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Petitioner: FAROOQ AHMAD KHAN LEGHARI AND 37 Other VS Respondent: Sh. MUHAMMAD RASHID, JUDGMENT
Court Name: Lahore High Court Judge(s): Gul Muhammad Khan, Abaid Ullah Khan Title:FAROOQ AHMAD KHAN LEGHARI AND 37 Other vs Sh. MUHAMMAD RASHID,
JUDGMENT
Reported As: PLD 1981 Lahore 159 Result: Q. Judgment JUDGMENT GUL MUHAMMAD KHAN, J.-This petition alongwith W. P. No. 1610 of 1974 contain similar facts and both involve common questions of law. They shall, therefore be decided by a single order. 2. The order being challenged in both the cases is dated 26th May, 1975 passed by the Chairman, Federal Land Commission (respondent No. 1). The petitioners 1 to 5 are declarants under the Land Reforms Regulation, 1972. They are heirs of Sardar Muhammad Khan Leghari and are joint--holders -of the estate. The petitioners 6 to 38 are the alienees. All the alienations except Mutation No. 116 had been made jointly. The Mutation No. 116 dated 24th of August, 1967 was attested at the instance of petitioner No. 5 o-;ly. 3. After the promulgation of Land Reforms Regulation, 1972, the petitioners 1 to 5 filed a joint declaration under its para. 8. It was partly accepted by the Land Commissioner, Multan. The petitioners did not challenge that order further by way of an appeal or revision. Only petitioner No. 5 filed an appeal with regard to. One Mutation No. 116 which had been earlier rejected. The appeal was accepted by the Additional Chief Land Commissioner on 7th of July, 1973 and the mutation restored. 4. On 13th August, 1973, Act No. 62 of 1973, amending the Land Reforms Regulations was passed. According to section 4-A, the Federal Land Commission, consisting of a Federal Minister, nominated by the Federal Government, to be its Chairman and not more than 3 members, to be appointed by the Federal Government, was constituted. Its functions were laid down in section 4-A(2). No power of revision was, however, conferred on the Commission at that stage. 5. .On 23rd October, 1973, the Federal Government issued a Notification under para. 29, authorising the Chairman and Members to exercise revisional powers against the orders of the Provincial Land Commission authorities. It reads as under :-
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"In exercise of the powers conferred under paragraph 29 of the Land Reforms Regulation, 1.972 the Federal Government is pleased to authorise the Chairman and Members of the Federal Land Commission for the purpose of the said paragraph 29." 6. The respondent No. 1 who was then a Minister was nominated as the Chairman of the Federal Land Commission under the above provision. The main case of the petitioners is that, as no application for revision was filed within the stipulated 60 days which expired on 13th October, 1973, all the proceedings taken and the impugned order passed thereafter, are without jurisdiction and of no legal effect. 7. On 4th July, 1974, an application was made by some tenants against petitioner No. 1 and the family of Sardar Atta Muhammad Khan Leghari who are petitioners in the second petition. It is said to have been ordered to be fixed on the same day for 24th of July, 1974, with a direction calling for the record. On notice, a number of preliminary objections were raised by the petitioners. An application to transfer the case from respondent No. 1 also appears to have been made. The respondent No. 1 disposed of all the objections vide his order dated 13th August, - 1974, and adjourned the case subject to the order of the Prime Minister on the transfer application. That order was challenged in Writ Petitions Nos. 1609 and 1610 of 1974, but the proceedings were not stayed by this Court. The matter came up before the respond.Nt No. 1 who announced his final order, now impugned in this petition, on 26th May, 1975. Writ Petition No. 1609 was consequently amended to chal)enge the final order as well. 8. The learned counsel has assailed it for the following reasons :- (i) The application (Annex. `.B') was barred by time and could not have been entertained. (ii) No time-barred application could have been utilized to take up suo motu revisional jurisdiction particularly when no such specific order was passed. (iii) No notices were given to the petitioners showing intention that respondent No. I wanted to revise the orders of the Land Commissioner and the Additional Chief Land Commissioner. (iv) The respondent No. 1 had in view of his speeches and given interest as is shown from the attached affidavits, disqualified himself to adjudicate the matter. (v) The decision of the respondent No. I while sitting singly was coram non judice as the Notification conferred powers only on the "Chairman and the Members". (vi) As the impugned order of the respondent No. 1 was malicious, biased and without jurisdiction, it could not be validated -by Ordinance XXIX of 1978. 