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Petitioner: CHAIRMAN, FEDERAL LAND COMMISSION And Another VS Respondent: SARDAR ASHIQ JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Mian Burhanuddin Khan, Muhammad Afzal Zullah, Shafi-ur-Rehman Title:CHAIRMAN, FEDERAL LAND COMMISSION And Another vs SARDAR ASHIQ
JUDGMENT
Reported As: 1985 SCMR 317 Result: Case remanded Judgment JUDGMENT MIAN BURHANUDDIN KHAN, J.--Leave was granted per orders of this Court, dated 27-6-1977, 10-11- 1980 and 16-11-1980 against the judgments and orders of the Lahore High Court dated 22-2-1977 and 20-9-1980 passed in Writ Petitions Nos. 1609/74, 1610/74 and 2411/75 respectively. As the points raised in the above-mentioned appeals are the same, this consolidated judgment will, therefore, dispose of all the three appeals. 2. In its order dated 22-2-1977 the learned Bench of the Lahore High Court held that the powers of revisional jurisdiction under paragraph 29 of Martial Law Regulation No. 115 (hereinafter referred to as the Regulation) were conferred on the "Chairman and the Members" of the Federal Land Commission as a whole and, therefore, the Chairman, sitting singly, had no jurisdiction to exercise the powers under paragraph 29 of the Regulation and pass the impugned orders; that under the same paragraph the Federal Land Commission could exercise the powers either suo motu or on the application of an. Aggrieved person filed "within the" and the Federal Land Commission had no lawful authority to entertain revision on a the-barred application made by Sind Chungli, respondent No.5 and pass the impugned orders on its basis, and finally that Sind Chungli was not an 'aggrieved person'. It was further observed in the same order that the appellant had made a number of speeches against the families of respondents Nos. 1 to 4 in connection with the land in dispute, and therefore, he was not competent to sit in judgment over these cases as he had bias against them. 3. Petition for special leave to appeal from the said order of the learned High Court, dated 22-2- 1977, was filed wherein leave was granted by this Court vide aforesaid order, dated 27-6-1977
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finding that questions of general importance as to the interpretation of para. 29 of the Regulation and Notification 7/18/72/Cord-1, dated 23-10-1973 concerning the powers and jurisdiction of the learned Chairman, Federal Law Commission are involved. 4. Facts relating to the appeal are that the respondents had filed declaration forms under Regulation 115 in respect of the land owned and possessed by them. The Punjab Land Commission authorities took cognisance of the declaration and proceeded according to the Regulation and passed certain orders in January/ February, 1974. The final order in favour of the respondents was made by the learned Chief Land Commissioner accepting certain alienations made by the respondents to be genuine under the Regulation. After the final order was passed, Sindhu Chungli, a resident of Bungalow Ichha, Tehsil Rajanpur, District Dera Ghazi Khan, where the lands in dispute belonging to the respondent were located, filed certain objection. On the basis of this objection the Federal Land Commission i.e. The appellant issued a notice in the Press on 10-8-1974 calling upon the respondents Nos. 1 to 4 to appear before him on 13-8-1974. This notice was issued in the exercise of the powers of revisional jurisdiction claimed by the appellant. On the date of hearing, respondent No. l having been served, filed preliminary objections to the effect: (a) That substituted service by publication in newspapers could be resorted to only after it was found, and so recorded, that the person concerned was deliberately avoiding personal service. Appellant had no authority to have ordered substituted service in the first instance without making any attempt to serve the respondent according to the normal procedure. It was further stated that the appellant was acting mala fidley particularly because of the unnecessary haste shown by him in the matter of service; (b) The notice having been published on 10-8-1974 the appellant should have ordinarily given enough the i.e. At least one month to enable the respondent to appear before the appellant Federal Land Commission. The notice, however, directed them to appear within to days i.e. On 13-8- 1984 on the pain of being proceeded ex parte. Mala fide was alleged on this basis also; (c) No specific charges regarding any irregularity or illegality committed by the respondent that they were supposed to answer on 13-8-1974, were mentioned in the notice issued; and (d) the appellant Federal Land Commission had already prejudged the issue by making public announcement that he would resume the land from the respondents and their families, and would distribute the same among the tenants. The appellant (the then Federal Minister for Food and Agriculture) also condemned the aforesaid families while making this declaration in public and the newspapers had duly taken notice of it. It was alleged on the basis of this averment that it would be a denial and breach of the principle of natural justice relating to 'bias' if the learned Chairman, despite his conduct vis-a-vis the respondents, heard the case and disposed, it, and lastly; (e) that the revisional jurisdiction of the Federal Land Commission was exercisable only qua an order passed by the authority subordinate to it. The scrutiny of declaration forms was outside the pale of its authority where for the notice was shorn of jurisdiction and was a nullity. 