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Letters Patent Appeal No. 80 of 1960, decided on 2nd January 1963.

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---‑Parties‑Deputy Rehabilitation Commissioner impleaded but Additional Rehabilitation Commissioner not made party‑Petition not to be dismissed for omission to implead Additional Rehabilitation Commissioner, provided order proposed to be passed in writ proceedings does not affect such officer's interest, if any‑Whether a second petition after dismissal of first petition on such ground, is competent (Quaere)‑Constitution of Pakistan (1962), Art. 98 Constitution of Pakistan (1956), Art. 170.

While it is not possible to disagree with the principle that omission to make parties those officers whose action is to be reviewed, and who are interested therein and affected thereby, goes to the very root of the relief sought by a writ petition, in relation to law as it exists at present, the principle is applicable not as an inflexible rule of procedure but as one to be adjusted to the circumstances of each case. There is no statute or rule which lays down that any particular party must necessarily be impleaded as a respondent to a petition under Article 98 of the Constitution (1962) or a petition under Article 170 of the Constitution (1956). Nor is there a provision that the Court must dismiss a petition under the said Article 98 or the said Article 170, if a party that it con siders necessary has not been impleaded as a respondent by the petitioner, and is precluded from sending for that party itself or from permitting the petitioner to amend his petition. In law, the Court is free to determine in relation to each case whether the order it proposes to make can be made without violating the essence of the principle even though a particular officer was not technically impleaded as a respondent in the case. The question really was whether the order proposed to be passed in the writ petition will, if passed in the absence of the Officer concerned, affect him, or his interest, if any, in a way that should prevent the High Court from making it.

Where the Deputy Rehabilitation Commissioner was made a respondent to a writ petition, and the Additional Rehabilitation Commissioner, against whose decision in Revision, the petition was moved in the High Court under the writ jurisdiction of that Court, was not impleaded as a respondent in the petition, but where the Additional Rehabilitation Commissioner had notice of the writ proceedings, served on him in relation to a second petition on same facts instituted after dismissal of the first petition on the ground of failure to implead him:

Held, that the fact that the Additional Rehabilitation Com missioner was not before the High Court as a party to the Letters Patent Appeal against the order of dismissal passed by the Judge in Chambers, because he was not trade a party to the original writ petition, should not stand in the way of making an order that the case should be sent back to the Additional Rehabilitation Commis sioner for the determination of the issues of substance raised before him, which he had not decided as respects the appellants because he came to the conclusion that they had no locus standi.

(Quaere) : Whether a second writ petition, on the same facts and in regard to the same transaction was competent after dismis sal of the first on the ground that the latter petition had not impleaded the Additional Rehabilitation Commissioner

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---‑ Impugned order passed by Additional Rehabilitation Commissioner dismissing Revision petition on ground that petitioners in Revision petition had no locus standi not being parties to appeal before Deputy Rehabilitation Commissioner Error of law‑Writ petition competent‑Pakistan Rehabilitation Act (XLII of 1956), S. 11 (1) (4)‑"Any person aggrieved" may appeal in terms of S. 11 (1)‑Revisional powers may be exercised by the Rehabilitation Commissioner either of his own motion or on perusal of an application in terms of S. 11 (4).

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--‑Final Revision petition not taken before Rehabilitation Commissioner from order in Revision of Additional Rehabilitation Commissioner‑Objection not raised by respondents in writ petition during pendency of petition for 3 years‑Not taken into consideration in deciding writ petition.

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---‑Officer whose order is impugned in writ petition‑Not a "necessary" but "proper" party‑Writ petition may not be "dismissed" for failure to implead such officer‑Opportunity to be given to implead‑Rule regarding "dismissal" of writ petitions for failure to implead, subject to law in Pakistan‑Writ proceedings a matter of "civil jurisdiction"‑Civil Procedure Code (V of 1908), S. 141 may be pressed into service."

