2002 PLP 1257 (CLC)

A reference under sections 8 and 10 of the Evacuee Trust Property (Management and Disposal) Act XIII of 1975 was‑filed before the Chairman, Evacuee Trust Property Board, Government of Pakistan, Lahore by the Assistant Administrator, Evacuee Trust Property, Bannu with the prayer that the property comprised in Khasra No.590 situated in Mauza Fatimakhel Kalan Tehsil and District Bannu be declared as Evacuee Trust Property and its allotment from the names of the original allottee and the subsequent transferees be cancelled, which was accepted by the learned Chairman in terms of prayer vide his order, dated 4‑12‑1998.

2. The petitioners on getting an inkling about the impugned order filed a revision petition on 14‑2‑1999 before the Federal Government but when sensed that it could not be an adequate remedy in the circumstances of the case, invoked the Constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.

3. The learned counsel for the petitioners mainly contended that the petitioners were proceeded against ex parte and were thus condemned unheard without having been given an option of hearing and that though the petitioners have filed a revision petition before the Federal Government but as it is by no means an adequate remedy in the circumstances of the case a recourse was had to the Constitutional jurisdiction of this Court. The learned counsel in this behalf placed reliance on the case of Rauf Ahmad v. Secretary to the Government of Pakistan, Ministry of Religious and Minority Affairs, Islamabad and 9 others PLD 1991 Lah. 33.

4. The learned counsel for the respondent while defending the impugned order argued that the petitioners were served through publication in the newspaper and that when the petitioners have already filed a revision petition under section 17 of the Act before the Secretary, Ministry of Religious and Minority Affairs, which is, by all means an adequate remedy this petition is liable to be dismissed.

5. I have gone through the entire record and carefully evaluated the contentions of the learned counsel for the parties. 6, A perusal of the record would unmistakably indicate that the impugned order was passed at the back of the petitioners without giving them an opportunity of being heard. There is absolutely nothing on the relevant record of the Board to show that the petitioners were served by any means whatever. It appears that the learned Chairman was under the impression that service on the petitioners was just a formality and once it was fulfilled he was free to pass any order he liked. But it may be pointed out that the purpose behind effecting service of a party being proceeded against is not a formality but a requirement of law to inform him about a proceeding pending before a Court, Tribunal or persona designata and to provide him an opportunity to vindicate his position and voice its point of view about the matter forming the subject‑matter of proceeding before it or him as the case may be. This is, what is envisaged by the celebrated principle of natural justice i.e. audi alterm partem. Where an order was passed against a party, as in this case without complying with this fundamental principle it would be just a nullity and non‑entity notwithstanding the fact that the proceedings resulting in the order were sacred and sacrosanct par excellence.

7. The argument of the learned counsel for the respondents that when a revision petition, which according to him, is by all means an adequate remedy, has been filed by the petitioners under section 17 of the Act the instant Constitutional petition is liable to dismissed is incorrect and unconscionable altogether. How the Secretary of the Government who is a functionary and a part and parcel of the department can become a Judge in his own cause and how a remedy of a revision can be held to an adequate when it is not heard by an independent impartial and non partisan forum, has already been commented upon in almost similar situation by the Honourable Supreme Court in the case of Ataullah Malik v. Custodian Evacuee Property West Pakistan, Karachi and another PLD 1964 SC 236 in the following words.‑‑ "There is no question at all that the Custodian of Evacuee Property is not constituted as a Court. The functions which he performs in respect of appeals and revisions generally follow the procedure and principles applicable to judicial proceedings. But in one most important aspect, they fall short of being fully judicial, namely, that the Custodian is required to decide questions raised as to the ownership of, and all vested in the Custodian, by operation of law. The Custodian is made a judge in his own cause in respect of such proceedings, and this position is not affected by the consideration that the vesting is in the Custodian not as a person but as a operation sole, in whom the evacuee property is vested to be applied to specified uses, in particular, the rehabilitation of the vast flood (of) refugees. The Custodian in his official capacity has a real interest in the properties so vested in him to preserve against claims by persons other than refugees. Experience shows that in the vast majority of cases, that interest has not been lightly parted with. Consequently, the Custodian does not satisfy one essential requirement of a judge in respect of the proceedings which come before him affecting evacuee property vested in him, and those proceedings could at best be claimed to be merely quasi -judicial."

