P L D 1957 (W (PLP)

WAHIDUDDIN, J.

The facts leading to this writ petition briefly stated, are that the petitioner is residing in a one room tenement at O. T. I, Raheem German Building, Rempart Row, Karachi, since November 1955. This accommodation was secured with very great difficulty. The premises how ever, were requisitioned on 6th April 1956. The petitioner filed an appeal against the said order on 2nd August 1956. It was heard by Mr. A. R. Khan the Chief Commissioner, and the petitioner was allowed a week's time to file rent receipts and ration card to establish that he was in occupa tion of the premises from November 1955. In the meanwhile Mr. A. R. Khan the Chief Commissioner, was transferred to some other department and Mr. N. M. Khan succeeded him as the Chief Commissioner, of Karachi. The learned Chief Commissioner after perusing the file dismissed the appeal on 28th of August 1956. The short question involved in this matter is whether the petitioner was entitled to a hearing before Mr. N. M. 'Khan the Chief Commissioner of Karachi. A right of appeal is given to the aggrieved parties against the order of requisi tion under section 10 of the Sind Requisition of Land Act. The learned Public Prosecutor has urged that although right of appeal is given to an aggrieved party, but it is not necessary for the Chief Commissioner or for the Pro vincial Government to provide any opportunity to the person concerned to appear before him either himself or through a counsel. He pointed out that section 10 of the Requisition of Land Act only enjoins upon the Provincial Government to call for the record of the case from the Controller, and after perusing such record and making such further inquiry as it thinks fit they may reverse, modify, or confirm the "order made by the Controller. According to him, under the provisions of this section the petitioner had no right to be heard through his counsel or in person. The petitioner on the other hand has urged that in appeal under this particular enactment the practice is that the parties and their lawyers are allowed to appear before the Chief Commissioner to argue the matter. On a previous occasion when the matter came up for searing before Mr. A. R. Khan, the petitioner and his counsel were heard and it was on the representation made that he gave them time to produce the rent receipts and the ration card in proof of the fact that the petitioner was occupying the property in dispute since November 1955 The learned counsel for the petitioner urged that it was therefore necessary for Mr. N. M. Khan to hear the petitioner and his counsel before disposing of the appeal pending before him. The counsel for the respondent, however, contended that the file and the noting on the record was complete and the Chief Commissioner Mr. N. M. Khan could, without any prejudice to the petitioner, decide the matter, and his action in not issuing notice to the petitioner cannot in any way affect the requisition order and the final order passed by him. We have carefully considered the matter in all its aspects and are clearly of the opinion that the right of appeal given under the Sind Requisition of Land Act is,q not an imaginary right. It is a substantial right and according to the principles of natural justice recognised in common law it is necessary that the parties must be heard before the matter is decided. The learned Public Prosecutor has invited our attention to the following observations in a judgment Dr. Yar Muhammad v. Rehabilitation Commissioner (P L D 1955 Sind 15) "Mr. Wahiduddin argued that the principles of natural justice had been offended in this case since after receipt of the notice to show cause, he made representations in which he asked that his Advocate should be heard. His Advocate was never heard. We were not shown any rule requiring counsel to be heard, and though the hearing of advocates may be a matter of right in Courts of law, it cannot be said that an administrative tribunal, even acting judicially, must adopt the practice of the Courts or that failure to hear counsel, vitiates an inquiry." and has urged that on the reasoning given in the said authority, the contention of the petitioner is sufficiently repelled. This decision being of the Chief Court of Sind is not binding on us, but it deserves all the possible respect that can be given to the Judgment of the two learned judges of this Court. We, however, do not agree with the obser vation made in the said judgment, firstly because under the Rehabilitation Ordinance the right of appearance throw counsel is recognised; Section 18 of the Rehabilitation Ordinance reads :- "Appearance of counsel or agent.