9. The objections 1 to 3 raised by the learned counsel for the petitioners have no force whatever as discussed below and may, therefore, be rejected straightaway. Admittedly, the respondent No. 1 proceeded originally to assume jurisdiction on the application of nine tenants. It was filed against the holdings of Sardar Muhammad Khan Leghari (deceased) and his son now petitioner No. 1, on 17th April, 1974. Annexure 'C' shows that notices were issued in the name of a number of persons. The reply Annex. 'D' on behalf of only two of them includes the following preliminary objections :- (i) As the respondent No. 1 is biased against the Leghari family openly and has prejudged the issue, he has disqualified himself to decide the matter. (ii) The respondent No. I should not decide the matter till the transfer application is decided. (iii) The notice issued to the petitioners is without jurisdiction for the reasons stated. 10. The respondent No. 1 attended to all the above objections in his order dated 13th August, 1974. As for the objection No. 1 he stated that he had made the speeches, objected to by the petitioners, in his capacity as the President, Pakistan People's Party, Punjab and as a Minister of the Pakistan Government, without making any references to the cases under Land Reforms. The matter in speeches was in line with the policy of the Government and manifesto of the party and every Minister was delivering the same. He admitted that the policy of the Government aimed at eliminating the feudal and the capitalist exploitation, by way of breaking large estates and improving the well being of the peasantry by transferring them the resumed land. As for his capacity as the Chairman, Federal Land Commission, he vowed to do justice according to law.
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11. Reverting to the second preliminary objection, given in para. 8 above, the respondent No. 1 stated that he could call for the record of any case for the purpose of satisfying himself as to the legality or propriety of the order passed by the Commission or any other authority. He specifically stated that he wanted to satisfy himself about the order of the Land Commissioner validating the transfers made by the declacants. He dealt with the objection about notice and then allowed the petitioners sufficient time to defend the case. The last portion of the order may be reproduced hereunder with advantage to show that it was suo moto exercise of the power, the grounds of which had been explained and sufficient time allowed for its defence :- "The learned counsel has also contended that sufficient time was not available for the preparation of the cases as the notices were published on the 10th of August, 1974. He also urged that the grounds for the suo motu revision have not been made known to them. These are valid objections. The cases are, therefore, adjourned to 2nd September, 1974 to provide them sufficient time to prepare the cases. The learned counsel for the respondents have now been apprised of the grounds for calling for the record of cases in exercise of suo moto revisional jurisdiction as explained above." 12. Fresh notices were thereafter issued to all the concerned persons through 'Nawa-i-Waqt' dated 14th December, 1974. There is no grievance that any one of the interested persons was left out. The case had to come up on 17th December, 1974. Another notice dated 28th December, 1974 issued through 'Pakistan Times' showed that the case was fixed for 6th January and the petitioners were informed that they can inspect the record at any time before the above date. 13. On 25th January, 1975, the petitioners made another application praying that specific grounds on which the respondent No. 1 decided to proceed in the matter may also be communicated so that they knew well as to what case they had to meet. They further suggested that each one of the petitioners be served personally than throup)- the newspaper and more time be allowed to them to collect the necessary record and brief their counsel. 14. The respondent No. 1 attended to the above submissions vide his order of the same date. He observed that the onus to prove the genuineness and bona fide of the transactions rested on the declarants under para. 7 of the Land Reforms Regulation 115. He also referred to explanation 3 under the said paragraph which contained grounds to be taken into consideration. He, therefore, asked the petitioners to justify the validity of the transactions. He also assured them that more time will be allowed by him if any situation for it would crop up. Simultaneously, he observed that the petitioners had been granted number of adjournments just to meet the ends of justice and had they examined the record, they would have equipped themselves with the information needed in reply to the notices. He added that the entries of the transactions and the relevant record were suspected to be false and anti-dated and informed the petitioners to come prepared on that aspect of the case also. 15. The above facts go to show that the respondent No. 1 had abandoned his original position to proceed on the basis of the applications made by the tenants before him. On the other hand, he proceeded suo motu and did inform the petitioners of the facts that were required to be proved or considered by him. He also told them that he had called for the record under paragraph 29 of the Land Reforms Regulation and would look into the legality and propriety of the orders already passed. In this view of the matter, I do not find any justification and force in the objections (i), (ii) and (iii) raised by the petitioners. 