1999 PLP 2051 (SCMR)

IRSHAD HASAN KHAN, J.

Through this petition, review is sought under Article 188 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution), read with Order XXVI, Rule I of the Supreme Court Rules, 1,980 (hereinafter called the Rules). of the order of this Court dated 26-6-1998,, passed in Civil Petition for Leave to Appeal No'.829 of 1998.

2. The dispute herein relates to construction of 1600 meter long Flyover/Bridge and the construction of a 50 feet wide, 36 feet high and 320 feet long wall in the middle of the road running through the Cavalry Ground, Commercial Area, Lahore Cantonment, by the respondent Government in collaboration with the respondent Lahore Development Authority (LDA),

3. The petitioners here filed a Constitution Petition bearing No.6576 of 1998, seeking a declaration that the above construction was without lawful authority and of no legal effect. Another Writ Petition No.6080 of 1998, was also filed by some other persons, claiming the same relief. A learned Single Judge of the High Court dismissed the above Constitution Petitions. The petitioners herein challenged the judgment dated 30-4-1998. Their Intra-Court Appeal No.369 of 1998 was also dismissed by a learned Division Bench, inter alia, holding that the rights of the petitioners flowing from the lease deed dated 15-7-1986 and Map 'Mark-A' were easement rights dependent upon the user of servant rights of the Cantonment Board. The above rights were not permanent in nature and that the petitioners did not enjoy the above rights exclusively.

4. Being aggrieved with the aforesaid decisions, the petitioners filed Civil Petition No.829 of 1998, which was dismissed by a Full Bench of this Court headed by Mr. Justice Ajmal Mian, Hon'ble Chief Justice. The judgment under review was authored by one of us (Ch. Muhammad Arif, J.). The salient features of the judgment under review find detail in paragraphs 6 and 7 thereof, which read thus:

"We are afraid the contentions raised by the learned counsel in support of this petition are devoid of any merit. The case of the petitioners was meticulously considered by the High Court at both the stages and it was rightly concluded that their right of easement in the parking strip is not of such a nature which does not admit of interference/regulation for achieving the objective of catering to the traffic need of 50 million residents of Lahore. It is not the case of the petitioners that the appropriate authorities have completely extinguished their easement rights or that the same have been acquired contrary to the dictates of the law on the subject. Be that as it may, the observations made by the learned Single Judge in para. 17 of the judgment dated 30-4-1998 quoted above, have not even so much 6 been controverted on behalf of the petitioners. Even the learned Division Bench of the High Court has favourably considered any future claim of the petitioners for compensation on account of the curtailment of petitioners' easement rights in the parking-strip and such observations have not been shown to be suffering from any taint whatsoever.

7. As regards the plea that the Constitution Petition before the High Court was maintainable at the instance of the petitioners and decisions to be contrary, by the learned Single Judge as also by the learned Division Bench, are contrary to the ratio in the case of Fazal Din (supra), suffice it to say that in the present no cause of action has accrued in favour of the petitioner even to take the manner before the Civil Courts of plenary jurisdiction, much less before the High Court. The observations made by the learned Division Bench of the High Court in the last sub-para. of the judgment, dated 3rd June, 1998 cannot be equated with conceding the requisite locus in the petitioners to maintain a Constitution Petition. In fact, petitioners' L-C.A. was dismissed and the decision of the learned Single Judge was affirmed with the observation that they are not precluded from availing of any other remedy and/or to claim compensation if awardable under the law for the curtailment of their easement rights in the parking strip." It is up to the petitioners to initiate whatever proceedings they want to before the appropriate forum/s in line with the above-quoted observations. "

