P L D 1959 Supreme Court (Pak (PLP)

Mr. Raymond appearing for the appellants contended (1) that the common law principle relied on by the learned Judges did not apply to this case. According to him, S. 10 (2) of the Act states all that the appellate authority has to do in dealing with the appeal and as that provision unlike S. 423, Criminal Procedure Code, does not specify that the appellant or his pleader should he heard if he appears, the right of being given an opportunity of being heard was to be taken as having been denied to the appellant; (2) that the above common law principle applies to judicial proceedings and not to proceeding before the Chief Commissioner which are administrative in character; (3) that in any case it was not necessary for the Chief Commissioner to hear the appellant as under the Act the decision as to whether the property should be requisitioned or not is left entirely to the subjective satisfaction of the Rent Controller and that being so, the representation in appeal presented under S. 10 (1) and the report called for from the Controller under S. 10 (2) furnish adequate material for a decision to be taken by the Chief Commissioner. Subsection (2) of S. 10 on which Mr. Raymond mainly relies is as follows:‑ "The Provincial Government shall then call for the report of the case from the Controller and after perusing such record and making such further enquiry as it thinks fit, may reverse, modify or confirm the order made by the Controller". If Mr. Raymond's argument in respect of this provision is accepted it would lead us to the absurd position that the representation in writing presented by the appellant under S. 10 (1) need not be perused by the appellate authority, as what the second subsection makes obligatory is only the calling for the report from the Controller and not the perusal of all the records as is clear from the words:‑ "After perusing such record and making such further enquiry as it thinks fit". It could not have been the intention to give the person aggrieved the right of appeal and at the same time to leave it to the A discretion of the appellate authority to consider or not the very representation in appeal. The acceptance of Mr. Raymond's argument in this respect would thus in effect negative the right of appeal itself. There is nothing in this section which can be said to deny the appellant the right of being given an opportunity of being heard. It is true that S. 423, Criminal Procedure Code does specifically require the appellant or his advocate to be heard if he appears, but from this it does not follow that if that requirement had not been specified then the appellant's right to be heard which he possesses according to the principles of natural justice could have been denied to him under that Code. That the absence in the provision of specific words giving the appellant the right of being heard is not sufficient for denying him that right is indicated by the fact that in the same Code though under S. 435 and S. 439 there is nothing to show that the petitioner moving the Courts in their reversionary jurisdiction has the right of being heard, yet it was considered necessary to enact S. 440 which says that no party has any right to be heard either personally or by pleader before any Court when exercising its power of revision except in cases indicated in that section. However, the Criminal Procedure Code and the Sind (Requisition of Land) Act are not enactments in pari materia and from the fact that the right of being heard is specified in S. 423 of the Code it cannot be said that that right has been abolished in the Act under consideration merely because it does not expressly preserve it. It cannot be disputed that it is a principle of natural justice that no one should be dealt with to his material disadvantage or deprived of his liberty or property without having an opportunity of being heard and making his defence. That being so when a statute gives a right of appeal it should be understood as silently implying when it does not expressly provide that the appellant shall have the right of being heard. In The Queen v. The Archbishop of Canterbury (E R 120 (K B) 1014), Lord Campbell, C. J., observed "It is one of the first principles of justice, that no man should be condemned without being heard . . . . . The Legislature here gives an appeal from the Bishop to the Archbishop: that implies that the appellant is entitled to an opportunity of being heard." The first contention of Mr. Raymond therefore fails. Equally devoid of force is his second contention. As argued by Mr. Sharifuddin, the learned Advocate for the respondent, and indicated by the learned Judges of the High Court the above rule of justice is not confined to proceedings before Courts but extends to all proceedings, by whomsoever held, which may affect the person or property or other right of the parties con cerned in the dispute. As a just decision in such controversies is possible only if the parties are given the opportunity of being heard, there can be as regards the right of hearing, no difference between proceedings which are strictly judicial and those which are in the nature of a judicial proceeding though administrative in form, If authority is needed for this proposition, it is to be found in the cases cited by Mr. Sharifuddin. It may be observed here that Mr. Raymond did not invite our attention to any decision in support of his contentions. In Cooper v. The Wandsworth Board of Works (14 C B (N S) 180=143 E R 414) the said Board was held liable in an action as a wrong‑doer having ordered the demolition of a building without first calling for the owner to show cause against such an order being passsed, although under the relevant enactment there was no obligation on the Board to give such notice. But on the other hand it was the duty of the builder to have given the Board seven days' notice before laying the foundation. It was held that the above Act impliedly imposed on the Board the condition of giving the presumed defaulter either a hearing before making the order or a notice that the order had been made so that he might appeal before the building was demolished. In the course of his judgment Erle C. J. observed as follows:‑ "It has been said that the principle that no man shall be deprived of his property without an opportunity of being heard, is