A Tribunal or an officer whose order is attacked in the High Court by means of a petition to have a writ issued is not a. necessary party to the petition which can proceed without the Tribunal or the officer being impleaded as a party. However, such Tribunal or officer, as the case may be, is a proper party, and if the person who has brought a petition has not impleaded the Tribunal or officer, the Court has ample power to rectify the omission by itself impleading the Tribunal or officer or by directing the person who had put in the petition to do so and can in suitable cases mulct the person who put in the petition with costs for having caused an unnecessary adjournment in the hearing of the case.

Whether a Tribunal or officer must be impleaded when a petition against an order passed by such Tribunal or officer is impugned in Court must necessarily depend on the law pf the country in which the question arises.

No hard and fast rules in regard to the matter exist, aid the provisions contained in section 141 of the Code of Civil Procedure can be invoked because the section is to the effect that the procedure prescribed for suits in that Code was, as far as practic able, applicable to all proceedings in any Court of civil jurisdic tion. That the High Court acts as a Court of civil jurisdiction when exercising writ jurisdiction is hardly open to question and it follows that the provisions of the Code of Civil Procedure can be pressed into service.

Raja Muhammad Anwar for Petitioners.

M. Saleem for Respondents.

Dates of hearing : 7th, 20th and 21st November 1962.

‑In the early days after the establish ment of Pakistan, it seems, a policy was being pursued that land should be allotted to refugees in the measure of one acre per each individual member included in a family. It thus came about that a certain family of refugees was given 18 acres of land. It appears that this family was regarded as consisting of five distinct units, each with its own set of individuals. Three of these units were represented by three minor boys who are brothers, and the remaining two by their two uncles, Fazal Din and Allah Ditta. Some time later, it seems, that the areas thus allotted, purely for the purposes of the immediate rehabilitation of those who had come to Pakistan in a state of destitution, were reviewed in order to bring them into accord with what the allottees had left behind in India. The verification received in respect of the land left behind by this family showed it to be less than the area that had been given to them here. Bashir, another refugee who had been given inferior land in the neighbourhood, now appeal to the Deputy Rehabilitation. Commissioner against Allah Ditta, praying that the area in possession of Allah Ditta, found to be in excess of the area verified to have been left behind by Allah Ditta should be taken away from Allah Ditta and given to him instead of his inferior land. Allah Ditta protested that the verification of the area left behind by him and his relatives had not till then been finally determined and that if the supposed excess were taken away from him and given to an outsider but later it was found that he or his relatives were in fact entitled to retain it, an avoidable complication would arise. He, therefore, prayed that if the area in question was necessarily to be taken away from him forthwith, it should at least be kept in reserve pending the final determina tion of the verification in respect of the area left behind by his family in India.

2. At the time of the hearing of the appeal, the Deputy Rehabilitation Commissioner appears to have been under the impression that the other relatives of Allah Ditta had not till then challenged the correctness of the verification in respect of the areas left behind by them but were only thinking of doing so, though, in fact, it seems, they had already done so. Since Bashir had challenged only the land in the possession of Allah Ditta, he did not implead the other relatives of Allah Ditta, as respondents in the appeal. The minors and their other uncle, apparently thinking that the interest of all was being adequately represented by Allah Ditto, did not apply separately to be impleaded as respondents to the appeal. The result was that though Allah Ditta did attempt at the hearing of the appeal to safeguard the interests of his brother and nephews, technically his brother and nephews were not parties to the appeal.

3. The Deputy Rehabilitation Commissioner accepted the appeal of Bashir and ordered that the excess land in question be given to him. Against this decision, the minors, through their uncle Allah Ditta, Allah Ditta himself and Fazal, all went up in revision before the Additional Rehabilitation Commissioner. The Additional Rehabilitation Commissioner felt that in the circum stances the position for which Allah Ditta was contending was reasonable. He accordingly accepted the petition of Allah‑ Ditta and ordered that if after the final verification of the area left behind by him, it is found that he is entitled to more land, it should be given to him out of the land of which he was being deprived. He, however, came to the conclusion that the minors and their uncle Fazal had no locus standi, as they were not parties and had not applied to be made parties to the appeal before the Deputy Rehabilitation Commissioner. Holding that these persons were closely related to Allah Ditta, and that they had no locus standi, he dismissed their petitions. It is not clear whether the fact that these persons were closely related was regarded by the Additional Rehabilitation Commissioner as a circumstance against or in favour of those persons. Since the whole basis of the case of those persons was that the land in question being a compact holding given to a family the introduction of an outsider into that holding would not be desirable, I do not think that this circumstance was intended by the Additional Rehabilitation Commissioner to be treated as a ground for the dismissal of their petition. I take it, therefore, that their petitions were dismissed mainly on the ground that they had no locus standi.

