P L D 1965 Dacca 478 (PLP)

SAYEM, J:‑

This Rule was obtained by the Printer and Publisher of the Daily Ittefaq, a Bengali newspaper published from Dacca, calling in question an order purported to have been made by the Provincial Government in exercise of powers conferred on them by clause (f ) of subsection (1) of section 8 of the East Pakistan Public Safety Ordinance, 1958. By this order the petitioner was directed to furnish with the Deputy Commis sioner of Dacca a security for the amount of Rs. 10,000 in cash or the equivalent thereof in security of the Government of Pakistan. The following recital appears in the impugned order, which is dated the 11th December 1962, as the reason for making thereof:‑ " . . the Governor is satisfied that the issue of the said paper published on the 12th October 1962, contains prejudicial report as defined in subsection (5) read with clauses (c) and (n) of subsection (4) of section 2 of the East Pakistan Public Safety Ordinance, 1958 (Ordinance No. LXXIII of 1958)." Mr. S. R. Pal, appearing for the petitioner, prefaced hi arguments with the complaint that his client was seriously handicapped by reason of the Provincial Government having taken recourse to .the provisions of the East Pakistan Public Safety Ordinance, in preference to a more beneficial piece o legislation covering the field, namely, the Press and Publication Ordinance, 1960, which requires the Provincial Government to obtain the opinion of the Sessions Judge prior to making such an order demanding security; and allows the affected party a remedy for challenging the order, if passed, before a Special Bench comprised of three judges of the High Court, so that the affected party would have two opportunities of being heard once before and another after the making of the order. No such opportunity has been provided for by the East Pakistan Public Safety Ordinance, 1958. Mr. Pal also regretted that the impugned order, being of a date prior to the Constitution (First Amendment) Act, 1963, he was not entitled to take any constitutional objection to the Ordinance under which the impugned order has been passed. He, however, strenuously argued that the impugned order was vague and indefinite, having stated in very general terms that the issue of the paper of the 12th October 1962, contained prejudicial report. Learned Advocate -General having specified portions of a report appearing in that issue, relating to a meeting addressed by the late Mr. H. S. Suhrawardy once the Prime Minister of Pakistan, an English version of which has been prepared by the Court Translator. Mr. Pal confined his arguments to two points only, first, that on the face of it the report objected to by the respondents was not prejudicial within the meaning of the provisions of the East Pakistan Public Safety Ordinance cited in the impugned order and, secondly, that the said order was bad, having been made without giving the petitioner a prior hearing, in violation of natural justice. For a proper appreciation of the first point of Mr. Pal it is necessary at this stage to refer to the text of the report objected to by the Provincial Government, the English version of which is set down below:‑ Organise Movement in each village for Breaking the Shackles of Slavery. Suhrawardy's Call for democratisation of the Constitution. Address of National Front Leader to .the ‑largest ever public gathering at Jessore. Jessore, the 11th October "If Quaid‑i‑Azam had the slightest idea before the Pakistan movement that after the achievement of Pakistan the people of his golden Pakistan would be fettered with the shackles of slavery, would be deprived of their right of free expression, would have no basic rights and would only be destined, off and on, to be detained without trial, then, it may be said without the least shadow of doubt that he would not have stared the Pakistan Move ment." (2) Janab Hussain Shahid Suhrawardy expressed this opinion today addressing the sea of people in the Jessore Town Hall Maidan amidst loud cheers. (3) It may be mentioned in this connection that the huge mass of humanity consisting of thousands of people who had come to Jessore from far off places like Magura, Jhenaidaha, Chuadanga, Satkhira and even from Khulna by bus to have a glimpse of the National Front Leader, is, in the opinion of the local people, unparalleled in history. At the sight of this unprecedented gathering of innumerable people at the small town Jessore, drawn from all walks of life, Janab Suhrawardy also seemed to have a feeling of surprise alongwith the local leaders. Beyond the boundaries of the Town Hall Maidan the adjacent main road was also filled to capacity with the people. Thinking that it was sheer madness to hope to have a glimpse of the leader by pressing forward through the assemblage countless people crowded in the balcony of the District Board building and on the neighbouring house‑tops and even on the top of each of the trees in the neighbourhood. (4) It may be mentioned in this connection that at 4 p.m. when the leaders reached on the dais; the gathering burst into slogans `Long live Shahid Suhrawardy', Long live Democratic Front', `Long live Unity of the Struggling people', `We demand