Find a Lawyer

Constitutional Petition No. 193 of 1983, decided on 20‑10‑1985.

‑‑‑‑Ss. 5 & 8‑‑Parties to a dispute entitled to be represented and defended by legal practitioners of their choice‑‑Functionaries working under Ordinance, held, must afford them opportunity to be represented or defended in proceedings under Ordinance.‑‑[Counsel and client].

‑‑‑Ss. 5 & 8‑‑Tribunal, constitution of‑‑Word 'shall' used in S.5(1), mandatory and not directory.‑‑[Interpretation of statutes].

‑‑‑Ss. 5 & 8‑‑Provisional Constitution Order (1 of 1981), Art.9‑‑Tribunal for effective conducting of proceedings of case before Tribunal though temporarily a quorum of President and two members was minimum requirement, but for purpose of return of reference by Tribunal presence of all five members, held, was mandatory‑‑Reference signed and returned by four members, hue, flagrant violation of mandatory provision and not sustainable in law.

‑‑‑Ss. 5 & 8‑‑Proceedings before Tribunal‑‑Production of evidence‑ Sufficiency, insufficiency or want of evidence‑‑Both parties acquiescing in mode of or way of proceedings taken by Tribunal‑‑Petitioner raising no objection either before Tribunal or before Assistant Commissioner regarding his contention that no opportunity was afforded to him for leading evidence‑‑Contention raised in constitutional petition, held, was without force.

‑‑Ss. 5, 6 & 7‑‑Provisional Constitution Order (1 of 1981), Art. 9‑ Finding of Tribunal returned to Assistant Commissioner signed by four members of Tribunal‑‑Orders of Assistant Commissioner and subsequent orders based thereon, held, would be illegal, void and of no legal effect thus set aside‑‑Case remanded to same Tribunal for its findings on issues referred to it by Assistant Commissioner according to law.

P L D 1964 S C 536; P L D 1971 S C 6; P L D 1971 S C 124; PL D 1980 Quetta 1; P L D 1981 Quetta 15 and P L D 1983 Quetta 52 ref.

Arshad Choudhary for Petitioner.

Respondents Nos. 1, 2 and 3 in person.

Khalid Malik for Respondents Nos. 4 to 9.

Date of hearing: 13th October, 1985.

This petition is directed against the orders of the respondents No. 1 Assistant Commissioner, Pishin, dated 27‑10‑1979, Additional Commissioner, Quetta Division Quetta, dated 27‑11‑1980 and the Member Board of Revenue‑III, Quetta, dated 24‑7‑1983.

2. The brief facts giving rise to this petition are that on 2‑9‑1975 the respondents Nos. 4 to 9 had filed an application under the Civil Procedure (Special Provisions) Ordinance, I of 1968 (hereinafter referred as the Ordinance) before the Assistant Commissioner against the petitioner for recovery of Rs.1,000 as compensation for use of their water Channel Rod Toor Murgha for running a water flouring Mill on basis of an agreement executed between them on 17‑11‑1972. It is the case of the petitioner that without calling for written statement from him the respondent Assistant Commissioner on 5‑12‑1972 constituted a Tribunal under section 5 of the Ordinance with Tehsildar Pishin as its President and on 8‑12‑1975 referred the dispute to it for Commissioner in violation of the principles of law had referred the matter to the Tribunal;

(ii) That the respondent Assistant Commissioner without affording the opportunity of hearing to the petitioner passed the impugned order in favour of the un‑official respondents.

(iii) That amongst 5 members of the Tribunal only 4 members had signed the findings which was in violation of sections 5 and 8 of the Ordinance.

(iv) That in flagrant violation of the provision of section 8 of the Ordinance, the Tribunal conducted the proceedings.

(v) That the findings were passed on no evidence hence the impugned orders dated 27‑10‑1979, 27‑11‑1980, 24‑7‑1983, based thereon are illegal, void and without lawful authority.

He relied upon the cases reported in:

P L D 1964 S C 536; P L D 1971 S C 6/124 and P L D 1980 Quetta 1.

6. Repudiating the contentions raised by the learned counsel for the petitioner Mr. Khalil Malik, the learned counsel for the unofficial respondents contended:‑----

(i) That under the Ordinance filing of written statement is neither necessary nor mandatory.

(ii) That at all tiers opportunity of hearing was given to the petitioner.

(iii) That there is no violation of any of the provisions of the Ordinance.

(iv) That under section 7 of the Ordinance a Tribunal could conduct proceedings with President and two other members.

(v) That recording of evidence under section 8 was not necessary and the Tribunal could return the reference without it.

He relied Upon the cases:----

P L D 1981 Quetta 15 and P L D 1983 Quetta 52.

7. Regarding his 1st contention when it was pointed out to the learned counsel for the petitioner whether the petitioner had taken any such objection regarding non‑filing of the written statement before the Assistant Commissioner or Additional Commissioner in appeal to which his reply was in negative. It may be pertinent to observe that such objections should have been taken at the earliest opportunity either before the Assistant Commissioner at the time of reference or when he passed the order dated 27‑10‑1979 or in appeal before the Additional Commissioner. So that the above‑said functionaries might had redressed his grievance and given him the opportunity of filing a written statement at that relevant stage. In that context it has been averred by the counsel for the private respondents that actually the objections were filed in that behalf by the petitioner before the Tribunal. In that event in our view the contention raised by the learned counsel is devoid of force and repelled accordingly.

