1979 PLP 857 (CLC)

MALIK MUHAMMAD ASLAM KHAN, J: This is a certificated appeal lodged against the judgment and decree dated 1-10-19.75. passed by a Single Judge of the High Court, by which the suit of the plaintiff-appellants herein, was dismissed by upsetting the judgment and decree, passed in their favour by the District Judge dated 16-2-1975, thereby restoring the judgment and decree dated 30-11-1971, passed by the trial Court dismissing the suit of the plaintiff-appellants.

2. The appellants are heirs of Khan Muhammad and others who were occupancy tenants of the suit land measuring 5 kanals and 3 marla entered in field No. 471, situate in Tehsil Pallandri, District Poonch. The respondents herein are the heirs of one Badder Din, who was the proprietor of the suit land. After the promulgation of the Azad Jammu & Kashmir Land Reforms Act, 1960 (hereinafter to be called the Act), an application was filed by occupancy tenants, Khan Muhammad and others, before the S. A. L. C. (Sub-Assistant Land Commissioner) for conferment of proprietary rights under section 25 of the Act. The S. A. L. C., after hearing the proprietors and the occupancy tenants, conferred proprietary rights on Khan Muhammad and others, vide his order dated 4-11-1961. It may be stated here that Badder Din had raised an objection before the S. A. L. C. that proprietary rights could not be conferred on the occupancy tenants as they were not in possession of the suit land. The occupancy tenants, it appears, had met this objection, by pleading that theirs was not a case of voluntary abandonment of tenancy as they had been forcibly dispossessed about 9 years before the application. In view of this stand of the occupancy tenants, the plea of Badder Din was rejected by the S. A. L. C. and the occupancy tenants granted proprietary rights.

3. Badder Din challenged this order of the S. A. L. C. before the Land Commissioner without success. His review application was also dismissed in default on 18-1-1968. After the dismissal of the review petition of Badder Din, the appellants instituted a suit for possession of the land on 13-1-1971 in the Court of Sub-Judge, Pallandri on the strength of the order of S. A. L. C. and the Mutation No. 965 dated 31-7-1964 conferring on them the full-fledged proprietary rights of the suit land. The suit was resisted by the defendant-respondents on the following grounds :- (i) That the civil Court had no jurisdiction to entertain such a suit ; (ii) That the order passed by the S. A. L. C. was illegal and liable to be cancelled as the proprietary rights had been conferred on the plaintiffs against the provisions of the Act ; and (iii) That the suit was time barred. The trial Court came to the conclusion that the civil Court had the jurisdiction to entertain the suit but could not challenge the orders passed by the S A. L. C. in view of the bar of section 32 of the Act. It however, dismissed the suit on the ground that it was time barred, having been filed after more than 15 years of the dispossession of the plaintiff-appellants. The plaintiff-appellants went in appeal before the District Judge who reversed the judgment of the trial Court and decreed the suit by holding that the suit was within time as limitation started from 4-11-1961 (and not from the date of the earlier dispossession) when the proprietary rights were conferred upon the plaintiff appellants by the S. A. L. C. The defendant-respondents in the turn went in second appeal before the High Court, where the learned Single Judge, as already stated, reversed the judgment and decree of the learned District Judge, thereby restoring the judgment and decree of the trial Court. The learned Single Judge, while holding that the suit was time barred, also held, contrary to the view of both the Courts below, that the order of the S. A. L. C. could be challenged in a civil Court as it bad been passed without jurisdiction. It is against this chequered history of the case that the present appeal has come up before us.

4. The learned counsel for the appellants has based his arguments on two points, namely (I) That because of the bar of section 32 of the Act, the order of the S. A. L. C. could not be challenged in a civil Court as the order was well within the competency and jurisdiction of the S. A. L. C. and (II) That the suit was within time as the period of limitation could a not run from the date of earlier dispossession of the occupancy tenants but from 4-11-1961, when the proprietary rights were conferred upon them by the S. A. L. C.