the release of Security Prisoners', withdraw the warrants of arrests, etc. (5) While Janab Suhrawardy was giving a running review of the recent political events in a public meeting with the former League‑leader Syed Shamsur Rahman of Jessore in the Chair, the crowd continued applauding him with repeated claps and cheers. Again, the crowd was expressing their support by uttering `Shame, shame' as occasions arose while he was criticising the Government. (6) At one point of his address Mr. Suhrawardy said: "Today a big question has posed itself before all the people of Pakistan. That question is : whether the United and irresistible movement which has been set in by the co‑operation of all the parties over the issue of democratisation of the Constitution will exist even after the democratisation of the Constitution. In reply to that question I declare unequivocally that we shall try heart and soul to maintain this unity even after the movement achieves success." (7) Mr. Suhrawardy declared that the National Democratic Front would carry on its movement in a peaceful way. (8) He said that the movement of the National Democratic Front was based on the support of the people who form the Government. The Government is therefore bound to bow down before the people. (9) Mr. Suhrawardy said that freedom is the birth right of man. It is to realise this right that once a steel‑strong solidarity among the people was formed under the leadership of Quaid‑i‑Azam. Sixteen years after the independence today a solidarity of the same kind among the mass has been again established throughout the Country. For, the urge for the struggle that day was more or less the same as it is today; and what do we find today even sixteen years after the independence? The people of the country have no freedom of speech and no recognition even of their basic rights. What they have is the wide arrangement for their detention in jail without trial off and on. It is therefore necessary to organise a strong movement to free the country from the chain of slavery. (10) Explaining the objects of the proposed National Democratic Front Mr. Suhrawardy made a clarion call to the sea of people and said "You will please, inspire every village men to organise United movement for democratisation of the Constitution, and let even the basic democrats take part in the movement." (11) Extolling very much the role played by the students Janab Suhrawardy declared amidst loud clapping and shouts of "Zindabad": "Words fail me to express the gratitude to the student community, the ever wakeful watchmen, who, considering the greater well‑being of the country and the people, have organised an irresistible countrywide movement. I can only say this much that the blood given by the student community here and there in the country will not, and cannot, go in vain." (12) While bitterly criticising the official circle he said that previously a public servant would lose his job if he indulged in politics, but today the criterion for his promotion is his political activities. He said that after the birth of Pakistan no Government did employ public servants to achieve political ends, but today they are being asked to speak in meetings and gatherings in order to praise the Constitution and the (13) Criticising the one‑man rule in the country today Janab Suhrawardy said in connection with the Parliamentary Secretaries that Parliamentary Secretaries are usually appointed for the sake of the convenience of the working of the Legislature but today there is in fact no Legislature, still dozens of Parliamentary Secretaries have been appointed. They are directed to go from village to village and praise the Constitution and to give speeches and statements maligning Suhrawardy. Official statements manufactured in the Government workshop are being freely issued in their names whereas they themselves might be quite ignorant of those statements. (14) At one stage of his address the National Democratic Front Leader remarked admist loud clapping and shouts of "Zindabad": "The More the President, being enraged with me, is taking pains to abuse me the more you are loving me. And instead of praising him you are praising me. But I fail to understand the miracle in it." This remark of Janab Suhrawardy immediately caused tremendous laughter among the audience. But just after that, the meeting place was resounded with the clapping and repeated shouts of `Suhrawardy Zindabad' raised by the audience of about half a lakh of people. Praising the patriotism of all the political detenues including Mowlana Bhashani he demanded their immediate release on open trial. (15) At one stage Janab Suhrawardy demanded the formal inclusion of the firing incident at Jessore on the 17th September as a subject‑matter of Idris Commission, and bitterly deplored the Police Oppression on the arrested rickshaw driver and the innocent members of the Public on the 18th at Jessore." In the remaining two paragraphs of the report appear names of some important persons amongst the audience and names of the localities from which people came to hear the late Mr. Suhrawardy. Learned Advocate‑General, appearing for the respondents, marked a portion of the heading of the