2024 CLS 8

Other citations: 2021 LHC 5354 = 2024 CLC 64

[Lahore High Court]

Before Muhammad Masood Jahangir and Anwaar Hussain, JJ

Chief Officer, Tehsil Municipal Administration, Vehari—Applicant

versus

Abdul Jabbar and others—Respondents

Review Application No. 24 of 2019, heard on 5^th October, 2021.

HEADNOTES

(a)   Constitution of Pakistan —

— Art. 199 — Constitutional jurisdiction — Conceding statement of Law Officer — Effect — Not only a Law Officer is debarred from making a conceding statement before the Court, unless written instructions are available with him, but it is also mandatory to produce an officer not below the rank of Grade-17 to appear before the Court and verify and reiterate the same — The sensitivity of the matter can be further gauged from the fact that it is also obligatory on part of the Court to record presence of such officer in the order and to make the written instructions part of the record of the Court. [Para. No. 7]

Faisalabad Development Authority v. Raja Jahangir Nasir and others 2004 SCMR 1247; Chairman/Secretary, Pakistan Railways, Ministry of Railways, Government of Pakistan, Islamabad and others v. Muhammad Sharif Javaid Warsi PLD 2003 SC 6 relied.

(b)   Civil Procedure Code (V of 1908) —

— S. 114 — Review — Scope — Escaping of an important legal aspect from the notice of the Court, at the time of rendering its judgment amounts to an error apparent on the record and merits review. [Para. No. 7]

Pakistan through Ministry of Finance Economic Affairs and another v. FECTO Belarus Tractors Limited PLD 2002 SC 208 referred.

(c)   Civil Procedure Code (V of 1908) —

— O. XXIII, R. 3 & S. 114 — Consent order, review of — Scope — Consent of the parties does not absolve the courts from their bounden duty to pass any order in accordance with law in vogue even if the consent of parties is reached otherwise, particularly when the matter involves public money — All state organs including the courts are bound to protect state exchequer under the doctrine of trust and if consent is given in defiance of any legal principle settled by the Supreme Court, resulting in the loss to exchequer, such an error can always be rectified by High Court. [Para. No. 7]

(d)   Limitation —

— No limitation runs in cases where the order is void. [Para. No. 8]

Qazi Munir Ahmed v. Rawalpindi Medical College and Allied Hospital through Principal and others 2019 SCMR 648 referred.

(e)   Limitation —

Abdul Salam Alvi, Advocate for applicant.

Mughees Aslam Malik, Advocate for respondents.

Date of hearing: 5^th October, 2021.

JUDGMENT

Anwaar Hussain, J:—Through the titled application, review of order dated 03.04.2019, passed in writ petition No.7993/2012, has been prayed for, whereby learned Single Judge has disposed of the aforementioned writ petition while holding that the rent of the shops in possession of the respondents shall be fixed in terms of resolution No.161 dated 30.12.2009. The decision was made on the conceding statement made by Legal Advisor, namely, Rana Imran Riasat, Advocate (“the Legal Advisor”) of the Tehsil Municipal Administration (“the applicant”).

2.           Briefly stated facts of the case are that the respondents, being occupants of the shops situated in Shopping Centre, Municipal Market, Vehari, challenged the order of the applicant dated 21.06.2011, whereby the request of the respondents for reduction of rent in respect of the said shops was declined. Notices were issued to the applicant and through the order under review, the said writ petition was disposed of on the strength of consensus recorded on the basis of submission by the Legal Advisor of the applicant that the rent of the shops will be fixed in terms of resolution No.161, dated 30.12.2009, passed by the applicant.

3.           Learned counsel for the applicant submits that the Legal Advisor had no authority to make any conceding statement to develop a consensus with the respondents regarding reduction of rent to be recovered from the respondents. Places reliance on Faisalabad Development Authority v. Raja Jahangir Nasir and others¹ to contend that any such statement is of no legal value and has resulted in colossal loss to the exchequer as the respondents are occupants of state property without any legal right in their favour and are also defaulters.

4.           Conversely, learned counsel for the respondents submits that the review application is time barred by 48 days, as under Article 162 of the Limitation Act, 1908 (“the Act”), limitation period for filing a review application against an order or judgment of this Court is provided as 20 days. Adds that even otherwise, the date of knowledge of order under review has wrongly been stated in the application for condonation of delay as the respondents made an application to the Chairman of the applicant on 15.04.2019, which was duly received on 24.04.2019, for implementation of the order under review and perusal thereof indicates that the applicant was aware of the same on 24.04.2019, as the applicant sought a legal opinion on the same from the present Legal Advisor as well. Further submit that review application against an order passed on the basis of consent is not maintainable. In rebuttal, learned counsel for the applicant submits that since the order was void in terms of dicta laid down in Faisalabad Development Authority supra, no limitation runs against the same.