4. In respect of this decision, Fazal Din and the minors, again, through their uncle Allah Ditta, moved this Court to issue a writ of certiorari, impleading as respondents Bashir and the Deputy Rehabilitation Commissioner only. A learned Judge in Chambers dismissed their petition on the ground that they had not impleaded the Additional Rehabilitation Commissioner as a party, whose order in revision also stood in the way of the petitioners and was sought to be quashed. From this decision of the learned Judge, this is an appeal under clause 10 of the Letters Patent of this Court.

5. The learned Judge in Chambers, relying on paragraph 175 of the book entitled "Extraordinary Legal Remedies" by Farrit C. Farris, held that the omission to make parties those officers whose action is to be reviewed, and who are interested therein and affected thereby, goes to the very root of the relief sought and on that ground dismissed the petition. While I am in respectful agreement with the principle on which this statement is based, it seems to me, that in relation to our law, as it exists at present, it is applicable not as an inflexible rule of procedure but as a principle to be adjusted to the circumstances of each case. There is no statute or rule which lays down that any particular party must necessarily be impleaded as a respondent to a petition under Article 98 of the present Constitution or a petition under Article 170 of the late Constitution. Nor is there a provision that the Court must dismiss a petition under the said Article 98 or the said Article 170, if a party that it considers necessary has not been impleaded as a respondent by the petitioner, and is precluded from sending for that party itself or from permitting the petitioner to amend his petition. It seems to me that in our law, the Court is free to determine in relation to each case whether the order it proposes to make can be made without violating the essence of the principle enunciated by the learned Judge in Chambers, even though a particular officer was not technically impleaded as a respondent in the case. The question before me, therefore, is whether an order directing the Additional Rehabilita tion Commissioner to hear and determine afresh the revision petitions that have been dismissed by him on the ground of lack of locus standi‑because that in the order I propose that should be made in this case‑will, if passed in the absence of the Additional Rehabilitation Commissioner, affect him, or his interest, if any, in c a way that should prevent this Court from making it. The facts relevant for this purpose are that after the dismissal of the petition by the learned Judge in Chambers, the appellants filed a fresh petition impleading the Additional Rehabilitation Commissioner as a respondent. That petition was admitted to a hearing and notices were sent to the respondents. The record of that petitions is also before us. Whether a second petition after impleading a necessary party is or is not competent when an earlier petition has been dismissed on the same facts and in respect of the same transaction on the ground of omission to implead that party, is a matter that does not arise for decision in this case. The fact, however, that notice was given of the second petition, and no written statement has been put in on behalf of the Additional Rehabilitation Commissioner, affords confirmation of what is stated in clause (iii) of paragraph 8 of the memorandum of appeal in this case "that the Rehabilitation Authorities have clearly stated that they do not intend to defend this petition". The only interest taken by any Rehabilitation authority at any stage of the proceedings in this Court is that the Deputy Rehabilitation Commissioner put in a written statement in reply with a note that a copy of his reply had been sent to the Settlement Commissioner for information and necessary action. It seems clear that the Additional Rehabilitation Commissioner does not regard himself as affected by the decision in this case one way or the other. Moreover, the point, on which my decision in this case depends, is a statutory provision, and does not flow from any facts that are, or may be, disputed. In these circumstances, I am of the opinion that the fact that the Additional Rehabilitation Commissioner is not before this Court as a party to this appeal, because he was not made a party to the original writ petition, should not stand in the way of making an order that this case should be sent back to him for the determination of the issues of substance raised before him, which he did not decide as respects the appellants because he came to the conclusion that they had no locus standi.