report and certain passages occurring therein, as being objected to by the respondents. They are as hereunder (1) A portion of the heading: "Organise movement in each village for breaking the shackles of slavery." (2) Paragraph No. 1 in its entirety, being the preface to the speech delivered on the occasion by the late Mr. H. S. Suhrawardy. (3) A portion of paragraph No. 4 quoting slogans raised in the meeting: "Long live unity of the struggling people", "We demand the release of the security prisoners" and "Withdraw the warrants of arrests, etc." (4) Paragraphs Nos. 9, 11, 12, 13 and 14 in their entirety, and (5) A portion of paragraph No. 15 which stated that the late Mr. H. S. Suhrawardy "bitterly deplored the Police oppression on the arrested rickshaw driver and the innocent members of the public on the 18th at Jessore". According to the learned Advocate‑General the report objected to is a `prejudicial report' as defined by clause (5) read with sub‑clause (c) of clause (4) of section 2 of the East Pakistan Public Safety Ordinance, 1958 (hereinafter called the Ordinance). Now clause (5) of section 2 of the Ordinance is as follows: "Prejudicial report" means any report, statement or visible representation, whether true or false, which or the publishing of which, is, or is an incitement to the commission of a pre judicial act as defined in clause (4). Learned Advocate‑General did not rely on sub‑clause (n). We will, therefore, content ourselves by referring to sub‑clause (c) of clause (4) of section 2 of the Ordinance, which is in the following terms:‑ Section 2 (4).‑"Prejudicial act" means any act which is intended or is likely‑ (c) to bring into hatred or contempt or to excite disaffection towards the Government established by law." Mr. Pal having agreed that section 2 (4) (c) of the Ordinance being substantially in the same terms as section 124‑A of the Penal Code .it has to be similarly construed, the learned Advocate General referred us to two cases, viz., Queen‑Empress v. Ball Gangadhar Tilak (I L R 22 Bom. 12) in which Strachey, J. interpreted the term "disaffection" appearing in section 124‑A of the Penal Code and Emperor v. Sadashiv Narayan Bhalerao (A I R 1947 P C 82), where a similar provision under the Defence of India Rules, 1939, fell for consideration of their Lordships of the Privy Council. Mr. Pal, however, referred us to the case of The Sangbad v. The Province of East Pakistan (10 D L R 89) where the effect of the decision in Emperor v. Sadashiv was considered by Rahman, J. The case of Queen‑Empress v. Bal Gangadhar Tilak, was an original trial with the aid of a Jury before Strachey, J. for an offence under section 124‑A of the Penal Code which then stood as follows:‑ "Whoever by words, either spoken or intended to be read or by signs, or by visible representation, or otherwise, excites, or attempts to excite, feelings of disaffection to the Government established by law in British India, shall be provided with transportation for life, or for any term, to which fine may be added, or with imprisonment for a term which may extend to three years, to which fine may be added, or with fine." Strachey, J. in his charge to the Jury, interpreted the terms `disaffection' as follows:‑ "It means hatred, enmity dislike, hostility, contempt, and every form of ill‑will to the Government, "Disloyalty" is perhaps the best general term, comprehending every possible form of bad feeling to the Government. That is what the law means by the disaffection which a man must not excite or attempt to excite; he must not make or try to make others feel enmity of any kind towards the Government. The offence consists in exciting or attempting to excite in others certain bad feelings towards the Government. It is not the exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small. Whether any disturbance or outbreak was caused by these articles, is absolutely immaterial. You will thus see that the whole question is one of the intention of the accused in publishing these articles. Did they intend to excite in the minds of their readers feelings of disaffection or enmity to the Government? Or did they intend merely to excite disapprobation of certain Government measures? and further-- "In judging what would be the natural and ordinary consequence of a publication like this, and what, therefore, was the probable intention of the writer or publisher, I must impress on you, as perhaps the most important point in my summing up, that you must bear in mind the time, the place, B the circumstances, and the occasion of the publication . . . . . An article which, if published at a time of profound peace, prosperity and contentment would excite no bad feeling, might, at a time of agitation and unrest, excite intense hatred to the' Government". Bal Gangadhar Tilak having applied to the Privy Council for leave to appeal from the verdict finding him guilty on a charge under section 124‑A of the Penal Code; their Lordships approved the charge delivered to the Jury by Strachey, J. and dismissed his petition. The order of their Lordships refusing leave to appeal appears at page 532 of the report of the case, which commences at page 528 of the same volume I L R 22 Bom.

