P L D 1958 (W. P.) Karachi 549
Before Qadeeruddin Ahmed and Muhammad Baehal, JJ
DOST ALI and others‑Petitioners
Versus
PROVINCE OF WEST PAKISTAN and others
Respondents
Writ Petition No. 50 of 1958, decided on 5th May 1958.
Bharat Insurance Co. v. The State of Delhi and another A I R 1952 Pb. 69 ; The New Prakash Transport Co. Ltd. v. The New Suwarna Transport Co. Ltd. P L D 1957 S C (Ind.) 227 and Local Government Board v. Arlidge 1915 A C 120 ref.
Mulraj for Petitioner.
M. Hayat for Respondents Nos. 1 to 4.
Sikandar Beg for Respondent No. 5.
ORDER
QADEERUDDIN, J.‑The real question to be considered in this writ petition is very short. Respondent 5 applied for a separate water course and his request was accepted. Proceedings were taken under the Sind Irrigation Act, 1879. The petitioners have chal lenged the validity of the proceedings and various orders passed in them. Their, prayer is that the orders passed by the Superintending Engineer, Deputy Commissioner, Tharparkar and the Commissioner be quashed.
We have not been impressed by the view point of the peti tioners and their emphasis on irrelevant aspects of the facts. The petition reads as if it was a criminal complaint. Unnecessary and obviously disputed facts have been thrown into the controversy raised by them. Enmity and political motives are alleged as if writ jurisdiction is meant to punish alleged wrong‑doers or to cure social evils. All of the major facts of this nature alleged by the petitioners have been denied by the respondents and explanatory information has been supplied by them in their replies. The peti tioners were apparently not aware that disputes of facts are not tried in writ petitions and that those writ petitions which are based on controversial facts are to be thrown out on this ground alone. A Similarly, misleading representations whether they be misleading on account of mis‑statement of material facts or on account suppression of material information, can be a fatal to a writ petition.
We would have thrown out this petition because of the above reasons but we find that the counter affidavits have not been sub mitted by responsible officers and have been sworn by an office clerk, a Head Assistant and by Juma Khan, respondent 5 himself. In the presence of the allegations of enmity and political pressure we do not consider it safe to base our conclusions on the allegations and counter‑allegations made before us.
We had to devote more time to the petition than was necessary. We explained to the counsel of the petitioners the difficulties in the way of the petitioners. Mr. Mulraj however, wanted to press his contentions on the basis of sections 18 and 67 of the Sind Irrigation Act, 1879 only. The counsel contended that in fact the provisions of section 18 have not been complied with. These allegations of facts have been denied and explained by the respondents. We do not think we can hold that in fact the provisions of this section have not been complied with.
Section 67 deals with appeals to the Collector and provides that all orders and proceedings of a Collector under the Act are subject to the supervision and control of the Revenue Commission. Section 68 makes “every enquiry” which an officer is empowered to conduct under the Act “a judicial proceeding”. Mr. Mulraj contended that in such a judicial enquiry the existence of a right to address oral arguments is to be necessarily presumed and included. He has relied on Bharat Insurance Co. v. The State of Delhi and another (A I R 1952 Pb. 69). The question before the learned Judges in that case was whether the right of appeal given by section 5 of Delhi Premises (Requisition and Eviction) Act, 1947 conferred the right on the appellant of being heard. Soni J. held
” An appeal is a continuation of the hearing before the subor dinate officer. Section 5 gives the general right to appeal without any restrictions and ordinarily the same procedure would be followed regarding the hearing of the appellant as would be followed by the subordinate officer when hearing his grievances. If at the stage of showing cause, he has a right to be heard then surely he has the same right to be heard when his appeal is being dealt with by the appellate authority. A man may be too poor to engage a counsel or anybody else to represent him. He then has a right to be heard personally. If he has a right to be heard personally by the first officer he has a right to be heard personally by the appellate authority unless the statute prescribes a special procedure for the hearing of the appeal. If a procedure is pres cribed, where for instance, an appeal is to be preferred in writing and is only to be treated as a representation with no right of personal appearance that would be a different matter, but in the present case there are no restrictions regarding the personal appearance of the appellant at the time of the hearing of the appeal.”
Harnam Singh, J. held
” S. 5 of the Act gives an absolute right of appeal to the person aggrieved by any order of requisition passed by the competent authority under S. 3 (4) of the Act. Now, where there is an appeal from an order, the appellant is, in my judgment, entitled to support the appeal either by counsel or in person. This is a fundamental rule of justice which, subject to any limitation that may be placed on this right by statute, governs all appeals, including an appeal from an order passed under S. 3 (4) of the Act. Section 5 of the Act places no limitation on the right of appeal and, therefore, it carries with it the right which is enjoyed by every person entitled to appeal to be heard in support of the appeal. For principles governing such cases `In re The Solicitors Act, 1932, (1938) 1 K B 616, may be seen.”
Two principles are laid down in these observations. One of them is that the same procedure should be followed in appeal as would be followed by the subordinate officer at the time of hearing grievances and the other is that where no restrictions are placed on the right to be heard, the right cannot be denied as it is a funda mental rule of justice. These principles, however, should be taken to have been rejected as unsound by a judgment of the Supreme Court of India reported in The New Prakash Transport Co. Ltd. v. The New Suwarna Transport Co. Ltd. (P L D 1957 S C (Ind.) 227) In this judgment the Supreme Court has held
” ..It has got to be observed that the question whether the rules of natural justice have been observed in a particular case must itself be judged in the light of the Constitution of the b Statutory body which has to function in accordance with the rules laid down by the legislature and in that sense the rules themselves must vary.”