16. The question raised at (i) and (ii) above can be looked at from another angle also with (he same result. Para. 29 provides making of an application, within a prescribed period, by an aggrieved person. Admittedly, the original applicants against the petitioners were tenants of some land. It is no where stated that they were the only tenants under the petitioners. In any case, under the Land Reforms Regulation a tenant has no right till such time the declaration of a declarant is considered and decided and he, after exhausting his right of `exchange' and `option to retain' particula land, surrenders specified or particular land. This position has been settled by this Court in Muhammad Hayatullah Khan and others v. Federal Land Commission through its Chairman and another (PLD 1977 Lah.166). At any rate, only such tenants shall be entitled to that land after the first part of the proceedings is concluded, who are occupants of that particularly surrendered land. The
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tenants/applicants thus were not persons aggrieved. The application made by them need not be within the prescribed time and any action taken on that information would be a suo nsotu exercise of power. 17. Again, the respondent No. 1 after hearing the objections of the petitioners unequivocally stated that he was exercising his suo motu powers. He gave specific notice of that intention, allowed more time and also provided them with the grounds. It is to be noted that before doing all that respondent needed some information from some source to act. This could be conveyed to him through an application or a letter by any person. The information could come to him through his subordinates or even superiors. It may be communicated to him by a friend or he may act just at random. The same view was taken in Amir Begum's case (PLD 1961 Lah.360). 1n any cace the petitioners will not be in a position to object to the source if an action was taken. 18. The learned counsel for the petitioners had also relied on a number of judgments in this regard. In the case of Ashiq Muhammad Khan Mazari (PLD 1977 Lah.46!), a learned Judge of this Court held that 'so long as an authority has not been moved by a person to act, the person, not being necessarily aggrieved himself, the authority would be deemed to have proceeded of its own motion'. It goes on that a person, particularly one who is aggrieved, moves an authority in the matter, any action taken by that authority consequent upon such application cannot by any stretch of imagination be dubed as action of "his own motion". 19. It is submitted with respect That apart from the fact that the observation is not in accord with para. 29, which lays down that only an aggrieved person could make the application for that purpose, it is also in conflict with the view taken in Amir Begum's case. It also runs counter to the principle laid down by the Supreme Court in Tufail Muhammad v. Zia-Ullan Khan (PLD 1965 SC 269). It was held in that case that if an authority possesses two different powers in the same field, he, while acting must show consciously which of the two powers he is exercising. That has been done by the respondent No. 1 in this case. He, particularly noticed that he was exercising his suo motu power, despite the said application made before him. Again, a Division Bench of this Court held in Ghulani Mehr v. Chief Land Com--missioner (PLD 1974 Lah.520) that there were valid suo motu proceedings when an application for the purpose had been made, registered and proceedings started thereon. Finally, the Supreme Court in Sahibrai's case (PLD 1957 SC 63) settled this controversy by upholding the proceedings as suo motu review in a situation similar to the one in hand. 20. So far as whether the tenants were persons aggrieved the learned counsel referred to the case of Sh. Amir- ud-Din (PLD 1968 SC 165). It was held in that case that a person, being a party to the proceedings in which impugned order was passed and having a real interest in defending an order in the collateral proceedings, which had a direct bearing on the case, had a locus standi. As said, the interest of the tenants in this case was only contingent and that too uncertain and too remote. Similarly, the Supreme Court in the case of Fazal Din (PLD 1969 SC 223) recognised the standing of that petitioner who could show that the order to be passed would result in loss of some personal benefit or advantage or curtailment of a privilege or liberty or franchise. As said above, none of the above features is available in this case. In another case of Associated Cement Companies Ltd. v. Pakistan (PLD1978SC151), the Supreme Court observed that an aggrieved person must show that his right recognised by law has been invaded or denied. 