528. The above exposition of section 124‑A of the Penal Code by Strachey, J. was again approved by their Lordships of the Privy Council in the aforesaid case of Emperor v. Sadashiv in which certain provisions of the Defence of India Rules (1939), as we have already pointed out, came up for consideration before the Privy Council. Those were in the same terms as the provisions of section 2 (4) (c) and section (2) 5 of the Ordinance relied upon by the respondents in the present case. The said rules were as follows:-- Rule 34 (6).‑`Prejudicial act' means any act which is intended or is likely‑ * * * (e) to bring into hatred or contempt, or to excite disaffection towards, His Majesty or the Crown Representative or the Government established by law in British India or in any other part of His Mejesty's dominions; Rule 34 (7).‑ `Prejudicial report' means any report, statement or visible representation, whether true or false, which, or the publishing of which, is, or is an incitement to the commission of a prejudicial act as defined in this rule. In the said case of Emperor v. Sadashiv, their Lordships of the Privy Council observed that the amendments of section 124‑A of the Penal Code in 1‑898, the year after Bal Gangadhar Tilak's case, by the inclusion of the words "hatred or contempt" and the addition of explanations 2 and 3 did not affect or alter the construction of the section laid down in that case. They also agreed that for the purpose of the appeal before them there was no material distinction between Rule 34 (6), sub‑para. (e) of the Defence of India Rules, 1939, and section 124‑A, Penal Code, though it might be suggested that the words "an act which is intended or likely to bring" in the rule are wider than the words "brings or attempts to bring" in the Code. They further agreed that the omission in the Rule of the three explanations in the Code should not lead to any difference in construction. In the case of The Sangbad v. The Province of East Pakistan a Special Bench of this Court was called upon to construe a similar provision of the Press (Emergency Powers) Act, 1931. Rahman, J. who delivered the judgment of the Special Bench, observed that it was axiomatic that in construing the offending article one must read it as a whole in a fair, free and liberal manner and not in any narrow minded or sectarian way, and further that it was not permissible to pick out isolated words or sentences from one or the other place of the said article or publication, and then, so reading it one had to judge what effect the article or publication as a whole would have upon the mind of an average reader. His Lordship emphasised that the provision of clause (d) of subsection (1) of section 4 of the Press (Emergency Powers) Act, 1931, which was substantially the same as the provision of section 124‑A of the Penal Code, was not intended merely to pander to the wounded vanity of an unusually touchy Government. His Lordship further pointed out that it was true that since the decision of their Lordships of the Judicial Committee in the case of King‑Emperor v. Sadashiv Narayna Bhalerao it was not necessary that the words should be such as to actually incite public disorder or to create reasonable anticipation or likelihood of public disorder, but, nevertheless, the words must be such as are calculated to disturb the tranquillity of the State and goad ignorant persons to subvert the Government or to induce discontent and insurrection or stir up opposition to the Government or at least to evidence disloyalty "in action" towards the Government. It may be noted here that at page 148 of the report (I L R 22 Bombay 12) Strachey J., also made it clear that disaffection meant not a mere absence of affection, i.e., a negation thereof, but a feeling in the "active" sense. We may also with advantage refer here to the case of Sher Muhammad v. The Crown (A I R 1949 Lah. 218) where the identical provision under the Press (Emergency Powers) Act, 1931, came up for consideration before a Special Bench of the Lahore High Court. Cornelius, J. (as his Lordship then was) took the view that for bringing a statement within the mischief of section 4 (1) (d) of the said Act it must be established that the statement was of a kind calculated to cause a "strong revulsion of feeling" against the body aspersed. His Lordship observed that contempt in the `active' sense might be defined as "the act of viewing another as mean, wile or worthless", and hatred was a "sustained feeling of bitter aversion or dislike generally combined with a desire to injure, destroy, or get rid of its object". We have read the report as a whole, as invited to do so by the learned Advocate‑General. We find nothing in the report justifying the conclusion that the report or any part thereof falls within the mischief of section 2 (4) (c) of the East Pakistan Public Safety Ordinance, 1958. In our view, such ‑a conclusion can only be reached by misconstruing the section, in total disregard of the principles laid down in the aforesaid decisions. One can not lose sight of the fact that the report covered a political meeting held at a time considered propitious for lifting the Martial Law and ushering into existence a democratic Constitution. The ban on political