Sunday, 21 February 2016

Judgment on Article 4 of Constitution

PLJ 2011 Lahore 455
Present: Syed Mansoor Ali Shah, J.
MAQBOOL AHMAD and 4 others--Petitioners
versus
DISTRICT OFFICER (REVENUE)/DISTRICT COLLECTOR, FAISALABAD and 3 others--Respondents
W.P. No. 20305 of 2009, decided on 16.3.2010.
Constitution of Pakistan, 1973--
----Art. 4--Due process clause--Protection of law or to be treated in accordance with law--Basket of legal principles--Principles of natural justice, fairness, procedural propriety, procedural due process, reasonableness, transparency, openness, participation, inclusiveness are all embedded in Art. 4, which is, therefore, a citadel of administrative and judicial governance in the country--Art. 4(2)(A) of the Constitution moves from "citizen" to "any person" and announces further protection when it states that "no action detrimental to life, liberty, body, reputation or property of any person shall be taken except in accordance with law" Art. 4 is a Constitutional reminder especially for the government and its functionaries to treat everyone in accordance with law.           [P. 457] A
Constitution of Pakistan, 1973--
----Art. 4--Fundamental law--Public functionaries while exercising discretion or taking administrative action must be constantly reminded of the principles so that their discretion and administrative actions are aligned with the basic fundamentals of Constitution.
            [P. 459] B
Colonization of the Government Land Act, 1912--
----S. 32--Constitution of Pakistan, 1973, Art. 4--Notice of dispossession issued by DOR--Assailed--Writ petition--When action proposed is detrimental to life and property of a person--Held: Section 32 of Colonization of Government Land Act, cannot even begin to be put in motion unless the test of procedural due process provided in Art. 4 of the Constitution alongwith all its concomitant principles are first exhausted--Notice of dispossession under Section 32 of Colonization of Government Land Act has been issued in blatant violation of Art. 4 of the Constitution and cannot be permitted--Petition allowed. [P. 460] C
NLR 1991 Rev. 21, NLR 1991 Rev. 99, NLR 2003 Rev. 90 &
PLJ 2003 Lah1273, rel.
Mr. M.A Ghaffar-ul-Haq, Advocate for Petitioners.
Malik Abdul Aziz AwanAsstt. Advocate General for Respondents.
Date of hearing: 16.3.2010.
Order
Brief facts of the case are that the petitioners are admittedly encroachers of land Measuring 4 Kanal 1 Marla 8 Sirsai in Chak No. 252-RB Tehsil & District Faisalabad, however they are in possession of the said land since 1947 and have raised construction thereon since the year 1995. When, earlier, the Revenue Department tried to demolish the said construction, petitioners filed W.P. No. 10594/1995 wherein on 29.10.95 interim relief was granted to the petitioners to the effect that their possession should not be disturbed. The said petition was disposed of on 15.09.1997 with the direction to decide the claim of the petitioners in accordance with law and rules expeditiously. This direction was not complied with. Despite the same, Deputy District Officer (Rev) vide impugned order dated 11.04.2009 under Sections 32 and 34 of the Colonization of Government Land Act, 1912 passed the following order:
"Now, therefore, I                                     Deputy District Officer Revenue/Collector, Tehsil SadarFaisalabad in exercise of the powers vested on me u/S. 32/34 of the Colonization of Government Land Act of 1912, hereby authorize Tehsildar/Naib Tehsildar Faisalabad to forthwith re-enter upon the land and resume possession of it and take possession of the crops, trees or building material, without payment of any compensation, whatsoever, the case may be."
2.  The learned Asstt. Advocate General submitted that an alternative remedy against the said order is available under Section 164 of the Land Revenue Act, 1967. He further submits there is a civil suit pending regarding the same subject matter filed by Petitioner No. 1.
3.  Arguments heard. In the earlier round of litigation between the same parties the Collector was directed vide order dated 15.09.1997 passed in Writ Petition No. 15094/1995 to decide the claim of the petitioners in accordance with law and rules expeditiously latest by 30.10.1997. This order admittedly has not been complied with to date. Inspite of the said direction Respondent No. 2 without issuing notice and affording opportunity of hearing to the petitioners and without complying with the above mentioned order in the earlier round of litigation passed the impugned order under Sections 32 & 34 of the Colonization of Government Land Act, 1912. The impugned order is therefore in violation of order dated 15.09.1997 of this Court.
