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Petitioner: Atif Riaz VS Respondent: Federation of Pakistan Through Secretary Ministry of Religious JUDGMENT
Court Name: Lahore High Court Judge(s): Mirza Viqas Rauf Title:Atif Riaz vs Federation of Pakistan Through Secretary Ministry of Religious
JUDGMENT
Reported As: 2022 LHC 1743 Result: Petition Dismissed Judgment JUDGMENT . Mirza Vipas Rauf, J. This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter to be referred as "Constitution ") is in the form of writ of certiorari seeki ng annulment of the order dated 12th August, 2021, whereby respondent No.3 proceeded to cancel the lease of the petitioner . WRIT OF CERTIORARI 2. Before touching merits of the case, it would be advantageous to peep in the legislative history of writ of certiorari. The "Constitution", though in specific words, does not define the word "Certiorari" but the literal meaning of word "Certiorari" is "to be certified". Furthermore though in the "Constitution", the word 'certiorari' has not been used, it seems that, subject to important qualifica tions, this clause of the Article was intended to confer on the High Courts a jurisdiction similar to that which the King' s Bench Division of the High Court in England exercised in certiorari. Certiorari jurisdiction as already stated is based on the principle that wherever judicial jurisdiction is exercised by an inferior Court or Tribunal, it is, in cases of abuse or excess, liable to be corrected by the King' s Bench Division of the High Court; in other words, the High Court, as a delegate of supreme judicial authority from the Sovereign, is liable for keeping inferior Courts or tribunals exercising judicial power within the limits of their jurisdiction. 3. The first example of its use is found in the printed records in a letter written in 1252, from Henry III to the Mayor of Bordeaux, expressing' s readiness to be informed of the grievances of his subjects in that city. As observed by Mr. Justice Scrutton, "the writ of certiorari is a very old and high prerogative writ drawn up for the purpose of enabling the Court of King' s Bench to control the action of inferior Courts and to make it certain that they shall not exceed their jurisdiction; and therefore the writ of certiorari is intended to bring into the High Court the decision of the inferior tribunal, in order that the High Court may be certified whether the decisi on is within the jurisdiction of the inferior Court".
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4. Article 199(1)(a)(ii) of the "Constitution" deals with the writ of certiorari, which reads as under:- 199. Jurisdiction of High Court. (1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law- (a) on the application of any aggrieved party , make an order-- (i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority , to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or (ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal ef fect; or (b) on the application of any person, make an order-- (i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or (ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that of fice; or (c) on the application of any aggrieved person, make an order giving such directions to any person or authority , including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II. (underlining supplied for emphasis) It is manifest from the above that through a writ of certiorari, a High Court on the one hand is vested with the power to correct the errors committed by the inferior Courts or Tribunals and on the other hand to annul the acts or proceedings taken by the inferior bodies without any lawful authority . 5. The order of certiorari issues out of High Court, and is directed to the Judge or officer of an inferior tribunal to bring proceedings in a cause of matter pending before the tribunal into the High Court to be dealt with in order to ensure that the applicant for the order may have the more sure and speedy justice. It may be had in either civil or criminal proceedings. The Court issuing a writ of certiorari acts in the exercise of a supervisory and not appellate jurisdiction. As regards the character and scope, certiorari will be issued for correcting error of jurisdiction. In order to explain it more precisely , it can be said that writ of certiorari can be issued in the following circumstances: - (i) when an inferior Court or tribunal acts without jurisdiction or in excess of it or fails to exercise it. (ii) when the Court or tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (iii) if there is an error apparent on the face of the record. Guidance in this respect can be sought from "AUQAF DEPARTMENT through Chief Administrator Auqaf, Punjab, Lahore v. SECRET ARY, MINISTR Y OF RELIGIOUS ZAKA T, USHAR AND MINORITIES AFFAIRS GOVERNMENT OF PAKIST AN, ISLAMABAD and 3 others" (2009 SCMR 210). The relevant extract from the same is reproduced below: - 8. As discussed in preceding paragraphs, there are two different kinds of property , one `Muslim Waqf Property' defined in section 2(e) of the Punjab Waqf Properties Ordinance, 1979 and the other `evacuee trust property' defined in section 2(1)(d) of the Evacuee Trust Properties (Management and Disposal) Act, 1975. These two properties can be maintained by the concerned functionaries/ authorities under the relevant provisions of law. The Admini strator Auqaf is not competent to take over possession, control and management of the `evacuee trust property', rather it is the Chairman, Evacuee Trust Property Board, who is competent for the same. Learned counsel for the petitioner has not been able to controvert the above provisions of law. The High Court has validly observed that the question as to whether the transfer in 1960 was or was not `bona fide' cannot be determined because it was not a questi on of law. The High Court has competently dismissed the writ petition as findings recorded by the responde nt/authorities being based on
