P L D 1963 Dacca 1005 (PLP)

(5) That, the provisions of subsection (2) of section 2 of the Ordinance being penal in nature, they must be construed strictly, and upon such construction, the extension of an existing hat would not amount to the establishment of a new hat. For a proper appreciation of the points involved in this case, it is necessary to set out the provisions of section 2 of the Ordinance, which runs thus: "2. (1) No person shall establish any bat or bazar except after obtaining a licence for that purpose from the Collector in such form as may be prescribed by rules made under this Ordinance. (2) Any hat and bazar established in contravention of the provision of subsection (1) including the land on which such hat or bazar is established and all interests therein shall be forfeited to the Provincial Government. (3) An order passed by the Collector under subsection (1) shall be final."

6. In the affidavit‑in‑opposItiur1, which was filed on behalf of the respondents various averments made in the petition have been traversed. It has been alleged in the said affidavit‑in‑opposition that the petitioner has established a new hat. We had asked the learned Advocate‑General to produce the departmental file with regard to the matter before us, and the papers that were produced before us substantially support the petitioner's conten tion. It appears that in the beginning the respondents treated the petitioner's shops as a part of the existing Hasnabad Hat. The said hat used to sit on Sundays and Wednesdays. Objection was taken to the holding of the hat on Fridays as well, those being the days on which a rival hat namely, the Narsingdi Bazar, would usually function. In pursuance of this, on behalf of the Additional‑Collector of Revenue of Dacca certain notices were served on the petitioner and various others. The said notice reads as follows "Whereas it is reported that you have been assembling Hasnabad Hat on Fridays in addition to the original 2 hat days, i.e., ors Sundays and Wednesdays without permission from the Collector. The Hasnabad Bazar cannot be permitted to sit on Fridays on which Narsingdi Bazar sits. The handloom products worth lakhs of rupees are sold in the Narsingdi Hat which are purchased by the Paikars from different parts of the Province. The sitting of this new Hasnabad Hat has affected the Narsingdi Hat in other respects also such as rice vegetables, etc. The Narsingdi Hat is no less important than that of Shekerchar Hat. The holding of such a hat at Hasnabad by you or at your instance in such a way without permission is illegal and beyond jurisdiction. You are therefore directed to stop holding of the hat on Fridays or any other day except Sundays and Wednesdays at once, and show cause on 11th July 1960, why legal action should not be taken against you under section 2 of the East Pakistan Hats and Bazars Ordinance No. XIX of 1959. (Sd.) A. F. M. Kamaluddin, for Additional Collector of Revenue, Dacca."

7. Subsequently, it seems the case of the respondents was that the said hat was gradually extended. Thereafter, it seems that after the preparation of certain maps the respondents switched on to the case that the petitioner and others had established a new hat. On the facts of this case, we are not prepared to accept the averments in the affidavit‑in‑opposition, in so for as they militate against the petitioner's statements which, as we have noticed, stand substantially corroborated by the records of the case produced before us. Therefore, on the affidavits filed in this Court, we hold that the petitioner estab lished a few shops in proximity to the old hat, and that the establishment of the said shops did not tantamount to the establishment of a new hat.