8. In the case of Rauf Ahmad v. Secretary to the Government of Pakistan, Ministry of Religious and Minorities Affairs, Islamabad and 9 others (supra) this aspect of the case was dealt with in the following words which read as under:‑‑ "The proceedings held for deciding aforesaid questions are more of the nature of inquisitory proceedings and not adversary proceedings as in these proceedings firstly the Chairman and then the Secretary being the judges in their own cause, act as a matter of exception to the general rule that no one can be Judge of his own cause. These officers as such are not arbiters between the two parties litigating over a `lis but the officers holding inquisitory proceedings. An arbiter in adversary proceeding grants liberty to the parties to produce whatever evidence they may like to produce in support of their respective claims whereas the Presiding Officer of inquisitory proceedings, in addition to allowing the parties or persons interested in the matter to produce the evidence of their own choice is duty bound to collect material and the evidence relevant and pertaining to the matter under inquiry of his own if all the available evidence has not been produced during the inquiry. This difference in the inquisitory proceedings and adversary proceedings is apparent and well‑established. The officer presiding over, the inquisitory proceedings would be failing in his duty if he bases decision on the evidence produced by the parties alone when the relevant evidence which could be made available and examined, was kept out of consideration observing that the same was not produced by the parties themselves before him."

9. Once again in the case of Federation of Pakistan v. Iftikharuddin and another 2000 SCMR 1 the Honourable Supreme Court after considering the adequacy of remedy of revision directed the Government to suitably amend the Act in the following paragraph which is reproduced as under: The providing of right of appeal against order of the Chairman passed under section 8 of Act XIII of 1975 should have been provided to comply with the requirements of principles of administration of justice in Islam as immunity sought to be granted to such an order by providing an inadequate remedy of revision would be repugnant to the Injunctions of Islam. The appellant is accordingly directed to suitably amend the Evacuee Trust Properties (Management and Disposal) Act, 1975 (Act XIII of 1975) by inserting a provisions providing right of appeal against the order passed by the Chairman under section 8 of the Act XIII of 1975. Such an appeal can be provided to lie before the High Court in line with the recourse adopted in the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and the Displaced Persons (Land Settlement) Act; 1958, If the declaration as to the nature of the property made by the Chief Settlement Commissioner and later by the Chairman could be made scrutable through an appeal to the High Court, no possible objection can be raised to the providing of the same remedy now under Act XIII of 1975. It is also to be noted that against the orders passed on other matter, by the officers appointed by the Board, appeal has been provided to the higher officers of the hierarchy including the Chairman and against orders so passed the revision lies to the Federal Government The said course of action can continue as before, as final order so passed is further assailable before the High Court by invoking the Constitutional jurisdiction vesting in it under Article 199 of the Constitution and a further petition for leave to appeal before the Supreme Court under Article 185 of the Constitution of Islamic Republic of Pakistan, 1973. The remedies, so provided, considering the nature of the Legislature 'are in such matters sufficient and adequate. The amendment directed in the above terms shall be made in Act XIII of 1975 by the appellant by the 30th July, 1999."

10. When the arguments of the learned counsel for the respondents are considered in the light of the foregoing discussion and the above quoted paragraphs I have no hesitation to hold that remedy of revision to the Federal Government is neither effective nor adequate as the Secretary or the Additional Secretary and deciding these revisions are prone to be influenced by the department and are thus incapable of infusing confidence into the minds of the litigants that their grievances have been dealt with adequately, fairly, justly and in accordance with law. As a sequel to what has been discussed above this petition is allowed, the impugned order is set aside and the case is remanded to the learned Chairman for decision afresh in accordance with law. In the circumstances of the case no order is made as to costs. Q.M.H./493/P Petition allowed.