5.           Arguments heard. Record perused.

6.           The legal points involved in this matter are as under:

i.     Whether the conceding statement made by learned Legal Advisor is in accordance with law and a decision given on the basis of same can be reviewed? And

ii.    Whether the instant application is time barred in terms of Article 162 of the Act?

7.           Authority of a Law Officer or a Legal Advisor working for the government or for its departments, to make a conceding statement, was settled on the recommendations of a committee constituted by the Hon’ble Supreme Court of Pakistan while hearing the case cited as “Chairman/Secretary, Pakistan Railways, Ministry of Railways, Government of Pakistan, Islamabad and others v. Muhammad Sharif Javaid Warsi”². The committee headed by the Attorney General for Pakistan finalized its recommendations which are contemplated in notification No.F.5(2)/2003–AGP dated 27.05.2003.³ Para 8.0 of the said notification pertains to concessions and is reproduced hereunder:

8.0. The Law Officers must not make any statement conceding an issue or a case in Court unless they have been duly instructed in writing by the Competent Authority and an officer not below Grade-17 is present in Court to verify and reiterate such instructions. In all such cases the presence of the officer must be recorded in the order of the Court and the written instructions made a part of the record of the Court.”

(Emphasis provided)

Perusal of the above referred para indicates that not only a Law Officer is debarred from making a conceding statement before the Court, unless written instructions are available with him, but it is also mandatory to produce an officer not below the rank of Grade-17 to appear before the Court and verify and reiterate the same. The sensitivity of the matter can be further gauged from the fact that it is also obligatory on part of the Court to record presence of such officer in the order and to make the written instructions part of the record of the Court. These recommendations got judicial approval from the Hon’ble Supreme Court in case of Faisalabad Development Authority supra and hence, becomes binding upon this Court in terms of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973. In the present case, it is evident from the record that when the matter was taken up by learned Single Judge and order under review was passed, only the Legal Advisor of the applicant appeared and a consensus was developed between the parties and no official from the applicant’s side was in attendance, let alone an officer of Grade-17 or above as required under the law and hence, the conceding statement got recorded by the Legal Advisor is in defiance and ignorance of the judgment of Hon’ble Supreme Court of Pakistan. In “Pakistan through Ministry of Finance Economic Affairs and another v. FECTO Belarus Tractors Limited”⁴, it has been held by the Hon’ble Supreme Court that escaping of an important legal aspect from the notice of the Court, at the time of rendering its judgment amounts to an error apparent on the record and merits review. Much emphasis has been laid by learned Counsel for the respondents that a consent order cannot be reviewed. In this regard, suffice to state that the consent of the parties does not absolve the courts from their bounden duty to pass any order in accordance with law in vogue even if the consent of parties is reached otherwise, particularly when the matter involves public money. It is now settled position of law that all state organs including the courts are bound to protect state exchequer under the doctrine of trust and if consent is given in defiance of any legal principle settled by the Hon’ble Supreme Court, resulting in the loss to exchequer, such an error can always be rectified by this Court as discussed hereinabove.

8.           As regards the objection that present review petition is time barred in terms of Article 162 of the Act, it is worth mentioning that no limitation runs in cases where the order is void. We are fortified by the case reported as “Qazi Munir Ahmed v. Rawalpindi Medical College and Allied Hospital through Principal and others⁵. It is worth mentioning that the order under review is not just void due to lack of jurisdiction on part of an authority while interpreting a question of law or adjudicating a disputed question of fact but has been passed in ignorance of the law settled by the Hon’ble Apex Court in Faisalabad Development Authority supra and the consent recorded, in the order under review, is detrimental to the state exchequer. Where such facts have escaped the notice of the Court and state exchequer is likely to suffer loss, this Court in its inherent jurisdiction can overlook and condone the delay to rectify the wrong. Therefore, even if there is delay in the instant matter, the same is condoned in view of the fact that the Court has not looked into the lawful authority of the Legal Advisor to make a conceding statement.

9.           In the light of the above, this review application is allowed and the order under review is set aside. Resultantly, Writ Petition No.7993/2012 filed by the respondents will deem to be pending, which will be decided afresh. Office is directed to fix the said writ petition accordingly.

Application allowed

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¹ 2004 SCMR 1247

² PLD 2003 SC 6

³ PLD 2003 Journal 95

⁴ PLD 2002 SC 208

⁵ 2019 SCMR 648