P L D 1962 (W (PLP)

SHABIR AHMAD, J.‑This appeal under clause 10 of the Letters Patent of this Court is directed against the order passed by my brother Bashir Ahmad, J., whereby be issued a writ on the 16th of December 1959, declaring that an order passed by Malik Karam Dad Khan, the then Additional Deputy Commissioner, Lyallpur, acting as Deputy Rehabilitation Commissioner, Lyallpur, which resulted in the cancellation of an allotment made in favour of Mst. Bhago and some others, had no validity. This order, which was passed in Writ Petition No. 1553 of 1957, further said that it was open to the Rehabilitation Commissioner to look into the matter in the exercise of his revisional jurisdiction and pass such order as he thought proper.

2. The material facts are these. The persons who put in the writ petition, which was accepted by means of the order under appeal, are some of the heirs of one Jaimal, who was a refugee and had left some property in territory now forming part of India. Some of these heirs of Jaimal held temporary allotment in village Nowshera, District Gujranwala, and some land situated in Tehsil Samundari of District Lyallpur was confirmed in their name by the Additional Revenue Assistant, Lyallpur, on the 29th of February 1952. It was this order of the Additional Revenue Assistant which had been set aside by Malik Karam Dad Khan by means of his order dated the 5th of October 1956, which was challenged by means of the writ petition which was accepted by my brother Bashir Ahmad, J. Malik Karam Dad Khan exercised the powers of a Deputy Rehabilitation Commissioner, and as the Addi tional Revenue Assistant, who had passed the order of confirmation of allotment in 1952, according to my brother Bashir Ahmad, J., was also a Deputy Rehabilitation Commissioner, the order of Malik Karam Dad Khan was held to be entirely without jurisdiction, because a Deputy Rehabilitation Commissioner could not hear an appeal against the orders of another Deputy Rehabilitation Commissioner. It is clear from the order of Malik Karam Dad Khan that he had passed his order dated the 5th October 1956 on a petition of appeal presented by some persons.

3. Learned counsel for the appellant urged that the record of the case should have been sent for by the learned Single Judge before quashing the order which had been attacked by means of the writ petition presented to this Court, because unless the records were before this Court, it could not be said whether or not an order which is attacked by means of a petition for a writ of certiorari merited vacation by this Court in the exercise of writ jurisdiction. I do not consider it necessary to determine whether or not powers to issue a writ of certiorari can be exercised by this ` Court without the record of the case in which the order sought to' be vacated was passed, because in the present case it is admitted by learned counsel for the appellant that no part of the order attacked by means of this appeal assumed facts which did not exist or omitted to consider any relevant fact which existed on the record. In these circumstances, even if the record should have been before the learned Single Judge, its absence not having prejudiced the appellants can furnish no ground for an appeal against the order passed on the writ petition.

4. Learned counsel for the appellant then urged that there was nothing to show that the Additional Revenue Assistant. Lyallpur, whose order was reversed by Malik Karam Dad Khan, was a Deputy Rehabilitation Commis sioner. It is too late in the day to raise this plea, because it was admitted before the learned Single Judge by Mr. Mahmood Ahmad Qureshi, Advocate, who was the counsel for the appellant, who is now represented by Mr. Karam Ilahi Chauhan, that the officer whose order was reversed by Malik Karam Dad Khan was a Deputy Rehabilitation Commissioner like Malik Karam Dad Khan himself. The status of the officer who had passed the order is also clear from paragraph 68 (2) of the West Pakistan Rehabilitation Settlement Scheme, wherein it is said, inter alia, that a Deputy Commissioner and an Additional Deputy Commissioner have powers to check the work of a Revenue Assistant, and a Revenue Assistant is mentioned in this paragraph as a Deputy Rehabilitation Commissioner and not a Rehabilitation Commissioner of a lower status than a Deputy Rehabilitation Commissioner.

5. It was next contended by learned counsel for the appellant that as under the above‑mentioned paragraph 68 (2) an Additional Deputy Commissioner could check the rehabilitation work of a Revenue Assistant, the order of Malik Karam Dad Khan could not be considered to be without jurisdiction as he should be deemed to have acted under that paragraph. Assuming that an Additional Deputy Commissioner can check the work of a Revenue Assistant in Rehabilitation matters even after final orders have been passed by the Revenue Assistant, I do not see how an order passed by a Revenue Assistant in his capacity of a Deputy Rehabilitation Commissioner could be set aside by an Additional Deputy Commissioner who did not have a status higher than that of the Deputy Rehabilitation Commissioner. It may be that before a Revenue Assistant has passed a final order, a Deputy Commissioner or an Additional Deputy Commissioner could, by virtue of the powers conferred on him by paragraph 68 (2) of the West Pakistan Rehabilitation Settlement Scheme, suggest the proper order to be passed, but I am clear in my mind that once an order has been passed by a Revenue Assistant in his capacity of a Deputy Rehabilitation Commissioner, it can be set aside only by an officer of the Rehabilitation Department who is competent to hear an appeal with regard to the order in question, which competency it need hardly be said is not possessed by another Deputy Rehabilitation Commissioner.

6. The last contention of learned counsel for the appellant was that as the question of lack of jurisdiction of Malik Karam Dad Khan was not taken by the petitioners in the writ petition C either before the Additional Rehabilitation Commissioner before whom they presented a petition for revision, which was rejected, or in the application for review presented to the Additional Rehabilitation Commissioner against his order or fn the two previous writ petitions which were presented to this Court, namely, Writ Petitions Nos. 776 and 1287 of 1957, each of which was dismissed at a preliminary hearing by a Division Bench o this Court, the question of lack of jurisdiction of Malik Karam Dad Khan to pass the order could not have been taken in the writ petition on which the order appealed against was passed or at least should not have been received with favour by the learned Judge In Chambers. It appears to me that this contention of learned counsel for the appellant has no more force than those already disposed of. If the order of Malik Karam Dad Khan was without jurisdiction, the circumstance that It was not attacked as such in any previous proceedings taken against the order, cannot confer on it a binding force. In the eye of law, an order passed without jurisdiction does not exist at all and can be ignored by anyone who chooses to treat it as a waste paper, which it Is, and, therefore, the omission of the petitioners in the writ petition accepted by means of the order under appeal to attack the order of Malik Karam Dad Khan on the ground that it was without jurisdiction, can be of no avail to the appellant. Consequently, I would dismiss this appeal with costs. MUHAMMAD DAUD KHAN, J.‑I agree. A. H. Appeal dismissed.