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appreciation of evidence could not be interfered with by the High Court in exercise of "extraordinary" constitutional jurisdiction and in regard to finding of fact recorded by the respondent writ of "certiorari" could only be issued, if in recording such findings, the respondent had acted on evidence which was legally inadmissible or had refused to accept admissible evidence or if the findings were not supported by any evidence at all. If in such cases error would amount to error of law. Even otherwise, where there are factual controversies, this Court would also not interfere with the concurrent findings of facts recorded by the lower fora. The impugned order having not suffered from any such infirmity or illegality calling for interference by this Court. 6. In the case of RAHIM SHAH versus THE CHIEF ELECTION COMMISSIONER OF PAKIST AN AND ANOTHER (PLD 1973 Supreme Court 24) the Hon'ble Supreme Court of Pakistan also outlined the scope of writ of "certiorari" in the following words:- "It may be further observed that although the conditions for grant of certiorari which obtain in English Courts do not apply to High Courts in Pakistan at the same time the extent of this constitutional jurisdiction cannot be enlarged to an appeal on facts, or questions of law. An appeal is a creation of statute and if no appeal is provided by the Legislature the determination of a tribuna l of exclusive jurisdiction is final. The scope of interference in the High Court is, therefore, limited to the inquiry whether the tribunal has in doing the act or undertaking the proceedings acted in accordance with law. If the answer be in the affirmative the High Court will stay its hands and will not substitute its own findings for the findings recorded by the tribunal. Cases of no evidence, bad faith, misdirection or failure to follow judicial procedure, etc. are treated as acts done without lawful authority and vitiate the act done or proceedings undertaken by the tribunal on this ground. Where the High Court is of opinion that there is no evidence proper to be considered by the inferior tribunal in support of some point material to the conviction or order , certiorari will be granted." 7. This Court in the case of BASHIR AHMAD KHAN versus ADDITIONAL SESSIONS JUDGE and others (2020 MLD 42 ) also observed as under:- "7 .............The person invoking the Constitutional jurisdiction under the above Article seeking issuance of writ of certiorari, by way of setting aside the order , has to show that the order , under challenge, violates the condition mentioned in the above provisions of the Constitution, that the authority/court/tribunal was denuded of jurisdiction whatsoever to pass the order or that the order impugned is unsustainable on account of being result of extremely , improper exercise of jurisdiction or has clearly been passed in violation of any provisions of law or is product of excess or failure of jurisdiction, by the tribunal or that some principle of law laid down by the superior courts, which under Article 189 of the Constitution is binding on the subordinate courts has been violated. The scope of interference by the High Court is, therefore, limited to the inquiry whether the tribunal has in doing the act or undertaking the proceedings acted in accordance with law. If the answer be in the affirmative the High Court will stay its hands and will not substitute its own findings for the findings recorded by the tribunal. Cases of no evidence, had faith, misdirection or failure to follow judicial procedure, etc. are treated as acts done without lawful authority and vitiate the act done or proceedings undertaken by the Tribunal on this ground." 8. In the nutshell under the above referred article of the "Constitution", a High Court is empowered to interfere in all cases of excess of jurisdiction, whether the person exceeding jurisdiction is a Court, a judicial or a quasi-judicial body or a purely executive or administrative Tribunal or officer, provided such body , authority or officer is performing functions in connection with the affairs of the Federation, a Province or a Local authority . It is trite law that a writ of certiorari cannot be used as a substitute of appeal or revision as its scope is limited and circumscribed to the eventualities noted hereinabove. FACTUAL BACKGROUND 9. In order to lease out property bearin g Khasra No.2546/139-140 measuring 4-Kanal 3-Marla 18 square feet situated at Dhoke Dalal, Rawalpindi (hereinafter to be referred as "lease property"), an advertisement was published by the Deputy Administrator Evacuee Trust Property , Rawalpindi (respondent No.3) in prominent newspapers inviting bids from the interested persons. The petitioner participate d in the open auction and was declared as successful bidder against the total consideration of Rs.4 crores 46 lacs, which was accordingly
