P L D 1970 Lahore 760 (PLP)

Zainul Abidin for Petitioner. Sardar Hidayat Ullah, Settlement Commissioner (Legal) for Respondents. Date of hearing: 11th February 1970. In this petition under Article 98 of the Constitution presented by the Rawalpindi Improvement Trust (hereinafter called the Trust) the challenge is to an order made by the Central Govern ment of Pakistan in the Ministry of Rehabilitation and Works on the 27th of February 1963, whereby the sanction earlier accorded by it to the acquisition of certain evacuee land by the Trust was finally modified so as to exclude an area measuring 56 kanals on the ground that it consisted of two factories, ten shops, four godowns, 13 plots and two residential premises out of which 16 buildings evaluated at Rs. 5,00,000 had already been disposed of under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act). The petitioner Trust had formulated a scheme for the develop ment of the Mohanpura locality in Rawalpindi Town, and for this purpose it had proposed to acquire nearly 243 kanals of land out of which an area of 238 kanals and 51 marlas was evacuee property. The Provincial Government approved this scheme with some modifications on the 2nd of September 1955, where after the Central Government was approached for according its sanction under section 13(3)(b) of the Pakistan Administration of Evacuee Property Ordinance, 1956. This sanction was accorded on the 17th of November 1956 and the compensation payable to the Custodian of Evacuee Property was assessed by the Collector by means of two awards dated the 15th of April 1957 and the 24th of January 1959. It is stated that the compensation assessed by the Collector was paid to the Custodian in five instalments, the last one having been paid on the 1st of August 1959.

2. However, after the compensation had been assessed and paid the Central Government addressed a letter to the Provincial Government on the 24th of December 1960 excluding 56 kanals of evacuee. land from the sanction accorded by it previously by its letter dated the 17th of November 1956. The local authorities as well as the Provincial Government of West Pakistan represented against this decision and it appears that the matter was discussed at the Ministers' level, but the decision contained in the Central Government's letter dated the 24th of December 1960 was maintained and re‑affirmed by the letter dated 27th of February 1963.

3. Mr. Zainul Abedin, the learned counsel appearing for the Trust, has challenged the legality of the Central Government's orders on the following grounds:‑ (a) That on the assessment and payment of compensation by the Trust the property had vested absolutely, in the Trust and was accordingly not available for acquisition under section 3 of the Act and did not, therefore, form part of the compensation pool so as to be available for transfer to the occupants thereof, and (b) that the sanction once having been granted could not be withdrawn specially at a stage when the property had vested absolutely in the Trust and the scheme undertaken by it had reached an advanced stage from which there was no going back, the Trust having already completed the substantial part of the scheme in the public interest.

4. On behalf of the Government of Pakistan Mr. Hidayat Ullah, the learned Settlement Commissioner (Legal), has raised a preliminary objection to the maintainability of the present petition in the absence of the transferees of the property who, according to him, are necessary parties, for they are bound to be adversely affected in the event of the success of this petition. It is submitted by Mr. Hidayat Ullah that the Trust had acquired notice of the fact that the property had been disposed, of by the Settlement Department and it was accordingly its duty to implead all these transferees as respondents in these proceedings.

5. On behalf of the Trust it is submitted by Mr. Zainul Abedin that, in the first place, the property not being available as part of the compensation pool, no legal rights have accrued to the transferees, if any, and, therefore, they are, not necessary parties to these proceedings; and that, in the second place, the question of the acquisition of evacuee property was essentially one between the Trust and the Custodian of Evacuee Property and, therefore, the transferees under the Settlement Law could not be regarded as interested persons and accordingly no question arose of impleading them as necessary parties.

6. Whatever the legality of the transfers made by the Settlement Department in favour of the occupants of the props ties in dispute situate on the area measuring 56 kanals, the fact remains that valuable property rights have accrued in their favour by reason of the transfer orders made by the Settlement Department, and it is clear that in the event of the success of the present petition these transferees will be adversely affected. It is an established principle that no one should be deprived of valuable rights without having been afforded an opportunity of being heard in defence of those rights. This principle has been reiterated by this Court time and again, and orders made by judicial, quasi judicial and administrative tribunals have been invariably set aside if they were made without affording the affected persons an opportunity of being heard.

7. A question has, however been raised whether the transferees of the properties in dispute can at all be regarded as necessary parties in view of the fact that the transfers made in their favour suffer from a legal infirmity, and further in view of the fact that the question of acquisition of evacuee property is essentially one between the Custodian of Evacuee Property and the Central Government, on the one hand, and the Trust, on the other. On the first point I have no doubt at all that the mere fact that the transfers made in favour of the occupants of the properties may suffer from a legal infirmity does not deprive them of the right of hearing. As to the second point the same principle again B applies, namely, whatever the nature of the acquisition pro ceedings, the transferees have acquired valuable rights which are bound to be affected by the success of the present petition and, therefore, any order made in their absence would obviously work to their prejudice.

