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Petitioner: ALLAH DITTA VS Respondent: MEMBER, BOARD OF REVENUE (CONSOLIDATION) AND 5 Other
Court Name: Lahore High Court Judge(s): Aftab Hussain Title: ALLAH DITTA vs MEMBER, BOARD OF REVENUE (CONSOLIDATION) AND 5 Other Case No.: Writ Petition No. 1707 of 1967 Date of Judgment:1976-02-04 Reported As: PLD 1976 Lahore 897 Result: Petition allowed
JUDGMENT
JUDGMENT The petitioner has challenged the order of the Collector dated the 28 May, 1966, of the Additional Commissioner (Consolidation) dated the 12th November, 1966, and of the Board of Revenue dated the 6th October,. 1967, in Annexures 'E', 'G' and 'K' respectively. The matter pertains to the consolidation scheme of village Kalianpur, Tehsil Shakargarh, District: Sialkot. The consolidation scheme of this village was approved by the Collector under section 10(4) of the West Pakistan Consolidation of Holdings Ordinance, 1960. The matter had to be referred to the Collector because the land-owners including Mukhtar Ahmid, respondent No. 4 had raised certain objections. Mukhtar Ahmad filed an appeal against the order of the Collector in which he impleaded some persons other than the petitioners as respondents. Another appeal was filed by Ramaan Ali respondent No. 5 in which also the petitioner was a party. Both these appeals were allowed on the 26th May, 1965, by the Additional Commissioner (Cons.). The learned Additional Commissioner remanded the case to the Collector for a fresh decision. In post remand proceedings the Collector modified the scheme by his order Annexure 'E'. This order affected Allah Ditta petitioner also. Although it appears from the order that all the affected parties were given a hearing but it is established from the report dated the 11th March, 1967 (Annexure 'L') submitted by the Collector to the Board of Revenue that the petitioner was not heard by the Collector before passing his order (Annexure 'E') dated the 28th May, 1966. It is further clear from that report that a general proclamation was also not issued by the Collector for appearance of all the right-holders. 2. The petitioner along with some others filed an appeal against the order of the Collector before the Additional Commissioner inter alia, on the ground that some of the appellants including Allah pitta petitioner were not a party before the Collector and the order Annexure 'E' had been passedth
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without giving them an opportunity of being heard. This point was not considered or noticed by the learned Additional Commissioner. On merits he agreed with the arguments advanced on behalf of Mukhtar Ahmad respondent that Allah Ditta petitioner was a gainer in consolidation. 3. The petitioner filed a revision petition before the Board of Revenue but the same was dismissed on the 6th October, 1967, by Annexure 'K'. In addition to the arguments on merits it was contended before the Board of Revenue that the Collector's order bad been passed without affording him an opportunity of being heard and even the proclamation was not made. On behalf of the respondents it was urged that the Collector had summoned the parties several times and given a hearing to them. It was contended that proclamation was also issued and the modification was made. In the presence of his brother Muhammad Din. It was also urged that it was not material whether the petitioner had made any personal appearance before the lower Court since he had sufficient opportunity to ventilate his grievances before the Additional Commissioner in appeal. The learned Member, Board of Revenue did not give any finding on these points. He noticed on merits that the petitioner's case was that he should be accommodated as before on the western side near his tube well and the area given to him on the eastern side by the Collector should be withdrawn from him. The learned Member, Board of Revenue did not consider the argument about the claim that the area should be given to the petitioner near his tube well. He dismissed the petition .On the ground that the petitioner already held his major block on the eastern side where he had been given some more area contiguously. 4. The learned counsel for the petitioner contended that- (a) the order of the Collector having been passed without hearing the petitioner notwithstanding the provisions of section 10(4), that order was an absolute nullity in so far as the petitioner is concerned. The Additional Commissioner or the Board of Revenue could not, there--fore, give findings on merits but should have at the most remanded the case to the Collector ; (b) even if the order of the Collector be held to have contravened the principle of natural justice, the same result should follow ; (c) the petitioner was not a party in the appeal decided by the Additional Commissioner by order Annexure'D' and that the order being only between the parties to the appeal, the Collector had no jurisdiction to pass an order against a non-party including the petitioner since he had no suo moto revisional jurisdiction, and on account of this illegality committed by the Collector the petitioner had been deprived of two wells without compensation ; (d) Mukhtar Ahmad having in the first instance raised objections before the Assistant Consolidation Officer, could not improve upon those objections later on in appeal or post remand proceedings. 5. It is now too late for the petitioner to urge the first point. He does not appear to have raised this point in his .Appeal or revision before the Commissioner or the Board of Revenue and cannot be allowed to raise the same for the first time before this Court. 6. On the second and third points the learned counsel for the petitioner relied upon Leary v. National Union of Vehicle Builders (1971 Ch. 34=(1970) 2 All ER 713in which Megarry, J. Held that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body. The learned Judge observed that "If the rule and the law combine to give the member the right to a fair trial and the right of appeal, why should be be told that he ought to be satisfied with an unjust trial and a fair appeal." 7. The English law has never been uniform in applying the principle of natural justice. As stated by Jackson in his book "Natural Justice", "the eagerness with which the Courts have applied these rules have varied from generation to generation" The superior Courts in Pakistan have shown more consistency in this respect. Before dealing with our own precedents, I would briefly narrate these juristic changes.