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deposited. In pursuance thereof, a lease agreement dated 18th September , 2017 was executed between the petitioner and the Evacuee Trust Propert y, Government of Pakistan through the Assistant Administrator Evacuee Trust Property , Rawalpindi initially for a period of 30 years and possession was handed over to the petitioner . The petitioner then applied for the commercialization of the "lease property" to respondent No.5 after obtaining the no objection certificate (NOC) from the Evacuee Trust Property Board. The comm ercialization was accorded on receipt of commercialization fee of Rs.89,05,104/-. It is claim of the petitioner that after commercialization of the "lease property" he also submitted a building plan before respondent No.5 and when he was intending to raise a commercial building, his lease has been cancelled through order dated 12th August, 2021 with malafide intent and under political motivation. 10.In the light of averments in the petition and after hearing learned counsel for the petitioner , the petition was admitted for regular hearing vide order dated 26th August, 2021. In order to resist the petition, the respondents submitted their report & parawise comments wherein it is asserted that the lease has been cancelled in exercise of powers under Section 25 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 (hereinafter to be referred as "Act, 1975") as it was to be utilized for public purpose. ARGUMENTS 11. In support of this petition Malik Qamar Afzal, Advocate submitted that lease of the petitioner has been cancelled in colourable exercise of the jurisdiction. He added that "lease property" was initially not included in the list but on account of political considerations it was later on made part of list to victimize the petitioner . Learned counsel emphasized that the impugned action of the cancellation of lease is unilateral and even no notice was served to the petitioner , enabling him to explain his position. It is argued that cancellation of lease in such a manner is neither permissible under Section 25 of the "Act, 1975" nor the scheme framed thereunder . Learned counsel contended that impugned action has been taken in pursuance to notification dated 27th May, 2021 which cannot be given effect retrospectively . He further contended that the impugned order is the outcome of malice in fact. In order to supplement his contentions, learned counsel has placed reliance on ABDULLAH and 7 others versus PROVINCE OF BALOCHIST AN through Secretary Education Civil Secretariat and another (2021 PLC (C.S.) 272), SUO MOTU CASE NO.13 OF 2009 (PLD 2011 Supreme Court 619) and Dr. Mrs. NASIM QURESHI versus DEPUTY ADMINISTRA TOR, EV ACUEE TRUST PROPER TY, KARACHI and another ( 1987 CLC 213 ). 12. On the contrary , Mr. Sajeel Shahryar Swati, Advocate representing respond ent No.1 submitted that "lease property" was admittedly an evacuee property and as it was required for public purpose, so in order to utilize the same for the said purpose, lease was cancelled in accord with law. Learned counsel submitted that the petitioner being lessee has no vested right to seek protection of the same through constitutional petition. Learned counsel further submitted that due compliance to Section 25 of the "Act, 1975" has been made and even if there was some lapse that is curable because said provision was not mandatory . Learned counsel contended that matter in issue falls within the policy making domain of executive, which cannot be subjected to scrutiny under the constitutional jurisdiction. Learned counsel submitted that notification dated 27th May, 2021 was issued in exercise of powers conferred under Section 26 of the "Act, 1975". It is contended that case of Dr. Mrs. Nasim Qureshi' s supra is quite distinguishable. In order to supplement his contentions, learned counsel has placed reliance on FOOD CORPORA TION OF INDIA and others versus JAGANNA TH DUTT A and others (1993 SCMR 2249 ), Mian RAFI-UD-DIN AND 6 OTHERS versus THE CHIEF SETTLEMENT AND REHABILIT ATION COMMISSIONER AND 2 OTHERS (PLD 1971 Supreme Court 252), MUHAMMAD ISHAQUE CHOWDHUR Y AND ANOTHER versus NUR MAHAL BEGUM AND OTHERS (PLD 1961 Supreme Court 426) and KALUA versus THE STATE OF UTT AR PRADESH (PLD 1958 Supreme Court (ind.) 347). 13. Learned Law Officers representing the Federation as well as Province and learned counsel for respondents No.2 to 4 adopted the arguments advanced by learned counsel for respondent No.1. 14. On the contrary , Mr. Muhammad Naeem Siddique Bhatti, Advocate representing respondent No.7 submitted that his client moved a petition under Section 10 of the "Act, 1975" which is still pending. He added that pending reference, any decision on this petition would prejudice the rights of his client. 15. Heard. Record perused.
