P L D 1973 Lahore 313 (PLP)

This being so, he contended, the laches on the part of the petitioner even if rightly held, were immaterial and could not cure the nullity. He urged that the Additional Settlement Commissioner as well as the Settlement Commissioner had erred in declining to exercise their jurisdiction.

3. According o paragraph 3 of the Schedule, a house, which is "in possession of a local, the price of which determined on evaluation basis, does not exceed Rs. 10,000 (the limit was later withdrawn), and which such local desires to retain shall be transferred to him on payment of the prevailing market value. Where such local files an application for transfer, the same has to be disposed of in accordance with paragraph 10 of Scheme No. I, which lays down that the Deputy Settlement Commissioner shall issue a notice to him in the specified form stating the points requiring clarification, and only if the notice is duly received and yet the local fails to appear in response to the notice, the Deputy Settlement Commissioner may decide the matter ex parte. In the instant case, no reason, whatsoever, has been given by the Deputy Settlement Commissioner in his order dated 4th January 1960 (Annexure A) for placing the property in "Pool". The said order duly records the facts that the property was in the possession of the petitioner, a local, that its evaluation price was Rs. 2,880.00 and that be had tiled L. H. Form No. 1176. The learned Additional Settlement Commissioner has even recorded:‑ Appendix II and P. T. O. were drawn up under the seal of Mr. Talat Hussain, D. S. C., Multan on 14‑11‑

59. It however appears that the copies of each of these two documents were never delivered to Abdul Khaliq. Nothing has been said otherwise on the point of notice in the order of the Settlement Commissioner. The petitioner's contention that his L. H. Form had been rejected without notice to him and in contravention of the express provision of the law, thus stands uncontroverted.

4. Now, what shall be the effect of the failure of the Deputy Settlement Commissioner to give notice to the petitioner before rejecting his L. H. Form on 4th January 1960. Apparently the order of the rejection is not a nullity for total want of jurisdiction. A total want of jurisdiction arises from the following defects‑ (i) infirmity in the tribunal ; (ii) want of jurisdiction of the cause. i.e. jurisdiction over place, person and subject‑matter; and (iii) fraud. The order does not suffer from any of the above defects. The Deputy Settlement Commissioner did have the power to accept or reject the L. H. Form, though before he could reject the same, he was required under the scheme to give notice to the applicant.

5. A breach of the rule of arudi alteram partem is generally held to be actionable without affecting the tribunal's jurisdiction, though it has sometimes been considered as a jurisdictional defect which nullifies the proceedings. The distinction is however, A bedevilled by terminological inconsistencies in particular by the use of the terms "void" and "voidable". Even where action succeeds, Courts have not necessarily rested their judgment on the nullity of the disputed proceedings. Amnon Rubinstein in his book "Jurisdiction and Illegality", at page 222 says, "Thus, in Cooper v. Wandsworth Board of Works, the Court gave judgment against the defendants without classifying their action ordering demolition without giving a hearing‑as want of jurisdiction. On the contrary, Erle, C. J. held that the defendants had the power to do the act complained of it was done under the provisions of the statute. 'Liability was attached because, though such power existed, the defendants, as Byles, J. put it, 'have exercised their power wrongfully' and 'omitted to do that which justice requires'. This line of authorities is in accord with Coke's judgment in the Marshalsea, where he mentions the Court of Common Pleas issuing a capias without summons as an instance of merely voidable proceedings".