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8. In English law origin of the principle of natural justice is traceable to divine justice. Fortescue, J. Observed in R. v. Chancellor of Cambridge172 Medea 195=(1723) Fortoscue 202 "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 the that thou shouldst not eat ? And the same question was put to Eve also" 9. The principle was recognized by the common law and it was held generally that an order passed in disregard of the principle is void. Lord Reid summed this up with reference to old cases in Ridge v. Baldwin (1964 A C 40"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 and that was expressly decided in Wood v. Wood (1874 L R 9 Ex. 190 In Spackman v. Plumstead District Board of Works ((1885) 10 A C 229 Lord Selbourne gives the following underlying reasons "There would be no decision within the meaning of the Statute if there was anything of that sort done contrary to the essence of justice." Lord Wright said in General Medical Council v. Spackman (1943 A C 627 "If the principles of natural justice are violated in respect of any decision, it is indeed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision." Clearly if a decision is no decision it might be regarded as destitute of all legal authority and void ab anitio. But then the question arises whether a person can treat the decision as non-existing. It may not be possible to raise successfully such an objection before the authority implementing the order. It is not necessary to consider whether this objection can be raised before a Court of law executing the decree that the decree or order being a nullity is not executable. It is, however, clear that no authority implementing such a decision of a quasi judicial tribunal or administrative authority shall give effect to such an objection. Will this breathe life into what is dead. Again there may be cases where the party against whom the decision is taken acquiesces to it or by his inaction raises no dispute. Can his action or inaction validate it and convert what was not adecision into a decision. Can a police constable dismissed in violation of the principle of natural justice treat the order of dismissal as non-existent and continue performing his duty. Clearly the person in authority who has passed the order of dismissal cannot countenance this. He will see that his order produces all legal consequences of a valid action unless the constable successfully invokes the assistance of the Court to invalidate it. Similarly in case of acquiescence of the constable or his inaction to invoke the Court's jurisdiction, can a third person treat the appointment of the successor of the dismissed constable as a nullity ? The answer should be clearly in the negative as it would create chaos in the society if every citizen becomes the judge of validity of administrative or quasi judicial or judicial actions. The answer to this difculty is furnished by Rubeinstein (see his 'Jurisdiction and Illegality' pages 204 to 208), by saying that the defect in appointment of an office-holder is protected by the doctrine of "Officers de facto". The voidness cannot therefore be treated as absolute. The decision of an authority should either be declared void or set aside in appeal or revision if there be any provision for such procedure or be invalidated by a Court of law. This is corroborated by Kelsens' General Theory of Law and State (L. 161) cited by Dr. Rubienstein in his book "Jurisdiction and Illegality", p. 5: "The decision made by the competent authority that something that presents itself as a norm is null ab initio because it fulfils the condition of nullity determined by its legal order is a constitution act ; it has a definite legal effect ; without and prior to this act the phenomenon in question cannot be considered to be null. Hence, the decision is not 'declaratory' that is to say, it is not, as it presents
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itself, a declaration of nullity ; it is a true annulment, an annulment with retroactive force. There must be something legally existing to which this decision refers. Hence, the phenomenon in question cannot be something null ab initio, that is to say, legally nothing. It has to be considered as a norm annulled with retroactive force by the decision declaring it null ab initio. Just as everything King Midas touched into gold, everything to which the law refers becomes law i.e. something legally existing." 10. The usual sense in which the term 'void' or 'nullity' is used, there--fore, appears to have been qualified. In Smith v. East Elloe Rural District Council (1956 A C 736) whom Lord Radcliff at the end of his speech (vide page 769 of the report) said while interpreting the "shall not be questioned" clause :- "At one time the argument was shaped into the form of saying that an order made in bad faith was in law a nullity and that consequently all reference to compulsory purchase orders in paragraphs 15 and 16 must be treated as references to such orders only as had been made in good faith. But this argument is in reality a play on the meaning of the word 'nullity'. An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders." It was held that despite its being a nullity (something non-existing) the order will remain effective unless it is set aside by legal proceedings. Now this difficulty has been solved by the Courts by introduction of term 'voidable to orders. 11. The word 'voidable' divided the House of Lords in Ridge v. Baldwin. 