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FINDINGS 16. Before dilating upon the matter in issue it would be expedient to observe that from the facts and respective contentions of learned counsel for the parties, there emerges two moot points which require determination of this Court which are as under:- (a) Nature and scope of Section 25 of the "Act, 1975", and (b) competency of constitutional petition under the lease agreement. 17. As regards point (a) it is observed that the petitioner after being declared as highest bidder in the open auction was bestowed with the leasehold rights of the "lease property" through lease agreement dated 18th September , 2017 initially for a period of thirty years and possession was handed over to him. After obtaining the property on lease, the petitioner applied for its commercialization before respondent No.5 on obtaining a no objection certificate (NOC) from the Evacuee Trust Property Board but in the meanwhile a drive was initiated by the Prime Minister of Pakistan to promote the education and health services in the country as a sequ el of which the Federal Cabinet after considering summary dated 24th February , 2020 directed the Secretary , Religious Affairs & Interfaith Harmony to finalize immediately all the requirements, including framing of Rules for utilization of Evacuee Trust Property Board' s Urban lands for the purpose of education and health. Later on, the Federal Cabinet accorded the approval of utilization of evacuee trust properties/lands for education and health purposes in principle. In furtherance thereof, through notification No.S.R.O. 71 (KE)/2020 dated 09th October , 2020 in exercise of the powers conferred by Section 30 of the "Act, 1975" the Evacuee Trust Property Board, with the prior approval of the Federal Government introduced certain amendments in the Scheme for the Management and Disposal of Urban Evacuee Trust Properties, 1977 (hereinafter to be referred as "Scheme, 1977"). The amendments include clause 18-E as well, which reads as under :- "18-E Development of and evacuee trust land for education and health purpose for public sector and Government philanthropic institutions:- If use of evacuee trust rural or urban agricultural land or property is declared for public purpose, by the Federal Government and is required to be developed for educational and health purpose the following procedure shall be adopted by the Board, namely:- (a) request for lease by the Federal Government, or the Provincial or Local Government as the case may be, shall be addressed to the Division to which business of the Act stands allocated; (b) terms and conditions, monthly rent and goodwill money and non refundable security shall be determined by the Board on case to case basis; and (c) final approval shall be granted by the Federal Government." This followed issuance of notification No.S.R.O. 691 (I)/2021 dated 27th May, 2021 whereby the Federal Government in exercise of powers conferred under Sections 26(1) of the "Act, 1975" delegated its powers in respect of Sections 4, 11, 12, 23, 25, 29 and 30 of the said Act to the Minister-in-charge of the Division to which business of the evacuee trust property stands allocated. In furtherance whereof, the Minister of Religious Affairs and Interfaith Harmony vide notification dated 14th July, 2021 proceeded to declare fifty seven evacuee trust properties/lands to be utilized for public purpose including the "lease property". In furtherance of above development the Evacuee Trust Property Board proceeded to cancel the lease of the petitioner by way of order dated 12th August, 2021 and approved the process for reimbursement of non-refundable security to the petitioner . The Finance Department Government of the Punjab through letter dated 24th August, 2021 sanctioned and released an amount of rupees 88,000 million through technical supplementa ry grant for the scheme titled "Establishment of Govt. Associate College for Women, Dhoke Dalal, Rawalpindi". It is, however , not disputed by the respondents that initially fifty seven properties were earmarked in which "lease property" was not included and it was added in the year 2021. 18. In order to comprehend the true import and scope of Section 25 of "Act, 1975" same is reproduced below:- "25. EJECTMENT :- The Chairman, an Administrator , a Deputy Administrator , or an Assistant Administrator may eject or cause to be ejected any person in possession or occupation of any evacuee trust property whose possession or occupation is