8. This being the finding of fact, at which we have arrived, the question is, whether the establishment of a few shops amounts to the establishment of a hat. In section 4 of the Ordinance it is stated that the words and expressions used in this Ordinance shall have meanings, respectively, assigned to them by the East Bengal State Acquistion and Tenancy Act, 1950. Section 2, subsection (12) of the said Act defines that: "hat or bazar means any place where persons assemble daily or on particular days In a week primarily for the purposes of buying or selling agricultural or horticultural produce live stock, poultry, hides, skins, meat, fish, eggs, milk, milk‑pro ducts or any other articles of food or drinks or other necessaries of life, and includes all shops of such articles or manufactured articles within such place." The definition as set out above is in consonance with the popular and familiar conception of a hat or a bazar as prevalent in this country. The gist of the definition lies in the establishment of a place for assembling persons daily or on particular days in a week for purposes of buying or selling articles of general household use. This is the distinctive feature of a hat or a bazar, as opposed to a number of shops established in a particular place. A place for assembling people for the object as stated above, is the real crux of the matter in these circumstances, the setting up of a few shops can, by no manner or means, be described as establishing a hat or a bazar. Otherwise there will be no distinction between setting up of a number of shops and establishing a hat. What has happened in this case, as disclosed in the file produced before us, appears to be that a number of persons set up a few shops immediately adjacent or in close proximity to the old hat which had thus gradually extended itself. The case of the respondents seems to be that inasmuch as the individual acts of various persons amounted to the establishment of a large number of shops, they amounted to the establishment of a new hat. It is difficult to understand the logic behind this process of reasoning. There seems to be an assumption that all the various other persons, to whom notices were served along with the petitioner, formed themselves into an association to establish a hat. It does not, however, appear that the petitioner or any other person mentioned above, made a concerted effort to establish an area where a hat might be held. What appears to nave been done is that a number of persons individually, and by themselves, set up a few shops on their own land in close proximity to each other. Every one of such persons is responsible for his own individual act. Nothing has been shown that they had made a concerted effort to set up shops which would amount l.4 to the establishment of a hat. We, therefore, uphold the conten tion of the petitioner that the establishment of three shops by him cannot, by any manner or means, be held to be the establishment of a hat by him within the meaning of section 2 of the Ordinance.

9. The next point urged on behalf of the petitioner is that the impugned order amounts to a forfeiture of his property, and that it amounts to an imposition of a penalty upon him. His contention is that he was given no opportunity to show cause or to make any representation whatsoever against the forfeiture of his property or the imposition of such penalty upon him. The teamed Advocate‑General has frankly conceded before us that no notice was given to the petitioner enabling him to make representation against the impugned order. It appears that in the beginning some sort of notice was circulated to the petitioner and various other persons. But that notice, as has been rightly contended has no reference to the impugned order. Towards the end of the notice quoted above, it appears that the persons, upon whom the said notice was served, were required to show cause why legal action should not be taken under section 2 of the Ordinance. Subsection (1) of section 2 of the said Ordinance states that " No person shall establish any hat or bazar except after obtaining a licence for that purpose from the Collector in such form as may be prescribed by rules made under this Ordinance." Therefore the reference to section 2 may well be a reference to subsection (11 of the said section and the said notice need not necessarily have any reference. to subsection (2) under which the impugned order was made against the petitioner. From the records it appears that the impugned order was made without furnishing the petitioner any opportunity whatsoever to represent to the Collector or an authority subordinate to him that the petitioner had not established a hat.

10. The learned Advocate‑General has contended that the Ordinance does not provide for any opportunity to be given to the petitioner to make any representation against the forfeiture of his property. We regret to notice that it is so. But this does not absolve the Collector, or any authority acting under the provisions of subsection (2) of section 2 of the Ordinance, from the duty of acting fairly in passing the order that has been made against the petitioner, and it is only elementary fairness that the petitioner should have been furnished with an opportunity to show cause as to why the order should not be passed.