21. The third objection raised by the learned counsel was about lack of notice about what the respondent No. 1 wanted precisely to do while exercising his suo motu jurisdiction. It was argued that according to para. 29 of the Land Reforms Regulation, the respondent No. 1 should have stated in the notice itself that he wanted to scrutinize the order of the Land Commissioner instead of saying that he wanted to go into the declaration. As said in para. 13 above, the petitioners particularly required of the respondent No I in their objection to inform them of the grounds on which he had decided to proceed or wanted to satisfy himself about. 22.The respondent No. 1 in his order dated 25th January, 1975 did inform them as said in para. 14 above, that he desired to satisfy himself about the legality and propriety of the order of the Land Commissioner. He also told them that the onus lay on them to prove the genuineness of the very Transaction- as included in the declaration made by them. No specific form of notice has been laid out. Anyhow, I do not think either the intention or the purpose of law had not been carried out or the petitioners had been prejudiced in the defence of their cause. Reliance is placed on the case of Atta Muhammad Qureshi (PLD1971SC61). Reference be also made to Daris
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v. Careiv-Pole ((1956) 2 All E R 524) and Russel v. Duke of Norfolk ((1949) 1 All E R 109), which support the proposition that the petitioners must show in such a jurisdiction that their case had been prejudiced for lack of anything in such a notice. It was held there that where a party has actual knowledge of the legal and factual issues involved at the hearing and those issues are fully litigated, a party suffers, no real harm. It is to be noted that throughout his arguments before us, the learned counsel did not go to the merit of the transactions in question despite the fact that he was particularly asked if he would do so. 23. The main point which the learned counsel very strenously argued is of bias. It has been stated above at Serial No. IV of para. 8 above. In fact, the learned counsel for the petitioners built up his main case on it. He went through the relevant portions of the newspaper cuttings which are as Annex. 'E', 'E/1', 'E/2' and 'E/3' to show that respondent No. 1 publicly pronounced that he will annihilate the 'Legharis' and 'Mazaris' and that he will throw them off the People's Party though they had joined it mala fide and surruptitiously. He also declared them to be public enemies of the masses and peasants and that they will not be permitted to deceive any one. 24. The learned counsel also relied on the affidavits, Annex. F, F/l, F/2, F/3, F/4, F/5, F/6, F/7 and F/8 again to show that the respondent No. 1 was determined to eliminate all the big landlords, particularly 'Legharis' and 'Mazaries' and that he wanted to take lands from them so as to distribute the same among the peasants any petty land holders. All these deponents were the workers of the People's Party and attached to the group of the respondent No. 1. It may be noted here that the petitioners were also members of the same Party. 25. The learned counsel had relied on the cases of Ashiq Muhammad Khan Mazari (PLD 1977 Lab. 461), where a learned Single Judge of this Court inter alia held that the order of the Chairman, Federal Land Commission on precisely the same or similar facts was void as it was passed without fulfilling the pre--requisites and in violation of principles of natural justice. The learned Single Judge quoted exclusively from the Administrative Law by Garner who had cited General Medical Council v. Spaekman ((1943) 1 All E R 289 ) and Frankin v. The Ministry of Town and Country Planning (1948 A C 87). The latter was a case decided by the House of Lords. The circumstances in which it arose were that while New Towns Bill was still before Parliament the Minister responsible went to the town of Stevenage and made a rather provocative speech proclaiming his plan to designate the area as a new town in spite of objections. An inquiry was duly held, and the Minister finalised the scheme. The objectors challenged the validity of the inquiry on the grounds that the Minkter had prejudged the issue, rendering the inquiry a farce. 26. The House of Lords upheld the minister Lord Thankerton, in whose judgment all other members concurred, painted out, in effect, that 'bias' is built into the system since the minister Would hardly initiate a proposal to which he was not committed The Minioter's only duty under the Act was to hold an inquiry and give objectors a fair hearing to which no objection had been raised. His functions, it was held, are administrative rather than judicial. Lord Thankerton concluded that it had not been established that the minister had fore judged any genuine consideration of the objections or that he had not genuinely considered the objections at the later stage when they were submitted to him'. 