parties had been lifted and they were allowed to function by virtue of the Political Parties Act, 1962, which received the assent of the President on the 15th July 1962. The respondents do not rely on any material beyond the report objected to, such as a general unrest, in justification of the impugned order. The portion of the heading of the report objected to by the respondents, namely, "Organise movement in each village for breaking the shackles of slavery" is followed by "Suhrawardy's call for democratisation of the 'Constitution". It can mean no more than a demand for incorporating in the Constitution certain democratic rights by collective persuasion. Paragraphs 1 and 9 of the report complain that the basic freedoms were not made justiciable in the Constitution. It may be noted here that this demand was subsequently conceded by the Constitution (First Amendment) Act, 1963, which received the assent of the President on the 10th January 1964, Paragraph 11 of the report praises the students for their movement for the greater well‑being of the country. Paragraph 12 complains of certain activities of political flavour on the part of the public servants. Paragraph 13 (sic) disapprobation of the appointment of a large number of Parliamentary Secretaries and hints at the Ministers not being responsible to the Legislatures. Paragraph 15 reports Mr. Suhrawardy's demand for inclusion of a firing incident in the reference to Idris Commission and his disapproba tion of an alleged Police oppression on the 18th September 1962. Can these and the slogans "Long live unity of the struggling people", " We demand the release of security prisoners" and "Withdraw the warrants of arrest" be said to be intended or likely to bring into hatred or contempt or to excite disaffection to the Government? It is rather surprising that Mr. Suharwardy's innocent complaint that he was not in the good book of the President although he was loved by the People is being objected to by the respondents. It is to be noted here that the report adds that the audience at first laughed at the complaint, and then realising the mistake shouted "Suhrawardy Zindabad. We find nothing so objectionable in the demand for open trial of political prisoners reported in paragraph 14 of the report. It should also, be noted here that it was made clear in paragraph 7 of the report that Mr. Suhrawardy was for carrying on the movement in a "peaceful way" and paragraph 10 reported Mr. Suhrawardy's request to the audience to carry on the said peaceful movement in co‑operation with the Basic Democrats. We cannot persuade ourselves to agree with the learned Advocate‑General that the report or any part thereof is a "Prejudicial report" within the meaning of section 2 (5) read with section 2 (4) (c) of the Ordinance, as claimed by him. Having failed to persuade us to agree with him that the report objected to was a "prejudicial report", the learned Advocate‑General took his stand on the terms of section 8 (1) (f) of the Ordinance under which the impugned order is purported to have been passed. The said section of the Ordinance, which has empowered the Provincial Government to make such an order on its subjective satisfaction, is in the following terms:‑ 8 (1), "The Provincial Government, if it is satisfied that any document made, printed or published, whether before or after the promulgation of this Ordinance, contains any prejudicial report or any information, may, by order,‑ (f) require the editor, printer, publisher or keeper of the press to furnish security for such amount as the Provincial Government thinks reasonable. Learned Advocate‑General contended that the impugned order having recited that the Provincial Government was satisfied that the report in question was a prejudicial report, this Court had no jurisdiction to go beyond the recital and question the correctness of Government's finding as to the character of the report or of the statement that Government was actually so satisfied. We are unable to accept this wide proposition as correct. In our view, a presumption of correctness is, no doubt, attached to the recital, but the presumption is not an altogether unrebuttable presumption. In most cases where Government's subjective satisfaction is the only precondition for an executive measure it will be difficult for the aggrieved party to displace the, presumption, if on the ground of privilege Government withhold materials on which it was so satisfied. But once the presumption, is rebutted in any manner, we can think of nothing that can stand in the way of this Court in giving relief to the party aggrieved by such an order. In support of his contention the learned Advocate‑General drew our attention to a number of decisions in which executive orders made on subjective satisfaction as to the existence or otherwise of certain conditions were not interfered with on the ground that conclusions of fact arrived at by executive authorities acting in exercise of powers so conferred on them were to be treated as final. It will suffice to refer only to two representative cases amongst them, viz., the case of Md. Hayat v. The Crown (P L D 1951 F C 15) and Liversedge v. Anderson ((1941) 3 All E R 338). The proposition as to finality of executive decisions reached on subjective satisfaction having come up for consideration before their Lordships of the Federal Court of Pakistan in a case involving preventive detention in P L D 1951 F C

