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Civil Appeal No.21/Mzd of 1988, decided on 18th February, 1989.

(On appeal from the Order of the High Court, dated 4 5 1981 in Review Petition No.26 of 1980) .

S.42 Irregular and Unauthorized Allotments (Cancellation) Ordinance, 1979, S.3 (1) Allotment of evacuee land under regular scheme Cancellation of such allotment by Inspection Team constituted under Irregular and Unauthorised Allotments (Cancellation) Ordinance, 1979 Validity of cancellation challenged in High Court High Court without giving findings on all the objections raised against cancellation of allotment dismissed Constitutional petition Review application against such finding also dismissed by High Court without consideration of the points left out in earlier petition Effect High Court while dismissing Constitutional petition neither decided vital points raised by appellants in Constitutional petition nor such points received attention of High Court in disallowing review petition Failure on .part of High Court to look into and decide vital points while disposing of Constitutional and review petitions constitutes a glaring mistake warranting acceptance of appeal Such type of omission can rightly be deemed to be an illegality not curable in any way High Court was bound to state what the precise points raised by appellants were and the grounds on which same were rejected Judicial orders must be speaking orders manifesting by themselves that the Court had applied its mind to the resolution of issues involved for their proper appreciation Guidelines for adjudicating a cause by superior Court stated.

It is fundamental principle of law that order of a Court should conform with the provisions of law, i.e. should contain concise statement 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 Court has applied its mind to all the points raised (as is done in the present case), the judgment cannot sustain and remand is the demand of law as it constitutes a mistake apparent on the face of the record.

The High Court and the Supreme Court are the Courts of record and both the Courts, and for that matter every Court and expected to decide every important issue involved in a case. It the High Court leaves undecided any important matter it may be said that it had decided the case in vacuum. Naturally, the Supreme Court in such cases would feel poor without the wisdom of the High Court and deciding such a matter without having the viewpoint of the High Court may not be desirable. [pp. 875, 876] A, B & D

S.42 Irregular and Unauthorized Allotments (Cancellation) Ordinance, 1979, S.3(1) Allotment of evacuee land under regular scheme by Government Inspection Team constituted under Irregular and Unauthorized Allotments (Cancellation) Ordinance, 1979 whether or not authorized to cancel allotment under regular scheme Such question although agitated in High Court yet left undetermined in earlier Constitutional petition and also in review petition High Court"s finding having been given without proper application of mind which constitutes a mistake apparent on the face of record was set aside with direction to High Court to admit Constitutional petition for regular hearing and after completing all formal proceedings, decide the case afresh in accordance with observations of Supreme Court. Sardar Muhammad Sayab Khalid for Appellants. Manzoor Hussain Gillani A. G. for Respondents.

This appeal, by leave, seeks quashment of the judgment of the High Court dated 4 5 1981 whereby the review petition moved by the appellants was dismissed. It arises in the following circumstances:

Allotment of evacuee land" measuring 165 Kanals situate in the area of village Kothian, District Poonch (now District Bagh), made in the names of five brothers; namely,. Muhammad Ayub Khan, Muhammad Siddique Khan, Muhammad Sharif Khan, Muhammad Hayat Khan and Muhammad Azam Khan, the appellants herein in their capacity as local destitute during the years 1974 75 under the provisions of Government Order 25/60, was cancelled by a Team known as Inspection Team by its order dated 3 12 1979. This Team was constituted by the Government under an Ordinance known as Irregular and Unauthorised Allotments (Cancellation) Ordinance, 1979.

2. The aforesaid cancellation order made by the Inspection Team was sought to be avoided by the appellants by way of a writ petition in the High Court which was dismissed in limine on 5 6 1980. The appellants then unsuccessfully called in question the validity of the aforesaid order by way of a review petition to the same Bench. The review petition was also disallowed vide order dated 4 5 1981.

3. Exception through this appeal is now being sought to the aforesaid rejection order of the review petition by the appellants.

4. Sardar Sayab Khalid, the learned counsel for the appellants, in support of the appeal submitted:.

(i) that since the sale deeds of the land were registered long after the allotment of the evacuee land in the names of the

appellants, it has wrongly been held by the Inspection Team that the sale deeds were executed prior to the allotment. Thus, in view of the learned counsel, the sale deeds executed later on during the year 1976 cannot affect adversely the eligibility of the appellants to have the allotment of the land as local destitute on the basis of the amended Government Order 25/60. The High Court, the learned counsel submitted, while dismissing the writ and review petitions, erred not to look into this aspect of the case. This fact, according to the learned counsel, constituted a mistake apparent on the face of the record warranting acceptance of the review petition and admitting the writ petition for regular hearing;.