1n that case the dismissal of a Chief Constable on grounds of misconduct by the Brighton Watch Committee without giving him fair hearing was declared to be void and of no effect in law, by the majority of the House of Lords. But Lord Morris who was one of the majority said (1964 A C 40 at page 125) :- "It was submitted that the decision of the Watch Committee was voidable but not void. But this involves the inquiry as to the sense in which the word 'voidable', a word deriving from the law of contract, is in this connection used. If the appellant had bowed to the decision of the Watch Committee and had not decided that it was void, then no occasion to use either word would have arisen. When the appellant in fact at once repudiated and challenged the decision, so claiming that it was invalid, and when in fact the Watch Committee adhered to their decision, so claiming that it was valid, only the Court could decide who was right. If in that situation it was said that the decision was voidable, that was only to say that the decision of the Court was awaited. But if and when the Court decides that the appellant a right, the Court's deciding that the decision of the Watch Committee was invalid and of no effect and null and void. The word 'voidable' is therefore opposite in the sense that it became necessary for the appellant to take his stand, he was obliged to take action, for unless he did, the view of the Watch Committee, who were in authority, would prevail. In that sense the decision of the Watch Committee could be said to be voidable." 12. The Judicial Committee of the Privy Council in Drrayappah v. Fernando ((1967) 3 W L R 289) held the impugned order to be voidable and not a nullity. The Minister of Local Government in Ceylon in exercise of powers under the Municipal Councils Ordinance had dissolved the Jaffra Municipal Council .On ground of its incompetence to perform its duties, without giving to it an .Opportunity to meet the charges against it. The Mayor of the Council who automatically lost his office challenged the Minister's order. It was held that the Mayor was not entitled to challenge the order because the Council had not challenged it, nor was the Mayor suing on its behalf. The Judicial Committee said that "being voidable it was voidable only at the instance of the person against whom the order was made, that is, the Council" It was observed :-
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"The answer must depend essentially upon whether the order of the Minister was a complete nullity or whether it was an order voidable only at the election of the Council. If the former, it must follow that the Council is still in office and that, if any Councellor, rate-payer or other person having a legitimate interest in the conduct of the Council likes to take the point, they are entitled to ask the Court to declare that the Council is still the duly elected Council with all the powers and duties conferred upon it by the Municipal Ordinance." The term 'voidable has been used by the Judicial Committee to reach the same result which could be reached by considering whether the Mayor had locus standi to challenge the order of dismissal of the Municipal Council. This is a sense which appears to be slightly different from the sense in which this term was used in Ridge v. Baldwin. The distinction drawn between an order which may be nullity and the order which may be 'voidable' in a case in which the order was being impeached on ground of violation of principle .Of natural justice shows that such an order was not treated as absolute nullity. In Ridge v. Baldwin, Lord Morris also maintained the distinction between an 'absolute nullity' and 'voidable'. 13. The terms 'void' and 'voidable' have been discussed in the law of contract. Under that law a contract is void which does not bind either party but is voidable if it binds the parties till it is challenged by any party as not binding him. A voidable contract is avoided if the party disclaims its obligations. But Kelsen says in regard to orders that they cannot be null and void except with a declaration by the competent authority of their .Annulment and then the annulment is retroactive. An order of an authority will therefore be treated as voidable at the instance of the Court and not only at the instance of the party. This is true because the law of procedure places several restrictions in the way of a suitor. A suit or proceeding can be filed by parties who would be aggrieved of the order and not by all. Before passing an order of annulment the Court or the competent authority has to go into the locus standi of the party making a motion for avoidance. Then there is a law of limitation. While dealing with applications for ,certiorari the Courts have been invested with a discretion to quash the order sought to be avoided though it may be void or may have been passed without lawful authority. This discretion can be exercised against an applicant if 'he invokes the Court's jurisdiction after some delay which is not explainable; .Or because of the equities of the case, or again the failure of the applicant to do equity by approaching the Court with clean hands. It is unnecessary to give an exhaustive enumeration of the circumstances in which or the reasons for which the Court may refuse to give any relief to the petitioner before it. In my view it will be more correct to say that the Court having a discretion sin the matter, the order impugned before it must be treated as voidable at the instance of the Court and not only at the instance of the applicant. 14. Megarry, J. Considered the term 'voidable' a; misleading in Houslow L. B. C. v. T. Wickehham Garden Developments (1971 C L 233He said :- "A decision reached by a tribunal wholly outside its jurisdiction and in complete defiance of natural justice is about as void as anything can be ; but if nobody who is entitled to challenge or question it chooses to do so, it remains in being. Yet to describe such a decision as being. 'voidable' is to use that word in a sense that is not only very special but also liable to mislead." Megarry, J. Considered in Leary v. National Union of Vehicles Builders (1970 All. E R (Ch. D) 713)whether a deficiency of natural justice before a trial tribunal can "be cured by a sufficiency of natural justice before an appellate tribunal". Despite the fact that in that case the appellate council had in substance given to the plaintiff complete rehearing, with the witnesses called and heard and complete liberty of action for the plaintiff to present his case in full he held that failure= of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body. He held that there was no such doctrine that if a man has never had a fair trial by the