15. Abdur Rashid, C. J. accepting the proposition observed that "Orders of detention are frequently based on confidential information which public officers cannot be made to disclose in view of the provisions of sections 123 and 124 of the Evidence Act." His Lordship, however, went on to say as follows:‑ "This however, does not mean that the public officer concerned cannot be asked the reasons which `satisfied' him that the detention of a certain person was necessary in order to prevent him from acting in a manner prejudicial to public safety and public order. When such a question is asked, it is for the witness to claim privilege and to establish that the privilege has been rightly claimed. In a large number of cases, witnesses have answered such questions and have voluntarily given the reasons for the arrest. In some cases the Courts have held that the reasons given by the public officer justified the order of arrest. In some reported cases, it has been held that the reasons given did not relate to public safety and public order, and that the arrest was made for a collateral purpose. In such cases, the detenus have been released." It is clear from the above observations of Abdul Rashid, C. J. that Courts can and do interfere in cases where all the materials upon which the satisfaction of the Executive, though subjective, is based are available to them and they find that reasons appearing on such executive measures can be taken under enactments permitting such measures. The other case, viz., Liversidge v. Anderson and another was a case of preventive detention under regulation 18‑B of the Defence (General) Regulations‑a piece of war‑time legislation. The appellant Liversidge claimed a declaration that his detention was unlawful. The respondents stated that the appellant was detained under an order of the first respondent, namely, the Secretary of State for Home Affairs. The appellant thereupon asked for particulars of the grounds on which the first respondent had reasonable cause to believe the appellant to be a person of hostile associations, and of the grounds on which the first respondent had reasonable cause to believe that, by reason of such associations, it was necessary to exercise control over the, appellant. These were the matters which arose under regula tion 18‑B. The majority of the House of Lords thought that in cases under the regulation the facts were peculiarly within the knowledge of the Minister; public policy and the national safety required that they should not be made public and the matter was one for the exercise of the minister's exclusive discretion. They thereupon held that no order for particulars could be made and that the regulations having been made for the safety of the realm and the administrative plenary discretion having been invested in a Secretary of State, it was for him to decide whether he had reasonable grounds, and to act accordingly. This test of subjective satisfaction seems to have since undergone an important change, reflected in Ross‑Clunis v. Papadopullos ((1958) 2 All E R 23) which places some qualification on the subjective test imposed by the requirement that a public officer should first be satisfied of the existence of certain things before exercising a statutory power. In the latter case counsel for the appellant, namely, the authority, that passed the impugned order upon subjective satisfaction, submitted that the only duty cast on the appellant was to satisfy himself of relevant facts and that the test being a subjective one the appellant's statement that he was so satisfied was a complete answer to the argument of counsel for the respondent, unless it could be shown that the statement was not made in good faith. In answer to this argument the Judicial Committee of the Privy Council observed as follows:‑ "Their Lordships feel the force of this argument, but they think that if it could be shown that there were, no ground on which the appellant could be so satisfied, a Court might infer either that he did not honestly form that view or that, in forming it, he could not have applied his mind to the relevant facts." The view taken in the case of Ross‑Clunis, it may be noted, is consistent with the view taken by Abdul Rashid, C. J. in the case of Md. Hayat. This view has again been reiterated by their Lordships of the Supreme Court in the case of Province of East Pakistan v. Abdus Sobhan Sowdagar (P L D 1964 S C 1). This was a case of requisition under section 3 of the East Bengal (Emergency) Requisition of Property Act, 1948. In laying down the test in cases involving subjective satisfaction of the executive, their Lordships observed as follows:‑ "The authority passing an order of requisition could not by a misinterpretation of the section extend its jurisdiction. If the reason for the passing of an order of requisition was not one contemplated by the section in accordance with the interpretation which may be put.upon this section by the Courts, the order of requisition would be void in spite of the word `opinion' (as it stood