P L D 1962 (W (PLP)

3. In the second place it was urged before the learned single Judge that no second appeal lay before the Additional Settlement Commissioner. The learned single Judge came to the conclusion that though no second appeal lay the Additional Settle ment Commissioner in exercise of his revisional jurisdiction could pass the same order which he passed in exercise of his appellate jurisdiction.

4. Mr. Hyder Bux raised two‑fold contentions before us. He contended in the first place that the appeal before the Additional Settlement Commissioner was filed beyond the time prescribed under sub‑clause (2) of section 19 of the Displaced Persons Act, 1958. The question of filing the appeal beyond the time prescribed under section 19 does not arise as no second appeal lay before the Additional Settlement Commissioner. Section 20 does not put any limitation on the power of the Additional Settlement Commissioner as regards time within which he can revise an order passed by the Deputy Settlement Commis sioner. Another very important fact to note is that this point was not urged before the Additional Settlement Commissioner. A litigant cannot be permitted to reserve an objection for higher authority, which, if taken before the Tribunal concerned, would have been met by it by treating the appeal as revision.

5. In the next place it was contended that as there is a fundamental distinction between appeals and revisions the learned Additional Rehabilitation Commissioner having exercised his power as an appellate authority, though no appeal lay to him, this Court should set aside his order and order fresh hearing of the appeal as revision by the Additional Rehabilitation Commis sioner. In support of his contention the learned Advocate relied upon a Division Bench case of Akhtar Aksi v. Aftab Ahmed Khan (P L D 1960 Lah. 57). The Division Bench case however would not be applicable for two reasons. In the first place it does not decide as to what would be the effect if the question of jurisdiction was not taken before the Tribunal (the Rehabilitation Commissioner) concerned. In the second place, whether this Court in exercise of its writ jurisdiction will grant a writ if it is futile.

6. It seems to be the view of English Courts that before a question of jurisdiction is raised on a petition objection to jurisdiction must be taken before the Tribunal whose order is being challenged. In this connection it would be useful to reproduce a passage from Channell, J. in the King v. William, and others ((1914) 1 K B 608). The passage runs as under :‑ "The Court is of opinion that this rule should be discharged. No objection was taken to the jurisdiction of the Court below at the hearing before that Court ; that being so, it is the rule of this Court not to grant a writ of certiorari except upon an affidavit which negatives knowledge on the part of the applicant when he was before the Court below of the facts on which he oases his objection. That rule is established on good ground. It applies equally whether the objection is on grounds which make the act of the justices voidable or void. When objection to a conviction is taken merely by a member of the public and not by a party more particularly aggrieved the granting of a certiorari is discretionary ; where the objection is by a party aggrieved, then, as a rule, the writ issues ex debito justitiae ; but a party aggrieved may by his conduct precluded himself from taking objection to the jurisdiction of an inferior Court. Statements to that effect may be found in Short and Mellor's Crown Office Practice, 2nd Ed., p. 48, and in the older work of Corner on the same subject : see at p.

90. The passage in Short and Mellor is based on the authority of Blackburn, J. in Reg. v. Justices oj' Surrey. In the words of that learned Judge, "Where the party aggrieved has by his conduct precluded himself from taking an objection, the Court will not permit him to make it as in Reg. v. South Holland Drainage Committee." Rowlet, I. in the same case observed as under "If he takes up the position of a party aggrieved, then Reg. v. Justices of Surrey shews that he can by his conduct debar himself from his right ex debito justitiae. 1t is a very salutary rule that a party aggrieved must either show that lie has taken his objection at the hearing below or state on his affidavit that lie had no knowledge of the facts which would enable him to do so." Atkin, J. agreed with the conclusions of Channell and Rowlet, JJ. In the present case, there is no question of the petitioner having filed an affidavit to show that he had no knowledge of the law that no second appeal lay to the Rehabilitation Commissioner ignorance of law is no excuse. Moreover, it has not been suggested by the learned advocate for the petitioner that the petitioner or his advocate did not know that no second appeal lay to the Rehabilitation Commissioner. The petitioner most probably did not take this objection in the belief that the appeal would be dismissed.

7. Chagla, C. J. in Ghandhinagar Motor Transport Society, v. State of Bombay (A I R 1954 Bom. 202), following the English case of Reg v. Williams mentioned above observed as under :‑ "Now, as we shall presently point out, the English Court have taken the view, and in our opinion rightly, that before a question of jurisdiction is raised on a petition, objection to jurisdiction must be taken before the Tribunal whose order is being challenged. It is not as if by the petitioner not challenging the jurisdiction of the Tribunal that lie confers jurisdiction upon that Tribunal if the Tribunal has no jurisdiction. But what the English Courts have said is that the jurisdiction, not an ordinary jurisdiction, and the High Court is entitled to know what the Tribunal has to say on the question of jurisdiction which the petitioner wants to agitate before the Court. There is another principle, underlying this view, and that is that the Tribunal which is brought before the Court should itself be given an opportunity to decide that it has no jurisdiction, before the High Court is called upon to give its decision. It must be borne in mind that in exercising its jurisdiction under Arts. 226 and 227 the High Court is not exercising an ordinary jurisdiction. It is always open to a petitioner to assert his rights in a suit properly filed, but when lie chooses to assert his rights by calling upon the High Court to exercise its special jurisdiction, the High Court must itself lay down certain principles for the exercise of that jurisdiction and must not make the exercise of that jurisdiction is a matter of ordi nary occurrence. A suit may well be filed within the period of limitation ; the Judge trying the suit does not non‑suit the plaintiff because he came to Court towards the end of the period of limitation ; but this Court tells the petitioner "you must come to this Court expeditiously." Equally so a defendant may not raise the question of jurisdic tion in the Court of first instance, lie may not raise the question of jurisdiction in the appellate Court, he may postpone raising the question of jurisdiction up to the stage of the Privy Council or the Supreme Court, yet if the Court has no jurisdic tion the highest Court in the land will allow the point to be raised and decide it in favour of the defendant. But the principle is different when the petitioner comes to this Court for a writ. The Court must tell the petitioner : "It was open to you to raise that point before the Tribunal whose order you are challenging. You have sat on the fence, you have taken a chance of the Tribunal deciding in your favour, and it is not open to you now to come to us and ash for a writ."

8. If the question of jurisdiction was taken before the Rehabi litation and Settlement Commissioner he may have treated the appeal as an application in revision. It is common knowledge that in Civil Courts on objection being taken by a party to an appeal that no appeal lies, the Court has treated the appeal as an application in revision. 'The Petitioner cannot be allowed to reserve a point to be taken before a Court of extraordinary jurisdiction. In this view of the matter a Court of equity will not help the petitioner.

9. The other point that was not raised in the case of Akhtar Aksi is that a writ of certiorari being a discretionary writ, the High Court would be reluctant to issue the same where it thinks that it would be futile to issue. It has been candidly conceded) by Mr. Hyder, the learned advocate for the appellant, that the Additional Settlement Commissioner could in exercise of his revisional jurisdiction pass the same order namely that the house was not divisible as he had passed in his so‑called appellate jurisdiction. In these circumstances to set aside the order of the Additional Settlement Commissioner and to ask him to consider the case in his revisional jurisdiction would be futile. The learned advocate for the petitioner has failed to suggest any reason as to why the learned Additional Settlement Commissioner would pass a different order than what he has passed.

10. For‑the reasons given above, we would dismiss the petition summarily. K. B. A. Petition dismissed.