1984 PLP 1729 (CLC)

(a) Constitution of Pakistan (1973)‑ -- Art. 199 West Pakistan Land Revenue Act (XVII of 1967), S. 42 -- Mutation, cancellation of Entries in record-of-rights made in favour of petitioner on basis of clearance certificate issued by Rehabilitation authorities Entries subsequently cancelled by Revenue Officer without giving notice to petitioner or his pre decessor-in-interest alleging that said certificate was bogus Held, even if said certificate was bogus, mutation on basis of same could not have been cancelled without giving notice to persons affected by can cellation Natural justice, principles of Violation Consequences.

S. 161 Constitution of Pakistan (1973), Art. 199 Remedy by way of appeal provided in West Pakistan Land Revenue Act, 1961 Plea that constitutional petition was not maintainable as remedy was not exhausted, held, had no validity Plea not a rule of law barring jurisdiction but one regulating jurisdiction Order passed being without authority or statutory functionary acted mala fide or in partial, unjust and oppressive manner, High Court, held, had power to grant relief to aggrieved petitioner. (Jurisdiction). The Murree Brewery Co. Ltd, v. Pakistan and 2 others P L D 1972 S C 279 and Pir Shah Mardan Shah v. Chief Land Commissioner Sind and 2 others P L D 1974 Kar. 375 ref. -- Art. 199 Discretionary powers of Court under writ jurisdiction to be exercised in aid of justice and not for perpetuation of injustice. (d) Fraud‑ -- Vitiates most solemn proceedings No one, held, should be allowed to take advantage of its own fraud Tribunal of limited or special jurisdiction, held further, has suo motu, power to recall or review order obtained from such Tribunal by fraud. [Review]. Pir Shah Mardan Shah v. Chief Land Commissioner, Sind and 2 others P L D 1974 Kar. 375 rel. JUDGMENT FAKHRUDDIN H. SHAIKH, J. The petitioner has filed this constitutional petition to challenge two orders of respondent No. 1 dated 9-12-1975 and 30-4-1976, whereby the mutations in the record-of-rights in respect of survey numbers in dispute in favour of the petitioner were directed to be cancelled. The survey numbers in dispute are 433 and 453/4 situated in Deh Sanghar. Taluka Tando Adam. It is stated that these survey numbers were allotted by the Settlement Authorities to respondent No. 3 namely, Gainda son of Raja. The petitioner claims that he had purchased these survey numbers from the said Gainda by registered sale-deeds and that on the basis of the sale-deeds mutations were effected in the record-of-rights in the name of the petitioner. It is further alleged that respondent No. 1 without issuing any notice to the petitioner directed respondent No. 2 to cancel the mutations recorded in favour of the petitioner. First order of respondent No. 1 which has been challenged is dated 9-2-1975 and is Annexure `F/1' to the petition. This order is a direction to Mukhtiarkar, Shandadpur to cancel the mutations which were effected by the latter in contravention of the order of the High Court. It appears that in Constitutional Petition No. 397 of 1975 (Fakir Muhammad and others v. Deputy Commissioner and others) a stay order was passed in respect of certain land allotted to various claimants by the Reha bilitation Authorities. The stay order was only in respect of protecting possession of the alleged claimants. Respondent No. 3, taking advantage of the stay order in that case, succeeded in getting mutations effected in his favour in respect of the disputed survey numbers, although there was no order of the High Court to this effect. When this fact came to the notice of the Deputy Commissioner, the latter by his order dated 9-2-1975 directed Mukhtiarkar Shandadpur to cancel the mutations recorded in favour of Gainda (respondent No. 3) and also the mutations recorded in favour of the petitioner who was transferee of the land from Gainda. 2. On 30-4-1976 Deputy Commissioner, Sanghar (respondent No. 1) passed further orders on the application of certain aggrieved persons who had claimed to be genuine transferees of the disputed land. After holding necessary inquiry on above-referred application, the Deputy Commissioner had come to the conclusion that respondent Gainda had obtained mutations in the record of rights in his favour on the basis of bogus allotment docu ments and consequently the mutations in favour of Gainda as well as in favour of his transferee petitioner Ghulam Ali Shah were liable to be can-celled. In pursuance of the above order the Mukhtiarkar cancelled the mutations which were recorded in favour of Gainda and Ghulam Ali Shah. 3. It will be interesting to state here that respondent No. 3 Gainda had also challenged the same orders whi.,h have been challenged in this peti tion, by filing Constitutional Petition No. 46 of 1977, but he had not contested it and was withdrawn as a result of which the same was dismissed on 9-12-1978. Earlier this very Gainda, alongwith some other persons, had also filed Constitutional Petition No. 1508 of 1974 in which the inquiry made by the Revenue Authorities in respect of fraud allegedly committed in obtain ing the transfer of the disputed survey numbers on the basis of bogus docu ments, was challenged. That petition was also not contested seriously as a result of which it was dismissed on 17-8-19'6 for non-prosecution. Now Ghulam Ali Shah, the transferee of the disputed survey numbers from the same Gainda, has challenged the concellation of mutations in respect of the same survey numbers which were subject-matters of the two petitions referred to above. 4. Grievance of the petitioner is that Deputy Commissioner, Sanghar while passing the impugned orders dated 9-2-1975 and 30-4-1976 had not issued any notice either to Gainda or to the petitioner. These two orders are, therefore, liable to be struck down on the ground of violation of the principle of natural justice that the petitioner was condemned unheard. The subsequent orders of the Mukhtiarkar regarding cancellation of mutations in pursuance of the two impugned orders of the Deputy Commissioner have also been challenged on the same ground i.e. the cancellations are based on void orders. 5. It is not denied by Mr. Abbas Farooqui learned counsel for respon dents Nos. 1 and 2 that the two impugned orders of the Deputy Commissioner and the subsequent orders of the Mukhtiarkar were passed without notice to the petitioner and to respondent Gainda from whom the petitioner had purchased the land by means of two registered sale-deeds. 