before the amendment) . . . . . The High Court when exercising writ jurisdiction does not act as an ordinary appellate Court with respect to the conclusions of fact of the District Magistrate and does not interfere with those conclusions unless acting reasonably a person could not have reached those conclusions at all or where some relevant circumstance has not been taken into consideration or a circumstance in fact irrelevant has affected the decision." Having regard to the mode of approach laid down by their Lordships of the Supreme Court in P L D 1964 S C 1 and the principles of construction enunciated in A I R 1949 Lah. 218 and 10 D L R 89 we are unable to agree with the learned Advocate‑General that the report objected to, which we have quoted above in extenso, is a "prejudicial report", as claimed by Mr. Pal's next point, namely, that the impugned order is void by reason of a denial of a prior hearing to the petitioner is also of substance. Reliance was placed on behalf of the respon dents on the aforesaid case of Liversidge and the case of Nakkuda All v. M. F. DE S., Jayaratne (P L D 1950 P C 102), in which two, cases the principle of natural justice of pre‑audition was held not to be applicable to cases of executive measures taken on subjective satisfaction. In Nakkuda Ali's case the Controller of Textiles in Ceylon made an order cancelling Nakkuda Ali's licence to act as a dealer. The Controller acted under a Defence Regulation which empowered him to cancel a licence "where the Controller has reasonable grounds to believe that any dealer" (sic). Mr. Pal pointed out that the later case was disapproved by their Lordships of the Supreme Court in Faridson's case (P L D 1961 S C 537). It so happens that the said case of Nakkuda Ali has also been dissented from by the House of Lords in the case of Ridge v. Baldwin ((1963) 2 W L R 935): In Ridge's case which was a case of dismissal from service, Lord Reid discussed a large number of ancient authorities and rejected the respondent's contention that the Committee which ‑dismissed the appellant Ridge was under no obligation to hear his defence before dismissing him. Lord Reid referred to the case of Cooper v. Wandsworth Board of Works ((1863) 14 C B N S 180). Where an owner had failed to give proper notice to the Board, they had under an Act of 1855 authority to demolish' any building he had erected and recover the cost from him. This action was brought against the Board because they had used that power without giving the owner an opportunity of being heard. The Board maintained that their discretion to order demolisation was not a judicial discretion. The Court decided unanimously in favour of the owner, Erle, C. J. held that the power was subject to a qualification repeatedly recognised that no man is to be deprived of his property without his having an opportunity of being heard. Wills, J. said that the rule was of universal application and founded upon the plainest principles of justice, and Byles, J. said that "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 Legislature." Lord Reid referred also to the case of Reg. v. Smith ((1844) 5 Q B 614) a case of dismissal of a parish clerk in which Lord Dentram, C. J. held that "even personal knowledge of the offence was no substitute for hearing the officer: his explanation might disprove criminal motive or intent and bring forward other facts in mitigation, and in any event delaying to hear him would prevent yielding too hostily to first impression." We have already said that Nakkuda Ali's case which was decided by the Privy Council has been dissented from in the case of Ridge. We need add here also that Lord Reid referred to Liversidge's case as "the very peculiar decision of this House" and left the same out of account in the self same case (1963) 2 W L R

935. In Faridsons' case, referred to already, which was a case of cancellation of a licence, S. A. Rahman, J. observed that "the action savoured of inquisition and a determination of guilt and clearly the requirement of a notice coupled with, an opportunity of hearing in advance were attracted to the case." The same principle has been enunciated in greater detail in the case of The Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak (P L D 1959 S C 45) where their Lordships of the Supreme Court observed that "the rule of natural justice that no one should be deprived of his liberty or property without an opportunity of being heard is not confined to proceedings before Court but extends to all proceedings, by whomsoever held, which may affect the person or property or other right of the parties concerned in the dispute." Having regard to the principles enunciated in the last‑mentioned two cases of the Supreme Court we have no hesitation in holding that the principle of audi alteram partem is applicable to the E present case, the measure taken against the petitioner being of a punitive character. Both the points taken by Mr. Pal in support of the rule having succeeded, we make the rule absolute and declare that the impugned order has been passed without lawful authority and is therefore, of no legal effect. We direct the parties, however, to bear their respective costs. HASAN, J.‑

I agree. K. B. A. Rule made absolute.