P L D 1965 Supreme Court 698 (PLP)

B. Z. KAIKAUS, J.‑This is an appeal by special‑leave against an order of the High Court of West Pakistan ‑dismissing a suit filed by the appellant challenging the acquisition by the improvement Trust, Rawalpindi, of a plot of land included in a house transferred to the appellant by the Settlement Authorities. The suit has been dismissed by a learned Single Judge of the High Court of West Pakistan on the ground that it was barred on account of section 25 of the Displaced Persons (Compensation and Rehabilitation) Act. For an appreciation of the reasoning on which the order of the High Court is based it is necessary to state the relevant facts. On the 14th November 1959, Bungalow No. 5, Civil Lines, which also bore alternative No. CL‑49 was transferred to the appellant who was at that time holding the office of the District and Sessions Judge, Rawalpindi, and who was an allottee of the bungalow and a claimant, by the Settlement Authorities acting in exercise of the powers conferred on them by the Displaced Persons (Compensation and Rehabilitation) Act. On the 19th November 1959, a provisional transfer order was issued in favour of the appellant. 'The respondent in this appeal, that is, the Improvement‑Trust. Rawalpindi, claimed that 6 kanals and 14 mar as out of the land included in that house had been acquired by the Trust in 1954 or 1955. At this the appellant filed on the 26th November 1959, the suit out of which this appeal arises for a declaration that the alleged acquisition by the respondent of the plot in dispute was illegal and void and that the plaintiff was the tsansferee of the plot. An injunction was also asked for restraining the respondent from entering upon or taking possession of The land. The only defendant in the suit was the Improvement Trust, Rawalpindi : The suit had been filed in the Court of the Senior Civil Judge, Rawalpindi, but was later transferred to the original side of the High Court. On the 16th July 1960, was passed the order which formed the foundation of the plea as to lack of jurisdiction in the civil Court to deal with the matter. This order was passed by a Deputy Settlement Commissioner and by it the order transferring the bungalow to the appellant was amended by giving a direction that 6 kanals and 14 marlas which had been acquired by the Trust should not transferred to the appellant. The ground for this direction was stated in the order to be that the ,land had already been acquired b the Trust an should have be appellant. The appellant filed an appeal against this order to the Additional Settlement Commissioner who dismissed the' appeal as "unnecessary and premature" saying that as long as the civil suit of the appellant for a declaration as to the invalidity of the acquisition was not decided he was not in a position to interfere with the order of the Deputy Settlement Commissioner. The learned Single Judge pf the High Court who tried the suit was of the opinion that the Deputy Rehabilitation Commissioner having held in his order ‑dated the 16th July 1960, that the property in dispute had been acquired by the Trust civil Courts would have no jurisdiction to determine the question of the validity of the transfer to the Improvement Trust as long as the order was not set aside, in view of sections 22 and 25 of the Displaced Persons (Compensation and Rehabilitation) Act which debar any Court from questioning an order made by any officer appointed under the Displaced , Persons (Compensation and Rehabilitation) Act. A brief reference .to the provisions o the Displaced Persons (Compensation and Rehabilitation) Act in so far as they are relevant for the present purpose may here be made. Under section 3 of the Act the Central Government is empowered to issue a notification acquiring the whole or any specified part of evacuee property, and henceforth the property mentioned in the notification vests in the Central Government and becomes available for transfer to claimants and non‑claimants in accordance with Schedule to the Act, subject to certain exceptions to which it is not necessary to refer. Schemes for transfer have to be framed in accordance with section 16 of the Act, but the right to transfer has already been provided for in the Schedule to the Act. Property is generally to