P L D 1966 (W (PLP)

The dispute in this case relates to property No. B. I. 18-3-58, situated in Kamoke Mandi, which was occupied by Khair Din, petitioner, and Abdul Hamid and three others (Respondents Nos. 1 to 4). Khair Din filed a CH Form for its transfer. He is a non-allottee. An other form was filed by Abdul Hamid etc., (as one party). They are also non-allottees. The Deputy Settlement Commissioner, by his order, dated the 3rd of August 1960, trans ferred the whole house to respondents Nos. 1 to

4. The petitioner filed an appeal which was heard by Lt.-Col. J. D. Malik, Additional Settlement and Rehabilitation Commissioner, who, by his order, dated the 24th of October 1960, held that none of the parties was eligible for the transfer of the house, which, he directed, should go to auction pool. Two revisions were filed against this order of the Additional Settlement and Rehabilitation Commissioner; one by the petitioner and the other by respondents Nos. 1 to

4. The Rehabilitation Commissioner, Ch. Nabi Ahmad, divided the house into two portions vertically and gave one portion to the petitioner and the other to the respondents Nos. 1 to 4, vide his order, dated the 11 th of May 1961. Against this order, again, two revisions were filed; one by the petitioner and the other by respondents Nos. 1 to 4, which were decided by S. Ijaz Hussain Shah, Chief Settlement and Rehabilitation Commissioner on the 22nd of June 1962. He dismissed the revision of the petitioner but accepted that of respondents Nos. 1 to 4 and gave the entire house to them holding inter alia, that they were in possession since 1948 and that Khair Din, petitioner, got the possession of a small portion of this house only in the year 1950.

2. The petitioner has filed this writ petition under Article 98 of the Constitution of the Republic of Pakistan, wherein he has challenged the order of the Chief Settlement Commissioner, dated the 22nd of June 1962, on the following grounds:- (a) That the power to divide a house, under the first proviso to sub-clause (4) of section 2 of the Displaced Persons (Compen sation and Rehabilitation) Act, 1958 (hereinafter called the Act), stands delegated, by the Chief Settlement Commissioner, among others, to the Settlement Commissioner and when the Settlement Commissioner divided the house into two portions as a delegatee of the Chief Settlement Commissioner, the Chief Settlement Commissioner could not sit in revision over his order. In view of Ordinance XVIII of 1965, the learned counsel, how ever, did not press this point and expressly gave it up and 1, therefore, need not deal with it. (b) The other point raised by the learned counsel for the petitioner was, that since the record in this case was not called for, before the target date, namely, the 13th of January 1962, the Chief Settlement Commissioner had no jurisdiction to pass order in the Second Revision in view of Ordinances Nos. 2 and 13 of 1962. His contention was that the record in this case was called for, for the first time, only on the 31st of May 1962.

3. A report was called by this Court, on these points from respondent No. 5, namely, the Chief Settlement Commissioner, who has intimated that the relevant record was ordered to be called for only on the 31st of May 1962. In the written statement filed by the contesting respondents Nos. 1 to 4 this fact has not been denied. As a matter of fact, the learned counsel appearing for respondents Nos. 1 to 4 conceded at the Bar that the record in this case had not been called for before the 13th of January 1962. In view of this factually common ground between the parties, the order of the Chief Settlement Commissioner would be without juris diction and of no legal consequence. The provision for a second revision, as contained in subsection (2) of section 20 of the Act, was done away with by Ordinances Nos. 2 and 13 of 1962 and only those cases were saved of which the records had been called for, before the 13th of January 1962. As in this case it was not done, 1 have no option but to declare the order, dated the 22nd of June 1962, of the Chief Settlement Commissioner, as to be without legal authority and of no legal consequence against the petitioner.