4.  Even if the petitioners are encroachers, trespassers or squatters they have the inalienable right to enjoy equal protection of law and to be treated in accordance with law. This right is constitutionally guaranteed to them (every citizen) under Article 4 of the constitution and they cannot be deprived of the same. Article 4 of the constitution is our DUE PROCESS CLAUSE. Protection of law or to be treated in accordance with law carries in it a basket of legal principles. Therefore the principles of natural justice, fairness, procedural propriety, procedural due process, reasonableness, transparency, openness, participation, inclusiveness are all embedded in Article 4, which is, therefore, a citadel of administrative and judicial governance in the country.
5.  Article 4(2)(a) of the Constitution moves from "citizen" to "any person" and announces further protection when it states that: "no action detrimental to life, liberty, body, reputation or property of any person shall be taken except in accordance with law." Article 4 is a constitutional reminder especially for the Government and its functionaries to treat everyone in accordance with law.
6.  As explained above "law" carries all the principles of law including principles of natural justice including the maxim audi alteram partem. Reliance is placed on "Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri" (PLD 1969 SC 14), "New Jubilee insurance Company Ltd., Karachi v. National Bank, of Pakistan, Karachi" (PLD 1999 SC 1126), "Aftab Shahban Mirani v. President of Pakistan and others" (1998 SCMR 1863) and "Government of Pakistan through Director-General, Ministry of Interior, Islamabad and others v. Farheen Rashid" (2009 PLC (CS) 966).
7.  Justice (RetdFazal Karim writes in his book Judicial Review of Public Actions, (Volume-2, Page 1331) that "Nevertheless, the general consensus of the judicial opinion, seems to be that, in order to ensure the "elementary and essential principles of fairness" as a matter of necessary implication, the person sought to be affected must at least be made aware of the nature of allegations against him, he should be given a fair opportunity to make relevant statement putting forward his own case and to correct or controvert any relevant statement brought forward to his prejudice. In order to act justly and to reach just ends by just means the Courts insist that the person or authority should have adopted the above elementary and essential principles unless the same had been expressly excluded by the enactment empowering him to so act."
Lord Reid in Ridge v Baldwin (1963) 2 All ER 66 said:
"Time and again in the cases I have cited it has been stated that a decision given without regard to the principles of natural justice is void.......I see no reason to doubt these authorities. The body with the power to decide cannot lawfully proceed to make a decision unless it has afforded the person affected a proper opportunity to state his case."
In A.G. v. Ryan (1980) AC 718 Lord Diplock held:
"It has long been settled law that a decision affecting legal rights of an individual which is arrived at by a procedure which offends against the principles of natural justice is outside the jurisdiction of decision making authority."
8. In "Collector Sahiwal v. Muhammad Akhtar" (1971 SCMR 681) the Supreme Court of Pakistan held:
This Court has gone to the extent of pointing out that the mere absence of a provision in a statute as to notice cannot override the principle of natural justice, that an order affecting the rights of a party cannot be passed without an opportunity of hearing and also held that where the giving of a notice is a necessary condition for the proper exercise of jurisdiction then failure to comply with this requirement renders the order void and the entire proceedings which follow also become illegal.
Reliance is placed with advantage on University of Dacca through its Vice Chancellor etc. v. Zakir Ahmad (PLD 1965 SC 90), Chief Commissioner Karachi and another v Mrs. Dinao Sohrab Katrak (PLD 1959 SC 45) Amanullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others (PLD 1990 SC 1092), Mrs. Anisa Rehman v. P.I.A.C. and another (1994 SCMR 2232) and Hazara (Hill Tract) Improvement Trust through Chairman and others v. MstQaisra Elahi and others (2005 SCMR 678).
9.  Article 4 of the Constitution carries more. "Law" under the said article must reflect the constitutional ethos of a welfare sate. The principles of democracy, freedom, equality, tolerance and social justice given in the Objective Resolutions and the Preamble of the Constitution are essential ingredients of "Law" under Article 4 of the Constitution. It is obvious that our Constitution does not envisage a "Law" i.e. un-democratic, against freedom of the people, intolerant or opposed to equality and social justice. Therefore, public functionaries while exercising discretion or taking administrative actions must be constantly reminded of the principles mentioned above, so that their discretion and administrative actions are aligned with the basic fundamentals of our Constitution. To be treated in accordance with law and to enjoy the protection of law under Article 4 should be all embracing fully engulfing the spirit and fundamental principles of the Constitution of our welfare state.
