P L D 1967 Karachi 295 (PLP)

Date of hearing: 16th September 1965. This writ Petition is directed against the order of the Settlement Commissioner in Revision No. SCHK‑289/61 (R) decided on 10th September 1963. By this order the learned Settlement Commissioner restored the allotment of Respondents 2 and 3 in respect of the land in dispute and held that their entitlement under claim No. 4789/Karachi remained enforceable for purposes of Martial Law Regulations Nos. 89 and 91.

2. In this Writ Petition the dispute between the parties is in respect of 109 acres of land belonging to one Shaunkimal Kiantomal situated in Deh Tobanwari, Taluka Samaro, District Tharparkar. In 1948 out of this land Respondent No. 2 was allotted temporarily 48 acres of land. On 15th May 1959, Respondent No. 2's claim was verified to the extent of 312.16 acres of land. On 13th July 1959 Q. P. R. V. was issued to him. On its basis on 8!h September 1959, the land in dispute was allotted to Respondent No. 2 by Parchi Taqsim at page 65 of the record.

3. The petitioners are also claimant displaced persons. Their claim A as verified and an entitlement certificate Q. P. R. V. was issued to them on 13th June, 1959, for 16,000 units. On 7th July, 1959, further Q. P. R. V. was issued for 1,

997. In this way their entitlement was verified for a total of 17,997 produce index units. In satisfaction of their claim the petitioners on 2nd September, 1959 were allotted 488 acres 20 ghuntas in Deh Tobanwari Taluka Samaro, District Tharparkar. The Rehabilitation Department issued two Khatonis to them, one for 54 acres and the second for 434, 20 ghuntas. Subsequently it was found that 104 acres of land out of Khatoni for 434‑20 acres were Muslim lands. Accordingly, allotment in 'respect of this land was cancelled.

4. It, however, appears that about this time on 5th January, 1961, the Assistant Rehabilitation Mukhtlarkar, Samaro, James abad and Digri cancelled the allotment of Respondent No. 2 in respect of the land in dispute. Apparently, this land being available was allotted to the petitioners on 5th January, 1961, but Respondent No. 2 challenged the cancellation of this allotment before the Deputy Rehabilitation Commissioner in appeal, who dismissed it by order dated the 7th September, 1961. Respondent No. 2 further filed a Revision before the Settlement Commissioner under section 19(2) of the Displaced Persons Land Settlement Act, 1958, which, as stated earlier, was allowed by the Settlement Commissioner on 10th September, 1963 on the following observa tions‑ "I concede that land measuring 109 acres, allotted to the applicant against his verified claim No. 4789/Karachi should not have been cancelled by the Assistant Rehabilitation Mukhtiarkar merely because "of the similarity of name as the Claim rejected by the Additional Claims Commissioner relates to No. 59/Samaro measuring only 20 acres of land whereas the Claim No. of the present applicant was registered at No. 4782!Karachi, which relates to as much ac 109 acres of agricultural land. Moreover, the applicant received revised entitlement certificate in M. R. V. under Martial Law Regulations 89 and

91. The respondents could not satisfactorily explain why they effected a compromise with the applicant before the appellate Court, if the applicant was really a bogus claimant, hit by the Additional Claims Commissioner's order."

5. The petitioners have challenged this order in this Writ Petition. Their case is that after the promulgation of Martial Law Regulation No. 89, they filed a statement and obtained M. R. V. on 28th September, 1961. It is further contended on their behalf that, in pursuance of this entitlement certificate, on 8th February, 1962, 135 acres of land, including 40 acres of the land in dispute, were settled on them permanently. They surrendered the balance of 353 acres of agricultural land and opted for its purchase which was granted to them by the authority concerned on 12th October, 1962. In support of their contention they produced receipts of the four instalments paid by them on 12th October, 1962, 30th June, 1962 and two receipts dated the 17th May, 1962.

6. Mr. Saudullah Alvi, the learned counsel appearing for the petitioners, has attacked the impugned order on two fold ground. Firstly, that under para. 7(1) of Martial Law Regulation 89 original allotments stood cancelled, and since the allotments of Respondent No. 2 had been cancelled prior to this date and the lands in dispute had been allotted to the petitioners, they were entitled to get the benefit of paras. 7, 8 and 9 of Martial Law Regulation

89. Secondly, that on the relevant date the petitioners had the lawful allotments of the lands in dispute in their favour and under para. 8 of Martial Law Regulation 89 they were the proper persons to surrender the lands and to obtain them on repurchase. After hearing the learned counsel for the parties, I am satisfied that the contentions raised by the petitioners have no force. It is not disputed by the petitioners that the allotment of Respondent No. 2 was cancelled by the Assistant Rehabilitation Commissioner concerned without notice to him. It is also not disputed before me that the allotment of Respondent No. 2 was cancelled by the authority concerned on absolutely unfounded and erroneous grounds. The claim of Respondent No. 2 had never been cancelled. It was some other Din Muhammad whose claim for a much lesser land was cancelled, and the Assistant Rehabilitation Commissioner, considering that Respondent No. 2 was affected by that order, cancelled his allotment. In these circumstances, the contention of Mr. Mukhtar Ahmad, the learned counsel for Respondent No. 2, that the cancellation order of the Assistant Rehabilitation Commissioner was a nullity has much force. In support of his contention the learned counsel has relied on a decision of their Lordships of the Supreme Court in Commissioner of Income‑tax, East Pakistan v. Fazlur Rahman (P L D 1964 S C 410). In that case it was held by their Lordships that an order passed without notice to a party is void and is a nullity in the, eye of law. I also agree with the contention of the counsel for the contesting respondent that any subsequent orders based on such a void order is also a nullity in the eye of law. In this connection Mr. Mukhtar Ahmed, counsel for the contesting respondent, relied on the following observations of the Supreme Court in Yousaf Ali v. Muhammad Aslant Zia and 2 others (P L D 1958 S C (Pak.) 104):‑ "And if on the basil of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed petition of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded. On this view the orders made by the Rehabilitation Board and the Central Government refusing to reject the respondents which were based on that part of the Deputy Custodian's order which was in excess of his jurisdiction were void and not final within the meaning of section 13‑B of the Rehabilitation Ordinance and it was the "Rehabilitation Commissioner's order directing ejectment of the respondents that became final in law." Thus, in the light of the above observation, it is quite obvious that the allotments of the land in dispute, by order dated the 5th January, 1961, in favour of the petitioner, had no validity in the eye of law, and any advantage obtained by them on the basis of this allotment order has no legal effect in the eye of law.