be transferred to persons in "possession" a word which has a special connotation in the Displaced Persons (Compensation and Rehabilitation) Act for it means possession under an allotment order though the Central Government has been granted power to add to the categories of the property which shall be regarded as in "possession" of a person and the Government has in fact added to the definition. There are some kinds of property, that is, big mansions with respect to which nobody has a right to a transfer, but which are to be auctioned. The scheme for, transfer of houses with which we are concerned also makes provision as to the t 1lieers who are to make original orders of transfer. It grants a power of transfer to the Deputy Settlement Commissioner from whose order an appeal lies in accordance with section 19 of the Act to the Additional Settlement Commissioner and then a revision lies to the Settlement Commissioner. In the original Act the power of revision was vested in the Chief Settlement Commissioner and a power of revision could also be exercised by the Settlement Commissioner by virtue of an order of the Chief Settlement Commissioner, but later the double revision was abolished and henceforth only a revision to the Settlement Commissioner remained competent. Sections 22 and 25 of the Act which have been pleaded as a bar to the suit run as below: "

22. Finality of orders.‑Save as otherwise expressly provided in this Act, every order made by any officer appointed under this Act, shall be final and shall not be questioned in any Court." "

25. Bar of jurisdiction.‑Save as otherwise provided in this Act, no civil Court shall have jurisdiction in respect of any matter which the Central Government or an officer appointed under this Act is empowered under this Act to determine, and no injunction, process .or order shall be granted by any Court or other authority in respect of any action taken or to be taken in exercise of any power conferred by or under this Act." The contention on behalf of the respondent is that these sections debar any Court from questioning an order passed by an officer appointed under the Act and the. Deputy Rehabilitation Commissioner having passed an order on the 16th July 1960, holding that the property in dispute had been acquired by the Improvement Trust it was not open to the civil Court to hold that this property had not been validly acquired by the Trust, the only remedy open to the appellant being an appeal or revision against the order of the Deputy Rehabilitation Commissioner. An appeal had been filed, but had been dismissed. The reason for dismissal, it was contended, was not relevant for whatever the reason the order holding the property to be the property of the Trust had not been set aside and as long as it was not set aside it prevented a determination of the same question in a civil Court. Before proceeding further it will be proper to reproduce the whole order of the Deputy Rehabilitation Commissioner and the relevant portion of the order in appeal of the Additional Rehabilitation Commissioner. The order of the Deputy Settlement and Rehabilitation Commissioner runs:‑ "Bungalow No. CL‑49 was transferred to Mr. Jamil Asghar, allottee and claimant on 14‑11‑1959 and P. T. O. issued to him by Deputy Settlement Commissioner, Centre‑11, Rawalpindi, on 19‑11‑1959. Subsequently it' came to light that 6 kanals and 14 marlas of land included in the compound of this bungalow had been acquired by the Rawalpindi improvement Trust and necessary payment made to the land Acquisition Collector. Mr. Jamil Asghar, the transferee of this bungalow and its adjacent land filed a suit in the Court of the Civil Judge, Rawalpindi, requesting that the claim made by the Improvement Trust for the alleged acquisition of the land in question was illegal and ultra vires and as such he should be granted permanent injunction restraining the defendant from entering upon or taking possession of the said land. The Civil Judge, Rawalpindi accordingly issued Interim Injunction to the Rawalpindi Improvement Trust. The D. S. C. Centre II sought permission of the Additional Settlement and Rehabilitation Commissioner, Rawalpindi, for review of the Transfer Order which was granted vide his order dated 20‑6‑1960. His recorded statement is placed below.

