P L D 1967 Karachi 91 (PLP)

12. Mr. Nusrat, counsel for respondent No. 3 deserves to be mentioned for the lucidity of his; explanation of the facts which form the background of this petition. But for Dais assistance it would have been difficult to see the facts as clearly as was responsible in these proceedings. His explanations, which have already been taken into account while stating the facts in the fore going paragraphs, go a long way to show the hollowness of the stand which has been taken by the petitioner. Apart from that, Mr. Nusrat has opposed this petition by raising a preliminary objection also. He pointed out that Annexure H which is the last impugned order in this case and which in fact is the cause of the grievance of the petitioner was made revision by an Additional Settlement Commissioner therefore it was open to revision by the Settlement Commissioner" but the petitioner has rushed to this Court without making use of that alternative remedy; therefore, this petition is not maintainable in terms of clause (2) of Article 98 of the Constitution which makes it a condition precedent that a High Court should exercise jurisdiction under Article 98:‑ "If it is satisfied that .to other adequate remedy is provided by law."

13. Mr. Nusrat further pointed out that his client has already filed a revision application to question the order, Annexure H, which is pending in the Court of Mr. Kazi at Karachi. That application was presented on the 6th of August, 1963, was admitted to regular hearing on the 22nd of August 1963, and its notice was served on the petitioner on the 22nd of August 1964. It was fixed for hearing on the 2nd of December 1965, on which date the parties or their counsel were in this Court. Mr. Nusrat, therefore, argued: (i) that this petition was not maintainable because another adequate remedy was available to the petitioner which he had not availed and wanted to use the Constitutional jurisdiction as a substitute for it. . (ii) that the revision application of respondent No. 3 is yet to be disposed of by the Settlement Commissioner‑cum- Additional District Judge, Karachi. A decision of this petition by this Court will virtually debar that officer from exercising his jurisdiction because he will not be able to take a different view from that of this Court or else conflicting decisions will, be the result.

14. Mr. Fazeel replied that his attack on the last order, which is Annexure H, is only subsidiary and consequential to his attack which is really and straightly directed against the order Annexure G. No revision application could be filed by the petitioner against Annexure G; therefore, the contention of Mr. Nusrat that a revision application was competent against Annexure H was not relevant. Secondly, according to Mr. Fazeel, it was useless to file a revision application against Annexure H which was bound to go by the board if the 'order Annexure G was held to be without lawful authority and of no effect. Thirdly, according to him, a revision application was not an adequate remedy; therefore, the above‑quoted provision of paragraph (2) of Article 98 of the Constitution was not a bar to the institution of this petition. In support of this contention he advanced two arguments, one of them leas that the provision of revision was by itself inadequate. In support of this view he cited Abdur Rehman Pasha v. Chief Settlement and Rehabilitation Commissioner (P L D 1961 Lah. 12) and drew our attention to the following observations of Changez, J.‑ "I am, therefore, of the considered view that the petitioner had no statutory right of filing a revision petition before the Settlement Commissioner, and as such he had no alternative and efficacious remedy against the order passed by the Additional Settlement and Rehabilitation Commissioner. But even if he had such a right yet in the circumstances of the present case he could have come to this Court straight, praying for the exercise of writ jurisdiction for the issuance of a writ of certiorari for quashing that. order, because, as I have already pointed out, the order, on the face of it, is illegal and ultra vires. In the well‑known case of the Tariq Transport Co., Lahore v. The Sargodah Bhera Bus Service, etc., P L D 1958 S C 437, the learned Chief Justice of Pakistan while dealing with a similar question, observed as follows:‑ "If a Tribunal has no jurisdiction either in respect of the subject‑matter of litigation or the parties before it, or the territory to which the dispute relates or because of its own defective constitution or the illegality of the order, the proceedings are void ab initio, and an appeal in such case is an unnecessary step and mere prolongation of the proceedings which eventually the Court must hold to be void for lack of jurisdiction. In such cases certiorari acts as would a Court of Equity . . . . But where appeal does lie, in order to quash a proceeding by a certiorari it is necessary that the lack of jurisdiction should appear on the face of the record." The aforesaid observations were, again referred to and applied by the Supreme Court of Pakistan in Messrs. S. A. Haroon v. The Collector of Customs, Karachi, P L D 1959 S C 177:' Counsel has further cited Chittagong Engineering & Electric Supply Co. Ltd. v. Certificate Officer, Dacca (P L D 1965 Dacca 375) and drawn our attention to the observations which appear at page 385; as follows:‑ "The precise point sought to be given at is that in view of the specific remedy available under the relevant statute and the same not having been availed of, Article 98 of the Constitution can have no application. In support of his contention learned Advocate has cited the case of Tasadduk Rasul Khan v. Ahmad Hussain I L R 21 Cal. 66 and Roshan Lal Prithi Mal v. Shanti Lal and others A I R 1933 Lah. 186, but these deal with non -observance of provisions bearing on the publication and conduct of the sale and do not thus touch the point we are concerned with in the present instance, viz. jurisdiction of the Court to proceed with the execution case and hold the impugned sale."