8. The learned counsel for the petitioner in support of his second contention submitted that the Assistant Commissioner did not afford him opportunity of hearing while confirming the finding of the Tribunal. He contended that under section 10 of the Ordinance on receipt of the report of the Tribunal the Assistant Commissioner ought to have heard him before passing the impugned order. The learned counsel for the unofficial respondents repudiating his contention stressed that the petitioner was actually heard. It may be observed that the diaries of the proceedings of the case taken before the Assistant Commissioner would have thrown certainly sufficient light on the controversy emanating between the contesting parties. However, the diaries of the case have not been filed by either of the parties to show whether the petitioner was actually heard or not by the Assistant Commissioner, in such situation it is rather difficult for us to dilate upon the contention raised by the counsel for the parties. However, it may be pointed out that under subsection (4) of section 8 the parties to a dispute are entitled to be represented and defended by legal practitioner of their choice. Hence it is incumbent upon the functionaries working under the Ordinance to afford the parties to be represented or defended in proceedings under the Ordinance.

9. In support of his 3rd contention the learned counsel for the petitioner invited our attention to the definition of word 'Tribunal' in subsection (d) of section 2 of the Ordinance which reads as under:‑---

"2(d),‑‑"Tribunal" means a Tribunal constituted under this Ordinance."

10. To further strengthen his contention the learned counsel for the petitioner stressed that a Tribunal envisaged under section 5 of the Ordinance consists of an official and four members, hence the report must be attested by all the five of them otherwise it shall not be considered to be finding of the Tribunal. To support his contention he further referred to subsection (2) of section 6 of the Ordinance whereby if any member of the Tribunal dies, refuses to act, becomes incapacitated from acting or fails to attend any two meetings without sufficient cause to the satisfaction of the President of the Tribunal, the President shall have to refer the matter to the Deputy Commissioner acting under the Ordinance to appoint a new Member in place of the defaulting Member. In that context the learned counsel for the unofficial respondents abortively tried to convince us that for conducting the proceedings under the Ordinance in section 7 of the Ordinance a quorum of President and two other members is necessary hence he contended that the objection raised by the petitioners' counsel to that effect has no legal sanction. It may be pertinent to observe that under the scheme of the Ordinance all disputes arising within the area specified in the 1st Schedule of section (2) of the Ordinance are to be determined and adjudicated upon in accordance with the provisions of the Ordinance were in indeed the Tribunal plays a pivotal role and decision in respect of that dispute necessarily depends upon the verdict of its members and the Deputy Commissioner has to act accordingly under the provisions of section 10 of the Ordinance. Having to play a vital role the whole scheme of the Ordinance focuses on the Tribunal which undisputedly consist of a President and four members and nothing short of that. To fill any vacancy created on account of unavoidable circumstances it seems subsection (2) of section 6 has been incorporated in the Ordinance. The reliance of the learned counsel, for the unofficial respondents on section 7 of the Ordinance on face of it appears to be fallacious.

However it would be useful to reproduce the same here for proper understanding:‑ .

"S.7. Quorum.‑‑ The Tribunal shall not conduct any proceedings unless the President and at least two other members are present."

The plain reading of this section speaks about the conduct of the proceedings by the Tribunal in absence of any of its members and defines quorum to be that of the President and two members and nothing beyond that. While the composition of the Tribunal itself is governed by section 5 of the Ordinance which reads as under:‑---

"5. Composition of the Tribunal‑‑

(1) A Tribunal constituted for the purpose of section 4 shall consist of a Government official not below the rank of a Naib‑Tehsildar who shall be its President, and four other members, all to be appointed by the Deputy Commissioner.

(2) In appointing a person as a member, other than the President, the Deputy Commissioner shall have regard to the integrity, education, social status and representative character of such person.

(3) No person shall be appointed as a member of the Tribunal, other than the President except after giving the parties concerned an opportunity of being heard and considering their objections, if any, to the appointment of such person .

11. A mere glance at the above section makes it clear that the Tribunal shall consist of a President and four members. The word 'shall' used manifestly in the forum appears to be mandatory rather than directory one.

12. Though temporarily for effective conducting of the proceedings of the case before Tribunal a quorum of President and two members is a minimum requirement, yet one cannot lose sight of the fact for purpose of return of the reference by the Tribunal presence of all the five members is mandatory under the Ordinance. Obviously the findings signed by only four members, would not be imagined for a moment to be findings returned by the Tribunal as required under the Ordinance. As such in our view the reference returned mentioned hereinabove was in flagrant violation of the mandatory provisions of law which manifestly is not sustainable in law. In such situation the learned counsel for the petitioner submitted that as the reference was signed by four members hence absence of the fifth member would not materially affect its findings as being unanimous. We are not inclined to accept his version as views of the absented member may had influenced the other members who may had taken the view contrary to the one on record.

13. Regarding sufficiency, insufficiency or want of evidence or that there was violation of section 8 of the Ordinance before the Tribunal, it may be observed that both the parties themselves had acquiesced in the mode or way of the proceedings taken by the Tribunal. No material has been placed before us to indicate that the petitioner in that respect had raised any objection either before the Tribunal or before the Assistant Commissioner that he was not allowed the opportunity of leading evidence hence the contentions raised by the learned counsel for the petitioner in that context are devoid of force.

14. As already referred hereinabove that the findings of the four members have not been held to be that of the Tribunal, hence decision of the Assistant Commissioner and subsequent orders based thereon are illegal, void and or no legal effect. We, therefore, set aside all the three impugned orders passed by the respondents Nos. 1 to 3 and declare them to have been passed without lawful authority and of no legal effect.

However the case is remanded to the same Tribunal for its findings on the issues referred to it by the Assistant Commissioner Pishin according to law. The petition is accepted to that extent but with no order as to costs.

15. This judgment constitutes the reasoning of our short order announced by us in open Court on 13‑10‑1985.

M.Y.H. Case remanded.

Find a Lawyer Near You

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