2. The property was rightly transferred to .the claimant under para. I of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act. The question for decision is whether the transfer of the land in question attached to the bungalow was valid or not. It was not known at the time of transfer of the property to the claimant that a portion of the land legally belonged to the Rawalpindi Improvement Trust. As the land in question had already been ,acquired by the Improvement Trust, I order that this portion of the land comprising 6 kanals and 14 marlas should not be transferred to the claimant. Incidently it may be mentioned that the Appendix "X" and P. T. O. issued to the transferee do not indicate the full particulars regarding the disposal of surplus land." The relevant portion of the order of the Additional Settlement and Rehabilitation Commissioner is the following:‑ "The question arises whether the portion of the property acquired by the Improvement Trust is according to the present factual position a part of the compensation pool or not. The Settlement Authority having acted in the light of the notification of acquisition, according to which this part of 6 kanals and 14 marlas was no longer a part of the compensation pool, if the order of the Deputy Settlement Commissioner is set aside by me, my order would be tantamount to treating these 6 kanals and 14 marlas as a part of the compensation pool, which I cannot do particularly when the matter is sub judice before the civil Court. Therefore, so long as the civil Court does not come to a decision about.the vires of the land acquisition, it is not possible to interfere with the present position in any manner." It appears to us that this contention of the respondent which has found favour with the learned Single Judge of the High Court is founded on a misconception. A purely administrative officer who is empowered to pass an order if certain circumstances exist has no jurisdiction to determine those circumstances and the objective existence of those circumstances is an essential condition of the validity of his order. In respect of every order passed by him the Court can make an enquiry and if it finds that all the circumstances needed for passing the order were not present it will declare the order to be void. Of course although the officer has been granted no jurisdiction to determine he will have to ascertain whether the requisite circumstances exist for otherwise he cannot pass the order, but his conclusion as to the existence of those circumstances binds nobody and it is open 'to any person affected to' challenge his act, on the ground that those circumstances do not in fact exist. An administrative officer or authority may be given jurisdiction to determine some facts on proof of which he can pass an order and in that case he will act in a quasi‑judicial manner for the determination of those facts and his determination validly reached will support his order in relation to those facts. For instance the Government may be empowered to acquire property if it is "satisfied" of the existence of a public purpose for such acquisition. If the Government validly reaches a conclusion as to the existence of a public purpose its order will be legal provided of course that the circumstances which it has found to exist do in law constitute a public purpose. The Government still will have no jurisdiction to determine the connotation of "public, purpose" and it will not be able to validate an acquisition by a misinterpretation of "public purpose". It is the Court which will determine what is meant by "public purpose". So far as special judicial tribunals are concerned' they are given jurisdiction to determine certain facts but they are not judges of the facts which are the foundation of their jurisdiction nor can they define the limits of their own jurisdiction. If an election tribunal is empowered to hear election petitions in respect of particular elections it will always have to determine whether the petition lodged before it relates to such an election, but if as a matter of fact that petition does not relate to such an election any proceedings taken by the tribunal in that petition will be void in spite of a finding by the tribunal to the contrary. It is possible, of course, that a special tribunal may be made the judge of its own jurisdiction, but this would be a very exceptional provision and one which should be made by altogether clear words. However with respect to mala fides the jurisdiction of the civil Court can never be taken away for a mala fide act is in its very nature an illegal and void act and the civil Court can always pronounce an act to be mala fide and therefore void. The case before us is one where certain circumstances which go to the root of the jurisdiction of the officer concerned must exist objectively and the remaining circumstances which are needed for the validity of his order are to be determined by the officer himself. The foundation of the jurisdiction of the Settlement Officers for transfer of property is that the property should be that‑which was evacuee property, which has vested it the Central Government and which is liable to be transferee under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act. If the property be in fact such the Settlement Authorities exercise with respect to it quasi judicial functions. They determine whether "possession" of a party exists, whether a person is a claimant, what is the date of his possession and so on. With respect to the nature of the property however the Settlement Authorities have no jurisdiction to record binding determination. If the property was in fact not evacuee property and was not vesting in the Central Government the Settlement Authorities could not grant to themselves any jurisdiction to deal with it by