5. The appellant disposed of these objections by an order of even date in which he took up the stand that he held several positions namely President of the Pakistan People's Party (Punjab); Minister of the Government of Pakistan and it was in the latter capacity that he held a dual position since he was also the Chairman of the Federal Land Commission. It was also claimed by the learned appellant that he made the so-called offensive speeches (copies Exh. R/A and R/B) in his capacity as President of the Party and as Minister of the Government of Pakistan, and his speeches reflected the Party manifesto and the Government---s policy aimed at eliminating the feudal and capitalist exploitation. According to the appellant the very mature measure of the Land Reforms is aimed at breaking up of large estates and improve the economic well-being of the peasantry by transferring to them the resumed land. It was also held by the learned appellant, in the impugned
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order, that he had delivered the speeches before he assumed the office of the Chairman, Federal Land Commission and they did not stand in his way in deciding the cases on their own facts. 6. Learned counsel appearing for the appellant contended that the learned High Court Judges in their impugned order, did not correctly interpret the wording of Notification No. 7/18/72/Cord. I, dated 23-8-1973 whereby the Chairman and the Members fan at under suo motu powers. These words do not convey the sense the learned High Court has held to mean. The wording as it is, can only give the meaning that either the Chairman or the Members can exercise the powers under paragraph 29 of the Regulation and the wordings of the Notification cannot be interpreted that the Chairman and the Members sitting together can only exercise the powers; that the learned High Court Judges have wrongly assumed that while interpreting the rules of the Federal Land Commission framed in 1974 where the Chairman has the power to distribute his work among the Members of the Federal Land Commission, has wrongly assumed that the Chairman and Members of the Federal Land Commission were the delegates of the Federal Government. In fact the Chairman and Members were the persons authorised under paragraph 29 of the Regulation and after the issuance of the aforesaid Notification, the learned Federal Land Commissioner has exercised powers not as delegatee of the Federal Government but his own powers given to him by the statute itself. The mere fact that these authorised persons were to be appointed by the Federal Government did not convert them as delegatees which has entirely a different connotation and as such the finding of the learned High Court Judges that a delegatee could not further delegate his powers, does not hold water. It was further contended that the learned High Court had fallen into an error in holding that on the information of a private person the suo motu powers could not be exercised as Sindhu Chungli was an aggrieved person. In fact he was not so because he was neither a party before the Provincial Land Commission nor he had any subsisting interest in the property in dispute. The mere fact that he was a tenant under respondent No.4 did not make him an 'aggrieved person'. A tenant would become 'necessary' or an 'affected party' only if the surplus land is resumed from the landlord and the same being in possession of the tenant, is allotted to him. In the instant case it is contended by the learned counsel for the appellant that these conditions were not present and the status of Sindhu Chungli was nothing more than that of an 'informer'. Lastly the learned counsel vehemently argued that the learned High Court Judges, in their impugned order, have wrongly held that the appellant was biased against the respondents Nos. 1 to 4. They have not appreciated the stand taken by the appellant that he had three different capacities; one as President of the Pakistan People's Party (Punjab); second as Minister of the Government of Pakistan and the third as the Chairman, Federal Land. Commission, and the speeches alleged to have been made by him against the respondents Nos. 1 to 4 were not made specifically against them. Moreover, these speeches were made prior to the appellant's appointment as Minister and Chairman of the Federal Land Commission and the names of the respondents were only the symbol of the feudal system. Therefore, it cannot be said that the order of the learned Chairman (appellant) was the result of 'bias' unless it was found that this alleged bias found its way in the judgment of the appellant or in any way this alleged bias affected the merits of the case. The bias as such cannot be taken isolated from the at done in regard to which the bias is pleaded and it should have been demonstrated that respondents Nos. 1 to 4 have been the victims of this 'bias' inasmuch as that the cases had been decided against them not on merits but only on the basis of personal bias or prejudice against the respondents. 