P L D 2003 Lahore 617 (PLP)

S. 2(2)

Pending cases

Case which was not pending before any forum in terms of S. 2(2) of the Act would not be treated as such under the orders of any Authority or Court arising in consequence of the proceedings initiated subsequent to the repeal of evacuee laws

If an authority had no jurisdiction in the matter under the law, the jurisdiction could not be conferred on said authority by an order of the Court. Mst. Badshah Begum and others v. The Additional Commissioner (R), Lahore Division and others 2003 SCMR 629 fol. (f) Constitution of Pakistan (1973)

Art. 199

Constitutional jurisdiction of High Court

Scope

Defect of jurisdiction apparent on the face of the record would at once attract the certiorari jurisdiction of the High Court. Sindh Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and another PLD 1975 SC 450 ref. (g) Jurisdiction

Total lack of jurisdiction could not be condoned nor countenanced. Muhammad Saleem Shahnazi for Petitioners. M. Z. Khalil for Respondent No.

1. A.R. Shaukat for Respondents Nos. 2 to

11. Respondents Nos. 12 to 16: Ex Parte. Ch. Ata Ullah for Respondents Nos. 17 to

19. S.M. Masood and Aurangzeb Mirza for Respondent No.20. Date of hearing: 22nd April, 2003. Order dated 6-5-1987, passed by respondent No. 1 whereby allotment existing in the name of Mehrban-ud-Din, was declared as bogus and was annulled, has been assailed through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Since want of jurisdiction in passing the impugned order is the primary ground, the back ground in which the respondents has passed the order, is stated briefly, land allotted at Khata Nos.266 and 267 of RL-II, Village Durgapur Tehsil and District Gujranwala became subject of scrutiny on a Mukhbari application filed by Mehrban-un-Din etc. as a consequence of which it was cancelled vide order dated 13-1-1977 and resumed. W.P. No.413-R of 1977 was filed against that order by the aggrieved parties which petition was dismissed on 21-4-1986. The said judgment was maintained by the Hon'ble Supreme Court of Pakistan dismissing C.P. No.116-R of 1986 on 21-5-1986. On 4-3-1977 Mehrban-ud-Din had obtained allotment of the resumed land at Khata No.280 Vide an application filed on 3-7-1986 by Abdul Ghafoor and other successors of Muhammad Umar (respondents herein) the allotment of Mehrban-ud-Din was 'questioned which culminated into impugned order dated 6-5-1987 passed by respondent No.

1. It was held by him that Mehrban-ud-Din had secured allotment through forged fraudulent and bogus means and ordered the correction of the Revenue Record accordingly.

2. The learned counsel or parties have been heard. There is an objection to locus standi of the petitioners in maintaining the petition whereas it is contended by the learned counsel for the petitioners that respondent No.1 i.e. the Deputy Commissioner/Collector, Gujranwala acted wholly without jurisdiction to the matter inasmuch as no such proceedings could be entertained undertaken by him nor any such order could be passed as he had no such power either under the repealed evacuee laws or under Act XIV of 1975.

3. Insofar as the objection as to the maintainability of the petition and locus standi of the petitioner is concerned, suffice it to observe, that the petitioners herein, were party in the initial round of litigation i.e. Writ Petition No.413-R of 1977, they were party before the Hon'ble Supreme Court and even before respondent No.

1. Their locus standi to maintain the petition equal the impugned order, cannot be questioned. Objection about their locus standi thus is not tenable and is repelled.

4. Undisputedly the matter had earlier been up to the Apex Court, where Civil. Petition No. 116-R of 1986 was dismissed maintaining the judgment dated 21-4-1986, passed in Writ Petition No.413-R of 1977. Even if it be assumed that allotment of Meharban-ud-Din could be scrutinized in view of the allegations qua the same, the vital question is whether respondent No. 1 (Collector/Deputy Commissioner) could assume such a power and jurisdiction.