6. It may be stated that the first entries in the record of rights in favour of Gainda were entered in the record of rights on the basis of clearance certificate issued by the Assistant Rehabilitation, Mukhtiarkar, Sanghar which is Annexure `B/1' at page 103 of the file of the petition. In this certificate it is clearly mentioned that survey numbers in dispute have been allotted to Gainda in satisfaction of a genuine claim. The plea of the respondents was that this was a bogus certificate and that Gainda himself was a fictitious person whose attorney had managed to obtain the certificate from the Rehabilitation Authorities and as such the entries based on such certificate were liable to be cancelled. 7. Even if it may be assumed that the certificate in favour of Gaindai was a bogus one, the mutations affected on the basis of the same in the record of rights could not have been cancelled without giving notice to the persons affected by the cancellation. The record of rights shows that Gainda as well as Ghulam Ali Shah are the persons affected by the cancellation of the mutations and as such any order which is passed in respect of cancellation of the disputed survey numbers without notice to either of them shall be deemed to be against the principle of natural justice and shall be liable to be struck down on this ground, Mr. Abbas Farooqui has been unable to show as to how the impugned orders can be upheld in view of the fact that the persons who have been affected by the orders, were not given any opportunity of being heard. We are, therefore, of the view that the impugned orders are liable to be set aside on the above ground alone. "The rule that the High Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring jurisdiction but a rule by which the Court regulates its jurisdiction. One of the well-recognised exceptions to the general rule is a case where an order is attacked on the ground that it was wholly without authority. Where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, the High Court in the exercise' of its writ jurisdiction has power to grant relief to the aggrieved B party." In view of the law laid down by the Supreme Court it was not necessary for the petitioner to have availed of the remedy under the revenue law, because the impugned orders have been attacked on the ground that the same were passed without lawful authority and against the principle of natural justice. 9. Learned counsel for the respondents had referred to the case of Chief Settlement Commissioner Lahore v. Raja Muhammad Fazil Khan and others (PLD1975SC331), in which it has been held that an order obtained by fraud is not void but only voidable, and it remains operative as long as it is not set aside, rescinded or recalled by a.competent authority in proper proceedings. But it has also been held in the above case that the order based on fraud can be set aside by the authority on whom fraud was practised, saner giving both the parties opportunity of being heard. In the case of Pir Shah Mardan Shah v. Chief Land Commissioner, Sind and 2 others (P L D 1974 Kar. 375), it has been held that the principle of natural justice is to be read as part and parcel of every statute. Following observations made in the above case will be of advantage in decid ing the question involved in this case : "An order held void in law by virtue of violation of principle of natural justice is nonetheless void than the one held void as an act done coram no judice or without jurisdiction or mala fide. A void order is no order in law, its weight is zero in law, it does not exist, and it need not be set aside because law does not recognize its existence. If an act done coram non judice or mala fide is void, to the same effect is an act which violates the principles of natural justice." 10. The petitioner has also prayed that the respondents may be prevent ed from holding any inquiry about his entitlement to the land in dispute. As already held by us, Revenue Authorities are entitled to determine under the Land Revenue Act, whether a person is entitled to have his name entered in the record of rights or not. The impugned orders have been passed by the respondents Nos. 1 and 2 on the ground that the mutations in the record of rights were procured by the petitioner by fraud and misrepresentation. They are, therefore, entitled to investigate whether the allegations of fraud are correct and whether as a result of such investigation the mutations are liable to be rectified. To stop the Revenue Authorities from investigating into the allegation of fraud, as prayed by the petitioner, would amount to perpetuating the alleged fraud to which the Court cannot be a party. The discretionary powers of the Court under the constitutional jurisdiction is to be exercised in aid of justice and not for perpetuation of injustice. In the case of Chief Settle ment Commissioner, Lahore v. Raja Muhammad Fazil Khan, the Supreme Court referred to above, the Court held as under "It seems to us that while there are cases in which the power of a Court or Tribunal of special or limited jurisdiction to suo motu recall or review an order obtained from it by fraud has been doubted, yet the preponderance of judicial authority is in favour of conceding sue a power to every authority, Tribunal or Court on the principle that fraud vitiates the most solemn proceedings. and no party should be allowed to take advantage of his fraud. There can be no rational basis for discriminating between the powers available in this behalf to a Court of general jurisdiction and a Court or Tribunal of special or L limited jurisdiction, for in either case the effect of fraud is the same, and the duty to undo that effect must lie on the authority on which fraud is practised. We are, therefore, of the view that even a Tribunal of limited or special jurisdiction has the power to suo motu recall or review an order obtained from it by fraud." The above observations were made in respect of an order which was said to have been obtained from the Claims Commissioner by fraud. The order was cancelled by the Officer on Special Duty on before the claims application of the aggrieved party, but the High Court upheld the `Commissioner's Order. On appeal to the Supreme Court, the order of the High Court was set aside with the above-quoted observation and the case remitted to the Claims Com missioner for decision on merits but after affording "due opportunity to both sides to substantiate their respective positions". The respondents, therefore, cannot be prevented from making investigation as to whether the mutations in the record of rights in favour of the petitioner or the person from whom he purchased the land, were procured by fraud. Consequently the petition is partly allowed and the impugned orders of the respondents Nos. 1 and 2 are set aside as having been passed without lawful authority. The case is remitted to respondent No. I to take fresh action as to correction of mutations in respect of the survey numbers in dispute, after proper notice to the parties affected by the action. There shall be no orders as to costs. M. B. A. Petition partly allowed. ***