7. It was further contended by the learned counsel for respondents Nos. 1 to 4 that the respondents had pleaded a number of facts in order to demonstrate the bias and mala fide of the petitioner and the respondents had pleaded that a substituted service was resorted for no good reason, sufficient notice was not given and 'unholy haste' has been shown by the petitioner to decide the case, the notices did not contain the charges against respondents Nos. 1 to 4. One of the
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respondents, who was sick and getting treatment in a hospital at London, was not afforded sufficient opportunity. 8. According to the learned counsel for the appellant all the above--mentioned allegations have not been accepted by the High Court as correct; respondents Nos. 1 to 4 failed in demonstrating the factual bias and the circumstantial evidence proving bias in the proceedings, the High Court was not justified to hold that the appellant was not qualified to sit in, judgment in the case of respondents Nos. 1 to 4 merely because he had made certain political speeches symbolising the big landlords including Leghari and Mazari tribes. It was argued that names of respondents Nos. 1 to 4 were not mentioned in any of these speeches, and the appellant was not even the Chairman of the Federal Land Commission at that the. The context in which these speeches were made, was not sufficient to prove bias on the part of the appellant; respondents 1 to 4 were given full opportunity of being heard; their all reasonable requests were accepted and the case was heard in open Court and decided judiciously. Even if it assumed for argument sake that the appellant was in fact biased against the respondents, unless it was proved that it resulted in a wrong decision on merits, the order of the appellant could not be branded as mala fide. If such an interpre--tation of bias and mala fide is accepted that would lead to an absurd conclusion allowing the respondent's 1 to 4 to commit patent irregularities only because there is an allegation of bias against the appellant. 9. Examining the above-mentioned arguments, we refer to the judgment of the Lahore High Court, dated.22-2-1977 on the objection as to the service on the ground that the C.P'.C. Was not applicable and that the measure of Land Reforms being revolutionary measure, their implementation has to be expedited it was declared that rules framed under sub-para. (3) of para. 4-A of M.L.R. 115 made service through notice published in any of the newspapers, sufficient. It was also observed in the order of the Chairman, Federal Land Commission that as a matter of abundant caution, the Deputy Commissioner had also been directed to effect personal service and it was found that since the petitioner was present and no ex parte proceedings had been taken, this objection did not hold any water. However, because of the objection that the notice was to short, the learned Chairman adjourned the case to 2-9-1974 with a view to provide enough the to the petitioners (respondents before us). In the impugned judgment the learned High Court Judges observed: "The question whether respondent No.1 could have ordered service of summons on the petitioners through post, loses its importance by the fact that the petitioners presented themselves before respondent No.1 on the first date of hearing, fixed by him either personally or through counsel. They cannot, therefore, claim to have suffered any prejudice from the irregularity alleged by them to have been committed by respondent No.1. In the absence of such prejudice the petitioners do not have any cause of notice on that score. It would have been a different matter if the petitioners had remained ignorant of the notices published in the newspaper and had consequently, absented themselves from the hearing leading to an ex parte order against them. That had fortunately not happened." 10. The next question, which the learned High Court Judges dealt with, is regarding the competency of the Chairman Federal Land Commis--sion sitting alone and passing the impugned order. After referring to various Land Reforms and also M . L . R . 115 it was held "I have, therefore, no choice but to hold that the authority delegated under the Notification under paragraph 29 was not exercisable by the Chairman sitting singly and orders passed by him in the present case are, therefore, completely devoid of jurisdiction. My answer to this problem is, therefore, in favour of the petitioners." but this question does not require any detailed discussion in this judgment as this Court has already held that all orders passed by Chairman or by a Member of the Federal Land Commission