6. Coming now to the reasons for making the order I propose. If the allegation of the appellants is correct that before the appeal of Bashir was heard by the Deputy Rehabilitation Commissioner, they had already put in applications to challenge the accuracy of the verifications made in respect of the land they had left behind in India, the Deputy Rehabilitation Commissioner was under a misapprehension while considering the matter before him. If the further allegation of the appellants that they did in fact apply to the Deputy Rehabilitation Commissioner to be made parties to the appeal but that their prayer was refused, is correct, the Additional Rehabilitation Commissioner was under a mis apprehension when he thought that they had not so applied. These, however, are matters, which can be decided only after a deter mination of facts, and I do not think it is desirable for this Court to attempt to resolve issues of the fact in writ jurisdiction, except in very special circumstances. Leaving these questions aside, there is one point in which it appears to me that the Additional Rehabilitation Commissioner is in error regarding a matter of law. His order seems to be based on the assumption that only a person who was a party to a proceeding at a lower level in the heirarchy of Rehabilitation Authorities has the locus standi to challenge in appeal or revision, before a higher level in that heirarchy, the conclusion reached at the lower level. This assumption appears to be erroneous. Subsection (1) of section 11 of Act XLII of 1956 provides :‑

"Any person aggrieved by an order under this Act, may prefer an appeal . . . . to * * * *"

Subsection (4) of that section goes even further. It says :‑

"The Rehabilitation Commissioner may * * * * either of his own motion, or on a perusal of an application made to him in this behalf call for the record of any proceeding relating to any of the purposes of this Act, which is pending before, or has been disposed of by (a lower level of authority) * * * * * * * * for the purpose of satisfying himself as to the legality or propriety of any order * * * * * * and may pass such order in relation thereto as he thinks fit."

7. Regard being had to the nature of the operations necessary to be carried out in relation to the distribution of valuable properties among persons who have no rights in or over the particular properties, and in whose favour the only entitlement created by law is that they should, as far as possible, be given some property up to a stated extent, it is not difficult to see that property so given to one person, may be the occasion of griev ances of diverse kinds for several persons. It is apparently for this reason that the Act gives the right of appeal to every person who may be aggrieved by an order made under it, and goes further and vests the jurisdiction in the Rehabilitation Commissioner, of his own motion, or on the motion of a person who may or may not be aggrieved, to satisfy himself of the legality or propriety of an order made by any of the officers subordinate to him.

8. It appears to me, therefore, that once a Rehabilitation Commissioner has been moved under subsection (4) of section 11 of the Act‑as was done in this case, and he has sent for and perused the record of the proceedings, it is his own responsibility to satisfy himself as to the legality or propriety of those proceed ings. He is not relieved of this responsibility merely because he was not moved by a person possessing any particular kind of qualification. No qualifications of any kind are prescribed for the person who makes an application under subsection (4), and as such no question of locus standi can arise in relation to proceed ings in revision. In so far as the applications for revision made by the appellants were rejected on that ground, it seems to me that the Additional Rehabilitation Commissioner who, for the purposes of revisional jurisdiction in the present case, is deemed to be the Rehabilitation Commissioner, has failed to exercise a jurisdiction vested in him by law.

9. In the present case the interests of the minors and their uncles are clearly affected by the order of the Deputy Rehabilita tion Commissioner. Their full entitlement admittedly remains to be satisfied. They, therefore, fulfil the only qualification required for making an appeal against that order if that order were appealable. It seems to me that it is possible to regard that order as being appealable. The proceedings before the Deputy Rehabilitation Commissioner in this case have been described throughout as appellate proceedings, and on that basis it has all along been assumed that no appeal lay from those proceedings, as the Act does not give a right of appeal from an appellate decision. In form, no doubt those proceedings were appellate. In substance, however, they might well turn out to be original in their nature, as it was in those proceedings for the first time that the question of allotting the land in dispute on the basis of entitlement to anyone arose, and it was as a result of those proceedings that the interest of the appellants was, in the first instance, affected. It is not necessary, however, either to decide this point in this case, or at this late stage to throw it open. I would prefer to deal with this case on the footing on which it has so far proceeded, namely, that the decision of the Deputy Rehabilitation Commissioner being an appellate decision, no appeal lay from it, and for that reason an application for revision was the next available remedy.