Any petition, whether in appeal or otherwise, and any application under this Ordinance may be presented in person or by counsel or by duly authorised agent, and nothing in this Ordinance shall be deemed to forbid appearance by counsel or such agent". Under this Ordinance, the Government of Pakistan has framed certain rules known as ' The Pakistan Rehabilitation Rules 1951. According to rule 9, every application or appeal resented to the Rehabilitation Aauthority shall be framed, signed and verified as if :t were is plaint or as the case may be an appeal under the Code of Civil Procedure, and the Rehabilitation Authorities shall have power to reject or return it as a Civil Court has. There is no doubt that under the Civil Procedure Code an appeal is presented both by the lawyer or the party concerned. This clearly shows that if an Advocate of the party is entitled to file an appeal on behalf of his client, then the Advocate concerned is also entitled to be heard in that connection. Perhaps the learned counsel appearing in that case did not draw the attention of the learned judges to this provision of the Act, and consequently this mistake has crept in the judgment. Secondly, it is a matter of common knowledge that the ordinary principles of natural justice recognised under the common law is the well known maxim "audi alteram partem ", and this principle is applicable to cases where the authority concerned is to determine a matter in a judicial or quasi-judicial manner. The principle is that no man shall be condemned unheard. This principle has been applied in a number of cases both in Indian Dominion and Pakistan. It was approved in as recent a decision as M. Abdul Majid v. The West Pakistan Province (P L D 1956 Lah. 615) Maxwell, in his interpretation of Statutes has discussed this principle at p. 368 : it is as follows :- "In giving judicial powers to affect prejudicially the rights of person or property, a statute is understood as implying, when it does not expressly provide, the condi tion or qualification that the power is to be exercised in accordance with the fundamental rules of judicial procedure, such, for instance, as that which requires that, before its exercise, the person sought to be prejudicially affected shall have an opportunity of defending himself". The learned author has further observed at p. 370 :- "It is obvious that where an Act which creates a new jurisdiction gives any person dissatisfied with its decision an appeal to another judicial authority which is empowered to confirm or annul the decision as to it shall appear just and proper, the right of being heard in support of his appeal is impliedly given to the appellant ". It will thus appear that in the absence of any prescribed procedure for any particular enactment, if a right of appeal is given to parties, then impliedly the right to be heard is given to them. A judicial or quasi-judicial act implies more than mere application of the mind or the mere formation of an opinion. In an appeal 'there is a proposal and an opposition' and ' a decision of the issue '. In the Sind Requisition of Lands Act, the parties are the persons affected by the Requisition Order and the Rent Control Department. It does not stand to reason how a dispute can be settled without giving them an opportunity of hearing. The learned Public Prosecutor pointed out that what is required under section 10 of the Requisition of Land Act is nothing more than the authority concerned should apply its mind to the representation made by the aggrieved party and the depart ment. If these representations are before the appellate authority, then it is not at all necessary to give them an oral hearing. We are not prepared to accede to this argument. The questions involved in a requisition matter are both questions of law and fact and in our opinion' in an appeal proper hearing cannot be considered to be given without providing an opportunity to the party concerned of an oral hearing. The right to be heard in support of appeal is not confined to cases pending before a Court of law. It is applicable to all cases and before all tribunals where the element of judicial consideration and decision is involved. In fact, it is admitted by the learned counsel for the parties that the Provincial Government from the very commencement of the Sind Requisition of Land Act allows the parties and their advocates to be heard in appeal. It is, therefore, manifestly clear that this practice is now well established and there is no reason why it should be departed from. There are two decisions Ganpati Kondaji Sandbhar v. Maruti Gangoji Sandbhar (A I R 1925 Born. 522) and Vasudeo Sadashiv Joshi v. Bhive Pandu Bhalsinge (A I R 1930 Bom. 184) where a similar question was under consideration in respect of Bombay Mamlatdar's Courts Act, 1926. In the former case, Mcleod, C.J., and Coyajee, J. observed as follows :- " The Collector, therefore, must follow the ordinary rule of procedure followed by a Court, and it is one of those commendable rules of procedure which ought to be followed, that if any party is entitled to make an application to a Court, he is entitled to be heard either in person or through his pleader, before his application is rejected ". The view expressed in these observations is also supported by English Authorities on this subject. In King v. Huntingodon Confirming Authority ((1929) 1 K B 698) a new licence of the Haycock Hotel was granted by licencing Justice.- Confirming Authority after hearing the parties, imposed two conditions. This decision was communicated to the licencing justices and they only agreed to one condition. The confirming authority held a further meeting and without giving notice to the parties confirmed the grant of the licence, subject only to the first condition. This order was questioned and it was found to be in violation of the principles of natural justice. In that connection Lord Hanworth, M. R., observed at page 710 :- " .. and it is clear from cases which have been decided that the confirming authority are a judicial body and must exercise their functions judicially. Accordingly, they must hear the parties who appear before them, they must hear both sides and they must give an opportunity for applications to be made by those parties who are concerned, in the Court in' which they are sitting judicially ". The learned judge at page 713 observed :- " Those being the facts in this case, it appears to me that the sitting on 16th May was a sitting at which a conclusion was reached which ought not to have been reached, in the sense that it was too early for the confirming authority to issue a licence. They ought to have heard, as a judicial body, anything more that was to be said on the matter, if they thought there was anything more to be said which was material. If they determined that there was not, then, sitting judicially, they could come to the same conclusion which they did reach ; but that ought to be after the opportunity had been given for those parties who were interested, at least to make an application to be heard ; whether that was granted, or not, would be for the discretion of the confirming Court to decide ". Greer, L., at page 714 observed :- " I should like to add that the application to the con firming authority when it is renewed must be after notice to the and parties their decision must be made not merely after notice to the parties, but also after hearing any evidence and any arguments that may be presented to them by either of the parties". Romar, J.-At page 717 observed :- "At that meeting, the appellants were entitled to be present, and they were given no opportunity of being there. It is said that it would not have made any difference if they had been there. Whether that is so or not I do not know ; future events will show, But in any case, it appears to me to be an irrelevant consideration ". Coming to the facts of the case, it is clear that Mr. N. M. Khan never heard the petitioner in connection with the appeal pending under Sind Requisition of Land Act. We have examined the record and have found no notes in the hand of Mr. A. R. Khan or any submission made to the former Chief Commissioner indicating the reasons on account of which the petitioner was granted time to file certain docu ments in support of his appeal. In our opinion, it was the bounden duty of Mr. N. M. Khan to issue notice to the petitioner for the hearing of the appeal. As this principle of natural justice was not allowed, we hold that the order of the Appellate Authority and the Requisition Order are a nullity in law. We are fortified in the view taken by us by a decision in a case. 2'. C. Basappa v. T. Nagappa (A I R 1954 S C 440) in which Mukerjee, J. made the following observation:- " A tribunal may be competent to enter upon an enquiry but in making the enquiry it may act in flagrant dis regard of the rules of procedure or where no particular procedure is prescribed, it may violate the principles of natural justice. A writ of certiorari may be available in such cases." On a consideration of the facts of this case we are firmly of the opinion that the learned Chief Commissioner has violated the principles of natural justice. The result is that both the order of the Appellate Authority and the Requisition Order are quashed. The petition is allowed. The respondents to pay the costs of these proceedings. A. H. Petition allowed.