Mst.ABEDA BEGUM vs GOVERNMENT OF PAKISTAN and others

' NAIMUDDIN, J.--A house bearing No.E/1763, situated at Fakir Ka Pir, Hyderabad, being evacuee property was first allotted to the petitioner's deceased husband on 4-9-1948, and was subsequently trans ferred to the petitioner's deceased husband on C.H. Form filed by him and finally P.T.D. was issued in favour of the petitioner on 21-6-1973.

2. The house as well as premises bearing Nos.E/1/55, E/1756, E/1757, E/1764 and E/1775, were parts of a building which was subsequently declared to be a Trust property and transfer documents issued to the occupants were cancelled. However, subsequently, the Chairman, Evacuee Trust Board allowed the sale of the premises to the P.T.D. holders with a direction to recover the economic value of the property.

3. The petitioner moved an application for 40 per cent reduction of the sale price of the premises originally transferred. The Chairman, Evacuee Trust Board, by the order dated 22-2-1977, recommended to the Federal Government respondent No.1 for sale of the premises to her on Settlement price as uneconomic unit.

4. Respondents Nos. 3 and 4 being related to each other and considering themselves as aggrieved persons filed a revision application on 6-4-1978, before the Federal Government the revision application was heard by Mr. Shoaib Sultan Khan, Joint Secretary, Local Government and Rural Development Division, who, while dismissing the same as being barred by time directed that the matter be taken up in suo motu revisional jurisdiction of the Federal Government conferred on it under section 17 of the Act XIII of 1975. Thereafter, Mr. Hafiz-ur-Rehman, Joint Secretary, Ministry of Religious Affairs and Minority Affairs, Government of Pakistan, taking up the matter in suo motu revisional jurisdiction by the order dated 17-6-1978, directed the disposal of the property in open public auction. It is this order which is impugned in this constitution petition. It may be stated that petitioner filed a review application which was also dismissed without any notice or hearing.

5. We have heard Mr.S.H. Fani, learned counsel for the petitioner and Mr. Matloob Hussain Siddiqui, learned counsel for respondents Nos. 3 and 4, no one has appeared on behalf of the Federal Government or the Chairman, Evacuee Trust Board.

6. Mr.Fani has urged only two grounds before us. He submitted that no notice of the revision application for revising the order dated 22-2-1977, was served on the petitioner and she was condemned unheard. The next ground urged is that after dismissal of the revision application on the ground that the same was barred by time, respondent No. 1 could not revise the order suo motu.

7. Taking up the first point it may be stated that it was pointed out by Mr.S.H. Fani that in the impugned order it is stated as follows:- "During the hearing neither the respondent nor her representative was present, although notice was issued and said to have been served." (Emphasis supplied).

' He pointed out that there is no finding that the notice was served on the petitioner. He submitted that he has specifically stated in paragraph 10 of the petition that respondent No.1 without giving any notice and without providing any opportunity of appearing and hearing the petitioner revised the order. No counter-affidavit has been filed by respondents Nos. 1 and 2 controverting the above statement of the petitioner. Indeed respondent No.3 has filed a counter-affidavit but in reply to paragraph 10, he has stated that it needs no comments. We however, called upon Mr. Matloob Hussain Siddiqui to show from our record or even otherwise if any notice of the revision application or hearing before passing the suo motu order was served on the petitioner. He fairly stated that he was unable to do so. The petitioner was also not heard on her review application.

8. It is settled principle that no person should be condemned unheard. This principle is said to be traceable to the dawn of time. Fortesque, J. in R.v. Chancellor of Cambridge (172 Medea 195: (1723)

Fortesque 202) said: "The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man upon such an occasion, that even God Himself did not pass sentence upon Adam, "before he was called upon to make his defence. Adam (says God) where art thou? Hast thou not eaten of tree, whereof I commanded thee that thou shoulst not eat? And the same question was put to Eve also."

' The above quotation is from: Fundamental Rights and Constitutional Remedies in Pakistan by Syed Sharifuddin Pirzada, page 522.

'It is not a principle of purely Hellenistic, Roman or Continental origin. It governs every civilised system of society. Murshed, C.J., in PLD 1965 'Jour. 1, has referred to a Hadith of the Holy Prophet (peace be upon him) quoted in Mishkat Babul Qazaa from Tirmizi, Abu Daood and Ibne Maajah to the following effect:- "Once the Prophet of God (Peace be upon him) appointed Hazrat Ali, in his early youth, to the judgship of Yemen. Hazrat All pointed to his youth and inexperience and confessed his lack of acquaintanceship with the intricacies and requirements of such a reasonable undertaking. The Holy Prophet (p.b.u.h.) replied 'God will guide you and give you strength in your pronounce ments, if in deciding issues between parties you will not decide in favour of one such party without hearing the other side."

' The petitioner is, therefore, entitled to succeed on this ground alone.

9. As regards the second ground it was urged by Mr. Fani that respondent No.1 having dismissed the revision application as being barred by time could not suo motu revise the order. He firstly relied on the provisions of section 17 of the Evacuee Trust Properties Act, 1975 (hereinafter called the Act) which empowers the Federal Government to call at any time on its own motion or otherwise the record of any case and proceedings under this Act for the purposes of satisfying itself as to the correctness, legality, propriety of such an order, and may pass such order in relation thereto as the Federal Government thinks fit, and which further provides that the record or proceedings in which the Chairman, an Administrator, a Deputy Administrator or an Assistant Administrator has passed an order shall not be called for under this section on the application of any aggrieved person made after the expiration of fifteen days from the date of such order.

10. Mr.Fani further relied on Ashiq Muhammad Khan Mazari v. Chairman Federal Land Commission and others PLD 1977 Lah. 461 and Messrs Caltex Oil (Pakistan) Ltd. v. Province of Sind and 6 others PLD 1978 Kar.

958. It is admitted fact that the order in favour of the petitioner was passed by the Chairman, Evacuee Trust Property Board, on 22-2-1977 and the revision application filed by respondent No. 3, was dismissed on 20-11-1977 as being barred by time, therefore, in view of the proviso to section 17 of the Act, the record of any case or proceeding in which the order was passed by the Chairman could not be called on the application of any aggrieved person made after the expiration of fifteen days from the date of such order. Consequently, the order could not be revised as it is settled principle that what cannot be done directly could not be done indirectly. As regards the two cases cited by the learned counsel for the petitioner it may be stated that although the same are not under section 17 of the Act, yet the following observations of Channa, J. in the second case would apply with full force to the present case: "The object of the said Act, so far as I have been able together the same from its provisions, is to provide protection to a party against being vexed by a rival party, after the period prescribed for filing of revision application has expired. If an unsuccessful or disgruntled party could be permitted to invoke the suo motu revisional powers of the competent authority, after the expiry of the period of limitation for filing of the revision applications, the very purpose of prescribing the limitation period for filing of such applications and the distinction between exercise of suo motu revisional powers and initiation of proceedings upon revision applications, specially by aggrieved parties, would be obliterated."

11. We therefore, declare the said order to have been passed without lawful authority and, therefore, the same is of no legal effect. In consequence we direct that the Federal Government and the functionaries B concerned under the law to consider the recommendations of the Chairman, Evacuee Trust Board and pass fresh the law.

' The parties, in the circumstances of the case are left to bear their own costs.

Writ issued.