10.  In the present case a pre partition law i.e., Colonization of Government Lands (Punjab) Act, 1912 has been given effect to as if this land is still a colony of the British and the public functionaries are officers of the British Raj. The public functionaries enforcing the said law forgot that colonial legacies of the past have been thrown to the wind and we are now an independent democratic country with robust and dynamic fundamental rights and watchful constitutional Courts to ensure their enforcement. PEOPLE of Pakistan and their well-being is at the heart of our Constitution and therefore the top and foremost constitutional obligation of the Government. Constitution of 1973 is, therefore, people-centric and the daily functioning of the Government can have no other goal more sacrosanct than to improve the well being of its people.
11.  Justice Bhagwati in Ramana Shetty vs. International Airport Authority (AIR 1979 SC 1628) speaking for the Court said:
It is "unthinkable that in a democracy governed by the rule of law, the executive government or any of its officers should possess arbitrary power over the interests of the individual. Every action of the executive government must be informed with reason and should be free from arbitrariness. This is the very essence of the rule of law and its bare minimum requirement".
12.  Section 32 of the Colonization of Government Land Act, 1912 states:
32. Power of re-entry in case of squatters and trespassers.--When the Collector is satisfied that any person has taken or is in possession of land in a colony to which he has no right or title, the Collector may, in addition to any other powers he may possess, forthwith re-enter upon the land and resume possession of it and take possession of all crops, trees and buildings thereon on behalf of Government without payment of any compensation whatsoever.
13.  The word "SATISFIED" in this section will be incomplete if the satisfaction arrived at by the public functionary is behind closed doors without hearing the person against whom the action is being proposed. Participation and inclusiveness is an essential part of decision making in any democratic state. Without hearing the other side, the officer cannot be said to have been SATISFIED. In particular when the action proposed is detrimental to life and property of a person. Therefore, Section 32 of the Act cannot even begin to be put in motion unless the test of procedural due process provided in Article 4 of the Constitution alongwith all its concomitant principles are first exhausted. In this case notice of dispossession under Section 32 of the Act has been issued in blatant violation of Article 4 of the Constitution and cannot be permitted. Reliance is placed on "Muhammad Sharif etc. v. A.C. Samundri, etc" (NLR 1991 Revenue 21) "Madad Ali Shah v. Revenue Minister, etc" (NLR 1991 Revenue 99), "Muhammad Zafar etc. v. Yousaf Ali, etc", (NLR 2003 Revenue 90) and "Muhammad Zafar and 23 others v. Yousaf Ali and others" (PLJ 2003 Lahore 1273).
14.  The other aspect of the matter entails the concept of HEARING. Hearing is not a mere mechanical and perfunctory ritual or a desultory cosmetic requirement that has to be hurriedly complied with. There is a deeper meaning to a hearing. Hearing first of all requires that the person against whom the action is proposed is made a part of the decision making process and the officer exercising discretion has given due weightage to the submissions made during the hearing. Additionally, in built in a hearing is the wisdom that there might be alternative choices available to resolve the problem, which can surface once the hearing takes place. As every law is in the public interest and made for the welfare of the people, this inherent and intrinsic welfare embedded in every law necessitates that alternatives or options are be deliberated   upon   in the   public  interest.  For  example,  in  this  case, dispossession might not be the only option. Once the public functionaries keep the welfare of the people supreme, they can consider a host of possibilities and alternates. In this case alone dispossession need not be the only answer. Allotment of alternate land, sale or at least grant of time to vacate the land can be possible options. It is with such sensitivity and passion that public administration wins the heart of the people and builds ownership amongst the people. However, if the public functionaries are fully satisfied after the hearing that there is no other alternative but to invoke Section 34 of the Act, the officers have all the right to proceed further subject to compliance of due process under the law.
15.  Without going into the question of the current status of the possession as the learned Law Officer submits that after the impugned orders, the possession of the land in question was taken over by the respondents. This fact is controverted by the counsel for the petitioner, who submits that the petitioners are in possession. Be that as it may, the impugned orders have been passed without due process of law as enshrined under Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, therefore, the same are set aside, Respondents are directed to grant petitioners a fair hearing and then pass a speaking order under the Colonization of Government Land Act, 1912 and the scheme prepared there under especially policy circulated vide No. 426-94/1677-CLIV, dated 25.05.1994, so that the long standing claim of the petitioners be decided within a fortnight from the receipt of this order strictly in accordance with law.
16.  This petition is therefore, allowed and the impugned orders are set aside in the above terms.
(M.S.A.)           Petition allowed.

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