8. Mr. Zainul Abedin drew my attention to Ataullah Malik v. The Custodian of Evacuee Property etc. (P L D 1964 S C 236) in which the question was whether an allottee of evacuee property had a right to be heard in proceedings for the confirmation of the sale of that property by the evacuee owner. The learned Chief Justice expressed the view that even though a Provisional Transfer Order had been issued in favour of the allottee, it was later cancelled in consequence of the confirmation order passed by the Custodian in favour of the vendee and accordingly such right as the allottee possessed was derived from and was held under the title which was vested in the Custodian, and which it was the duty of the Custodian under the law to protect within the‑ meaning of section 20 of Act XII of 1957. Two other learned Judges of the Court agreed with him that the allottee's appeal be dismissed, but they do not appear to have expressed any opinion on the question of the right of the allottee to be heard in the confirma tion proceedings before the Custodian. However, B. Z. Kaikaus, J., with whom S. A. Rahman, J. agreed, took the view that the allottee had a right to be heard as he was a person very much interested in the fate of the proceedings and was bound to be adversely affected thereby. I venture to think that this judgment is not conclusive on the point at issue as two of the learned Judges of the Court did not deal with it, whereas out of the remaining three only the learned Chief Justice expressed an opinion against the right of the allottee to be heard.

9. Mr. Zainul Abedin then referred to Sheikh Muhammad Sadiq v. Chief Settlement Commissioner and another (P L D 1963 Lah. 499) in which it was held that once evacuee property has been acquired by an Improvement Trust before the issuance of the notification under section 3 of the Act, then it does not form part of the compensa tion pool. This judgment is, however, besides the point in the present context where the question is whether the occupants and transferees of the property have a right to be heard or not in view of the fact that they have acquired rights, the legality of which is in question. This judgment would be relevant if the present petition were to be examined on merits.

10. Similarly it seems to me that the other case cited by Zainul Abedin, namely; Mrs. Gladys M. Jacob v. Chief Settlement Commissioner, Lahore and another (P L D 1966 Lah. 464) is not of any assistance to him in this connection. It was held in this case by a Division Bench of this Court that if a party had been heard by the appellate and the revisional Courts, then the last order would not be vitiated simply on the ground that notice had not been served on the party by the tribunal of the first instance. Their Lordships further observed in this case that where the title of the parties to the property was clear and no prejudice seemed to have been caused to the applicant by the non‑service of the notice, failure to serve notice would not vitiate subsequent proceedings. These observations proceed on entirely different facts. The question here is not whether the acquisition proceedings stand vitiated for one reason or the other. On the contrary, the question is whether I should proceed with the hearing of this petition on merits in the absence of the parties who are bound to be adversely affected by being denied an opportunity of being heard.

11. The principle to which I have referred earlier, namely, that the affected party has a right to be heard, was reiterated by their Lordships of the Supreme Court in Masudul Hassan v. Bhadim Hussain and another (P L D 1963 S C 203). It was observed by the learned Chief Justice that "in the course of the argument it caused me considerable concern to find that an order made by an authority of a statutory public corporation such as Pind Dadan Khan Municipal Committee should have been expressly avoided in a proceeding in which the Municipal Committee was not a necessary party and had not been impleaded. By declaring the order of dismissal to be null and void, a serious effect has been produced in regard to the working of the Municipal Committee and this has resulted from a side‑wind in a proceeding in which the Municipal Committee is wholly without interest. It is open to question whether it is appropriate that in a proceeding for a writ of mandamus a finding of this type affecting the validity of an order made by an authority which was not party to the case can be permitted . . . . . . . ". This judgment was strongly relied upon by a Division Bench of the Dacca High Court in A. F. M. Abul Fateh v. The Province of East Pakistan and another (P L D 1966 Dacca 178). It was observed by the learned Judges that failure to implead the person likely to be affected would be a good ground for refusing a writ, and a prayer made at the argument stage for permission to add names of such persons should not normally be allowed.

12. In view of the foregoing discussion, I have come to the conclusion that the present petition cannot proceed in the absence of the transferees of the evacuee properties situate on the area in dispute as these transferees have acquired valuable property rights which will be adversely affected by the present proceedings. Mr. Zainul Abedin has made an oral prayer at the Bar for permissions to implead the transferees as respondents. This prayer, however, cannot be allowed in view f the circumstances of the case, namely, that the fact of the transfer of these properties was clearly within the knowledge of the Trust, having been clearly mentioned in the final refusal of the Central Government which is impugned in the present proceedings. Even details of the value of the properties transferred under the Settlement Law were indicated and the nature of the buildings standing on the area was fully described: The Trust was, therefore, all along aware that the area in dispute stood transferred to various persons, but no steps were taken to implead those persons as parties in the present proceedings. The writ petition has been pending since 1963 and it is indeed too late in the day to grant permission to bring new parties on the record after the lapse of nearly seven years. The petition, therefore, fails on this short ground and is hereby dismissed, but the parties are left to bear their own costs. S. Q. Petition dismissed.