Find a Lawyer

[S C (A J & K)]

Present: Raja Muhammad Khurshid Khan, C J

Haji MUHAMMAD SHAFIAppellant

versus

CUSTODIAN, EVACUEE PROPERTY, MUZAFFARABAD

and 3 othersRespondents

Civil Appeal No.52 of 1987, decided on 3^rd December, 1988.

(On appeal from the judgment of the. High Court, dated 1 2 1987 in Writ Petition Na.31 of 1986).

Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)

S.44 Civil Procedure Code (V of 1908), O.XX, R.4(2, Judgment of CourtContents ofEssentialsCourt in a judgment has to state reasons for its decision on each point raisedOrder of Court should contain concise statement of the case, points for determination which had been raised or had arisen in the case, decision thereon and reasons for such decisionJudicial order must be self speaking manifesting by themselves that the Court had applied its mind to the resolution of the issues involved for their adjudicationWhere the impugned judgment of High Court did not show that the Court conformed to the provisions and applied its mind on the grounds raised in proceedings before it and omitted to decide the important points same deserved to be vacatedCase was sent back to High Court to decide all the controversial issues involved therein.

Khawaja Abdul Qadir v. Abdul Majid P L D 1984 SC (AJ&K) 166 and Sabz Ali v. Kala Khan Civil Petition No.63 of 1968 ref.

Gouranga Mohan Sikdar v. The Controller of Import and Export 1970 S C M R 323; Riaz Ahmad v. Amin Baig P L D 1978 SC (AJ&K) 161 and Syed Aulad Ali Shah Gilani v. Azad Jammu and Kashmir Government P L D 1987 S C (AJ&K) 1 rel.

Raja Muhammad Hanif for Appellant. Kh. Muhammad Saeed for Respondents.

Through this appeal, by leave, Haji Muhammad Shafi, appellant herein, calls in question the order made by a learned Single Judge of the High Court on 1^st February, 1987, whereby relying on two cases of this Court one reported as Khawaja Abdul Qadir v. Abdul Majid P L D 1984 SC (A J & K) 166, and second an unreported case titled as Sabz Ali v. Kala Khan Civil Petition No.63 of 1968 felt advised to dismiss the writ petition.

2. I have heard the learned counsel for the parties and examined the relevant record.

The appellant was given proprietary rights of some evacuee land but at a later stage, out of the land, entitlement certificate in respect of Survey Nos.747 and 748 was re called by the Rehabilitation Commissioner vide order dated 12 2 1984 by way of a review petition.

3. This order of the Rehabilitation Commissioner was sought to be impeached by way of a writ petition in the High Court; inter alia, on the ground that Rehabilitation Commissioner, especially in the circumstances when the entitlement certificate of the suit land had attained finality, was incompetent to cancel it by way of a review petition.

4. During the pendency of the writ petition in the High Court, the Custodian cancelled the entitlement certificate as a whole which was also criticised as being illegal by way of an amendment in the writ petition. It would be profitable to observe here that Muhammad Rafique, respondent herein, invoked the revisional jurisdiction of the High Court to get rid of the mischief as against his rights created by the proprietorship rights granted by the Custodian. A Division Bench of the High Court, vide order dated 2 11 1983, dismissed the revision, petition with costs

5. It would, thus, appear that some important questions of law and facts were involved in the writ petition but the learned Judge in the High Court disallowed the writ petition in the following words:

This writ petition is hereby dismissed in the light of P L D 1984 SC (AJ&K) 166 and Civil Petition No.63 Muzaffarabad of 1986 Sabz Ali v. Kala Khan and others decided by Chief Justice of Azad Jammu and Kashmir Supreme Court on 14 12 1986.

It seems that the learned Judge has failed to apply his mind to the consroversial issues agitated in the writ petition. The substantial questions which need determination are:

(1) Whether the Rehabilitation Commissioner, when the proprietorship rights issued on the basis of the entitlement certificate were even upheld by the High Court in revision, was competent to recall the entitlement certificate by way of review

(2) Whether the Custodian, after the revision of the judgment of the High Court, in revision was competent to recall his order bestowing proprietary rights to Haji Muhammad Shafi on the basis of the cancellation of entitlement certificate issued by the Rehabilitation Commissioner by way of review

(3) Whether the facts of the cases referred to in the impugned order are at all applicable to the facts of the present case

6. In view of the above, I am convinced that substantial questions were raised by the appellant in the writ petition. It was the undoubted duty of the High Court to state what precise points raised were and the grounds on which they were rejected. This Court remained consistent in pointing out that the judicial orders must be self speaking manifesting by themselves that the Court has applied its mind to the resolution of the issues involved for their adjudication because the litigants, who bring their disputes to the law Courts with the incidental hardships and expense involved, do expect a patient and judicious treatment of their cases by proper orders. This view prevailed in Gouranga Mohan Sikdar v. The Controller of Import and Export 1970 S C M R 323 and was owned by this Court in Riaz Ahmad v. Amin Baig P L D 1978 SC (AJ& K) 161 and Syed Aulad Ali Shah Gilani v. Azad Jammu and Kashmir Government P L D 1987 SC (AJ&K) 1, and I reiterate the same. In the last cited case it was observed:

It is fundamental principle of law that order of a Court should conform with the provisions of law i.e. should contain concise statements of the case, the points for determination which have been raised or arise in the case, the decision thereon and the reasons for such decision. Where a judgment does not show that the learned Court has applied its mind to all the points raised, the impugned judgment cannot, therefore, sustain and remand is the demand of law.

7. The judgment, therefore, should always conform with the provisions of law, i.e., should contain concise statements of the case, the points for determination which have been raised in the case, the decision thereon and reasons for such decision. But the impugned judgment does not show that the learned Judge conformed to the provisions and applied his mind on the grounds raised in the writ petition and omitted to decide the important points referred to above.

8. Kh. Muhammad Saeed, the learned counsel for the respondents, concedes that the impugned judgment is no judgment in the eye of law and the legal way would be to vacate the impugned order and remand the case back to the High Court for decision on the basis of the observations made above.

For the above stated reasons, I feel myself at pains to vacate the judgment of the High Court dated 1 2 1987 and remand the leas: back to the High Court to decide all the controversial issues involved in view of the observations made above. No order as to costs.

A.A./232/S.C.A. 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.