Apex court observes SC (Review of Judgments and Orders) Act, 2023 not applied to cases decided under Article 185

ISLAMABAD: The apex court observed that the Supreme Court (Review of Judgments and Orders) Act, 2023 is not applied to the cases decided under Article 185 of the Constitution.

A two-judge bench comprising Justice Ijazul Ahsan and Justice Ayesha A Malik ruled that while hearing a review petition against the SC judgment dated 16.08.2022 regarding a property situated at Liaquat Market, Iqbal Road, Rawalpindi.

Munir Piracha represented the private petitioners, while advocate Hafiz Ahsaan Ahmad Khokhar appeared on behalf of the Evacuee Trust Property Board (ETPB).

According to details, during the tenancy of the petitioners’ forefathers, they approached the then Federal Minister for Social Welfare and Rural Development and sought the sale of the suit property which the federal minister assented to vide memorandum dated 22.03.1977, and thereafter on 06.06.1992, the deputy administrator ETPB, Rawalpindi executed sale deed dated 06.01.1992 in favour of the petitioners.

Being aggrieved of the said sale deed, the ETPB filed a suit for cancellation but the said suit was dismissed by the trial court. Then ETPB filed an appeal against the judgment and the appellate court, vide judgment dated 17.01.2008, dismissed the appeal. Thereafter, the ETPB assailed the matter before the Lahore High Court (LHC), which on 18-01-2022 decided in favour of the department issued a judgment on 18-01-2022, in favour of the ETPB.

The petitioners then approached the apex court against the LHC’s verdict. The Supreme Court on 04-08-2022 upheld the high court judgment. The petitioners filed a review petition against the SC judgment.

During the proceeding, Munir Piracha submitted that as a new law – the Supreme Court (Review of Judgments and Orders) Act, 2023 - has been passed by the Parliament, therefore, a larger bench be constituted for hearing the review petition as per section 3 of the Act.

Justice Ijaz said nowhere in the Act it is written that the law would apply to all the review petitions. Justice Ayesha said the Act applies only to the cases passed by the apex court under Article 184(3). The petitioners’ counsel on the merit of the case contended that the observations passed in the impugned judgment were based on the wrong assumption of law as the sale deed was executed on the direction of the federal government, and the ETPB was only to execute the directions of the federal government, therefore, the impugned judgment was liable to be reviewed in terms of Article 188 of the Constitution.

Hafiz Ahsaan argued that the Supreme Court (Review of Judgments and Orders) Act, 2023 deals only with the cases decided by the apex court under Article 184(3), and not the cases decided under Article 185 of the Constitution.

He said that the present law as cited by the other side is not applicable in all such cases including the present one, therefore, the request for the constitution of a larger bench to hear review cases under Article 188 of the Constitution is not legally maintainable in view of explicit provisions of the Act.

Ahsaan further argued that under the Evacuee Trust Property Act, 1975, the federal minister was not competent to issue a memorandum dated 22.03.1977 and to assess the value of the property.

In the absence of an appropriate application before the competent authority, and without it being processed in the departmental hierarchy according to the law and rules, the entire superstructure of the transaction which culminated in the sale deed was based on an incompetent and unlawful exercise and therefore, all actions taken based on the memorandum dated 22.03.1977 were unlawful.

He submitted that there is no provision in the ETPB Act, which allowed the federal minister to approve the sale of evacuee land either at his discretion or in relaxation of Rules, thus, all actions taken in pursuance were illegal.

The bench after hearing both sides dismissed the review petition and maintained its earlier judgment.

Copyright Business Recorder, 2023