Find a Lawyer

Constitutional Petition No. D-1085 of 1978, decided on 28th November, 1978.

---- Art. 199 read with West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960), S. 5(5)-Externment order, propriety of Petitioner's externment order, for his alleged Trade Union activities challenged for reasons that 'grounds forming basis of order' not supplied to petitioner as required under S. 5(51 of Ordinance Non compliance of mandatory provision of law held rendered externment order null and void, in circumstances.

Hakim Khan v. Government of Sind P L D 1976 Kar. 448 ; Nek Amal v. Political Agent, Malakand P L D 1975 Posh. 67 ; Nawab Begum v. Home secretary Punjab P L D 1974 Lab. 344 and Malik Sohrab Khan v. District Magistrate, Rawalpindi P L D 19 74 Lah. 214 fol.

Iqbal Hyder for Petitioner.

Advocate-General for Respondent.

Date of hearing : 26th November 1978.

The present petition has been filed by Syed Anayat Husain Naqvi to challenge an order passed by the Secretary to the Government of Sind, Home Department on 12-3-1978 whereby Omer Hayat Niazi was directed to remove himself from the province of Sind until further orders. The order has been passed under clause (c) of subsection (1) of the West Pakistan Maintenance of Public Order Ordinance, XXXI of 1960. We have heard Mr. Iqbal Hyder for the petitioner and the Advocate-General for the respondent.

2. No counter-affidavit has been filed by the respondent and the learned Advocate-General has stated before us that grounds forming the basis of the order have not been supplied to Omer Hayat Niazi. The material has also not been placed before us to show why this order has been passed:

3. In the petition allegations have been made that this order has been passed because of Trade Union activities of the petitioner which were not liked by persons running the industry. However, since the Advocate-General has not supported the grant of relief in this case we do not feel called upon to consider the factual aspect pf this case.

4. Under clause (c) of subsection (1) of section 5 of the West Pakistan Maintenance of Public Order (Ordinance the Provincial Government. on satisfac tion that a particular person was acting in a manner prejudicial to public safety or maintenance of public order could pass an order directing him to remove himself from any area that may be. specified in the order. The order by its nature is preventive. Subsection (5) of the said Ordinance imposes an obligation on the Provincial Government to communicate the grounds for the order within fifteen days- so that the person affected by the order may make a representation. Subsection (5) of section 5 of the said Ordinance reads as follows:--

"(5) Where an order has been made under subsection (1), the authority making the order shall, as soon as may be but not later than fifteen days from the date of service of the order, communicate to such person the grounds on which the order has been made, inform him that he is at liberty to make a representation to Government against the order and afford him the earliest opportunity of doing so:

Provided that the authority making any such order may refuse to disclose facts which such authority considers it to be against public interest to disclose."

5. Admittedly grounds of externment have not been supplied and for such reasons the order is liable to be struck down. In the case of Hakim Khan v. Government of Sind (P L D 1976 Kar. 448) a Division Bench of this High Court held that if the grounds were not supplied the order of detention becomes illegal. To the same effect are the judgments in the case of Nek Amal v. Political Agent, Malakand (P L D 1975 Pesh. 67), Nawab Begum v. Home Secretary, Punjab (P L D 1974 Lah. 344), Malik Sohrab Khan v. District Magistrate, Rawalpindi (P L D 1974 Lah. 214) and numerous other cases. No doubt in these cases the orders challenged were orders of detention but to such extent subsection (5) of section 5 of the Ordinance makes no distinction. Grounds for action have to be communicated and non-compliance with such mandatory provision of law renders the orders null and void. There are cases in which orders have been struck down even if the grounds were vague or insubstantial. The present case stands on a more firm footing as grounds have not at all been supplied.

6. In the result we declare that the impugned order passed by the Home Secretary of the Government of Sind on 12th March, 1978 externing Omer Hayat Niazi is null and void and also of no legal effect. The order is quashed. The petition is allowed but there shall be no order as to costs.

Petition allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.