The Supreme Court discussed a decision of the House of Lords in the case of General Medical Council v. Spackman reported in 1943 AC 627 and deduced the following principles from it :
“The case is therefore authority for the proposition that the rules of natural justice have to be inferred from the nature of the tribunal, the scope of its enquiry and the statutory rules of procedure laid down by the law for carrying out the objectives of the statute.”
There is no doubt that the expression “natural justice” can be misleading and is often misleading when it is used to convey a vague conception of justice. The Punjab case, relied upon by the petitioner’s counsel, is based on several assumptions which begin to disappear when they are examined closely.
The learned counsel of the petitioners has referred to clause (ii) of subsection (2) of section 91 of the Sind Irrigation Act, 1879 in support of his contention that the procedure to be adopted by the Collector as the appellate tribunal was to hear the parties orally. The clause is as follows :
“If any objections are received within the said period of thirty days, the Canal‑officer shall give the holder or holders of the land and the owner or owners of the water‑course a reasonable opportunity of being heard and may, if the said objections are settled, change the source of water supply, accordingly.”
It is presumed by the counsel that the land in question in this writ petition is irrigable by the Lloyd Barrage Canals to which sections 90 to 93 of the Act apply. The counsel of the respondents has not denied the application of these sections to the proceedings which are in question. Mr. Mulraj has supplemented his argument by pointing out that the respondents have attempted to follow the procedure of giving the opportunity to address oral arguments but have distorted and nullified it by the manner in which they purported to follow it. He has pointed out that the Deputy Commis sioner appointed the Deputy Collector to enquire into the allegations made by the petitioners in their appeal. The Deputy Collector visited the site and heard the parties. He made his report to the Deputy Commissioner on the 12th of September 1957 and the. Deputy Commissioner decided the appeal on the basis of the report. A copy of his report has been filed by the respondents. The report consists of the grounds on account of which the objec tions of the petitioners were rejected. The contents of this report were, according to the counsel of the appellants, never brought to the notice of the, petitioners. They applied on the 18th of Septem ber 1957 for copies of the report and of the order of the Deputy Commissioner but their application was rejected. They preferred a 2nd appeal to the Commissioner on the 19th of September 1957 which was dismissed on the 18th of January 1958 without an opportunity to the appellants of being heard. These facts are not denied by the counsel of the respondents. We presume that they are correct.
In these circumstances we feel no doubt in our minds that the petitioners have not been fairly and justly given an opportunity of presenting their case to the first appellate tribunal at least. The judgment of the Supreme Court of India in the case of New Prakash Transport Co. Ltd., referred to above, is an authority in favour of the proposition that a report which does not contain any allegations against a party and is meant only to supply information to the authorities need not be placed into the hands of the parties. But in the case before us we find that the appellate tribunal, viz. the Collector, has decided the appeal on the basis of a report which purports to demolish the objections of the petitioners. The petitioners were never given the opportunity of knowing what case was set up by the Deputy Collector against them in his report. The House of Lords has held in Local Government Board v. Arlidge (1915 A C 120), that a statement of facts made for the information of the officials of the Department in the form of a report need not beg communicated to interested parties if the, rules of the Statute under which the’ proceedings are taken, do trot provide for it. But the report of the Collector ‑is not a report of this nature.
Nor is it a statement of facts meant to enlighten the appellate authority. It is meant to be and has been used as a substitute for the hearing of the appeal.
We hold that the Collector did not decide the appeal himself but attempted to delegate his appellate powers to a subordinate officer without the power to do so. The subordinate officer, viz., the Deputy Collector, heard the parties and his conclusions became the basis of the decision of the appeal without the, petitioners ever coming to know them, at least in any proper manner, inspite of the fact that they directly and specifically dealt with the contentions of the petitioners.
In the second appeal the Commissioner also passed his order without hearing the parties. We express no opinion regarding the validity of the procedure adopted by him because the parties have agreed, for purposes of the present petition, that the Commissioner exercised his jurisdiction of “Supervision and control” only under section 67 of the Sind Irrigation Act, 1879 and in no sense a revi sion or quasi‑judicial, jurisdiction. Without therefore expressing our opinion regarding the procedure adopted by him we quash the order of the Deputy Commissioner by which he decided the appeal of the’ petitioners. The petitioners have not filed a copy of his order because, according to them, no copy of the order has been granted to them. A reference to the order of the Deputy Commis sioner is contained in the copy of the order passed by the Revenue Commissioner. According td it the order is No. 1/MC/1888 dated the 17th of September 1957. This order having been quashed by us the necessary consequence is that the order of the Commissioner by which it was upheld automatically disappears. In case there is any doubt regarding this consequence, we quash the order of the Commissioner No. S‑11‑3‑2‑E (Rev.)/57 dated the 18th of January 1958. We direct the Deputy Commissioner to hear the parties on the objections raised by the petitioners in their appeal to him.
We may add that we express no opinion regarding the correct ness or otherwise of the water‑course proposed to be made or already made on the application of respondent 5 nor do we express any disapproval of the procedure of calling for a report from the Deputy Collector.
A writ to issue to the effect that the order of the Deputy Com missioner No. 1/MC/1888 dated the 17th September 1957 is quashed and a direction is given to the Deputy Commissioner to hear and decide the appeal of the petitioners and that the order of the Com missioner No. S‑11‑3‑2‑E (Rev.)/57 dated 18th January 1958 is quashed as a consequential relief.
K. B. A. Petition accepted.