11. The learned Advocate‑General has strenously contended that the impugned order is an administrative or a ministerial order and not a judicial or a quasi‑judicial act. He has argued that if the im pugned order is a judicial or a quasi‑judicial act, the authority mak ing the order is required to act judicially in consonance with the principles of natural justice, and that if the order is administrative, the authority concerned is free to act arbitrarily and even against the principles of natural justice. It is sufficient to say that this argument is wholly untenable. . No argument has been advanced before us as to whether the order amounts to a judicial or a quasi‑judicial order, and we have not, therefore, investigated the said question. But to us it seems clear that, whether the act may be described as administrative or quasi‑judicial, the power given under subsection (2) of section 2 of the Ordinance is dependent upon the determination of a fact objectively, namely, whether a new hat has been established, and upon such determination, a penal order involving the forfeiture of a person's property can be made. It is a well‑settled doctrine of interpretation that when a Legislature authorises the passing of such an order, there is inherent in the legislation itself the principle that the power so conferred must be exercised fairly and not arbitrarily. There are innumerable authorities for this proposition, both in England as well as in this country. We may, however, refer to decision of the Supreme Court of Pakistan in the c se of Faridsons Ltd. v. Government of Pakistan (P L D 1961 S C 537) In the judgment, which was pronounced by S. A. Rahman, J., the authorities have been summarised in the following terms (p. 554): " This Court laid it down as a rule in Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak P L D 1989 S C (Pak.) 45 that the maxim, audi alteram partem‑--No man shall be condemned unheard', applies to judicial as well as administra tive bodies specially where the proceedings taken may affect the person or property or other rights of the parties concerned in the dispute. Even if, therefore, the proceedings before the Chief Controller were neither strictly judicial nor even quasi judicial in character, the principle of the natural justice em bodied in the above maxim could be called in aid by the appel lants. The High Court was in error in holding that this princi ple was a peculiarity of English Law, and could not be invoked in this country where statute law covers the relevant field of litigation. This principle is of universal application where the statute itself prescribes no specific procedure for ascertain ing the necessary facts and no express exclusion of the principle can be spelt out of the words of the statute. As Byles, J., observed in Cooper `'. Wandsworth Board of Works 143 E R 418: Although 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 Legisla ture'. In Patterson v. District Commissioner of Accra 1948 A C 341, 349, the Privy Council held against the application of the principle because the power to be exercised by the relevant authority in that case after inquiry, if necessary, implying in consequence that inquiry was not essential in every case. No words of similar import occur in the Registration (Imports and Exports) Order, 1952. Indeed clauses 5, 6 and 7 of the Order would tend to support the opposite inference. In Russel v. Russel 14 Ch. D 471, 478, Jessel M. R. quoted with approval from an earlier decision, the following passage "They are bound in the exercise of their functions by the rule expressed in the maxim, audi alteram partem, that no man shall be condemned to consequence resulting from alleged miscon duct unheard and without having the opportunity of making his defence." We may add to the passage quoted above the observations of Lord Parmoor in the case of Local Government Board v. Arlidge (L R 1915 A C 120), decided in the House of Lords, and we quote the passage (at page 142) as follows: " Whether the order of the Local Government Board is to be regarded as of an administrative or of a quasi‑judicial character appears to me not to be of much importance, since, if the order is one which affects the rights and property of the respondent, the respondent is entitled to have the matter determined in a judicial spirit, in accordance with the principles of substantial justice." We think that this is sufficient to set at rest the rather belated doubt expressed by the learned Advocate‑General as to principles of law applicable to this point. We do not mean to lay down, as a proposition of law, that in every case, where an official has to exercise an administrative discretion, he is bound to conform to a judicial procedure which is prevalent in a Court of law. There can be, however, no doubt that, in a case where the exercise of any power conferred on him is dependent on a finding of a fact objectively, he cannot come to a finding against a person affected by the order without giving him a chance to make representa tion as to why the same may not be found against him. The principle, audi alteram partem, is the minimum requirement of law in such a case.

12. In the case before us it is admitted that the petitioner was never given any opportunity to show cause against the impugned order. No opportunity was given to him to prove that he had not established a hat at all and thus to contend that he was not liable to the imposition of a forfeiture within the meaning of subsection (2) of section 2 of the Ordinance. The order is thus unfair and against the principle of natural justice. We, therefore, uphold the contention of the petitioner on this point.

13. It was next contended on behalf of the petitioner that the impugned order was arbitrary, and therefore, liable to be set aside. From what we have stated above, it is patent that the impugned order passed against the petitioner is grossly arbitrary and in that sense also mala fide. An arbitrary exercise of a power in such circumstances as has been set out above is not a valid exercise of the power exercisable under the Ordinance. We need not dilate upon this proposition any further.

14. The petitioner's further contention is that the power conferred under subsection (2) of section 2 of the Ordinance should be strictly construed inasmuch as it is penal in nature] involving forfeiture of the petitioner's property. This is a well‑I known and well‑settled principle of interpretation and we need not discuss this at any length.

