P L D 1980 Karachi 568 (PLP)

??????????? JUDGMENT S. A. NUSRAT, J.-This judgment will dispose of Constitutional Petitions Nos' D-1537 of 1978, D-392 of 1979 and D-483 of 1979 as the same involve a common question of law.

2. The above Petitions are directed against the orders which are shown to have been passed by the "Committee set up by the Government of Sind under Permanent Residence Certificate Rules, 1971". The impugned orders in each of the three Petitions were passed on 15-10-1978, 28-1-1979 and 12-2-1979 respectively. As we propose to dispose of these petitions on the basis of a legal and technical objection alone, it is not necessary to advert to the facts involved therein.

3. We first heard Mr. Nooruddin Sarki, learned Counsel for one of the petitioners, who contended that the impugned orders were per se invalid as the same were not signed by all the three members of the Committee. As such infirmity attached to all the impugned orders, we called upon the learned Counsel for the other petitioners also to address us on the point raised by Mr. Nooruddin Sarki.

4. The Government of Sind, Services, General Administration and Information Department, on 29th July 1971, framed rules for the grant of Permanent Residence Certificates, as a condition precedent, for seeking admission to a medical or an engineering College in Sind, or such other educational or technical institutions in the Province as may be notified by the Government in that behalf from time to time, or for recruitment to any service or against any post under the rule-making authority of the Government of Sind, or under any local authority or statutory body set up or established by it. Such certificate of permanent residence was to be applied for and procured from the District Magistrate of the area in Sind where the applicant happened to be residing. The rules in question are called the Sind Permanent Residence Certificate Rules, 1971, and lay down the conditions for the grant of Permanent Residence Certificate, which one had to apply for, by making an application in the prescribed Form A. Rule 8 provides that any person aggrieved by the grant or the refusal to grant, by the, District Magistrate, a Permanent Residence Certificate may, within 30 days of the grant of the Certificate, prefer an appeal to the Commissioner of the Division. In case the order of the District Magistrate was reversed by the Commissioner on appeal, the person aggrieved is permitted to file, within 30 days of the order, a Second Appeal before the Committee set up under sub-rule (3) and the order of the Committee is to be final. Sub-rule (3) of rule 8 provides for the setting up of the Appellate Committee, which is relevant for the decision of these petitions. The same reads as under:- "(3) Government shall, for hearing appeal under sub-rule (2), appoint a Committee consisting of three Senior Officers of Government one of whom shall be the 'Chairman of such Committee'."

5. The short question requiring consideration in these petitions is as to whether the appellate order passed by the Committee is to be signed by all the members of the Committee and whether the issuance of the order under the signature of one of its members alone was sufficient.

6. Rule 8(3) clearly provides that the Government shall, for hearing appeals under sub-rule (2), appoint a Committee consisting of three senior officers o? the Government, one of whom was to act as Chairman of such Committee. It was not disputed by the learned counsel, appearing on behalf of the petitioners, that the appeals were in fact heard by three members comprising the Appellate Committee. Likewise there is no dispute that invariably the orders of the Committee were issued under the signature of the Chairman of the Appellate Committee constituted under the Sind Permanent ' Residence Certificate Rules, 1971. It was contended by Mr. Muhammad Ibrahim Memon, Learned Additional Advocate-General, that before the appellate order of the Committee was issued, the draft of the same had to be approved by the other members and thus there was sufficient compliance of rule 8(3); and it was not necessary that the final order should also have been signed by all the members.

7. Mr. Nooruddin Sarki, learned counsel for one of the petitioners, referred to Begum Shaheen Ramay v. The .State and 2 others (1), in support of his contention that the order of the Appellate Committee had to be signed by all the three members. The facts in Begum Shaheen Ramay's case were that her husband, Mr. Muhammad Hanif Ramay, was proceeded against under the provisions of rule 49 of the Defence of Pakistan Rules and was prosecuted before a special Tribunal constituted under section 8 of the Defence of Pakistan Ordinance, 1971. The said section 8(1) of the Defence of Pakistan Ordinance, 1971, provided that the Central Government may for the whole or any part of Pakistan constitute a Special Tribunal consisting of three members appointed by the Central Government. According to section 10(6), in the event of any difference of opinion amongst the members of the Special Tribunal, the opinion of the majority was to prevail. Thus, for all practical purposes, the Special Tribunal set up under section 8(1) of the Ordinance comprised of three members and no member sitting singly or two members sitting together could constitute the Tribunal. By virtue of section 10(7) of the Ordinance the Central Government could make appropriate provision to cater for an eventuality when one member may be prevented from attending throughout the trial of any accused persons and such exemption applied only where one member did not attend a particular trial at all. The power or jurisdiction of the Special Tribunal, therefore, was to be exercised only when all the three members acted jointly. In that case, warrants issued by the Special Tribunal to the jail authorities were except for one invariably signed by only one member of the Special Tribunal. The exceptional order, impugned before the Lahore High Court, was signed by the two members. The order sheet of the relevant date indicated that on that day all the three members of the Special Tribunal were present, but the learned Assistant Advocate-General appearing on behalf of the State was unable to offer any plausible reason why the third member had not signed the order of remand. On these facts, it was found that since the impugned order was not signed by all the three members of the Special Tribunal, there existed no valid order directing the detention of the detenu in custody during the pendency of his trial. In the circumstances, the detenu was ordered to be set at liberty.