4. The learned counsel for the contesting respondents Nos. l to 4 submitted that since the petitioner had not objected to the juris diction of the Chief Settlement Commissioner at the time the case was heard by him, therefore, he was precluded from raising this objection for the first time in a writ petition before the High Court. He relied upon Ghulam Mohy-ud-Din v. The Chief Settle ment Commissioner, Pakistan, Lahore and others (PLD 1964 S C 829) wherein it was held, that a writ of certiorari is not a matter of right but one of the discretion largely, and while issuing it, the conduct of the party applying for it should not be such as to disentitle him of that relief. On the basis of this ruling, the learned counsel for respon dents Nos. 1 to 4, urged, that the conduct of the petitioner in the present case was such, that he did not object to the jurisdiction of the Chief Settlement Commissioner, while appearing before him, and for this reason, he should not be permitted to raise this objection in the High Court. However, I find that the present case is distinguishable from the case cited by the learned counsel for the contesting respondents. In the case of Ghulam Mohy-ud-Din, the writ-petitioner had filed a review appli cation and also a revision, and when the review Court decided against him, he took up the position that as no review lay against an order against which a revision had been filed, therefore, the review order was without jurisdiction. It will be appreciated that there the defect in jurisdiction crop up due to the conduct of the writ-petitioner, who had filed a revision petition himself. He was aware of that action and conduct of his, but did not bring it to the notice of the Court concerned, and when ultimately, the decision went against him, he came out with a surprising informa tion that as he had filed a revision, the review Court had no jurisdiction. It is really this conduct of the writ-petitioner in the case of Ghulam Mohy-ud-Din, which was taken great exception to by the Supreme Court, in view whereof, their Lordships refused to issue any formal writ at the instance of such a petitioner on3 that ground. It will thus be appreciated that mere omission to raise objection, or merely remaining a passive spectator, is no bars so as to disentitle a person from taking up the point of lack of jurisdiction an the part of a domestic tribunal. Courts of Equity have not refused relief merely on this ground. In the case; of Muhammad Tufail v. Abdul Ghafoor and others (P L D 1958 S C (Pak.) 201), at page 209,1 their Lordships while allowing objection of Jurisdiction for the, first time in writ proceedings, held: "Halsbury's laws of England, Second Edition, Volume IX, Para. 1397 defines the cases where a writ of prohibition may issue. It says: Prohibition lies not only for excess of or absence of jurisdiction, but also for the contravention of same statute or the principles of the common law; In Farquharson v. Morgan (1894) 1 Q B 552 it was held that where total absence of juris diction appears on the face of proceedings in an inferior Court, the Court is bound to issue a prohibition, although the applicant for the writ has consented to or acquiesced in the exercise of jurisdiction by the inferior Court. The reason why, notwith standing such acquiescence, a prohibition is granted where the want of jurisdiction is apparent on the face of the proceedings, is explained by Lord Denman in Bodenham v. Ricketta 6 M & M 170 to be for the sake of the public, lest the case might become a precedent if allowed to stand without impeachment, and to this dictum Lord Lopes, L. J. added: `because it is a want of jurisdiction of which the Court is informed by the proceedings before, and which the Judge should have observed, and of which he himself should have taken notice."