15. In this context it has been urged that the words "establish any hat or bazar " in subsection (1) of section 2 of the Ordinance should not be taken to include an extension of an existing hat or bazar. It is interesting to note that the impugned order also expressly refers to an extension of the Hasnabad Bazar. Before us the respondents have tried to make out a case that the petitioner has established a new hat or bazar; but this is not borne out by the official papers that were produced before us. We have observed that at a late stage of the proceedings, which led to the passing of the impugned order, some sort of case that the persons concerned established a new hat was sought to be made, but the history of the case does not lead to that conclusion. In any event the Joint Deputy Commissioner, who passed the impugned order against the petitioner, did not record any finding that the petitioner's act of setting up of a few shops amounted to the establishment of a new hat. The impugned order, which was served on the petitioner, specifies a case of extension of old Hasnabad hat, and not that of establishment of a new hat. In these circumstances, he was not clothed with the jurisdiction to pass the order which he had made, even if he is taken to be the authority which can act under subsection (2) of section 2 of the Ordinance, inasmuch as the power alleged to be conferred upon him is dependent upon a finding that a new hat has been estab lished without obtaining a licence from the Collector. On this ground also the impugned order is liable to be set aside.

16. We would like to add that some persons preferred a sort of an appeal, which is not provided under the Ordinance, to the Commissioner. Learned Advocate for the petitioner has denied that any appeal was preferred by his client before the Commis sioner. We then asked the learned Advocate‑General to point out what appeal the petitioner preferred and the answer given to us was that somebody purporting to act on behalf of the Bazar Committee took some appeal before the Commissioner which was infructuous. The petitioner in the first place, has nothing to do with such appeal, and, in the second place, if the impugned order itself is illegal, no subsequent infructuous appeal would make any difference to the point that is involved before us.

17. For reasons stated above, we make the Rule absolute and direct the respondents to cancel the notice, dated the 27th of July 1961, issued by the Joint Deputy Commissioner, Dacca, and served upon the petitioner. We allow the petitioner costs of this writ petition, which we assess at ten Gold Mohurs.

18. Before we take leave of this case we would like toi observe that the Ordinance appears to be an ill‑conceived' and a hasty piece of legislation, We have seen that it hash conferred a very drastic power of forfeiture of properties without providing for any opportunity to be furnished to affected persons enabling them to make representation against such forfeiture. It also appears that section 2 of the Ordinance was clumsily drafted. Subsection (1) of the said section provides that no person shall establish any hat or bazar except after obtaining a licence for that purpose from the Collector in such form as may be prescribed by rules made under this Ordinance. Subsection (2), with which we are concerned in this case and which we have already set out above, reads thus: "Any Hat or Bazar established in contraven tion of the provision of subsection (1) including the land on which such hat or bazar is established, and all interest therein shall be forfeited to the Provincial Government." Whereas sub section (1) makes it clear that the authority to grant the licence is the Collector, subsection (2) is completely silent as to the authority which shall come to a finding that any person has established a Hat or Bazar in contravention of subsection (1) and thereupon to pass the order of forfeiture. It is evident that the forfeiture of the property as mentioned in the said subsection is dependent upon the establishment of a Hat or a Bazar without obtaining a licence from the Collector. Who, then, will investigate into the question and come to a finding that any hat or bazar has been established? The establishment of a hat or bazar is a question of fact to be determined in each individual case, and it is only upon such a finding that the r; provision of subsection (2) is attracted. Nowhere in section 2 is it specified that the Collector is required to come to such a: finding which will involve the forfeiture of the property as men tioned in subsection (2). Moreover, subsection (3) of section 2 of the Ordinance makes the order of the Collector final in respect of the granting of licence under subsection (1), but it is silent in respect of subsection (2).

19. It is interesting to note that section 3 of the Ordinance, which confers powers on the Provincial Government to acquire Hats and Bazars and to determine the question of compensation, provides for an appeal to the Commissioner against the order of the Collector in respect of payment of compensation. But it is incongruous that when a property is acquired upon payment of compensation, there would be a provision for an appeal, but that there should be no such right conferred upon the person concerned when his title to the property is wiped out thereby entailing a consequence which is of a far more drastic character. SALAHUDDIN AHMED, J.‑

‑I agree. S. B./K. B. A. Petition accepted.