15. His other argument was that a revision application against the order, Annexure H, would have been heard by the Settlement Commissioner who was Mr. Abdur Rauf Chaudhury. This was the same officer who had passed the order, Annexure G, in which he had already expressed his views against the interest of the petitioner.

16. Mr. Nusrat squarely met the above contentions of Mr. Fazeel by urging in reply to the first contention that this petition was presented on the 8th of September 1963, to question the last order, Annexure H, which is dated the 8th of June 1963, which was announced on, the 11th of July 1963. But if the intention of the petitioner was to attack the order, Annexure G, as the basic order, then there is no explanation as to why the petitioner did not invoke the constitutional jurisdiction much earlier because that order is dated the 22nd of October 1962. If the petitioner's aim is to question that order, then this petition has been, without any reason, filed after about eleven months and a half of the date of that order, and deserves to be thrown out owing to laches and the delay from which it suffers.

17. The second contention of Mr. Fazeel was equally without force according to Mr. Nusrat because the petitioner had actually filed a revision application to the same officer who had passed the orders, Annexures F & G against the order Annexure K of the Additional Settlement Commissioner. This fact exposes the weakness of the excuse of the petitioner for not filing a revision application to the same officer against the order, Annexure H. Moreover, if according to the petitioners the order Annexure G is the basic order against him, then it should be noted that the effect of the order, Annexure G undo the order which was Annexure F and was in favour of the petitioner. The petitioner relied on it. The petitioner had on the basis of Annexure F pressed his point that the appeal could not be heard. Here it is noteworthy that the Additional Settlement Commissioner had by his order, Annexure K, overruled ,those objections of the petitioner to the hearing of the appeal which were founded on his criticism of the, order Annexure G and his support to the order. Annexure F. In these circumstances, the dismissal of the revision application of the petitioner filed against the order.; Annexure K by the order of the Settlement Commissioner, makes the latter order which is Annexure I, more important than the order Annexure G. The revision against the order Annexure K was dismissed by the Settlement Commissioner by his order Annexure L. Therefore, if the petitioner's real object is still to attack Annexure IG, then he should realise that his criticism of it has already been over ruled by the order, Annexure L. He cannot thus; successfully criticise the order, Annexure G, without criticising Annexure L. But as it is, his petition is not directed against Annexure L. Annexure L not only exposes the weakness of the second contention of Mr. Fazeel but also provides an obstacle in the maintainability and effectiveness of this petition itself. There is one more aspect which shows the hollowness of the second contention of Mr. Fazeel which is that under section 32 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the petitioner was not obliged to submit his revision application to the same officer who had, according to the petitioner, expressed an adverse view against him because under that section his revision application could be transferred to some other officer.

18. The third contention of Mr. Fazeel was criticised by Mr. Nusrat on the ground that in this case it made no difference whether the petitioner had a right to file a revision application or not because the revision application of respondent No. 3 having been admitted to regular hearing, it cannot be said that the petitioner's revision application would not have been entertained provided it was in accordance with law. If the revision applica tion of the petitioner had been directed against Annexure G, but was filed after about a year of its date subsequent to the decision of the appeal, vide Annexure H, as well as the order of the Settlement Commissioner, Annexure L, and was not entertained on the ground that it was barred by time or suffered from laches or was filed after the criticism levelled against Annexure G had been considered and disposed of by Annexure L, then the result cold not be attributed to the inadequacy of the remedy of revision but to the faults of the petitioner himself. It appears that the petitioner was aware of his faults or defaults and, therefore, instead of going in revision against Annexure G has filed this constitutional petition and made an excuse that revision was not an adequate remedy.