(ii) that even otherwise each of the appellants, according to the learned counsel, constitute a family within the meaning of section 2(d) of the amended Government Order 25/60 and since each of them had less than thirty kanals of the land at the time of the allotment of land in his favour (which fact is even admitted by the Inspection Team), the appellants were entitled to have the allotment of the disputed evacuee land under the provisions of amended Government Order 25/60. The Inspection Team and the High Court, while dismissing the writ and review petitions, had committed an error in not appreciating this vital aspect of the case. This omission on the part of the High Court is a mistake apparent on the face of the record and calls for setting aside the dismissal order of the review petition and admitting the writ petition for regular hearing;

(iii) that the Inspection Team and the learned Judges in the H,6_ Court were misled to say that the appellants were not entitled to the allotments in question. In view of the learned counsel, the case of the appellants is fairly covered by section 2(d) of the Azad Jammu and Kashmir Rehabilitation (Amendment) Act, 1979, which, inter alia, says that the "destitute" means a person who being cultivator either owns no land at all or has less than thirty kanals per family and has no other adequate source of income;

(iv) that the learned Judges in the High Court, while dismissing the writ and review petitions, failed to appreciate the aforesaid important aspect of the case. In view of the learned counsel, this omission, on the part of the learned Judges in the High Court, constitutes a mistake apparent on the face of the record and warranted acceptance of the review petition in vacating the rejection order of the writ petition;

(v) that in the writ petition in sub para. (iii) of para. 3, which reads: "As a matter of fact, the Ordinance, constituting or authorising constitution of the Inspection Team is itself invalid and unauthorised piece of legislation while Legislative Assembly is not in existence, the President is incompetent to promulgate an Ordinance. He could do so only when the Legislative Assembly would have been in existence but not in session. Therefore, the orders made by the said Team are ultra vires, illegal and without lawful authority."

12. It is fundamental principle of law that order of a Court should conform with the provisions of law, i.e. should contain concise statement 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 (as is done in the present case), the judgment cannot sustain and remand is the demand of law as it constitutes a mistake apparent on the face of the record.

13. The impugned judgment passed in review petition and the order E earlier made in the writ petition do not show that the learned Judges applied their mind to all the important points raised in the review and the writ petitions. They omitted to decide some of the most important points referred to above. This disregard to the provisions of the law and omission, inadvertent or otherwise, has not only wasted valuable time of the parties but has also caused unnecessary expenses and trouble to them. So was held in Adamjee Jute Mills Ltd. v. Province of East Pakistan P L D 1959 SC (Pak.) 272 and Riaz Ahmad v. Amin Baig P L D 1978 SC (AJ&K) 161.

14. The learned Division Bench of the High Court, without making any reference to any law, disallowed the writ petition in routine. The review petition also suffers from the same defect. The finding in both the matters, to me, has been given without proper application of the mind which constitutes a mistake apparent on the face of the record not to be lightly ignored.

15. Failure on the part of the High Court to decide the above important points, in fact, shows misapplication; rather non application of the mind. In Gouranga Mohan Sikdar v. The Controller of Import and Export 1970 S C M R 323, Mr. Justice Hamoodur Rahman, C.J., (as he then was) considered the omission where the impugned order passed by the High Court did not disclose the application of the mind of the High Court to the merits of the case that was before it, and relying on Adamjee Jute Mills Ltd. v. Province of East Pakistan) P L D 1959 SC (Pak.) 272, remanded the case to decide it afresh.

16. The High Court and the Supreme Court. are the Courts of record and both the Courts, and for that matter every Court, are expected to decide every important issue involved in a case. If the High Court leaves undecided any important matter it may be said that it had decided the case in vacuum. Naturally, the Supreme Court in such cases would feel poor without the wisdom of the High Court and deciding such a matter without having the view point of the High Court may not be desirable.

17. It is my considered view that the omission on the part of the

High Court to apply its mind to the most important points referred I to above has prejudiced the appellant"s case inasmuch as the possibility cannot be excluded that had the learned Judges of the High Court considered the points, the conclusion in the writ petition would have been different.

18. The above are all substantial points and omission to decide them in the writ petition constitutes a mistake apparent on, the face of the record and warranted acceptance of the review petition in setting aside the. rejection order of the writ petition but unfortunately so was not done.

19. In Riaz Ahmad v. Amin Baig P L D 1978 SC (AJ&K) 161 it was observed: "The impugned judgment does not show that the learned Judges applied their mind to all the points raised in the grounds of the writ petition. They omitted to decide two important points. This disregard to the provisions of the law and inadvertent omission has not only wasted their valuable time but has caused unnecessary expense and trouble to the litigant public as well as encouraged further litigation This view also prevailed in an unreported case of this Court entitled Mir Haider Shah v. Azad Government (Civil Appeal No. 14 of 1981 decided on 9 1 1985). It has been observed in that case: "The judgment also fails to show that this point was abandoned. No doubt in certain circumstances where a point remains undecided it may be presumed that it was abandoned but such presumption is not permissible here because it is even conceded by the learned .counsel appearing on behalf of the parties that the point was agitated and argued in the High Court but the High Court omitted to give its finding on it."

20. My conclusion, therefore, is that in this case great prejudice: to the appellants in not deciding the above reflected vital points in the writ petition has been caused. It requires no deep thought that" omission to decide the vital issues involved is a mistake apparent on the face of the record and the review petition ought to have been accepted in undoing the order passed in the writ petition. It may be observed here that the decision of the above points may tilt the scale of justice in favour of the appellants. For the view, I have taken in the matter, I feel constrained to set aside the rejection order of the review petition dated 4 5 1981 which, in turn, would undo the dismissal order of the .writ petition in limine passed on 5 6 1980. Thus, I order accordingly. Consequently I direct the High Court to admit the writ petition for regular hearing and after completing all the formal proceedings, decide the case afresh in view of the observations made above.

A.A./251/SCA Order accordingly.

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