limited to a judicial proceeding, and that a district board ordering a house to be pulled down cannot be said to be doing a judicial act. I do not quite agree with that; neither do I undertake to rest my judgment solely upon the ground that the district board is a Court exercising judicial discretion upon the point; but the law, I think, has been applied to many exercises of power which in common understanding would not be at all more a judicial proceeding than would be the act of the district board in ordering a house to be pulled down". One of the other Judges, Willes, J. pointed out that a tribunal which was by law invested with power to affect the property of a subject, was bound to give him an opportunity of being heard before it proceeds; and that that rule is of universal application, and founded upon the plainest principles of justice". Bytes, J. the third Judge, observed: "It seems to me that the board are wrong whether they acted judicially or ministerially. I conceive they acted judicially, because they had to determine the offence, and they had to apportion the punishment as well as the remedy". This was one of the decisions followed by their Lordships of the Privy Council in James Dunbar Smith v. Her Majesty the Queen ((1878) 3 A C 614) where the same question had arisen for consideration. Reference may in this connection be made to the following passage in the judgment of Jessel M. R. in Russell v. Russell (14 Ch. D at 471 p. 478):‑ "With regard to Blisset v. Daniel I have known it for years, but with regard to Wood v. Wood, I am sorry to say that my acquaintance with it has begun today. I must say it contains a very valuable statement by the Lord Chief Baron as to his view of the mode of administering justice by persons other than Judges who have judicial functions to perform, which I should have been very glad to have had before me in both of those club cases that I recently heard, * * * The passage I mean is this, referring to a, committee: `They are bound, in the exercise of their functions, by the rule expressed in the maxim, audi alteram partem, that no man shall be condemned to consequences resulting from alleged misconduct unheard and without having the opportunity of making his defence. This rule is not confined to the conduct of strictly legal tribunals but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals". Referring to this passage Earl of Reading, C. J. in his judgment in King v. Tribunal of Appeal Under the Housing Act ((1920) 3 K B 335 at p. 341) observed:‑ "That is the principle upon which Courts of law have acted in interfering with an improper exercise of their functions by club committees and similar bodies. Now, that being so, does that principle apply equally to the hearing of an appeal? I think it does. I see no reason why the right to a sufficient hearing should be limited to an inquiry by a tribunal of first instance, I do not mean that the extent of the right is precisely the same before both tribunals, for when the matter comes before the Appeal Tribunal there has already been a hearing before the tribunal appealed from But, even so, I cannot think that the Appeal Tribunal is at liberty to cut down the right of appeal, that is to say, the right to have an adjudication on the subject‑matter of the appeal upon the materials which the appellant desires before it". This observation of the learned Chief Justice applies to the present case with greater force as here there could be no hearing before the Controller. The third and last contention of Mr. Raymond proceeds on the basis that the person aggrieved by an order of requisition cannot have very much to say beyond making a representation as the Act in question leaves it entirely to the subjective satis faction of the Controller as to whether he should requisition his property or not. But as pointed out by Mr. Sharifuddin the person aggrieved can in appeal contest the order on the ground that the property was not required for a public purpose or that there was a contravention of S. 11 which says that "any authority or person acting in pursuance of the Act shall interfere with the ordinary avocation of life and enjoyment of property as little as may be consonant with the purposes of the Act". The argument that in any case the representation in writing presented under S. 10 (1) and the report called for under S. 10 (2) afford sufficient material for the Commissioner to take a decision in the appeal overlooks the fact that it often happens that persons aggrieved who have to present their appeal within a time fixed which in the present case is only 15 days from the date of the service of the order of requisition indicate in their memorandum of appeal only the points which they expect to be allowed to elaborate at the time of the hearing. The Chief Commissioner has to call for a report from the Controller after the presentation of the appeal and if he is dismissing the appeal after perusing that report it is but fair that he should hear the appellant before taking that step. In (1920) 3 K B 335 cited above it was held by Earl of Reading, C. J. with whom one of the other two Judges Sankey, J. agreed that a mere consideration of the grounds of appeal did not constitute a hearing of appeal. That was a case under the Housing Act under which the local authority was authorised to prohibit the construction of works or buildings which in its opinion was likely to delay by deficiency of labour and material the provision of dwelling accommodation in its area. The person aggrieved by such a prohibitory order was given under that Act a right of appeal to the minister who was required to refer the appeal to a standing tribunal consisting of five persons to be appointed by him. One of the rules framed under that Act was that "if after considering the notice of appeal and the state ment of local authority in reply and any further particulars which may have been furnished by either party, the Appeal Tribunal are of opinion that the case is of such a nature that it can properly be determined without a hearing, they may dispense with a hearing, and may determine the appeal summarily." The Appeal Tribunal after receiving notice of the appeal given by the person aggrieved and the reply of the local authority were of the opinion that the case could properly be determined without a hearing and so dismissed the