holding that it was evacuee property. Their orders would always be liable to challenge in an ordinary civil Court on the ground that they had no jurisdiction with respect to the property transferred at all. Of course, in every case which comes up before them the Settlement Authorities have to decide whether the property which they are asked to transfer or to auction was evacuee property and is vesting in the Central Government. But it is one thing to decide a matter for the purpose of taking action and another to have jurisdiction to record a binding determination in respect of it. They have no jurisdiction to record such a determination in respect of the evacuee or non‑evacuee nature of the property or rather in respect of the question whether it vests in the Central Government and any finding by them in respect of the nature of property has no more force than the finding of an election tribunal that a case which it is trying is within its jurisdiction. The Displaced Persons (Compensation. and Rehabilitation) Act does not grant unlimited powers to Settlement Authorities to bring all property within their jurisdiction on their own findings. According to the contention of learned counsel for the respondent if the Settlement Authorities chose to transfer property which never vested in the Central Government the only remedy of the person aggrieved was an appeal or revision under the Displaced Persons (Compensation and Rehabilitation) Act. We see no ground for attributing such an intention to the Legislature. However, if the property which the Settlement Authorities were empowered to transfer their orders would be liable to be set aside only on the ground that the jurisdiction was not validity exercised. The proceedings would be liable to challenge in the High Court under Article 98 of the Constitution on grounds applicable to certiorari, but not on the simple ground that the decisions were not. in accord with facts. It‑should be clear, therefore, that the order of the Settlement Authorities would be binding by virtue. of sections 22 and 25 in respect of matters which the law intended should be decided by them only (subject of course to the jurisdiction of the High Court under Article 98 of the Constitution), but would not be binding with respect to findings on facts which form the, foundation of their jurisdiction. We will state now the effect of these two sections. Section 22 makes an. order final and not liable to be questioned while section 25 debars the Courts from determining a matter which the Settlement Authorities are empowered to determine. Section 22 is the last section in Chapter VI of the Act, which Chapter is headed "Appeal, Revision and Review" and the intention of this section was only to attach a finality to an order and prevents its being questioned in a Court. Provisions like this are intended to cover only orders passed without jurisdiction and offered no protection to orders passed without jurisdiction and afford not be challenged in a Court for an order passed without Jurisdiction has no existence in the eye of law. On, a superficial glance section 22 would appear to cover any order passed by a Settlement Authority. But a little consideration will show that it has to be limited in its application to orders which could be passed under the Act. It protects "any order passed by any officer appointed under the Act" and does not say that the order has to be one under the Act. But obviously there can be no intention to protect every order passed by a person just because he happens to be an officer appointed under the Displaced Persons (Compensation and Rehabilitation) Act and an "order passed by an officer appointed under the Act" can only mean an order of the kind which the officers appointed under the Act are empowerd to paas At the same time section 22 only protects eider and the provision directly relevant as to the extent of bar created by a determination is section

25. This section it will be observed "excludes the jurisdiction of Court; only in respect of matters which are to be "determined" by the Settlement Authorities though as we have stated above this would have been the implication even if clear words to that effect had not been used. When section 25 says "empowered to determine" it means the officer has authority to record a binding determination in respect of the matter. The mere fact that he is bound to reach a conclusion as to that matter in order to act does not mean that he has the power to determine it so as to bind any person. The only part of an order of a Settlement Authority which could bind the Court would be ' one relating to a matter for the determination of which the Settlement Authority possesses exclusive jurisdiction. The finding of the Settlement Authorities as to the nature of property does not bind the parties or the Court and does not oust the jurisdiction of Court. We would, therefore, hold that the jurisdiction 'of the civil Court to determine the question as to whether the property in dispute was validly acquired by the Improvement Trust is not used by the finding of a 'Deputy Settlement Commissioner that the property had been validly acquired by the Trust. It may also be observed that the suit is one for a declaration as to the invalidity of a particular acquisition. A bar, could be created to such a suit only by an order which. conclusively determines the invalidity of the acquisition and it can hardly be urged that the Settlement Authorities possessed exclusive jurisdiction to determine this matter. It has, however, been urged that there is another aspect of the order of the Deputy Settlement Commissioner on account of which the suit could not proceed. It is urged that the order of 16‑7‑1960 takes away from the appellant 6 kanals and 14 marlas of property and even though the finding