5. We propose to take the point of jurisdiction first as it has been the subject of hot contest here as well as in all the three Courts below. It is a common ground between the parties that the occupancy tenants were not in possession of the suit land when they applied to the S. A. L. C. and were conferred the proprietary rights. Section 25 of the Act deals with the grant of proprietary rights to occupancy tenants. Relevant portion of section 25 subsection (2) is reproduced as :- "(2) An occupancy tenant, who at the time of the coming into force of this Act, occupies any land as such shall become owner as under" (underlining ours) The learned Single Judge came to the conclusion that the S. A L. C.'s order was mala fide and without jurisdiction as it ran counter to the above referred provisions of section 25(2) which, Inter alia, laid down the condition precedent for conferment of proprietary rights to occupancy tenants when a tenant was in actual occupation of the land at the time of the coming into force of the Act. Since the occupancy tenants were not in possession of the land at the relevant time, it was concluded by the learned Single Judge, the order of the S. A. L. C. was without jurisdiction and mala fide. The learned counsel for the appellant has contended that this is an erro neous approach for deciding the jurisdiction or lack of it by the S. A. L. C. His plea is, that even if an order is erroneous it cannot be termed either as mala fide or without jurisdiction unless it is shown that the authority created under the Act was not vested with the powers to decide the rights of the parties or some ground is laid to establish the mala fide action of such an authority. On this basis it is pointed out that the question of mala fide was not even pleaded by the defendant-respondents in any Court below much less any ground laid for it and that there is nothing on record either to show that the order of the S. A. L. C. was mala fide. It is also contended that under the Act, it was the S. A. L. C. alone who had the competency to confer the proprietary rights under section 25 of the Act and the mere fact that the occupancy tenants were not in possession of the suit land, does not render S. A. L. C.'s order as without jurisdiction, mala fide or 'fraud upon the Act' as held by the learned Single Judge of the High Court. Our considered view is that this plea is quite forceful for the following reasons (a) There is no doubt that the plenary jurisdiction to decide civil rights vests in the civil Court '5 under section 9 of the C. P. C. But where certain rights and obligations are created under a special Act, as distinct from rights in common law, and special authority is also created for deciding such rights and obligations, it is that authority alone which has the jurisdiction to adjudicate upon them. It is more so when such an Act, in unequivocal terms, bars the jurisdiction of the civil Courts for deciding the disputes arising under such an Act. Of course, if under the cloak of such powers, the authority so created, travels beyond its jurisdiction or usurps the powers of civil Courts, which are the principal Courts, such an order can be struck down as without jurisdiction. But so long as an authority created under a special Act, is found to be legally invested with the powers to decide the rights created under the Act and special machinery is also created under the Act to challenge the order of such an authority by way of appeal, revision or review, the jurisdiction of the civil Courts is ousted by virtue of the ouster section even if the order passed by the authority is erroneous. There is a very fine, though subtle, distinction between the lack of jurisdiction and its wrong exercise. In the former case, the order passed will be a nullity in the eyes of law but not so in the later one as it could be rectified by the hierarchy of the authorities created by the Act. Because the mere error of judgment by a specially created authority or tribunal under a statute does not render such a judgment as without jurisdiction or mala fide. The reason is that the authority which has the jurisdiction to adjudicate upon rights and obligations created under the Act, has also the jurisdiction to decide rightly as well as wrongly. So even if the impugned order is presumed to be erroneous or not strictly in accordance with the provisions of a section of the Act, it does not Ipso facto render such an order as without jurisdiction .much less a 'fraud on the Act,' or mala fide as held by the learned Single Judge,, In view of the above-stated principle will be useful to have a cursory look at the scheme of the Act. The Act was passed, as is clear from its preamble, to introduce land reforms in Azad Kashmir and consolidate and amend laws relating to grant of proprietary rights to the occupancy tenants. For carrying out the purposes of the Act, a special Commission was created under section 4 having all the powers necessary for the implementation of the Act. The Commission was also invested with the powers to set up an organization and appoint officers, authorities and persons, and confer powers on and assign duties to them. Under section 5 of the Act, the Commission was also empowered to delegate its powers, by a notification in the official Gazette, to any of its members or officers or authorities subordinate to it. S. A. L. C. is such an