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stand validated under the provisions of Ordinance No. XXIX of 1978 (Validation of Orders) Ordinance, 1978. 11. Coming to the main question of bias the learned High Court Judge referred to 'the speech delivered by the Minister on the 24 October, 1972 at Dera Ghazi Khan which clearly contained hatred against particular persons including the respondents and these speeches were extremely super-charged with emotion of hatred against inter alia, the respondents. A reference .Was made to 'Administrative Law' by Garner (pages 105 and 108) and it was held that these facts singly and taken together, present a clear picture of 'bias' in the appellant. Accordingly, the learned High Court accepted the petition; set aside the order passed by the appellant on 13-8-1974 and declared the same, to be without lawful authority and of no legal effect and all subsequent orders passed in the proceedings in which jurisdiction was assumed on the basis of the rejection of the objections of the respondents in the order, dated 13-8-1974 were struck down. 12. Learned counsel for the respondents argued that a question had been raised as to whether a person advocating a particular policy because he is committed to it, could be said to by biased when deciding a case in which that policy is involved. It may be correct to say that the appellant had to implement the policy enshrined in M.L.R. 115 but it is equally, if not more, correct to qualify that statement by saying that while implementing the policy and deciding the cases under M.L.R. 115 he could not discard the judicial approach which was absolutely essential. 'This distinction seems to have escaped the notice of the appellant when dealing with the case of the respondents. The learned counsel referred to a book entitled 'Administrative Law' Sixth Edition by K.C. Davis whose paragraph 372 at page 351 reads: "The British Committees on Ministers' powers at page 78 of its 1932 report said: 'Bias from strong and sincere conviction as to public policy may operate as a more serious disqualification than pecuniary interest. The Judge ought to be free to decide on purely judicial grounds and should not be directly or indirectly influenced by, or exposed to the influences of, either motives of self-interest or opinions about policy or any other considera--tions not relevant to the issue." He also referred to the above-named author's own views on the subject as given in paragraph 376 at page 352 of the same book, as follows: "To prepare a word formulation which will usefully locate the line or zone between a proper attitude on policy issues and an excessive zeal that should disqualify is quite difficult. What changes do you believe should be made in the following effort of the editor to do this? 'This is far from saying that law should be administered by zealots or crusaders who lack perspective or stability. Judgment must of course be guided by intellectual perception, not by emotion; performance of judicial tasks necessarily calls for integrity, character, and ability. The administrator's belief in the cause he is furthering, even though that cause has won legislative approval, must not overpower the recognition of competing interests. Sincere conviction should not be so steadfast as to shut out enquiry and re-examination. Belief must hot be so unyielding as to smother the contributions that alert -practical administration may make to the moulding and remoulding of policy. And yet a dominant point of view or bias may appropriately colour all activities, including even the fact -- finding function. Thoroughly conscientious mean of strong conviction may sometimes interpret evidence to make findings which indifferent men would not make. The theoretically ideal administrator is one whose broad point of view is in general agreement with the policies he administers but who maintains sufficient balance to perceive and to avoid the degree of zeal which substantially impairs fair-mindedness." The learned counsel, therefore, submits that: (i)personal malice or bias disqualifies; and (ii)excessive zeal in prosecuting a policy and losing perspective and stability also disqualifies.th
