2003 PLP 3332 (YLR)

Mrs. Shaista Qaisar for Respondent No.1. Nazir Ahmad Ghazi for Respondent No.3 Date of hearing; 10th September, 2002. Through this Constitutional petition, the order dated 2‑12‑1997 passed by the Deputy Commissioner/Controlling Authority of the Local Councils has been assailed.

2. Respondent No.1 was working as Nikah Registrar of Ward No.4/ 1, Mouza ,Khansar, Tehsil and District Bhakkar, when respondent No.4, filed a complaint before the Administrator, Union Council, Khansar for revocation of the licence of respondent No.1 on the ground that he was involved in committing a number of irregularities in the performance of his duties as Nikha Registrar. An inquiry was held on this complaint by the Secretary, Union Council after notice toy respondent No. 1 in which he did not appear. The Inquiry Officer conducted ex parte inquiry and submitted his report dated 20‑12‑1995 to the Administrator of the Union Council on which vide order of even date the licence of respondent No. 1 was cancelled. Thereafter on the application of the petitioner a licence was issued in his favour vide order dated 1‑1‑1996. Against the order dated 20‑12‑1995 of the Administrator, Union Council, respondent No. 1 filed a revision ,petition before the Deputy Commissioner, Bhakkar which was allowed vide order dated 2‑12‑1997, on the ground that respondent No. 1 was not heard by the Administrator. This order has been assailed in this Constitutional petition.

3. The learned counsel for .the petitioner submits that against the order directing cancellation of the licence of respondent No. 1, a revision petition before the District Collector was not maintainable, therefore, the impugned order is wholly without lawful authority. He maintains that I since the said respondent did not appear before the Inquiry Officer, the competent authority was not bound‑ to summon him. It is next contended that since the Inquiry Officer clearly found that respondent No. 1 was guilty of breach of the provisions of Muslim Family Laws Ordinance, 1961, his licence was rightly cancelled.

4. On the other hand the learned counsel for respondent No.1 maintained that the petitioner has not approached this Court with clean hands inasmuch as that he suppressed from the Writ petition filing of a suit for permanent injunction to protect his licence. It is further maintained that respondent No.1 was not served before the Inquiry Officer and in any case the Administrator Union Council, before directing cancellation of the licence of respondent No.1 was bound to issue notice to the said respondent and hear him and admittedly even a notice was not issued by the Administrator. Thus, the order dated 20‑12‑1995 was without lawful authority and no interference was called for.

5. I have considered the submissions made by the learned counsel for the parties. Grant of a licence for registration of marriages under the Muslim Family Laws Ordinance, 1961 is provided by section 5(2) of the aforesaid Ordinance read with rule 7 of the West Pakistan Rules under the Muslim Family Laws Ordinance, 1961. By virtue of Rule 7(3) a licence is revocable for contravention of any of the conditions of the licence. However, against revocation of a licence granted under the aforesaid rules no remedy has been provided in the aforesaid rules. Rule 16 thereof provides for a revision petition against an order under section 6(4) or section 9(2) of the Ordinance. The Ordinance or the rules referred to above do not contain any provisions for an appeal or revision against an order directing revocation of a licence under rule 7(3) of the aforesaid rules. Therefore, the contention that the District Collector has no jurisdiction to set aside the order dated 20‑12‑1995 has merit but the matter does not end here. Undisputedly the Administrator, while directing cancellation of the licence of respondent No. 1, did not even issue any notice to the said respondent and on the basis of the inquiry report dated 20‑12‑1995 passed the order on the same day. The Administrator thought that since respondent No.1 had been served in the inquiry, no further notice was required. This approach was unsustainable because respondent No.1 was entitled to a notice and hearing by the Administrator. Thus, the order of the Administrator was also without lawful authority since respondent No. 1 was condemned unheard. Therefore, interference of this Court will result in resorting an illegal order and therefore, it is clearly a case of judicial restraint despite defect in jurisdiction pointed out by the learned counsel for the petitioner.

6. It may, however, be noted that while accepting the revision petition of respondent No.1 and setting aside the order dated 20‑12‑1995 of the Administrator, no consequential direction was issued by the Collector. After the order dated 20‑12‑1995 was issued by the Collector on the ground that respondent No. 1 was not heard by the Administrator he should have remitted the case to the Administrator for a fresh decision after hearing the parties. Accordingly, while I am not inclined to exercise my discretionary jurisdiction against the order dated 2‑12‑1997, it is directed that the Administrator (now his successor‑in‑office) shall decide the matter afresh after hearing the concerned parties. No order as to costs. H.B.T./M‑2037/L Order accordingly