6. Coming to the case‑law on this point in Pakistan, we find that in the University of Dacca etc. v. Zakir Ahmad (P L D 1965 S C 90), where the student expelled by the University had been afforded no opportunity of any kind, whatsoever, to submit any explana tion or put forward his reasons, the Supreme Court set aside the order of expulsion and directed the University to act in the manner indicated by their Lordships, if it was still of the view that action should be taken against the student concerned. In Fazal Din etc. v. Commissioner. Peshawar Division and another (P L D 1968 Pesh. 30), a Full Bench expressed the following view:‑ "The decision of a tribunal or a Court in contravention of the statutory requirements is in excess of jurisdiction. It will also be in excess of jurisdiction where a tribunal or an authority while acting in the exercise of its jurisdiction violates the principles of natural justice or bases its decision on extraneous considerations." In Syed Mahmud A lam v. Syed MAN Hussain etc. (P L D 1970 Lah. 6), a Division Bench categorically held:‑ "It can be safely assumed that the proceedings without giving an opportunity of hearing are coram non judice and the order passed as a result thereof is a nullity . . . . ." In a recent case viz. Alta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division etc. (P L D 1971 S C 61), their Lordships of the Supreme Court observed:‑ " . . . . in several reported English cases, it has been held that an enactment, prescribing the formalities which are to be observed for validating an action, are not absolute, although expressed in negative or prohibitory language." Their Lordships, however, ruled that where an absolute require ment of the statute has been defied, the order passed is a nullity. The order of rejection of the petitioner's L. H. Form' Is, therefore, clearly in excess of jurisdiction if not altogether a nullity and would ordinarily be liable to correction in writ proceedings.

7. But the question arises whether in view of the admitted laches on the part of the petitioner, he should be provided the relief prayed for by him in this writ petition. It is commented in Judicial Review of Administrative Action by S. A. de Smith, 2nd Edition, page 223 that where the relief is discretionary, it is open to the Court to withhold it even though the order is characterized as void. It can be said on the authority of Ex party Fry ((1954) 1 W L R 730), that a litigant who has established a clear breach of the rule and to whom waiver or acquiescence cannot be imputed, may still fail to have the decision set aside if the remedy he seeks is discretionary and his conduct has been characterized by extraordinary foolishness or unreasonable delay in instituting proceedings. In the University of Dacca's case, it was clearly laid down that the power of issuing orders and directions under Article 98 of the Constitution is discretionary and that it cannot be disputed that the discretion must like all other judicial discretions be exercised in accordance with reason and on sound judicial principles. Relying on this authority, a Division Bench in Ablul Aziz v. Muhammad All and others (P L D 1967 Lah. 762), expressed the view that "Discretion will not be exercised in favour of a petitioner who has been guilty of laches and delay". In Mohsan Khan etc. v. Chief Settlement Commissioner etc. (1969 S C M R 306), their Lordships of the Supreme Court ruled:‑ "It is true that mere delay is not by itself a sufficient ground for non‑suiting a party in a proceeding of this nature but where the delay Is accompanied by such circumstances as indicate a clear negligence on the part of the applicant to ursue his remedy with due diligence, or conscious acquiescence in the adverse order made against him, then that would be a o very good ground for denying this extraordinary remedy. The law assists those who are vigilant about their rights and no those who sleep over them." Syed Mahmud Alam's case, upon which reliance has been placed by the learned counsel for the petitioner, is however, of no avail to the petitioner because in that case, too, the Division Bench had held that the aggrieved party was clearly entitled to challenge the order but within the prescribed time counting the period from the date of his knowledge.

8. In the present case the petitioner had given no explana tion for the delay in filing the appeal. He had on the other hand to the memorandum of appeal filed on 8th June 1964 (Annexure B), taken the ground that he had come " . . . . . to know of the impugned order on 7‑6‑1964 when the respondent demanded the rent from the appellant . . . . and that he was not . . . . ". . . . at all responsible for the delay in filing the appeal in time". The plea had obviously been false to the knowledge of the petitioner because he had admitted before the Settlement Commissioner that he had come to know about the auction of the house a year/1 years back through Babu Fazal, Member of the Union Committee. His conduct both in making a false plea as well as in having sat over the matter for at least a year, clearly disentitles him to the grant of the discretionary relief under Article 98 of the Constitution. It will also be against the public policy in respect of the, Settlement Operations to re‑open after the passage of such a long time, matters which have already reached a finality.

9. The writ petition, in the circumstances must fail. I accordingly dismiss it but make no order as to costs. K. B. A. Petition dismissed.