8. The point in these petitions is not dissimilar to the one decided in Begum Shaheen Ramay's case where the Special Tribunal comprised of three members and the order of remand was held to be without lawful authority on the ground that the same was not signed by all the three members. It was found in that case that the jurisdiction to act vested jointly in three members (1) P L D 1977 Lab. 1414 of the Special Tribunal who had to act jointly under the mandate of section 8(1) of the Ordinance. It was also observed in that case that when a judicial function is entrusted by a statute to a body consisting of certain individuals, to be ascertained or appointed in a prescribed manner then, in the absence of express provision or necessary implication, that function must be performed by all these individuals collectively, and that it cannot be delegated to some only on that principle. The authority of Howard v. Borneman (1), was relied upon in that connection.

9. Mr. K. A. Ghani, learned counsel for the respondent in C. P. No. D-1537 of 1978 referred to Makan Singh v. Wadawa Singh (2). In that case an order was passed in execution, that the application was time barred, but the same was not signed. A vernacular order of the same date was also not signed, though written on the same day reciting the fact of the dismissal, and was initialled by the learned Judge. In the circumstances, it was held that the omission was accidental and the order of the executing Court having been repeated by the Judge in his vernacular order must be held to be binding on the decree holder who should have appealed against it, if he wanted to get rid of the order, and he could not attack the order in subsequent proceedings. This judgment has hardly any bearing on the facts of the case because the vernacular order having been initialled by the learned Judge, in any case. was sufficient to show that the order had in fact been passed by the learned executing Court. Further reliance was placed on Firm Gokal Chand-Jagan Nath v. Firm Nand Ram Das Alma Ram (3). According to the facts, in that case, the learned Presiding Judge had proceeded on leave after giving the judgment without signing it. On the basis of the provisions contained in Order XLI, rule 31 and sections 99 and 108, Cr. P. C. it was held that the defect of not signing the judgment amounted to a mere irregularity and did not affect the merits of the case or the jurisdiction of the Court and was no ground for setting aside the decree because the Court must have inherent jurisdiction to supply such defects, The Appellate Committee set up under rule 8(3) does not act as a Civil Court and cannot claim any inherent jurisdiction and this judgment too is, therefore, of no avail. Lastly, reliance was placed on Chaudhry Abdul Kabeer v. Mian Abdul Waheed (4). In that case was contended on behalf of the appellant that the judgment of the High Court appealed from was not a valid judgment because it failed to comply with Order XLI, rule 31, of the Code of Civil Procedure. The contention raised on behalf of the appellant was repealed by the Supreme Court relying upon the judgment of the Privy Council in the case of Firm Gokal Chand-Jagan Nalh v. Nand Ram Das Alma Ram, in which it was held that the rule did not say that if its requirements are not complied with the judgment shall be a nullity. This decision also is of no help to the respondents for the same reason as mentioned above. ???????????

10. The rule 8(3) which calls for interpretation in these petitions provides that the power of hearing the appeals is to be exercised by a Committee consisting of three senior officers. The term, "hearing of appeals" by three members, necessarily involves the decision also to be taken by the three members jointly or at least by a majority of two; and that seems to be the wisdom behind the making of provision for odd number of the members? constituting the Committee. There is no rule providing for the delegation of authority for signing the orders passed by the Committee by the Chairman of the Committee on any single member. The decision of the Committee, ??????????? (1) (1974) 1 W L R 15 ? (2) A I R 1934 Lab. 763 (3) A I R 1938 P C 292 (4) 196& S C M R 464 therefore, must show on the face of it that it was passed by all the three members of the Committee and one cannot be left to guess as to whether the decision was unanimous or by majority because the chance of one member giving a dissenting opinion cannot be ruled out. It; therefore, for instance, ` one single member of the Committee does not agree with the other two members, the appellant had the right to know the point of difference arising between the members. ???????????

11. The contention of the learned Additional Advocate-General that, as a matter of practice, the proposed orders of the Committee were invariably approved by all of its members before the same were issued under the signature of the Chairman of the Committee, has no force, The power exercised under rule 8(3) is to be exercised by three members of the Committee and, therefore it is necessary that the decision taken by the members of the Committee collectively, or with the concurrence of two of its members, should be reflected of the face of the order itself. An investigation as to the manner in which the order was approved by circulation or otherwise by the members of the Committee is not warranted as it would entail enquiry into the proceedings of the Committee. The function of the Committee is of a quasi judicial nature, if not entirely judicial, and is not administrative and must be exercise according to the mandate of the rule by three members of the Committee clearly and manifestly.

12. As a result of the above discussion, we are of the view that the objection raised as to the validity of the impugned orders for not having been signed by all the three members of the Appellate Committee constituted under the Sind Permanent Residence Certificate Rules, 1971 must be upheld. Consequently, all the petitions are allowed and the impugned orders are declared to have been passed without lawful authority. As the impugned orders have been upset on the technical ground alone,. it will be open to the Committee to re-hear the appeals afresh and decide the same according to law after giving notice to the parties concerned. The parties tire, however, left to bear their own costs. M. Y. M.????????? Petitions allowed.