authority to whom the powers have been delegated under section 5 of the Act, qua granting or refusing of proprietary rights to the occupancy tenants. Against the order of the S. A. L. C. an appeal has been provided to the Land Commissioner, who is also vested wish the powers of review. From this scheme of the Act, it is clear that for the enforcement of the Act, special hierarchy of the authorities was created under the Act for granting of proprietary rights and hearing the appeals, and reviews. The Act lays a clear bar against all the civil Courts to entertain or adjudicate upon any matter falling within the jurisdiction of the authorities so created under the Act. The rights of obtaining the proprietary rights are also the creation of the Act. There can be no doubt that they are not the common law rights but the rights created under a Special Act for the enforcement of which the Act itself has created a machinery for deciding the claims of the proprietary body and the occupancy tenants, with properly constituted tiers of the appellate and review authorities. In view of this fact of the matter, it is only these authorities which have the jurisdiction to decide all matters arising between the occupancy tenants and the proprietors so far as the conferment of proprietary rights or their refusal is concerned. In the present case, Badder Din availed of all the available remedies under the Act by challenging the order of S. A. L. C. in appeal before the Land Commissioner, where he raised precisely the same objection that the S. A. L. C. had passed an erroneous order as the occupancy tenants were not in possession of the land. This objection, it appears, was overruled, as his appeal was dismissed. He thereafter even filed a review application which also failed. Therefore, after exhausting all the remedies that were available to him under the Act he cannot now challenge the order o B S. A. L. C. in a civil Court merely on the ground that the occupancy tenants were not in possession of the tenancy, in the face of the clear bar of section 32 of the Act. (b) The learned Single Judge has referred to some authorities, out of which only A I R 1926 Born. 1 and P L D 1970 A J & K 44 are traceable as the rest of the authorities relied upon unfortunately do not indicate the Courts which decided them. So it is not possible to make any comments regarding such references. In our view, A I R 1926 Bom. 1 does not support the proposition that a wrong decision, passed by a Court or a Tribunal having exclusive jurisdiction, is challengeable in a civil Court on the basis of its being incorrect or because of an erroneous interpretation of the provisions of a section of an Act which created the Tribunal or the Court. In this case, a suit was lodged about a land lying outside the limits of the original jurisdiction of the High Court. The suit was dismissed on the ground that as the suit land as well as the defendants were outside the jurisdiction of the High Court, the High Court in its original side could not entertain such a suit. This was a case of total absence of jurisdiction in the High Court on its original side and not that of an erroneous decision, and is, therefore, clearly distinguishable. In P L D 1970 Azad J & K 44, the question of jurisdiction of the civil Court came up before a learned Single Judge of the High Court about the jurisdiction of the civil Courts for entertaining a suit seeking a declaration about the order passed by the Rehabilitation Commissioner, regarding an evacuee shop. The learned Judge while holding that the civil Courts had the jurisdiction to entertain such a suit challenging the order of Rehabilitation authorities, remarked :- "Thus while all authorities are unanimous that a party which alleges mala fide on the part of a tribunal or authority enjoying exclusive jurisdiction can come to the civil Court with such an allegation and seek its intervention in vindication of his rights, if any, there is divergence of views whether mala fide is the only ground on the basis of which a recourse can be had to a civil Court to challenge the orders of special tribunals or authorities. While some authorities speak only of mala fides some others, have indicated a much wider scope for intervention of civil Courts such as orders impugned not being in strict conformity with the provisions of a statute or where such orders are in flagrant breach of such statute or where these orders have been capriciously made or where such functionaries have exceeded their statutory powers or not acted in conformity with the fundamental principles of Judicial procedure. Even gross negligence or collusion with the opposite-party have been held to be grounds available to the aggrieved party for coming to a civil Court by no less a person than a Judge of Mr. B. Z. Kaikaus's profound scholarship and deep judicial insight." We agree that a mala fide or a colourable order, passed by a Tribunal or authority, having exclusive jurisdiction, can be challenged in a civil Court, provided proper foundation is laid for the order being so. But if these remarks are interpreted to mean that if the order of such a tribunal authority is erroneous, such an order is challengeable in a civil Court, we cannot subscribe to this view. Because the error of decision or of interpretation of a provision, as distinct from want of jurisdiction, on the part of a Tribunal or