5. Mr. A.K. Dogar, learned Advocate Supreme Court for the petitioners reiterated the grounds taken in the petition for leave to appeal. Additionally, he has also raised objections to the payment of Rs.10,000 as fee for filing review. In all fairness, we would reproduce the grounds for review taken by him vide paragraph 6 of the petition for review, which reads thus: -- (i) That the payment of Rs. 10,000 made by the present petitioners under protest is violative of Article 37 of the Constitution of the Islamic Republic of Pakistan, 1973 which says that "the State shall ensure inexpensive justice". (ii) That Article 188 of the Constitution of Islamic Republic of Pakistan, 1973 empowers the Supreme Court of Pakistan to review any judgment pronounced or any order made by it. (iii) That Rule 7 of the Order 26 of the Supreme Court Rules is repugnant to the provisions of Article 188 because the entertainment of a review application cannot be made subject to the furnishing of cash security of Rs. 10,000 which amounts to restricting the right to seek review. Article 188 has not only empowered the Court to review its judgment but has given a Constitutional right to a litigant to seek review of any order or judgment pronounced by this learned Court. (iv) That right to seek justice is fundamental right and it cannot be made dependant on the payment of cash security for seeking justice. (v) That the deposit of cash security also offends against Article 2A read with Objectives Resolution wherein it has been provided that equality as enunciated by Islam shall be fully observed in the state of Pakistan. It has also been granted in the Objectives Resolution the fundamental right of equality of opportunity, Opportunity is a wide word and it also includes the opportunity to seek justice. (vi) That Constitutional guarantees in Article 4 and 15(l) of the Constitution of Islamic Republic of Pakistan provides that all citizens are entitled to enjoy the protection of law. To impose the condition of payment of Rs. 10,000 as cash security before a citizen applies for seeking justice amounts to depriving him of the protection of law. Only the rich can enjoy such protection and the poor are deprived even though constitutionally all citizens are equal before law. (vii) That the petitioner had submitted 20 points of law and his undersigned counsel could not make his submissions on all points when this learned Court was pleased to announcement judgment that leave is refused. (viii) It has been held in PLD 1954 Federal Court 123 that 'a right of a counsel to be heard adequately is an indefeasible right which cannot be transgressed by a Court of justice. (ix) Not to grant adequate opportunity of hearing renders any order without jurisdiction and this learned Court has held so in number of precedent cases. (x) That it has escaped the notice of this learned Court that Registered document of lease dated 15-7-1986 granted to the present petitioner was for 90 years and all the rights, easements and appurtenances whatsoever were also demised for 90 years. (xi) That Article 24(2) of the Constitution of the Islamic Republic of Pakistan has also escaped the notice of this learned Court wherein it has been provided that no property can be compulsorily acquired save by the authority of law which provides them compensation therefor. The right-in the parking area is for 90 years. It was granted for 90 years and grant of easement right is 'not in the nature of licence and is not revocable. (xii) That Article 260 of the Constitution of Islamic Republic of Pakistan has also escaped the notice of this learned Court wherein it has been provided that any interest in property means property and there is host of authority that an easement right is a right in the property and, therefore, 'the parking lot cannot be taken over except through a procedure provided under Land Acquisition Act, 1894. (xiii)That it has escaped the notice of this learned Court that rights in the parking area measuring 30 feet x 35 feet do not belong to the Cantonment Board but stand granted to the present petitioner and the provisions of sections 8 to 18 of the Easement Act have escaped the notice of this learned Court. (xiv) That an easement is a right in the property which cannot be taken away otherwise than by due course of law. (xv) That Cantonment Board has no servant 'rights' in the open space in front of the buildings of the petitioners because there is no such thing as a servant right and there is only servant obligation. (xvi) That right of frontage existing in favour of the petitioner has also escaped the notice of this learned Court. '(xvii) That the property of the petitioners has been acquired without having 1 the relevant law, namely, the Land Acquisition any recourse to Act-, 1894. (xviii) That the statement made by the Advocate General Punjab (referred to in para 17 of the judgment of the learned Single Judge) that 'so far no property has been acquired', is an admission of the fact that no property at all has been acquired and construction has been started on the property of the petitioners which has been usurped by the respondents. The observation made by this learned Court in para. 6 of the order under review with respect to the para. 17 of the judgment of the learned Single Judge dated 30-4-1998 has been controverted in para. 8 of the law points taken in Civil Petition Special Leave to Appeal. It is humbly submitted that para. 8 has escaped the notice of this learned Court which reads as follows: "Whether 35 feet parking area attached with each lease commercial could not be taken over except through the procedure provided under Land Acquisition Act, 1894. "

6. After arguing the question of payment of court-fee, learned counsel for the petitioners did not press the above plea. We are also not inclined to deal with this question in these proceedings. The same shall be considered, if and when required, in some appropriate proceedings. Thus, visualized, no adjudication is required on grounds Nos. (i) to (vi) of the grounds of review, relating to payment of court-fee.