5. From the perusal of the material on the record it is evident that application dated 2-7-1986, was addressed to the Deputy Commissioner/Collector Gujranwala, which on its presentation was taken up by respondent No. 1 on 3-7-1986 and record was called for ordering the maintenance of status quo in the meanwhile. The order which was passed on 6-5-1987 in pursuance of the said application also given description of respondent No.1 as Deputy Commissioner/Collector of the District. In the report and comments submitted by respondent No.1 also has been stated that the order was passed by him in the "capacity as Collect of the District". It is thus to be seen as to whether the Collector could pass such an order cancelling the allotment made under a law which had its own statutory hierarchy. Section 9 of the Displaced Persons (Land Settlement) Act, 1958 enabled the Central Government to appoint a Chief Settlement Commissioner, Settlement Commissioners, Additional Settlement Commissioners, Deputy Settlement Commissioners and Assistant Settlement Commissioners, who were to perform functions and duties assigned to them under the Act. Legality or otherwise of allotment could be examined by the designated statutory under sections 10 and 11 of the Act. Evacuee Laws (including this Act) were repealed with effect from 1-7-1974 by Evacuee Property and Displaced Persons Laws (Repeal) Act 1975 (Act XIV of 1975) which provides for the appointment of officers, notified by the Provincial Government for the disposal of pending proceedings contemplated by section 2(2) of Evacuee Property and Displaced Persons Laws (Repeal) Act 1975 (Act XIV of 1975). The Collector of the District neither found any such place or enjoyed power under the repealed law i.e. Displaced Persons (Land Settlement) Act, 1958 nor under the repealing law i.e. Act XIV of 1975. Of course he had the authority and power to make correction in the Revenue Record but that would have been a consequential step pursuant to an order passed by the competent authority having jurisdiction in the matter. No such order had been passed either by any authority, in the settlement hierarchy under the repealed law or the Notified Officer after the repeal of the evacuee laws: It may be observed that validity or otherwise of an action/order is determinable with reference to the jurisdiction of the authority. "Jurisdiction" as it is commonly understood means, an authority .to decide. An order outside jurisdiction is regarded as invalid, null and void. At page 194 of Jurisdiction and Illegality by Rubinstein, this aspect or jurisdiction has been sated as follows:-- "Want of jurisdiction is regarded as a usurpation of power unwarranted by law. Consequently, it is considered so radical a defect that it cannot be cured by the acquiescence or consent of the parties concerned. Jurisdiction does not originate in the consent of the parties and cannot be re established, where it is absent, by such consent or acquiescence. Being independent of the parties, behaviour, want of jurisdiction can be raised by any person wherever the resulting act is relied upon." Likewise Sir William Wade in his celebrated work on Administrative Law, Eighth Edition (2000) highlights this subject at page 38 "Lack of jurisdiction may arise in many ways. There may be an absence of those formalities or things which are conditions precedent to the Tribunal having any jurisdiction to embark on an inquiry. Or the Tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage, while engaged on a proper inquiry, the Tribunal may depart from the rules of natural justice, or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction. It would turn its inquiry into something not directed by Parliament and fail to make the inquiry which Parliament did direct. Any of these things would cause its purported decision to be a nullity. " Justice Fazal Karim in Jurisdiction and Judicial Review at page 72 has dealt with this aspect as under:-- "A Court cannot adjudicate upon a subject-matter which does not fall within its province as defined or limited by law, this jurisdiction may be regarded to be essential, for jurisdiction over the subject-matter is a condition precedent to the acquisition of authority over the parties and if a Court has no jurisdiction over the subject-matter of the controversy, consent of the parties cannot confer such jurisdiction and a judgment made without jurisdiction in such a case is absolutely null and void." The legal position obtaining on the subject has also been stated quite recently by the Hon'ble Supreme Court of Pakistan in Mst. Badshah Begum and others v. The Additional Commissioner, Lahore Division and others (2003 SCMR 629), wherein it has been held that "There can be no deviation from the legal position that a case which was not pending before any forum in terms 8f subsection (2) of section 2 of the repealed Ordinance, 1974 (Act XIV of 1975) would not be treated as such under the orders of any authority or Court arising in consequence to the proceedings initiated subsequent to the repeal of evacuee laws and thus despite remand of the case to the Notified Officer by the High Court, the limit of his power under the law would not be extended to the cases which had attained finality under the statute. It is settled that if an authority has no jurisdiction in the matter under the law, the jurisdiction cannot be conferred on said authority by an order of the Court". That was a case in which the Notified Officer had assumed jurisdiction in the matter after the repeal of the law and his order was struck down whereas in the instant case respondent No. 1 was not exercising even the powers of at Notified Officer and passed order in the capacity of a "Collector of the District". It is not claimed or professed that he had exercised any other power or jurisdiction except that of Collector of the District. He thus acted wholly without jurisdiction in annulling the allotment by virtue of order dated 6-5-1987. It may be observed that total lack and want of jurisdiction cannot be condoned nor countenanced. Assumption of jurisdiction, unwarranted by law, can be corrected by the Court in writ jurisdiction. In Sindh Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and another (PLD 1975 SC 450), it was held that "These defects of jurisdiction are apparent on the face of the record which in my opinion would at once attract certioriari jurisdiction of the High Court. I have not the slightest doubt that if respondent No.2 proceeds to hear the complaint of respondent No. 1, the proceedings will be wholly without jurisdiction and, therefore, a nullity. " Order passed by respondent No. 1 on 6-5-1987, thus being patently without jurisdiction, is not sustainable in law and is thus declared as such. No order as to costs. M.B.A./S-646/L Petition accepted.