authority having exclusive jurisdiction, cannot be challenged in a civil Court. The rectification of such an error must be sought in the hierarchy of upper authorities or Courts created by the special Act especially when such an Act explicitly bars the jurisdiction of the civil Court to adjudicate upon the rights which are the creation of that Act. But where an authority or tribunal under the guise of jurisdictional powers under an Act, usurps the power of the civil Courts, such a colourable order, though ostensibly purporting to have been passed under the special Act, can be challenged in a civil Court as being without jurisdiction. The case will be different where an authority has the jurisdiction to adjudicate about a right, but gives a wrong decision, it cannot be challenged in a civil Court in the face of a clear ouster section. The conditions that are to be satisfied for operation of an ouster clause or a section of an Act, are laid down in Zafar-ul-Ahsan v. The Republic of Pakistan (P L D 1960 S C 113). This is a Bench mark decision given by a Bench of five Judges comprising Mr. Muhammad Munir, C. J., Mr. M. Shahabuddin, Mr. A. R. Cornelius, Mr. Amiruddin Ahmed and Mr. S. A. Rehman, JJ. The judgment was written by Mr. Muhammad Munir, C. J. In this case, Mr. Zafar-ul-Ahsan, an officer in the Civil Services of Pakistan, was retired from service for misconduct by an order of the President. Section 10 of the Public Conduct (Scrutiny) Ordinance, 1959 ousted the jurisdiction of all the civil Courts including Supreme Court, to question any such order. This order was challenged in the civil Court and finally came up before the Supreme Court. One of the points of attack against the order was that the Screening Committee had never informed the officer about its believing that he was corrupt and had been guilty of misconduct. Because of this error, it was contended, the order was challengable before the civil Court in spite of the ouster section of the Ordinance. Repelling this contention, it was held :- "if a statute provides that an order made by an authority acting under it shall not be called in question in any Court, all that is necessary to oust the jurisdiction of the Court is that the authority should have been constituted as required by the statute, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which' action is taken should be within the grounds stated by the statute, and the order made should be such as could have been made under the statute. These conditions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been committed by the authority. If an appellate authority is provided by the statute the omissions or irregularity alleged will be a matter for that authority, and not for a Court of law." We find that all the above-stated conditions for the operation of ouster section are very much present in the case before us, namely :- (i) S. A. L. C. was the authority constituted under the Act ; (ii) The persons proceeded against were within the jurisdiction of the authority ; and (iii) The order made is such as could have been made under the Act. Besides this, there is a long line of authorities supporting the principle that where a right is created by a statute and special authorities provided for enforcing it, the party having a grouse against the infringement of such a right can seek remedy only through the authorities so provided and not through a civil Court unless it is shown that the authorities acted mala fide or under a cloak of jurisdiction which they did not possess. Some of such authorities may be cited with advantage :- (i) In re : Mian Sultan Ali Manghiana v. Noar Hussain (P L -D 1949 Lah. 301). This was a case under Contempt of Courts Act, for commission of contempt by the Election Commission which had not stayed the proceedings before it in spite the temporary injunction issued by the High Court. In the contempt proceedings, inter alia, the question arose that because of an ouster section, the civil Court had no power to issue the stay order. In these circumstances it was held by a majority decision, the main judgment being written by Mr. Justice Muhammad Munir, A. C. J. (as he then was) :- "Where a special Tribunal out of the ordinary course is appointed by ~an Act to determine questions as to rights which are the creation of that Act, then, except so far as otherwise expressly provided or necessarily implied, that tribunal's jurisdiction to determine those questions is exclusive." It was also observed by the learned Judge that :- "The rule is fundamental both here and in England that where a right is created by a statute which also prescribes the manner in which that right may be enforced, the party complaining of any infringement of such right can only seek such remedy as is provided in that statute.", (ii) Province of West Pakistan v. Haji Muhammad Jumma and another (P L D 1960 Kar, 908) In this case certain tracts of land were. initially granted to Haji Muhammad Jumman by Assistant Revenue Officr, under section 37 of the Sind Land Revenue Code, 1879 after construction of Lloyds Barrage. This grant was challenged by one Sanwan before the Revenue Officer, who cancelled the order passed in favour of Haji Muhammad Jumman and granted the land to Sanwan. Haji Muhammad Jumman's appeal to the Commissioner of Khairpur and a review application to the Board of Revenue were dismissed. Haji Muhammad