7. Moreover, as argued by the learned counsel appearing for the contesting respondents, the allotment in favour of the petitioners was subject to appeal and revision provided in the Displaced Persons (Land Settlement) Act, 1958. It was not a final orders. It is not contended by the petitioners' counsel that the appeal filed by the petitioners was not competent. He has, however, contended that, after the promulgation of Martial Law Regulation 89, the revision before the Settlement Commis sioner was not competent as all allotments stood cancelled under para. 7 of the said Martial Law Regulation. In my opinion, this contention also has no force, because Martial Law Regulation 89 has nothing to do with the temporary allotments or permanent allotments made by the Settlement Authorities under the Displaced Persons (Land Settlement) Act, 1958. It was confined only to the question of the entitlement of the claimants of agricultural property. At first all the claimants were called upon to get their claims verified under Martial Law Regulation

84. But later on, the Government very graciously issued Martial Law Regulation

89. Under this Regulation the Martial Law Authorities directed that all the claims which have been verified under the Registration of Claims Act, Act III of 1956, should be accepted as good; and, on that basis, the entitlement of the claimants may be fixed. Under para. 5 of this Regulation a slab system was introduced and the entitlement of the claimant was to he calculated on the scale laid therein. It is in this context that para. 7 of Martial Law Regulation 89 has to be considered. It has nothing to do with the other dispute of the parties namely whether the allotment of a particular land should have been made to one or the other of them. The retention of the land and the surrender of the land was to have its effect only in respect of the valid allotments, subject to ally final decision by the appellate or revisional authorities. In my opinion, the learned Settlement Commissioner was fully justified to go into the question whether the allotment of Respondent No. 2 was validly cancelled, and to further consider whether he was entitled to be settled on the land in dispute or the petitioners. In this view of the matter the order of the learned Settle ment Commissioner dated the 10th September, 1963, is perfectly valid and no execution can be taken to it.

8. Apart from this, it will be noticed that the petitioners had not raised any objection about the jurisdiction of the Settlement Commissioner when the Revision Application was heard by him. In law they are not entitled to a writ of certiorari because they failed to object to the jurisdiction of the Settlement Commissioner at the time of the hearing of the Revision Applica tion. In Ghulam Mohi‑ud‑din v. Chief Settlement Commissioner, Lahore and others (PLD 1964 S C 829) their Lordships observed that in such a case, even if an order passed by a Tribunal is a nullity in the eye of law, it does not follow from this that a writ of certiorari must issue as a matter of course to quash such an order. In this connection their Lordships observed as under:‑ "One of the grounds upon which the Courts in England have consistently held a party seeking such a writ to have disentitled himself to this extraordinary remedy is his failure to object to such usurpation of jurisdiction before the Tribunal concerned or to raise the objection at the earliest opportunity before the writ, if he was aware that the Tribunal lacked the jurisdiction it purported to exercise. In the present case there can be no doubt that the appellant knew that he had filed a second revision petition before the Chief Settlement Commissioner and that this was a circum stance which prevented the Settlement Commissioner in law from exercising his power of review. Notwithstanding this he not only did not raise any objection to the hearing of the review but actually participated in its hearing on merits. The principle upon which the writ is refused in such cases is not that jurisdiction has been conferred on the Tribunal concerned by waiver and acquiescence but that even though the impugned order is "without jurisdiction the person seeking to have it quashed should not be granted that discretionary relief as he had stood by and allowed the Tribunal to usurp jurisdiction which it did not possess knowing that the Tribunal concerned was committing such an illegality in consequence of something done by that person himself." On this view of the matter also, since the petitioners did not challenge the jurisdiction of the Settlement Commissioner, they are not entitled to a writ of certiorari and the petition is liable to be dismissed: Otherwise also the petitioners can possibly have no sympathy of this Court as there is no equity on their side. It will be noticed that the petitioners were alloted 488 acres of land including the land in dispute. On the basis of their entitlement M. R. V., they were entitled to 135 acres of land. What they have done is that they have surrendered the balance of 353 acres in such a manner that they could exercise their option of purchase in respect of both the compact area of land allotted to them. It was admitted at the bar that the petitioners have retained 95 acres of land in one compact area and have further retained 40 acres of land of the land in dispute. In this manner they have exercised their option of purchase in respect of both the compact areas. It is quite clear to me that the petitioner's claim of 135 acres of land could be conveniently settled out of 386 acres of compact areas of land which they were allotted in Deh Tobanwari, Taluka Samaro. It is not one of those cases where the petitioners are likely to suffer on account of the cancellation of their allotment in respect of the lands in dispute. In these circumstances, there is no force in this petition. Accordingly, I would dismiss it with costs. K.B. A. Petition dismissed.