P L D 1965 Supreme Court 671 (PLP)

B. Z. KAIKAUS, J.‑This certificated appeal arises out of a suit filed by the respondents challenging orders passed in proceedings under the Frontier Crimes Regulation. Khan Sahib Mahmood Jan Khan, to the property left by whom this dispute relates, died in 1919. It is not clear which of his sons survived him, but he had four sons, Wali Jan Khan, who was the eldest, Abdul Khaliq Khan, Abdul Malik Khan and Ahmad Ali Jan Khan. On 3rd September 1918, he had made a will with respect to his property to the contents of which it is not necessary to refer. After his death Wali Jan Khan took possession of the major portion of his property on the ground that he was entitled to inherit it as the eldest son. Wali Jan. Khan died on the 2nd June 1960, leaving behind him four sons. A dispute then arose as to who was entitled to property left by Khan Sahib Mahmood Jan Khan. Abdul Khaliq Khan and Ahmad Ali Jan Khan were already dead when Wah Jan Khan died and out of the sons of Khan Sahib Mahmood Jan Khan only Abdul Malik Khan was alive. The main question was whether the property would be governed by the rule of primogeniture or by a rule that the senior most member of the family would be entitled to take possession of it. The dispute was referred by the Deputy Commissioner to a Council‑of‑Elders under section 8 of the Frontier Crimes Regulation and in accordance with the award of the Council‑of‑Elders a decree was granted by the Deputy Commissioner, Peshawar, on 23rd January 1032. By the award of the Council‑of‑Elders property of Khan Sahib Mahmood Jan Khan was distributed amongst his descendants, but Abdul Malik Khan was also granted some land in his capacity as the senior member of the family. On the 10th of December 1949, Fazal Baqi Khan and his brother Abdul Majid Khan sons of Ahmad Ali Jan Khan submitted an application to the Deputy Commissioner, Peshawar, complaining that Haji Abdul Malik Khan was misbehaving and usurping the rights of the junior members of the family. A prayer was made that the matter be referred again to the Council- of‑Elders. In accordance with the amendment of the Frontier Crimes Regulation the sanction of the Government was now required for this reference. The Deputy Commissioner, Peshawar, recommended that sanction of the Provincial Government be accorded. Sanction was granted and on the 4th October 1950, the Deputy Commissioner made the second reference to the Council- of‑Elders under the Frontier Crimes Regulation. The Council‑of -Elders after hearing the parties gave its award. There was a remand by the Deputy Commissioner for further inquiry and after such an inquiry the Council‑of‑Elders gave an award on the 16th January 1951, in accordance with which a decree was passed by the Deputy Commissioner on the 6th of June 1951. Revision petitions were filed by Abdul Hamid Khan, Abdul Majid Khan and Abdul Baqi Khan before the Commissioner Who sent back the case to the Deputy Commissioner for appointment of afresh Council‑of‑Elders. The new Council‑of‑Elders gave an award on the 10th March 1953 and on the 15th March 1954, the Deputy Commissioner passed a decree in terms of the award. By the decree Abdul Malik Khan was directed to pay about Rs. 26,000 to Abdul Hamid Khan, Abdul Majid Khan and Abdul Baqi Khan in respect of a house,, a hujra and a bungalow. On the 13th June 1955, Abdul Hamid Khan alone filed the suit out of which this appeal arises against Haji Abdul Malik Khan, Abdul Majid Khan and Abdul Baqi Khan as well as the Government of West Pakistan and the Deputy Commissioner of Peshawar. In this suit Abdul Hamid Khan prayed for a declaration that he was the exclusive owner of certain non agricultural immovable property situate in village Kafoor Dheri and that the decree dated the 15th March 1954, of the Deputy Commissioner was illegal, a fraud on the statute, malicious and ineffective as against the plaintiff. An injunction was also prayed for restraining the defendants from executing the decree. The , grounds of attack which appeared in para. 7 of the plaint were: (i) the proceedings before the Deputy Commissioner under the F. C. R. were barred on the principle of res judicata there already having been an award and a decree; (ii) there existed no likelihood of breach of peace which was an essential pre‑requisite for a reference; (iii) the proceedings were mala fide having been started at the instance of Khan Abdul Qayyum Khan, the Chief Minister of the Province, and sanction of the Government too had been granted mala fide; (iv) appointment of Jirga members was not legal as they were the associates of Khan Abdul Qayyum Khan; (v) by the award and the decree the property of the plaintiff had been acquired on the payment of a small amount of compensation and such an acquisition was ultra vires. On objection taken by Abdul Malik Khan, Abdul Majid Khan and Fazal Baqi Khan the Court framed a preliminary issue as to whether it had jurisdiction to try the suit and relying upon sections 10 and 60 of the Frontier Crimes Regulation it dismissed the suit on the ground that the jurisdiction of the Civil Court was ousted. Abdul Hamid Khan plaintiff filed an appeal before the High Court of West Pakistan and a learned Single Judge of the High Court of West Pakistan accepted the appeal and setting aside the decree of the trial Court remanded the case for trial in accordance with law holding that the Court had jurisdiction to try the suit. A certificate was, however, granted by the High Court for appeal to the Supreme Court. In this appeal which has been filed on the strength of the certificate the defendants‑appellants contend that there is no jurisdiction in the Civil Court to set aside orders passed by the Deputy Commissioner under the Frontier Crimes Regulation. Civil Courts have jurisdiction as provided in section 9 of the Civil Procedure Code to try all suits of a civil nature excepting those the trial of which is expressly or impliedly barred. We have already reproduced the grounds of attack on the decree and the award. The substance of those grounds is that the proceedings under the Frontier Crimes Regulation ending in the decree of 15th March 1954, were without jurisdiction. The question as too whether the act of an executive or administrative officer or quasi judicial or judicial tribunal is without jurisdiction; illegal and not binding on a party, being a matter of a civil nature, is always to be decided by the Civil Courts except to the .,extent to which such jurisdiction may have been taken away. The question for consideration before the Court was ‑ whether this jurisdiction had been taken away by some provision. On behalf of the appellants reliance had been placed for this ouster of jurisdiction of the Civil Courts on sections 10 and 60 of the Frontier Crimes Regulation. These sections are reproduced below: "

