P L D 1985 Quetta 252 (PLP)

MUFTAKHIRUDDIN, J.-By this Constitutional Petition the order passed on 26-12-1981 by the Member Board of Revenue Baluchistan has been challenged. By the impugned order the orders passed by the Commissioner, Quetta Division has been set aside and the suit filed by Din Muhammad, the predecessor-in-interest of the petitioner, has been ordered to be tried afresh.

2. The facts out of which the petition arises are simple. Din Muhammad son of Nihal Khan, the Predecessor-in-interest of the present petitioners had filed a suit for declaration challenging the entries in the record of right made in the year 1958 and had prayed that the property in suit be divided. The suit was filed on 16-3-1976. Two of the respondents namely Pahalwan and Haji Pukar conceded the claim but the rest repudiated the claim. Since the suit was triable under Ordinance I of 1968 the matter was referred to the tribunal but on 22-4-1978 an agreement was arrived at by the contestants and two arbitrators namely Mir Rashid Khan (one of the Tribunal members) and Mir Azim Khan Gohramzai were appointed. But Mir Azim Khan did not accept the appointment and refused to participate in the arbitration proceedings while Rashid Khan made his award. The tribunal acting on the award of Rashid Khan and considering report made by some revenue official recommended that the suit be decreed. Accordingly the Assistant Commissioner acting as Deputy Commissioner accepted the report and passed a decree in terms thereof. The Additional Commissioner, Sibi, however on 26-10-1980 set aside the decree and ordered that the suit be tried afresh in accordance with law. The matter was placed before the tribunal which consisted of some new members and on 27-1-1981 the parties were required to be present on 9-2-1981. It has been established that though the matter was fixed on different dates but the members of the tribunal were never present and thus no proceedings could take place. The matter was though fixed for 26-2-81 but before the date fixed a report dated 24-2-81 was made duly signed by the members of the tribunal The members adopted the previous report of the tribunal and recommended that the suit be decreed and on the basis whereof the suit was again decreed on 14-3-1981 by the Assistant Commissioner. The report of the tribunal was not based on any evidence recorded before them nor the parties were present: The appeal was again preferred by the respondents and this time it bore no fruit and the Commissioner vide his orders dated 18-10-1981 dismissed the appeal. The matter was carried to the Member Board of Revenue who vide the impugned order has set aside the decree passed against the respondents and has reversed the order of t e Commissioner dated 15-10-1981. Against this order the present Constitutional Petition has been filed in this Court.

3. Mr. Iftikhar Muhammad Khan, the learned counsel for the petitioner, has urged the following grounds: (a) That the revision filed before the M. B. R. was time barred. (b) That there are concurrent findings of both the Courts. The M. B. R. was not justified in law to reverse the orders of the Deputy Commissioner and the Commissioner. (c) That the tribunal was at liberty to adopt any course for the proceedings and the method of reference to Arbitrators or special oath was permissible. (d) That the respondents had acquiesced in the proceedings and as such they cannot be allowed to go back. (e) That the order of the M. B. R. is not a speaking order. We have heard the learned counsel with great attention and when asked him to explain it the petitioners had, raised the objection before Member Board of Revenue that the revision was time barred or the fact that it was in fact so barred is brought on record. We pointed out to the counsel that this could be easily demonstrated by the certified copy of the impugned order of the Commissioner as it has been our experience that the copies are delivered after considerable lapse of time and the time spent on obtaining the copies has to be excluded. The reply of the learned counsel was not satisfactory as he showed complete ignorance to the facts by saying that he had not appeared before Member Board of Revenue nor had any occasion to inspect the record. In these circumstances the objection does not A deserve any consideration for the simple reason that proper material ha not been placed before us which may support the contention of the counsel. We therefore have no hesitation to repel the contention.

4. From the perusal of record placed before us by the parties it has become abundantly clear that after the order of the Commissioner dated 26-10-1980 no proceedings worth the name were conducted. The members of the newly constituted tribunal did not assemble and thus there was no quorum as provided under section 7 of the Ordinance. This provision reads: "

7. Quorum. The Tribunal shall not conduct any proceedings unless the President and at least two other members are present". This aspect of the matter has been lost sight of by the learned Commissioner when the appeal came up before him the second time though specific objection in that behalf was mentioned in the memorandum of appeal was in these words: The entire proceedings were therefore coram non judice and the entire super structure built .on the report thus made by the tribunal on 24-2-1981 (before the date fixed for hearing) falls to the ground. Besides it was in the/ absence of the respondents. This offends the mandatory provision of section 8 of the Ordinance. The tribunal could not make use of the report of revenue official which was admittedly obtained behind the back of the respondents. This was so because this part of the evidence was discarded by the Commissioner in his order dated 26-10-1980 which order had become final between the parties. For the above reasons there is no difficulty in holding that the decree dated 14-3-1981 based on the report of the tribunal dated 24-2-1981 was a c nullity in law and non-existent being void. It has been held by the Hon'ble Supreme Court in Yousaf Ali v. Muhammad Aslam Zia's case (1), that it' on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon, them must fall to the ground because such orders have as little legal foundation as the void order on which they are founded. The order of the Member, Board of Revenue dated 26-f2-1984 therefore is unassailable in law. Thai petition therefore, fails and is accordingly dismissed. The parties shall bear their own costs. U. e. A. ?????????? Petition dismissed.