of the Deputy Settlement Commissioner as to the property not being part of evacuee property and not vesting in the Central Government be incorrect the order withdrawing the transfer as to this part of the property stands, and the appellant being no longer a transferee of the property in dispute had no locus standi to continue the suit even though he had locus standi when he filed the suit. The fact that the order in review has been passed on a mistaken assumption of the validity of the acquisition by the Trust is, it is contended, no ground for disregarding the order which as an order withdrawing or reviewing the transfer is binding. It is argued that if a Settlement Authority makes a transfer of a property assuming it to be property vesting in the Government under the Displaced Persons (Compensation and Rehabilitation) Act, but later comes to the conclusion that this property was in fact not vested in the Government it will be quite proper for the Settlement Authority to review its order and the order in review would be an order protected under section

25. We are of the opinion that this contention has no force. A perusal of the order of the Deputy Settlement. and Rehabili tation Commissioner would show that he was simply declaring the property to be not evacuee property. He said "the question for decision is whether the transfer of the .land in question attached to the bungalow was valid or not". He was speaking of the transfer to the appellant of these 6 kanals and 14 marlas and he reached the conclusion that the transfer was invalid. The order which he actually passed said that this portion of the land, that is, 6 kanals and 14 marlas "should not be transferred to the claimant". This sentence was clearly inappropriate because the land had already been transferred. However, we will ignore the form which the order in review has taken and will consider only its substance. . The order was based on a decision as to lack of jurisdiction to transfer and it was not therefore a withdrawal of the order of transfer, but only a declaration that the order of transfer in so far as it related to 6 kanals and 14 marlas was void. Once the Deputy Settlement Commissioner reached the conclusion that the transfer in so far as it related to the land in dispute was void no question of setting it aside would arise. It was not an order contemplated by the Displaced Persons (Compensation and Rehabilitation) Act at all. However, even quite apart from what has been said above this contention of the respondent cannot succeed. It is to be observed that the contention relates to the locus standi of the appellant and not to jurisdiction. The only issue decided by the High Court is as to jurisdiction of the Court to determine the legality of the acquisition. The objection as to locus stand! of the petitioner to file the suit is evidently a different objection. It does not imply that the Court cannot decide the legality of the acquisition, but only this that the appellant does not possess sufficient interest in the property for the relief claimed by him. Admittedly the appellant possessed a locus standi at the date of the institution of the suit. It is contended that he lost it on account of the order of the Deputy Rehabilitation Commissioner of 16‑7‑1960. Assuming hat by this order the previous order of transfer had been altered, an appeal had been filed against the order and we would be concerned henceforth with the order passed in appeal. The Additional Rehabilitation and Settlement Commissioner had dismissed the appeal as "unnecessary and premature". He had said that the matter had to be decided by a civil Court so that the order which he was to pass in appeal depended on the determination by the civil Court. In law the appeal was yet pending and the matter had not finally been decided by the Settlement Authorities. As long as there was no final order passed it could not be said that the locus standi ,which the appellant possessed when he filed the suit had been taken away. In any case it cannot a said that the circumstances the appellant had no. interest in getting a declaration that the acquisition by the Trust was void in law. The Additional Settlement Commissioner had said that if the Civil Court decided in favour of the appellant the transfer in favour of the appellant would stand. If the rights of a person can be affected or if a person can gain an advantage as regards his rights by getting a declaration it cannot be said that the declaration locus stadi. It may also be pointed out that a Court is not bound to take notice of events subsequent to the institution of the suit though it has discretion to do so. It can adjudicate upon rights of parties as they existed at the date of the institution of the suit leaving the questions arising out of subsequent events to be decided in fresh proceedings. When we review the situation it appears to us to be a strange one. Here is an order being passed against the appellant on the ground that the acquisition by the Improvement Trust was a valid one. The appellant challenges the acquisition. The Settlement Authorities do not themselves decide the validity of the acquisition and say that the matter should be decided by the civil Court. In fact they are not the proper forum for its decision. When the appellant approaches the civil Court an objection is raised that the question cannot be decided here too. The result is that the appellant is being deprived of property on the ground of the validity of the acquisition which validity has not been decided in any forum. We are of the opinion that the civil Court has jurisdiction to try a suit. This appeal is accepted, the order of the High Court is set aside and the case remanded for trial on the merits. Costs of this appeal will be costs in the cause. . S. Q. Appeal accepted.