7. As to ground No. (vii) that the petitioners had submitted 20, points of law and Mr. A.K. Dogar, learned Advocate Supreme Court for the petitioners could not make his submissions on all points, in that, the Hon'ble Chief Justice, was pleased to announce the judgment refusing leave to appeal, suffice it to say that the above plea suffers from vagueness. It was incumbent upon the petitioners to state; with particularity, in the review petition as to what point was specifically raised and not attended to in the judgment under review. This has not been done in the instant case. Clearly, the exercise of review power is limited and a party cannot be permitted to invoke this provision as a matter of routine. It is true that right of a counsel to be heard adequately is an indefeasible right, which cannot be transgressed by a Court of justice, if the counsel appearing in a case is relevant in making his submissions on the points of controversy. However, Article 191 of the Constitution empowers the Supreme Court to make rules regulating the practice and procedure of the Court, subject to the Constitution and law. Clearly, the Court has inherent power to fix reasonable time for augments by each side depending upon the facts and circumstances of each case. The exercise of such a power is necessary to avoid delay or defeating the ends of justice and with a view to ensure expeditious justice as envisaged by the principle laid down in clause (d) of Article 37 of the Constitution. We would, however, add a note of caution that sacrifice of justice to obtain speedy disposition of cases could hardly be termed as justice, as observed by one of us (Irshad Hasan Khan, J.) in Mehram Ali v. Federation of Pakistan (PLD 1988 SC 1445). The above principle was reiterated by a Full Bench of this Court comprising five Hon'ble Judges in the case of Mohtarma Benazir Bhutto v. The State (Criminal Appeal Nos.53 and 54 of 1999). In the instant case, however, the judgment under review was passed, after providing an adequate opportunity of being heard to the learned counsel for the petitioners, as is apparent from the judgment under review, authored by one of us (Ch. Muhammad Arif, J.). The above observations apply to grounds (viii) and (ix) (supra) as well.

7. As regards point No.(x) that it has escaped the notice of this Court that registered document of lease dated 15-7-1986'granted to the present petitioners was for 90-years and all the rights, easements and appurtenances whatsoever were also demised for 90 years, suffice it to say, that under Order XXVI, Rule 1 of the Rules, review can be sought under Article 188 of the Constitution in civil proceedings on grounds similar to those mentioned in Order XLVII, Rule 1 of the Civil Procedure Code, 1908. The latter provision provides that power of review can also be exercised if there is a "mistake or error apparent on the face C of the record", apart from other grounds mentioned in Order XLVII, Rule 1 of the C.P.C. It is well-settled that the error contemplated under Order XXVI of the Rules, is an error so manifest, so clear that no Court can permit such an error to remain on record. Such an error is not forthcoming on the record in the instant case. The petitioner cannot, therefore, be permitted to reargue the petition for leave to appeal on the grounds taken in the review petition. The above proposition of law is well-settled and was reiterated as late as on 24-3-1999' in the case of The State v. Mohtarma Benazir Bhutto (Criminal Review Petitions Nos.5 and 6 in Cr.Ps. Nos.46 and 47 of 1999), in paragraphs Nos.6, 7 and 8 whereof it was observed by the author Judge (Irshad Hasan Khan, J.) as under:-- "

6. The fate of above review petitions depends on the scope and applicability of Order XXVI, Rule 1, the Supreme Court Rules, 1980 (hereinafter referred to as the Rules). Under Rule 1 above, the power of review is to be exercised in a criminal proceedings on the ground of an error apparent on the face of the record' and in a civil proceedings on ground similar to those mentioned in Order XLVII, Rule 1 of the C.P.C. Under the latter provision, the power of review can also be exercised if there is a mistake or 'error apparent on the face of the record', apart from other grounds mentioned in Order XLVII, Rule 1 of the C.P.C. '

7. The question which needs examination is as to what is the scope of the phrase 'a mistake error on the face of the record'; and what is the scope and nature of the proceedings intended for the discovery and correction of such an error. "

8. The phrase 'error apparent on the face of the record' and the scope and nature of the review proceedings are well-settled. Clearly, the error contemplated under Order XXVI of the Rules, is an error so manifest, so clear, that no Court can permit such an error to remain on record. Such an error is not forthcoming on the record in the instant cases. The State cannot, therefore, be permitted to re-argue the petitions for leave to appeal in the garb of review petition in the absence of any error apparent on the face of the record, which is lacking here. To permit a review on the ground of incorrectness would amount to granting the Apex Court the jurisdiction-to hear appeal against its own judgment. Such a course is neither contemplated under the Constitution nor the Rules. "