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not authorized by or under any of the provisions of this Act or who contravenes or may have contravened any of the terms and conditions under which the property is held by him, or who has failed to pay public dues, or has wilfully caused damage to any such property , or any person in occupation or possession of any evacuee trust property which is required for an object which is considered to be a public purposes by the Federal Government, after giving him notice, and for the purpose or such ejectment may use or cause to be used such force as may be considered necessary ." From the bare reading of Section 25 it is manifestly clear that the Federal Government is competent to eject any person in possession or occupation of any evacuee trust property if it is required for an object, which is considered to be for public purpose. 19. Power of the Federal Government to eject the petitioner from the "lease propert y" is even not seriously disputed by the petitioner . The impugned order of cancellation is mainly questioned on two grounds; firstly that ejectment cannot be equated with the termination of lease and secondly that no notice as was required under Section 25 of the "Act, 1975" was ever served to the petitioner . It is oft repeated principle that preamble of a statute always plays a leading role for understanding its object and scope. As per preamble of the "Act, 1975" it was promulgated to provide for the management and disposal of evacuee trust properties attached to the charitable, religious or educational trusts or institutions. With all reverence to the principles laid down in the cases of ABDULLAH and 7 others versus PROVINCE OF BALOCHIST AN through Secretary Education Civil Secretariat and another (2021 PLC (C.S.) 272), SUO MOTU CASE NO.13 OF 2009 (PLD 2011 Supreme Court 619) supra relied upon by learned counsel for the petitioner , it is observed that said principles are hardly attracted to the present case and as such reliance on the said judgments is of no avail to the petitioner . 20. Now coming back to Section 25 of the "Act, 1975" in the light of preamble it can safely be inferred that the evacuee trust properties are mainly meant to charitable, religious and educationa l purposes. The question as to whether a property is required for public purpose exclusively falls within the domain of Federal Government. 21. So far contention of learned counsel for the petitioner that the word "ejectment" does not include the termination; suffice to observe that it is apparently misconceived in the light of definitions of the word "eject" provided in the Advanced Law Lexicon 5th Edition and Black' s Law Dictionary Tenth Edition, which read as under:- Advanced Law Lexicon 5th Edition "Eject. To send away; to thrust out. As applied to a person to compel him against his desire to leave a place. To evict from property [Ss. 1 12, Prov . And 1 14, T.P. Act (4 of 1882]; to throw out [S. 443, I.P .C. (45 of 1860)]" Black' s Law Dictionary T enth Edition "eject , vb. (15c) 1. To cast or throw out. 2. To oust or dispossess; to put or turn out of possession. 3. To expel or thrust out forcibly (e.g., disorderly patrons). --- ejector , vb." The ultimate consequence of ejectment and termination is thus similar and akin. 22. Attending the second limb which is relatable to non-issuance of notice, it is observed that in the light of well- entrenched principles of interpretation of statutes a provision of law can only be termed as mandatory when on account of its non-compliance some penal consequences are also provide d. In absence of any penal consequences generally such provision can be treated as directory . Guidance in this respect can be sought from The STATE through Regional Director ANF versus IMAM BAKHSH and others (2018 SCMR…
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