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He contended that the present respondents' case is that the appellant had personal malice and bias against them and further that he showed excessive zeal in prosecuting the policy which he claims to Advocate in a manner which divested him of all sense of proportion, perspective, stability and other qualities requisite for deciding the case in a judicial and judicious manner. The' learned counsel then referred to a decision of this Court in Ghulam Rasul v. Crown PLD 1951 FC 62 wherein it has been observed at page 67: "A consideration of the principles underlining the various decisions cited at the Bar lead us to the conclusion that nothing) should be allowed to happen in a case which may give rise to s reasonable apprehension in the mind of an accused person that he would not or did not have a fair trial. It is essential, as had been said in a large number of cases, that 'justice must not only be done but must manifestly be Seen to be done". 13. The learned counsel also referred to Khair Din's case PLD 1953 FC 223 which was expressly overruled in PLD 1955 FC 185 i.e. Anwar v. Crown i.e. The principles relating to bias in a Judge were formulated by Muhammad Munir, C.J. At pages 210 and 211 of the report; the principle deducible from the majority judgment in Anwar's case is that it can be established through the various steps taken in the conclusion that the Judge was biased. Applying this principle to the facts of the present case it becomes abundantly clear that the present appellant did not bring to bear on the case before him an unbiased mind but that every important action taken by him and the final conclusion arrived at, was such that no person, properly instructed in law as the appellant, could have taken if his mind was not warped by malice and bias towards the respondents. 14. The next case referred to by the learned counsel is Muhammad Ismail v. Abdul Khalique PLD 1960 SC 301. The principle enunciated in this case is that the effect of bias in the mind of a trying Judge extends to every part of the proceedings conducted and recorded by him. It is impossible for any superior Court of correction to estimate; the value to be placed upon the record of the evidence prepared by such a Judge. Being in control of the entire proceedings, he is in a position to influence the course of the examination and cross-examination of witnesses in such a way that the result towards which his bias leads him, is produced, but the processes are completely concealed and consequently, it becomes impossible for a superior Court to distinguish that portion of the proceedings which is affected by bias in the trial Judge. Other cases referred to by the learned counsel are PLD 1969 SC 201; PLD 1971 SC 585 and PLD 1976 SC 57. The principle laid down in these cases is that real likelihood of bias must be shown to vitiate the proceedings. 15. In the case Pakistan v. Major Muhammad Nawaz being Civil Appeal No. 208/1970 decided on 29- 3-1973 bias was held to have been estab--lished against Mahboob Khan who had held a departmental enquiry against the respondent civil servant in that case because the respondent had been agitating continuously, in writing, that he could not expect justice from the Enquiry Officer as he was biased against him. Notwith--standing the written objections to the entrustment of the enquiry to Mr. Mahboob Khan, he conducted the enquiry and on his report the respondent civil servant was dismissed. The learned High Court held that the proceedings were vitiated by the bias of Mr. Mahboob Khan against this civil servant and quashed the proceedings including the final order of dismissal. This Court noticed the history of the objections made by the respondent civil servant and concurred in the finding that Mr. Mahboob Khan was indeed biased against the respondent and was thus disqualified to hold the enquiry. 16. I also find in the present case that there is a long history of written and reported objections being taken by the respondents before the appellant that he was biased against them and of non- disclosure of grounds of assuming jurisdiction and that he should not hear and determine the matter. Almost all the instances of bias noticed by the learned High Court have not been rebutted by the appellant and, therefore, applying the principle enunciated by this Court in the precedent case, the entire proceedings initiated and conducted by the appellant must be held to have been
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vitiated by bias. In a case Manak Lal v. Dr. Prem Chand from Indian jurisdiction, AIR 1957 SC 425 it was observed at page 429: "It is well-settled that every member of a tribunal that is called upon to try issues in judicial or quasi-judicial proceedings must be able to at judicially; and it is of the essence of judicial decisions and judicial administration that Judges should be able to at impartially, objectively and without any bias. In such cases the test is not whether in fact a bias has affected the judgment; test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done. As Viscount Cave L.C. Has observed in From United Breweries Co. v. Bath Justice, (1926) App. Can, 586 at p.590 (A): "This rule has been asserted, not only in .The case of Courts of Justice and other judicial tribunals, but in the case of authorities which, though in no sense to be called Courts, have to at as Judges of the rights of others."…
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