5. In the present case, firstly, the error is apparent on the face of the record, the result whereof is, that the second revisions before the Chief Settlement Commissioner was not maintainable. Secondly, if the petitioner did not raise the point of jurisdiction before the Chief Settlement Commissioner, it is equally clear that the contesting respondents Nos. 1 to 4 also did not raise it. A cross revision had been filed against them, they could have, so well told the Chief Settlement Commissioner about the defect of his jurisdiction, because it was obvious, that if the revision of the petitioner had been accepted, the order of the Settlement Commissioner, dividing the house would not have held the field. The present case, therefore, has another distinctive feature from the case of Ghulam Mohy-ud-Din, inasmuch as, here the conduct of respondents Nos. I to 4 also has not been above board in view whereof it hardly lies in their mouth to say that since they have been successful in getting an order of a Court of no jurisdic tion, in their favour, this Court should not upset it under Article 98 of the Constitution. Thirdly, here, the defect of jurisdiction had not arisen due to any action or move of the petitioner himself, as was the position in the case of Ghulam Mohy-ud-Din. Here the law has taken away jurisdiction with regard to certain types of cases, but in that case, it was the action of the writ-petitioner which took away jurisdiction. I am fortified in this conclusion by another judgment of the Supreme Court in Sher Muhammad v. Nizam Din and another (C. A. No. 141 of 1963), decided on the 2nd June 1965, where their Lordships, while dealing with the case of Ghulam Mohy-ud-Din, write as follows: "In the above case, the appellant had filed both a second revision and a review petition. The fact that filing of a second revision was a bar to the hearing of review petition, was not brought to the notice of the Settlement Commissioner. On the other hand, at the hearing of the review, instead of raising any objection the appellant actually participated in its hearing on merits." At another place, their Lordships write :- "In the instant case, it could not be said that the appellant had acquiesced in the usurpation of jurisdiction by the Chief Settlement Commissioner. At the most, he was a mere passive spectator having no power to prevent the illegality. The learned Single Judge of the High Court dismissed the writ petition with out applying his mind to the question of jurisdiction raised in the writ petition. In these circumstances, the above observation will not be applicable to this case."

6. Fourthly, the rule of disallowing objections of jurisdiction to be raised for the first time in writ proceedings is not an absolute rule. There are some well-known exceptions to that. As for examples, where the defect of jurisdiction was not known to the petitioner or where the defect is apparent on the face of the record, there this rule is not applied. Again, there may be cases in which failure to raise objection is not so material, because the view of the domestic tribunal may be so well-known due to having been expressed in large number of cases that even if this objection had been raised before it, it would not have given effect to that. There may still be another case where the position of law on the subject was not certain. As for example, was the case, with regard to the point as to whether when a Settlement Authority exercises a power of dividing a house, its order is subject to appeal or revision or not. An example of this type is the case of Jalal Din v. Muhammad Rafiq (P L D 1965 S C 261), where their Lordships of the Supreme Court allowed that point to be raised for the first time in the Supreme Court writing as follows: "Before us, although the objection to the order of the Settle ment Commissioner based on tine failure to send for the record has not been abandoned, the main point argued is a different one, namely, that in dividing the house into portions the Deputy Settlement Commissioner was exercising not his own power, but a power which belonged exclusively to the Chief Settlement Commissioner and had been delegated to him by the Chief Settlement Commissioner and the exercise of such power was not liable to control in appeal or revision. The order of the Deputy Settlement Commissioner is, therefore, it is urged, unaffected by the order of the higher officers and is binding on the parties."

7. Yet another class of cases may be those where the tribunal, is a creation of a statute and its jurisdiction is objected to on the ground of invalidity of the enactment under which it has been created. In such cases the failure to raise point of jurisdiction on the said ground is not a bar to raise it during the course of writ jurisdiction, because, it is so well-known that a tribunal, which is the creation of a particular statute cannot question the validity of the very statute under which it has been created. See Akhtar Ali Parvez v. Altafur Rehman (P L D 1963 Lah. 390). Another example of cases may be those where the tribunal concerned is a sort of administrative tribunal, which is bound to obey administrative instructions of its superiors, and the instructions of the said superiors are so well known that in view thereof it may be futile to harass the said tribunal with a contention which it is obliged to reject. These are thus few examples which I have summarized to show that the rule regarding disallowing objection of jurisdiction to be raised is not absolute.

8. For all these reasons, I cannot accept the contention of the learned counsel for respondents Nos. 1 to

4. Declaring the order of the Chief Settlement Commissioner, dated the 22nd of June 1962, to be without lawful authority, I hold, that it shall be of no legal consequence against the petitioner. The result is that the only operative order in this case is, that of the Settlement Com missioner, dated the 11th of May 1961, whereby the house in dispute has been divided between the parties. There will be no order as to costs. S. Q. Petition accepted.