Jumman then instituted a civil suit seeking declaration that the order of the Revenue Officers was invalid. Inter alia, the question arose before the High Court about the jurisdiction of the civil Courts qua the questioning of the decisions of the Revenue Officers even if decisions were erroneous. It was held that the civil Courts can check the errors of usurpation of powers by Revenue Courts or Officers but not the errors of their judgments because the correction of errors lay exclusively within the powers of the Revenue Courts or Officers created under the Sind Land Reforms Code and rot with the civil Courts. (iii) Mercantile CO-operative Bank Ltd. v. Vissumal Chatumal (P L D 1962 Kar. 529). It was a case under Bombay Co-operative Societies Act (VII of 1925) where a Registrar's nominee had decided about the operation of future interest. In the execution proceedings the judgment-debtor challenged this order of fixing the future interest, in the civil Court on the ground that the Registrar or his nominee had no power to make such an order. Overruling the objection it was held that such an order could not be challenged in a civil Court because of the bar under the Bombay Co-operative Societies Act, ousting the jurisdiction of the civil Courts. (iv) Abdul Ghafar and others v. Government of West Pakistan and others (P L D 1963 Kar. 215) which has striking similarities with the case before us. In this case, the petitioner was granted 12 acres of land by the Assistant Revenue Officer, Sukkur. The bid of the respondent was rejected but his appeal before the Revenue Officer was accepted. Against this order, the petitioner went in appeal before the Commissioner which was also rejected. His review application before the Board of Revenue was also dismissed. Thereafter the petitioner went in civil Court for challenging the order of the Revenue authorities on the ground that they had decided the matter mala fide and on misappreciation of evidence. It was held by Mr. Justice Wahiduddin, relying upon P L D 1960 Kar. 908, that the civil Courts had no jurisdiction to entertain such a- suit because of the bar of section 37 (3) of the Sind Land Reforms Code (V of 1879) and section 11 of Sind Revenue Jurisdiction Act, 1876, which did not permit filing of civil suit against orders of Revenue authorities. (v) Mst. Gulab Khatoon v. Muhammad Yaqub and another (P L D 1964 Lab. 324). In this case, a civil suit was brought for correction of entries in a Khasra Girdawari, maintained under the supervision of the Collector. The suit was dismissed on the ground that the Collector alone was the proper authority to decide the matter as the jurisdiction of the civil Courts was barred under section 158 of the Punjab Land Revenue Act. (vi) Abdur Rehman Howldar and others v. Mosak Ali Biswas (P L D 1964 Dacca 320). This was a case under Bengal Agricultural Debtors Act (VII of 1936), and an award given by the Debt Settlement Board was sought to be challenged in s civil Court on the ground that the award had been given without jurisdiction. The suit was dismissed on the ground that the decision of the Board was final and could not be challenged in a civil Court as the aggrieved party, under the Act, had to follow the remedy provided in the Act and not in a civil Court. (vii) Muhammad Hussain v. Syed Mumtaz Hussain (P L D 1965 Lah 35). It was a case under Pakistan Rehabilitation Act (XLII of 1956). The allottee had died before conferment of permanent rights in respect of the allotted land. After his death, the question of inheritance to the rights of allotment came before the High Court. It was held by Mr. Justice Anwar-ul Haq (as he then was) that this question fell within the exclusive jurisdiction of the Revenue authorities and, therefore, could not be agitated before the civil Courts in view of the bar of section 18 of the Pakistan kehabilitation Act, 1956. In this authority, P L D 1960 Lab. 834, P L D 1960 S C 229, P L D 1962 S C 42, P L D 1962 Lah. 859 and P L D 1963 S C 347 were referred. (viii) Masood Bari and other v. Abdul Aziz (P L D 1967 Kar. 55). In this case, the election of one Mr. Masood Bari, as Director of the Board of Directors of the Industrial Development Bank of Pakistan, was challenged through a civil suit. The jurisdiction of the civil Courts before the High Court was challenged on the ground that the right to vote for the election of the Director was the creation of the Industrial Development Bank of Pakistan Ordinance (XXXI of 1961) and a machinery was provided by Regulation 48 of the Industrial Development Bank of Pakistan General Regulation, 1962 laying down that the decision of the Election Officer could be challenged before a Committee specially constituted which alone had the jurisdiction for such matters. Mr. Justice Qadeeruddin, upheld the objection relying upon A I R 1949 Lab. 131, A I R 1933 All 358 and A I R 1940 P C 105 by observing that "where a special tribunal out of the ordinary course is appointed by an Act to determine questions as to rights which are the creation of that Act, then, except so far as otherwise expressly provided or necessarily implied, that tribunal's jurisdiction to determine those questions is exclusive". In the same line are P L D 1968 Lab. 1275, P L D 1968 Kar. 797, P L D 1969 Kar. 389, P L D 1971 Pesh. 153, P L D 1975 Lab. 954, P L D 1967 Pesh. 328, A I R 1928 Cal. 606 and A I R 1941 Nag.

