Supreme Court bars adverse action sans fair hearing

The Supreme Court has ruled that courts and quasi-judicial authorities are bound to ensure the right of audience and due process before taking any adverse action.

"It is undeniable, rather a matter of common knowledge that under Article 10A of the Constitution, the right to a fair trial is a fundamental right. Now the courts and Quasi Judicial Authorities are bound to analyse in the facts and circumstances of the case to ascertain whether this indispensable right was afforded or deprived of," says 10-page judgement authored by Justice MuhammadAli Mazhar while dismissing the Punjab government's appeal against a Lahore High Court order regarding the cancellation of land by revenue department without giving opportunity to other side.

A three-judge bench led by Justice MuhammadAli Mazhar has noted that it is the most dominant prerequisite of due process of law and right of audience that the decision of authority must be rational, not capricious or haphazard.

"This should be an inevitable sense of duty of all authorities to ensure fair treatment with adequate right of audience for all intents and purposes for adherence to the principles of natural justice.

"Secured vested rights cannot be devastated or upset by unilateral actions when the relevant law itself advocated to afford right of audience. Before cancelling the land in question, the respondents who were the purchasers against valuable consideration should have been afforded an opportunity of hearing."

The order said that under Section 32 (2) of the Punjab Colonization of Government Lands Act, 1992, the condition of providing a reasonable opportunity of showing cause before resuming the land or reducing the area of such land or even passing such order is not merely a formality but a substantive provision and without compliance to this condition, the whole action deems to be an illegal exercise of powers which is also ultra vires the provision providing a right of audience before any action, says the order.

The court said that it is an admitted position in the case at hand, that before passing an adverse order of cancellation under section 30 (2) of the Punjab Colonization Government Lands Act, 1992, though the Board of Revenue was required to afford a reasonable opportunity of showing cause earlier than passing an adversative order but neither any notice was issued nor any opportunity of hearing was afforded before cancellation of land on unilateral action with solo move or initiative.

The court has also ruled that no preferential treatment can be given to the government departments for condonation of delay.

"The ground raised for condonation for such a long delay demonstrates the recklessness and inefficiency of the concerned department and its officials including the top brass. In the case of an individual, all decisions rest solely on him with regard to the procurement of advice for challenging the decision at higher forum; the decision to challenge; the engagement of an advocate; supplying the relevant documents to the advocate for the preparation of the appeal/petition and then following the case religiously; however, in the case of the government or any of its departments, the party has at its disposal the assistance of its own legal department; the help and support of the Attorney General's Office, or the Advocate General's Office as the case may be."

"Therefore, immediately upon receiving a copy of the judgment/order, the Government departments may move for instructions rather than waiting for the lapse of the period of limitation provided for approaching the higher courts."

The court said that in order to establish sufficient cause, the delay of each and every day is also required to be explained which is also missing from the application moved for condonation of delay.

"It is also a well settled exposition of law that while considering the grounds for condonation of delay, whether rational or irrational, no extraordinary clemency or compassion and/or preferential treatment may be accorded to the Government department, autonomous bodies or private sector/organizations, rather their case should be dealt with uniformly and in the same manner as cases of ordinary litigants and citizens."

"No doubt the law favours adjudication on merits, but simultaneously one should not close their eyes or oversee another aspect of great consequence, namely that the law helps the vigilant and not the indolent."

The court has ruled that no plausible reasons have been shown for justifying grave inefficiency and negligence of the department in filing of the civil petition in time. The CMA for condonation of delay is dismissed, says the order.