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appropriate trial body, it is open to an appellate body to discard its appellate functions and itself give the man the fair trial be has never had. He observed :- "If one accepts the contention that a defect of natural justice in the --trial body can be cured by the presence of natural justice in the --appellate body, this has the result of depriving the member of his right of appeal from the expelling body. If the rules and the law continue to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an, unjust trial and a fair appeal ? Even if the appeal is treated as a.. Hearing de novo, the member is being stripped of his right to appeal to another body for the effective decision to expel him. I cannot think that natural justice is satisfied by a process whereby an unfair trial, although not resulting in a valid expulsion, will nevertheless have the effect of depriving the member of his right of appeal when a valid decision to expel him is subsequently made. Such a deprivation would: be a powerful result to be achieved by what in law is a mere nullity, and it is no more triviality that might be justified on the ground that natural justice does not mean perfect justice." 15. Megarry, J. Who as seen above was not happy with the use of the --word 'voidable' has reverted back to treating the order passed in violation of audi alteram partem as "a mere nullity" which must be so declared notwithstanding that no prejudice might have been caused to the plaintiff.. He did not agree with the view taken by the Supreme Court of Canada in King v. University of Saskatchewan (1969 SCR 678 that if there was any absence of natural justice in the inferior tribunal, it was cured by the presence of such natural justice before the Senate Special Committee. 16. Wade has criticised the use of the term 'voidable' in his article 'Unlawful Administrative Action' 83 L Q R 499. Jackson in 'Natural Justice', p. 66 has cited in support of his own opinion from de Smith that "analysis (of this question) is bedevilled by terminological inconsistencies, in particular by the bewildering use of the term, `void' and 'voidable'. Jacksun stopinion is that nothing turns on the use of the word 'voidable'. Respectfully speaking I do not agree with this criticism. I have already detailed the circumstances which necessitated the use of the word 'voidable' in preference to the word `void'. 17. The view taken by the Courts in Pakistan is contrary to the view taken by Megarry, J. The Courts here have distinguished between the violation of the principle of audi alteram partem and violation of any directory law providing for hearing on the one hand and contravention of a mandatory provision of law providing for such hearing. The defect in the first category was held cured by a hearing given at later stages of the proceedings while it was found to be incurable if the matter fell in the second category. The question whether hearing given by an appellate or revisional authority cured the defect of natural justice by the tribunal trying the case was answered in the affirmative by the High Court of West Pakistan in an unreported judgment in New Industries Ltd. v. Rehabilitation Board and others (W. P. No. 253 of 1956). This question was again considered by a Full Bench in Mohammad Ishaq and another v. Dr. Said-ud-Din Swaleh and another (PLD 1959 Kar. 669 The majority agreed with the view taken in the above case. It was held :- "The answer to the question appears to us to be simple. Whether the principle of natural justice that no order is to be passed affecting the rights of a party without giving him an opportunity to show cause, has or has not been violated, depends upon the particular facts of each case and it is not possible to lay down a general rule. We will have to consider the proceedings as a whole. The question to be decided would be whether any prejudice has been caused by the fact that the party was not heard by the authority that passed the original order. If the objection to his ejectment be of a kind that can very well be disposed of by an appellate or revisional Court, the order should be held to be valid. If on the other hand it is found that on account of the lack of an opportunity to show cause before the officer who passed the original order some relevant fact which may have been proved was not proved and this affected the order passed there would be good ground for setting aside the order. Prejudice to the petitioner would be there if the petitioner could show a
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reasonable possibility of the order having been different had he been allowed to raise a plea before the first officer. In order to decide whether there has been prejudice the Court will consider what was the plea that the party wanted to take and whether the Rehabilitation authority had acted on assumption of facts which were inconsistent with that plea. If they did so act, the party would have a legitimate grievance that he was not allowed to disprove that assumption" It was argued before the Full Bench that an order suffering from violation of principle of natural justice was void and could not be validated by an appellate or revisional authority. The argument did not find favour with the majority (Kaikaus and Wabeeduddin, JJ.), it was held that such an order is not void, for what is void has no existence…
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