266. In view of the above reasons and the judicial consensus contained in the above-referred authorities, we are unable, with due respect, to agree with the learned Single Judge of the High Court that the order passed by the S. A. L. C. was without jurisdiction, mala fide or `a fraud on the Act'. We, therefore, hold that the decision of the S. A. L. C. could be challenged only before the higher authorities created under the Act which constituted the sole forum for this purpose and not in the civil Courts because of the clear bar of section 32 of the Act ousting the jurisdiction of the civil Courts, even if the order of the S. A. L. C. was erroneous. ;; at .,

5. The next point urged by the learned counsel for the appellants is that although the appellants had been dispossessed by the owners 9/10 years prior to the conferment of proprietary rights on 4-11-1961, the period of limitation vis-a-vis the claim of adverse possession of the respondents would start to run from 4-11-1961 and not 9/10 years before as at that time no proprietary rights had been conferred upon the appellants. We find little force in this argument because when the occupancy tenants were forcibly dispossessed by the proprietary body, they even then had a right to sue for possession under the tenancy laws and therefore, the time started running against them from that very date and not from the date when the proprietary rights were conferred upon them. The conferment of proprietary rights, in our view, could not stop the running of the period of limitation. Of course the case would have been different if the occupancy tenants had no right to sue for possession before the conferment of proprietary rights. In this respect we may refer to A I R 1939 P C 175 (?!. In this case, an auction purchaser had purchased the property during the execution proceedings of its sale. Later on a declaratory suit was brought in the civil Court to the effect that the property was subject to a trust. The suit was decreed. The auction-purchaser claimed adverse possession from the date of purchase. It was contended by the opposite side that the terminus quo was the date of the decree passed by the civil Court and not the date of possession of the auction-purchaser. Repelling this contention, it was held that the subsequent declaratory decree by the civil Court about the property being subject to trust did not arrest the running of the period of adverse possession of the auction purchaser as it had started running prior to such a declaration. 1n the case before us, it is a common ground between the' parties that the appellants had been forcibly dispossessed about 9/10 years prior to the conferment of proprietary rights by the S. A. L. C. It is not questioned that the appellants had no right, even before the conferment of proprietary rights, to bring a suit for possession under the tenancy laws, which they did not. Thus the period of limitation had started running 9/10 years prior to the conferment of proprietary rights upon the appellants which could not be stopped on account of the later orders of the S. A. L. C. The period of 9/10 years, therefore, will have to be tacked with the period upto the filing of the suit, in the civil Court. As the appellants brought the suit for possession after more than 12 years of their forcible dispossession by the proprietary body, the suit is clearly time barred. In view of the above discussion, we bold that the order of the S. A. L. C. could not be challenged in a civil Court but the suit for possession of the land by the appellants, on the strength of their acquiring proprietary rights under the Act, falls clearly within the jurisdiction of the civil Court which is competent to determine the question of limitation. Since the suit was brought long after the prescribed period of twelve years of the admitted forcible dispossession of the appellants, we find no fault with the finding of the learned Single Judge that the suit is time barred. In the result, the appeal fails on this ground. Due to complex questions of law involved, we pass no order as to costs. S. Q. Appeal dismissed.