19. Additionally, Mr. Nusrat pointed out that Mr. Fazeel was not able to give any reply to the contention that the petitioner could not be granted the remedy in these, proceedings during the pendency of the revision application of respondent No. 3.

20. The above contentions of Mr. Nusrat against the maintainability of this petition can be summarised as follows :‑ (i) Annexure H, which is the last order, was passed by an Additional Settlement Commissioner; therefore, it was revisable by the Settlement Commissioner, but the petitioner has failed to avail himself of that remedy. (ii) Respondent No, 3 has actually filed a revision application against that order which is pending before Mr. Kazi, an Additional District Judge‑cum‑Settlement Commissioner, Karachi. (iii) The stand of the petitioner that Annexure G and not Annexure H is the basic order, creates further obstacles in his way because the order Annexure G was made on the 22nd of October 1962 but the petitioner did not invoke the constitutional jurisdiction of this Court for about a year after it and for about two months after the announcement' of the last order, Annexure H dated the 11th of July 1963. (iv) If the contents of the order, Annexure G, are of basic value, then owing to the fact that the criticism levelled against the order Annexure G was repelled by the order, Annexure K, and the revision application against it was rejected by another order. Annexure L, makes it necessary that the petitioner should have questioned the orders, Annexures K and L also, but he has not questioned either of them in this petition. The order, Annexure L, is thus the last basic order against the petitioner which has remained unchallenged. They are weighty contentions as has been seen earlier.

21. Counsel for the parties have addressed this Court mainly on the maintainability of this petition. Mr. Fazeel tried to establish its maintainability by emphasising that the Settle ment Commissioner had no jurisdiction at all to pass the order, Annexure G. He, therefore, advanced arguments to establish the absence of. the jurisdiction to pass it. This part of his argument was, thus, almost on the merits of the petition. Mr. Nusrat has replied to it by emphasising the nature of the jurisdiction which is conferred by Article 98 of the Constitution and by showing that some of the fundamental facts of this case are also in dispute.

22. In order to understand the above‑mentioned argu ment of Mr. Fazeel it is proper to reproduce the orders, Annexures F and G, because Mr. Fazeel referred to them for proving the absence of jurisdiction of the Settlement Commissioner for passing them. They are as follows: "The revision case pending in my Court on the pretext of which this appeal was preferred has since teen dismissed. Hence no ground for admitting this appeal which may be filed by the Reader." "Mr. Muhammad Khan should not have allowed conversion and reconversion of the so‑called 'P' form into C. S. form resulting in the transfer of 5 shops to one man by D. S. C. Mr. Masud Alam. Mr. A. Mateen Siddiqui Additional will surely do well to hear and, dispose of an appeal from Mr. Sharif by sending for him." Mr. Fazeel's contention was that the Settlement Commissioner had dismissed the appeal by his order, Annexure F, and had reviewed that dismissal by making the order, Annexure G. This could not be done because, according to counsel, the Settlement Commissioner had no jurisdiction to review his own order. The power of review was conferred by section 21 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. But that power has been taken away, and all that the Settlement Commis sioner could do by way of reviewing his order was confined to the provisions which have been made in subsection (3) of section

