑6‑19721 has not been disposed of as the petitioner has claimed that he was not issued any notice in connection thereto by the Federal Government. In these circumstances, there is no doubt that the reference made by the petitioner to the Federal Government on 29‑6‑1978 has either not been considered or has been purportedly disposed of alongwith review petition which was subsequently submitted by the petitioner on 20th July, 1978. In either case as the order has been passed by the Federal Government without hearing the petitioner it could not be deemed to be a valid order as contemplated in subsection (6) of Section 3 of the Ordinance of 1977. Reference in this connection may be made to the decision of this Court in the case of Haji Doosa Limited v Government of Pakistan 1986 CLC 1193. In that case following observations have been made by the Court at page 1209 of the report:‑ "We have already pointed out that where rights of parties are to be determined, the same cannot be done without hearing the affected party and such a procedure if adopted, would certainly be against the principles of natural justice. Although, we hardly expect the Federal Government, while determining any such rights to act as judicial authority, stricto senso, but still it cannot be absolved of its obligation to provide a right of hearing to the affected party. In this respect, it would not be out of place to quote from Khawaj Din v. Rationing Controller Food, Faisalabad and 2 others PLD 1980 Lah. 15 where reference to the observations made in Royal Aquarium and Summer and Winter Garden Socy. (1832) 1 OB 431 has been made as follows:‑ "The word `judicial' has two meanings. It may refer to the discharge of duties exercisable by a Judge or Justices in Court, or to administrative duties which need not be performed in Court, but in respect of which it is necessary to bring to bear a judicial mind, that is, a mind to determine what is fair and just in respect of the matters under consideration." We, therefore; agree with the contention raised by the petitioners' counsel that there can be no valid decision under subsection (6) of section 3 of Ordinance of 1977 by the Federal Government without first providing an opportunity of hearing to the previous owners." We are in respectful agreement with the above observations and we accordingly hold that the orders passed by the respondents on the reference dated 29‑6‑1978 as well as the review petition dated 20th July, 1978 were without jurisdiction and lawful authority and we grant declaration accordingly. The effect will be that Respondent No.1 will now bear the petitioner with reference to his petition dated 29‑6‑1978 and will dispose of the same in accordance with law. Learned counsel for the petitioner stated before us that the Respondents have already encashed the bank guarantee furnished by the petitioner before respondent No.2. The encashment of bank guarantee by the respondents will not prejudice the petitioner's claim in any manner and appropriation of the amount of the Bank guarantee will be subject to final result in the above proceedings. There will be no order as to costs. H.B.T./H‑141/KPetition accepted.