27. It may be noted that the decision in Franklin's case as such did not help the petitioners. Reliance was placed only on the finding that there the Minister was performing administrative functions when in the case under review, they were held to be judicial or quasi judicial. It is to be noted that in English law the distinction between administrative and quasi-- judicial jurisdiction has become blurred, as even the administrative authority has to act fairly. Reference be made to In re : H. K. (An Infant) ((19677 2 Q B 617 ) R. v. Immigration Officer ((1969) 1 Q B 333,) and Re: Muhammad Arif ((1968) A I C 643). The same view is now established in our Courts, see Ikram Bus Service's case (PLD 1963 SC 564 ) 28. At any rate, applying the finding in the above case, the learned Judge concluded that the respondent Chairman was acting ,in judicial or at-least quasi judicial (and not administrative) capacity. He referred to speeches made by him at Dera Ghazi Khan saying that the 'Legharis' and 'Mazaris' had no right whatsoever in the produce from the lands which was the result of tillers' labour. He also referred to respondent claiming that if the conditions had been better when the then Prime Minister took his office no signs of the 'Jagirdars' and Capitalist would have been left by that time. He also referred to one of the affidavits where the respondent is
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alleged to have said that he will not rest content unless he distributed the lands of 'Legharis' and 'Mazaries' amongst the tillers. In view of all above, the learned Judge held that in such a situation, the respondent could not 'divorce himself from commitments in such a way "as to repel the probability of bias from a decision". Thus the question to be answered is whether the impugned decision can be quashed on the ground that there was a probability of bias ? 29. It maybe stated at the outset that the prevailing views, in this country as well as in the foreign jurisdictions, administering laws simila to Pakistan, do not permit a decision being quashed on the ground that there was a probability of bias. In R. v. Camborne Justices ((1955) 1 Q B 41 ), Slade J., reviewing the relevant case-law held that notwithstanding dicta suggesting, that mere suspicion of unreasonable persons would be enough, to establish bias on the part of a Judge, the right test is that prescribed by Balckburn J., namely, that to disqualify a person, from acting in a judicial or quasi--judicial capacity, upon the ground of interest (other than pecuniary or propriety), in a subject-matter of the proceedings, a real likelihood of bias must be shown. It is to be noted that the learned Judge, mentioned a number of cases in that country in which test of Balckburn, J. Had been applied from 1908 to 1939. The above case was approved by the Supreme Court in Mr. ZuYtqar All Bhutto v. State (PLD 1978 SC 125). 30. The same test of real likelihood has been approved by the Indian Supreme Court in Manak Lal v. Prem Chand (AIR1957SC425 ). The view taken is that it is necessary to consider whether there was a reasonable ground for assuming the possibility of a bias and whether it was likely to produce in the mind of the litigant and of general public a reasonable doubt about the fairness of the administration of justice. 31. The Supreme Court of Pakistan very recently considered the question of bias in the case of Zulfiqar A.I Bhutto v. State (PLD1979SC53). The appellant therein had raised allegation of bias, partiality and prejudice against the learned Acting Chief Justice who led the Bench which convicted and sentenced him to death. The details of allegations which pertained to period prior to and during the trial are given in para. 856 of the judgment. The effect of the allegations was considered in paras. 856 to 911 to see if they could have influenced the judgment at all. In para. 908 their Lordships approved the law laid by the Federal Court in Anwar v. Crown (PLD 1955 FC 185). In para. 913 of the report a few judgments of the Supreme Court were referred to lay down a true test of bias. It was ruled that "mere suspicion of bias, even if it is not unreasonable, is not sufcient to render a decision void. A real likelihood of bias must be established." So a mere apprehen--sion, in the mind of a litigant that he may not get justice, such as is based on inferences from circumstances, is not sufficient. The conclusion arrived at in para. 915 may be reproduced with advantage to show that their Lordships tested the result of the so-called biased mind to ascertain if any extraneous or subjective consideration at all went in. To reach that end their Lordships also laid aside, the till then established principle that even if one out of a body, considering a matter, was disqualified for any reason, the entire deliberation vitiated :- (6) PLD 1977…
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