21. That subsection is as follows:‑ . "(3) Clerical or arithmetical mistakes in any order passed by an officer or authority under this Act or errors arising therein from any accidental slip or omission may at any time be corrected by such officer or authority or his successsor‑in- office." Counsel emphasised the words: "Clerical or arithmetical mistakes in any order passed under this Act" and "any accidental slip or omission." The significance of the words "order passed ..under this Act", according to counsel was that any order which could be said to have been passed under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, could be reviewed by the officer who passed it in terms of the above -quoted subsection only. There was no occasion owing to the presence of these words for advancing the argument that the order which was passed under the Act could be reviewed in disregard of the language of the subsection merely because it was an administrative order. The subsection, according to counsel, recognised no such distinction as administrative, ministerial, quasi‑judicial or judicial. The only condition for the applicability of subsection (3) is that it should have been passed under the Act. If this condition was fulfilled then as officer or authority who passed it exercising power under the Act could review it subject to the limitations of the subsection only. This meant that he could review an order to correct a clerical or arithmetical mistake or to remove an error which had arisen by virtue of an accidental slip or omission. In this case, he contended that there was no clerical or arithmetical mistake in the order, Annexure F, so that it could be corrected by review ing the order. There was no accidental slip or omission either, according to counsel, in the order, Annexure F, because the test for finding out as to whether a slip or omission has been made accidentally or not is to see whether the order which was passed was intended or not. In this connection he referred to Raj Bahadur Singh v. Shatranjai (A I R 1942 Oudh 226). In that judgment a Division Bench of the Oudh Chief Court has analysed section 152, C. P. C. which contains similar language as of the above‑quoted sub section (3). Section 152, C. P. C. is as follows :‑ "clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties." The relevant observations of the Division Bench with regard to the words are as follows:‑ "It was held in 13 O C 114 (Ashik Hussain v. Mahdi Hasan) that the test is whether the order as it stands represents the intention of the Judge at the time he made it and if it does then a mistake in it cannot be treated as an accidental slip or omission which may be corrected under section 152." Counsel argued that the power of review conferred by sub section (3) of section 21 of the said Act was much narrower than that conferred by Order XLVII, rule 1, C. P. C., but even if it was taken to be equal to the power of review conferred by C. P. C., the Settlement Commissioner could not review the order, Annexure F, because in that case it was necessary that the error should have been at least apparent on the face of the record, and not dependent on laborious and painstaking discovery. In support of this proposition he cited the following observation from A Pires v. A Rodrigues (P L D 1960 Kar. 642): "Even if the learned Judge has adopted a view of law which may be characterised as erroneous, the error is one which has never been considered to be a ground for review, as it is not an error apparent on the face of the record but an error which has to be laboriously and painstakingly discovered with the help of a large number of elaborate and learned authorities. Thus this is not a case which would fall within the purview of Order XLVII, rule 1 of the Code of Civil Procedure." Counsel explained that the order, Annexure F contains the reasons of the view which was taken in it. It is immaterial whether the reasons were right or wrong. So long as reasons were given for the order, it should be taken to have been intended therefore; the order, Annexure' G, was without jurisdiction from the point of view of the restricted power of review conferred by the above‑quoted subsection (3) of section 21 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and even if tested by the standard of the larger power of review that is conferred by Order XLVII, rule 1, C. P. C. ‑ it was without jurisdiction.

23. The above argument of Mr. Fazeel misses the real point which is that the order, Annexure F, was without jurisdiction and a nullity; therefore, the order Annexure G was not passed in exercise of the powers of review but merely to point out that the appeal was yet to be beard. It is an irony of circumstances that Mr. Fazeel's considered view was that the order, Annexure G, was the basic order which called for his concentrated attack, but the disclosure of full facts leads to the conclusion that it has no importance because the order, Annexure F, which is supposed to have been reviewed by it was itself a nullity and needed no review. .

24. Mr. Nusrat has produced a certified copy of the yet unreported judgment of the Supreme Court in Mian Jamal Shah v. Election Tribunal (PLD1966 S C 1) Civil Appeal No. 57 of 1965, of Mian Jamal Shah and enumerated three basic facts which are in dispute between the parties. They are‑‑ (i) that the N. C. H. form which is the basis of the claim of the petitioner was not signed by him and was submitted jointly with another person; (ii) that no order admitting the N. C. H. form was made and no receipt was issued; nor was any order made on the P form ; (iii) that the possession of the petitioner is in dispute. It is unnecessary, in view of the above‑mentioned objections to the maintainability of this petition, to examine whether and to what extent these facts are in dispute and what is their effect on the maintainability of this petition under Article 98 of the Constitution.

25. In conclusion of the foregoing discussion, the petition is hereby dismissed. K. B. A.