10. Restriction on jurisdiction of Civil Court.‑No Civil Court shall take cognizance of any claim with respect to which the Deputy Commissioner has proceeded under section 8, sub section (3), clause (a), clause (b) or clause (d).

60. Finality of proceedings under Regulation.‑Except as therein otherwise provided no decision, decree, sentence or order given, passed or made, or act done, under Chapter III, Chapter IV, Chapter V or Chapter VI, shall be called in question in, or set aside by any Civil or Criminal Court." Section 10 applies to the preference of a claim in a Civil Court in respect of which claim the Deputy Commissioner has already proceeded under section

8. In the present suit, a claim had been made as to ownership of certain property. If this claim had already been the subject‑matter of a reference by the Deputy Commissioner the Civil Court would not on account of section 10 be entitled to go into the merits of the claim. However, the reference under section 8 should be a valid reference and if it be R found that the reference itself was without jurisdiction section 10 will not be attracted. Section 60 prevents the Court from calling in question or from setting aside any order passed or any action taken under Chapters III, IV, V and VI of the Frontier Crimes Regulation. However, as in the case of section 10, section 6 will also apply only where an order is passed with jurisdiction. We are quite familiar with the words "under the Act" or "under Chapter . . . . ." No order is an order passed "under the Act" if it was not passed in exercise of powers granted by the Act and was therefore without jurisdiction. In a particular Act the words "under the Act" or "under Chapter . . . . ." may nor appear and words of similar import may be used. But whatever the phraseology employed, any provision in an enactment saying than, orders passed under the enactment or by virtue of the powers conferred by the enactment would not be liable to challenge in a Court of law has reference only to orders passed with jurisdiction. It can be stated as a general rule, without reference to the language used in an enactment, that barring provisions like those with which we are here concerned apply only to orders passed with jurisdiction. Of course it is open to the Legislature to provide that not only acts done under an enactment, but even. acts which purport to be done under an enactment will be immune from challenge. Such a provision will however be a very exceptional one, a provision which we are likely to come acrosa only during a national emergency. The decision of the question whether the Civil Court had jurisdiction in the present case would depend on whether the impugned orders and proceedings were without jurisdiction. There is to this case an attack on the proceeding on the ground of mala fide too. A mala fide act is by its nature an act without jurisdiction. No Legislature when it grants power to take action or pass an order contemplates a mala fide exercise of power. A mala fide order is a fraud on the statute. It maybe explained p that a mala fide order means one which is passed not for the purpose contemplated by the enactment granting the power to pass the order, but for some other collateral or ulterior purposes.' The next question to consider is whether the grounds of attack in the present case on the decree of the Deputy Commissioner or on the proceedings before him were such that if established they would render the decree or the proceedings without jurisdiction. One of the grounds was obviously such for the proceedings had been challenged as mala fide. The suit could not therefore have been dismissed for want of jurisdiction. So far as other grounds of attack are concerned the trial Court will have to determine whether they will vitiate the award and the decree. We have not heard the parties on this question and we are not expressing any opinion on the other objections. One objection raised is that there was no danger of breach of peace. It shall be for the Court to determine whether the objective a existence of a danger of a breach of peace or the subjective satisfaction of the Deputy Commissioner as to this fact was a condition precedent for making a reference and if so whether such danger or subjective satisfaction existed. Another objection raised is that of res judicata. It is for the Court to determine whether the existence of a previous decree was such a bar to the taking of fresh proceedings that it deprived the Deputy Commissioner of the jurisdiction to make a reference. It has been contended before us in this connection that Abdul Majid Khan and Abdul Baqi Khan had not challenged the previous award and decree, but accepting them had raised fresh grounds occurring after the previous award and decree. If it be found that the Council‑of‑Elders which delivered the last award had made its award on the basis of facts occurring subsequent to the decree of 1932 or that the correctness of the previous award had not been challenged in the proceeding for the last award the objection as to res judicata would lose force. It is clear that the Court had jurisdiction to go into the question whether the award and decree were without jurisdiction and the order of the High Court remanding the case for a decision in accordance with law was fully justified. This appeal is dismissed. Costs in the appeal will be costs in the cause. S. A. H./S. Q. Appeal dismissed.