P L D 1962 (W (PLP)

SHABIR AHMAD, J.‑This Letters Patent Appeal directed against the order of my brother S.A. Mahmood in Writ Petition No. 428/R of 1960, is being disposed of at a preliminary hearing, but on account of the reasons that will become apparent presently, I have felt the necessity of writing a detailed order.

2. The material facts are that the appellants, who were the petitioners in the writ petition, were allotted land which was in excess of that to which they were entitled. The excess land that stood in their names was cancelled and allotted to other refugees. Attempts of the appellants to have the land restored to themselves failed before the Rehabilitation Authorities whereupon they came to this Court with a petition for issue of a writ which was dismissed by my brother S. A. Mahmood.

3. The order of cancellation of the excess area that stood in the names of the appellants was passed by an Assistant Rehabilita tion Commissioner without hearing them. Against the order of the Assistant Rehabilitation commissioner the appellants presented an appeal to the Deputy Rehabilitation Commissioner who, by his order dated the 16th of January 1959, directed that if the land which had been taken out of the allotment of the appellants had not been confirmed in the name of anyone else, it should be restored to them and another piece of land which stood in the name of the appellants in another village be taken away from them to the extent of the area which had been allotted to them in excess. However, this order of the Deputy Rehabilitation Commissioner did not benefit the appellants because before the order was passed the land which had been taken away from them had been confirm ed in the name of other persons. The appellants moved the Rehabilitation Commissioner for exercise of his powers of revision. This application for exercise of powers of revision was dismissed by the Rehabilitation Commissioner on the ground that no injustice had been done to the appellants.

4. At the hearing of this appeal, the contention raised by Rao Muhammad Ashfaq Khan, learned counsel for the appellants, was that the order canceling a piece of land from the allotment of the appellants having been passed by the Assistant Rehabilitation Commissioner without hearing the appellants, the order was with out jurisdiction. When I pointed out to him that the appellants had ample opportunity to put forward their cage when they appealed to the Deputy Rehabilitation Commissioner and afterwards when they filed an application for revision before the Rehabilitation Commissioner, learned counsel cited two decisions of our Supreme Court, namely, Yusuf Ali v. Muhammad Aslam Zia (P L D 1958 S C (Pak.) 104) and Farid sons Ltd. v. Government of Pakistan (P L D 1961 S C 537). On it being mentioned by me that these decisions of the Supreme Court were of no avail to the appellants because they dealt with entirely different matters, the first one being to the effect that if an order was entirely without jurisdiction the fact that it had been acted upon by another authority did not clothe with validity the action of the authority that had acted upon the order, and the second one being to the effect that it was a principle of natural justice that before a person is condemned an opportunity should be afforded to him to show cause against his condemnation, Rao Muhammad Ashfaq Khan said that if it was intended to dismiss his appeal It should be mentioned in the judgment that the above‑mentioned two decisions of the Supreme Court had been cited, and the case should be declared to be a fit one for appeal to the Supreme,, Court. The tone in which this remark was made could not be considered courteous by any standard and one could see that he was implying that he dared the Court to dismiss his appeal. I am of the view that the words used by the learned counsel for the appellants coupled with the tone in which they were uttered may possibly amount to contempt of Court, but as I have no intention of taking any action 1n the matter beyond pointing out to the learned counsel for the appellants that what he did was perhaps not the proper thing to do. I will not dilate upon the matter.

5. As regards the objection of learned counsel for the appellants that as the Assistant Rehabilitation Commissioner who had passed the order of cancellation did not hear the appellants before passing it, his order was without jurisdiction, I am of the view that the argument is unsound. The mistake of the Assistant B Rehabilitation Commissioner on which learned counsel for the appellants relied was no more than a mistake of procedure and was not a case of passing an order which the officer was in no case competent to pass. The order passed by the Assistant Rehabilita tion Commissioner could be passed after he had afforded an opportunity to the party affected which the Assistant Rehabilita tion Commissioner had not done. That non‑compliance of the procedure necessary under the law was an error can hardly be doubted but if the Court come to the conclusion that the error of the Assistant Rehabilitation Commissioner had not worked to the prejudice of the appellants, I fail to see why that error should have resulted in the entire proceedings of the Rehabilitation Authorities being declared inoperative by the learned Judge who dismissed the writ petition of the appellants. The appellants were heard by the Deputy Rehabilitation Commissioner when they appealed to him for having the order of the Assistant Rehabilitation Commissioner set aside, and even if this may not be considered sufficient on the ground that the Deputy Rehabilitation Commissioner should have concerned himself with the correctness or otherwise of the order passed by the Assistant Rehabilitation Commissioner, the position does not alter materially to the benefit of the appellants because it is hardly open to question that by reason of the provisions contained in sec tion 11(4) of the Pakistan Rehabilitation Act (XLII of 1956), which was In force at the relevant time, the Rehabilitation Com missioner could In exercise of revisional jurisdiction pass any order that the circumstances of the case justified, the only check on the exercise of those powers being that the order was not against law and the person against whom it was intended to be passed was heard. It was not the case of the appellants, in their writ petition or the memorandum of appeal, nor was it contended by their learned counsel, that the order could not have been passed at all, and it remains to consider whether the provision of law that the Rehabilitation Commissioner could not pass an order against a party without affording that party an opportunity to show cause against the order had been complied with. I have mentioned already that the appellants had put in an application for revision before the Rehabilitation Commissioner in which application they had mentioned their objections to the order which had been passed by the lower Rehabilitation Authorities, The appellants, therefore, had had ample opportunity of showing, to the Rehabilitation Commissioner that the order passed by the Assistant Rehabilitation Commissioner was defective to some extent, and it follows that as the Rehabilitation Commissioner could pass precisely the same order as the Assistant Rehabilitation Commissioner passed, it could be assumed that the Rehabilitation Commissioner has done that.

6. For the reasons given above, I would hold that the appeal has no merit and would dismiss it. As regards the oral prayer of learned counsel for the appellants that the case be certified to be fit for appeal to the Supreme Court, I do not find any ground for doing so. The result is that the appeal and the oral prayer for declaring the case to be a fit one for appeal to the Supreme Court are dismissed. ABDUR RAHIM KHARAL, J.‑I agree. A. H. Appeal dismissed.