10. The orders in question being those of an Additional Rehabilitation Commissioner, though vested with the powers of a Rehabilitation Commissioner, a further application for revision could have been made to the Rehabilitation Commissioner himself, but no such application appears to have been made. This ordi narily would be a ground for this Court not to interfere in writ jurisdiction, leaving the party to pursue his alternative remedy before coming to this Court. Since, however, the order of the G Additional Rehabilitation Commissioner was made more than four years ago and proceedings in this Court have been pending for more than three and a half years without any challenge on this ground from any one at any stage, it does not seem to me to be just to take this consideration into account in deciding this appeal.

11. I would, therefore, accept this appeal. My learned brother having, agreed with me, the order in the case is that the appropriate Rehabilitation Authority is directed to hear afresh the following three applications for revisions which were dismissed on 18th October 1958, on the ground that the applicants who had applied for revision had no locus standi to make those applications, and that Authority is further directed not to take into consideration any question of locus standi of the applicants but to satisfy himself of the legality and propriety of the pro ceedings and order in respect of which those applications were made, and pass such orders on those applications as he deems fit.

(1) Zubair v. Bashir Ahmad,

(2) Shoaib etc. v. Bashir Ahmad,

(3) Fazal v. Bashir Ahmad.

12. The order of this Court against which this is an appeal is set aside. The order of the Additional Rehabilitation Com missioner dismissing the applications for revision made by the appellants is declared to be of no legal effect, and is quashed. I think, in the circumstances of this case, there should be no order as to costs.

I agree with my Lord the Chief Justice but would add just a few words regarding the question whe ther the fact that a Tribunal or an officer, for making whose order ineffective a petition for issue of a writ is made, is not impleaded as a party to the petition is fatal for and it has to be dismissed on the short ground that the Tribunal or the officer, as the case may be, was not impleaded. The answer to this question will depend on the answer to the question whether such Tribunal or officer is a necessary party or merely a proper party. If it is a case of not impleading a necessary party, an order of dismissal of the petition can follow, but if it be a case of not impleading a proper party, an order of dismissal cannot be passed.

2. The learned Judge in Chambers has relied on some passages in the book "Extraordinary Legal Remedies" by Farrit C. Farris and holding that the Tribunal or the officer whose order is impugned is a necessary party to the proceedings has proceeded to dismiss the petition. Whether a Tribunal or officer must be impleaded when a petition against an order passed by such Tribunal or officer is impugned in Court must necessarily depend on the law of the country in which the question arises. It may be that the law in the country which Mr. Farris had in mind required that the Tribunal or the officer concerned must be imp leaded as a party, but one has to turn to the law in force in this country to determine whether this is so for the purposes of the petitions presented in this country. No hard and fast rules in regard to the matter exist, and the provisions contained in section 141 of the Code of Civil Procedure can be invoked because the section is to the effect that the procedure prescribed for suits in that Code was, as far as practicable, applicable to all proceedings in any Court of civil jurisdiction. That, when exercising writ jurisdiction, this Court acts as a Court of civil jurisdiction is hardly open to question and it follows that the provisions of the Code of Civil Procedure can be passed into service.

3. Now, no provision of the Code of Civil Procedure enjoins that a public servant by reason of whose order any person has gained an advantage is a necessary party to a suit brought to deprive the person who had got it of such advantage and I have, therefore, no hesitation in holding that a Tribunal or an officer whose order is attacked in this Court by means of a petition to have a writ issued is not a necessary party to the petition which can proceed without the Tribunal or the officer being impleaded as a party. I would, however, add that such Tribunal or officer, as the case may be, is a proper party, and if the person who has brought a petition has not impleaded the Tribunal or officer, the Court has ample power to rectify the omission by itself impleadying the Tribunal or Officer or by directing the person who had putt in the petition to do so and can in suitable cases mulct the person. In who put in the petition with costs for having caused an unnecessary adjournment in the hearing of the case.

A. H. Appeal accepted.

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