8. As to grounds Nos.(xi), (xil) and (xiii) that the provisions of Articles 24(2), 260 of the Constitution and sections 8 to 18 of the Easements Act respectively, have escaped the notice of this Court, suffice it to say that nothing relevant to the above case escaped the notice of this Court while passing the order under review. Every aspect of the case was duly considered before rendering the judgment. The impugned order is well-reasoned and the conclusions drawn therein have been arrived at after thorough consideration of all the points raised and urged by the learned- counsel for the petitioners in juxtaposition with the observations made by the teamed Judge in Chambers as also learned members of the Division Bench. In any event, the above pleas relate to the merits of the case, therefore, reversal of conclusion earlier reached by the Court, through the judgment under review after thorough scrutiny of the material on record and hearing the learned counsel for the petitioners at length Is not possible in exercise of review jurisdiction under Article 188 of the Constitution read with Order XXVI, Rule 1 of the Rules.

9. As to grounds Nos.(xiv), (xv), (xvi) and (xvii), it may be reiterated that a bare perusal of the afore-quoted paragraphs Nos.6 and 7 of the judgment under review, would show that it takes good care of all of them in one go. It was specifically mentioned in the former paragraph that the High Court at both the stages i.e. in dismissing the Constitution petitions as also the Intra-Court Appeal of the petitioners, was right in concluding that. their right of easement in the parking strip is not of such a nature which does not admit of interference/regulation for achieving the objective of catering to the traffic need of five million residents of Lahore (wrongly mentioned as 50 million in judgment under review). In the latter paragraph it was specially approved that the learned members of the Division Bench had dismissed the Intra-Court Appeal and affirmed the observations made by the learned Judge in Chambers to the effect that, "they are not precluded from availing of any other remedy and/or to claim compensation"... if awardable under the law for the curtailment of their easement rights in the parking strip."

10. As regards ground No. (xviii), relating to the statement attributed to the learned Advocate-General, Punjab, referred to in paragraph 17 of the judgment of the learned Single Judge, this plea again relates to the merits of the case and cannot be re-opened in these proceedings, particularly, when no injustice has been done, more so when considered in view of the observation that the petitioners have been left with the right to approach appropriate forum for obtaining available relief in relation to the matter in its entirety. In this connection reference may be made to the concluding portion of the judgment under review, which reads thus:-- , "The observations made by the learned Division Bench of the High Court in the last sub-para. of the judgment dated 3rd June, 1998 cannot be equated with conceding the requisite locus in the petitioners to maintain a Constitution Petition. In fact, petitioners' I.-C.A. was dismissed and the decision of the learned Single Judge was affirmed with the observation that they are not precluded from availing of any other remedy and/or to claim compensation'... if awardable under the law for the curtailment of their easement rights in the parking strip.' It is up to the petitioners to initiate whatever proceedings they want to before the appropriate forum/s in line with the above-quoted observations. "

11. Mr. A.K. Dogar, learned counsel for the petitioners also relied on the following case law: Abdul Qayyum v. Niaz Muhammad (1992 SCMR 613), Master Chiragh Din v. Abdul Hakim (PLD 1974 Lahore 370), Municipal Committee, Delhi v. Muhammad Ibrahim (AIR 1935 Lahore 196), Sh. Akbar Hussain v. Punjab Government (1987 PLC (CS) 21) and Mian Jamal Shah v. The Member Election Commission, Government of Pakistan, Lahore (PLD 1966 SC 1). The above case law relates to various propositions of law laid down therein but not relevant in determining the scope, nature and extent of exercise of review jurisdiction under Article 188 of the Constitution and Order XXVI, Rule 1 of the Rules, the controversy we are dealing with in these proceedings. Be that as it may, this Court will not sit as a Court of appeal upon its own judgment under review merely on the ground that the petitioners think themselves to be aggrieved of the decision.

11. In view of the above, the petition for review is dismissed. M.B.A./M-327/S???????????????????????????????????????????????????????????????????? Petition dismissed.