appeal summarily without the appellant being given an opportunity to be heard. The question for determination therefore related to the meaning of the rule referred above. The learned Chief Justice in dealing with it observed at. p. 340 as follows:‑ "The first question is, what is the meaning of that rule? I think it means that they may dispense with an oral hearing, that the decision in Arlidge's case 1915 A C 120 is applicable to the present, and that a hearing by the consideration of the parties' cases as stated in writing would be sufficient. But there must be a hearing, although not necessarily an oral one. In the present case I have come to the conclusion that there has not been a hearing at all. I cannot conceive that where the Legislature has given a right of appeal against an order affecting the property of one of the King's subjects a mere consideration of the written statement of his grounds of appeal together with the reply in writing of the respondent can without more be regarded as sufficient to constitute a hearing. The grounds of appeal are merely the reasons for the appeal ; the facts on which it is proposed to rely in support of those reasons are not set out, The reply controverts the reasons put forward by the appellants, and states a number of facts, as facts, in answer to the appeal. If r. 7 was intended to give the Appeal Tribunal the right to decide the matter not merely without an oral hearing, but without allowing the appellants an opportunity of answering the case of their opponents, I think the Minister was exceeding his powers in making that rule, inasmuch as his powers are limited to making rules of pro cedure. Rules of procedure are the machinery for enforcing the right of appeal, and a rule which has the effect of taking that right away is not a rule of procedure". Sankey, J. who agreed with the learned Chief Justice observed: "Now a hearing in my view need not be an oral one, it may be on written representations. But the party against whom it is sought to make an order must have an opportunity at least of stating his case in writing and so making his defence. No power to make rules of procedure can deprive him of that right, and so far there is no difference of opinion between the members of this Court. The only point on which they differ is as to whether there has been a hearing". Shearman, J. who wrote the dissenting judgment agreed that the appellant had a right to be heard, but in view of the rule in question and the composition of the Tribunal he thought there was a hearing. Another case relied on by Mr. Sharifuddin in this connection is Stafford v. Minister of Health (1946 1 K B 621). The facts of this case were substantially similar to those of the present case. There, the land owner having been informed by the local authority of their intention to apply to the Minister of Health for the confirmation of an order for the compulsory purchase of his land for housing purposes, submitted notice and grounds of objection to the Minister, who forwarded the same without informing the land owner to the local authority who submitted a detailed reply. The minister, without informing the land owner of that detailed statement of the local authority's case, and having in the exercise of his discretion under the Housing (Temporary Provisions) Act 1944, decided not to hold a public local enquiry, and confirmed the compulsory purchase order. It was held that the confirmation order was invalid and must be quashed since a mere notice and grounds of objection did not constitute a presentation of the land owner's case, and as the local authority had had an opportunity of presenting their case in detail the Minister had acted without hearing both sides. The following passage in the judgment at page 624 is instructive:‑ "To my mind it is going a great deal too far to say that once grounds of appeal have been put forward‑considered as grounds of appeal such as are put in an ordinary King's Bench action‑no argument of elaboration is needed, and that the grounds constitute a complete case with all its evidential statements. I cannot see that that is so. Accordingly, I am bound to come to the conclusion that the Minister did not hear both sides before he confirmed the order. In the words of Lord Loreburn L. C. in Board of Education v. Rice (1911 A C 179 at page 182). `They' that is, those who are to make orders, `can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant state ment prejudicial to their view' ". The last two mentioned cases furnish a direct answer to the argument of Mr. Raymond that a consideration of the appeal memorandum along with the report of the Rent Controller was sufficient for deciding the appeal. The view expressed in 1910 King's Bench case that the appellant therein was not entitled to an oral hearing depended mainly on the rule framed under the Act applicable to that case. It is clear from the judgment in that case that but for the rule referred to above the majority and in fact the third Judge also would have held that the person aggrieved was entitled to an oral hearing. In the last‑mentioned case the right of being heard was not restricted by the exclusion of oral hearing. It does not appear from the record of the present case that either in Writ Petition No. 378 of 1956 or in the petition out of which this appeal has arisen the question whether the hearing should be oral or not was specifically raised. Nor was this point raised before us. The question there as well as here was whether the appellant should have been given any right of appearing at all after the reply of the Controller was received. In the circum stances the direction in the order under appeal that the Chief Commissioner should rehear the appeal after giving notice to parties obviously means that the appellant or her advocate should be given an opportunity of being heard especially as it was conceded in Writ Petition No. 378 of 1956 that since the Act in question came into force Government has been allowing the appellant or his advocate to be heard. It has not been explained why all of a sudden it was considered necessary to depart from a practice which is in accordance with the first principles of justice and has held the field since August 1947 when the Sind Requisition of Land Act came into force. We, therefore, dismiss the appeal with costs. A. H. Appeal dismissed.