1988 PLP 1119 (MLD)

This petition is directed against the order passed by the Authorised Officer in respect of claim dated 29‑5‑1976 and in the alternative the Petition is also directed against the order passed on 23‑7‑1964 by OSD of Central Record Office, Lahore.

2. The relevant facts are that the petitioners had got their claims verified on the basis of "Jagir" lands left by them in Hyderabad Daccan by older dated 28‑4‑1959 read with order dated 24‑6‑1960. The shares of the claims of the different co‑sharers were clarified on 24‑6‑1980 by the Additional Claim,' Commissioner and on 23‑7‑1960 it was further clarified that their claims pertained to 'Jagirdari' proprietory rights. The claims had been verified on the basis of the Notification dated 7-4‑1958, which was issued in respect of 'Jagir' lands. However, on 25‑9‑1959, the Central Government issued another Notification, by which the Notification dated 7-4-4958 was rescinded. On '23‑7‑1964 the OSD of Central Record Office, Lahore, after notice to the present petitioners, cancelled their claims and their (JPR‑V entitlements and District Authorities were intimated to cancel the allotments secured by these claimants. On 19‑12‑1964, a similar order was passed in respect of Shahabuddin, who was a co‑sharer of land left in Hyderabad Deccan with the present petitioners. This order was said to be based upon the earlier order dated 23-7-1964 the same was to be read as part of this order. What had happened, however, in the meanwhile, was that Shahabuddin had secured allotment of some agricultural lands on the basis of QPR‑V issued in his favour by the CRO, agricultural lands on the basis of QPR-V issued in his favour by the CRO, Lahore, and he got the said allotment confirmed and thereafter he sold the same to Muhammad Zahoor Nasir and others on 3‑1‑1963. On 15‑4‑1965, the allotment of land, which had been allotted to Shahabuddin and had been sold by him‑‑to Muhammad Zahoor Nasir, was cancelled. Thereupon, Muhammad Zahoor Nasir and others filed Petition No.521 of 1966 in W.P. High Court at Lahore, wherein the orders of the OSD of CRO, Lahore, dated 19‑12‑1964 and 23‑7‑1964 were challenged. The present petitioners were not a party to the same. On 8‑11‑1973, C.P. No.521 of 1966 was disposed of in terms of the decision of the Supreme Court in the case of Raunaqali v. Chief Settlement Commissioner reported in P L D 1973 S C

236. The Lahore High Court quashed the impugned orders and sent back the case to Claims Commissioner for fresh decision in accordance with law after notices to the parties concerned. The status quo in respect of land allotted to Muhammad Zahoor Nasir and others was continued. On 12‑11‑1973, the present petitioners filed application before the Chief Settlement Commissioner Lands, Hyderabad, and requested for new entitlement certificates in accordance with verification order dated 24‑6‑1969. The cases of all the petitioners alongwith the case of Shahabuddin were sent to the Authorised Officer for decision. The Authorised Officer verified the claim of the co‑sharer Shahabuddin, which case had been remanded to him by the Lahore High Court. However, he did not verify the claims of the present petitioners. As according to him, their cases had not been remanded to him by the Lahore High Court. He had, however, observed that he agreed with the counsel of the petitioners to the extent that it should be presumed that the order dated 23‑7‑1964 stood set aside being the operative order, as the order of 19‑12‑1964 had been set aside. Mr.Hafiz Abdul Baqi, learned counsel for petitioners, contended that the authorised officer having verified the claim of co‑sharer Shahabuddin, who was not a party to the petition at Lahore, should have verified the claims of the present petitioners as well. There is, however, a difference between the case of the petitioners and that of Shahabuddin, because it was Shahabuddin's successor Muhammad Zahoor Nasir, who had filed the writ petition and, therefore, once the case of Muhammad‑ Zahoor Nasir had been sent back for decision, it was obvious that the case of Shahabuddin had been indirectly referred back and, therefore, the claim of Shahabuddin had to be verified if the case of Muhammad Zahoor Nasir was to be considered. Therefore, to that extent the Authorised officer was justified in making the impugned order dated 29‑5‑1976. Since the case of the petitioners as such had not been remanded back to the Authorised officer, therefore, he was justified in not taking up the case of the present petitioners. The contention of Mr.Baqi was that since the order dated 23‑7‑1964 had been quashed as a whole, therefore, there was nothing left against the petitioners, which could operate against them. This submission appears to be correct, but the cases of the petitioners having not been remanded, the Authorised Officer could treat them as living become final and not open to verification by him. In any case, he was not the appeal or revisional Authority of the orders passed by the O.S.D. C.R.O., Lahore in 1964 and therefore, he had no jurisdiction to set aside those orders. The other contention of the learned counsel is that the order dated 23‑7‑1964 having been passed by the O.S.D., Lahore the same was without jurisdiction and was, therefore, without lawful authority and had no existence in law and therefore, it could be set aside. In this respect, reliance is placed upon the above quoted case of Raunaqafi v. Chief Settlement Commissioner, where it was held by the Supreme Court that the O.S.D. of Central Record Office had no jurisdiction to cancel the verification of claims' order, as he had no power to cancel the verification orders issued by the Claims Authorities. It was further held that "the finality given by Legislature to decision of a certain Tribunal which also has jurisdiction to decide finally the facts upon which its own jurisdiction is founded, cannot be called into question in any collateral proceedings by another tribunal or body of limited jurisdiction". Further, observation of the Supreme Court in the above case was that "where an inferior tribunal or Court has acted wholly without jurisdiction or taken any action beyond the sphere allotted to the tribunal by law and, therefore, outside the area within which the law recognised a privilege to err", then such action amounts to s "usurpation of power unwarranted by law" and such an act is a nullity, that is to say, "the result of a purported exercise of authority of which has no legal effect whatsoever". The Supreme Court went on to observe that "In such a case it is well‑established that a superior Court is not bound to give effect to it, particularly where the appeal is to the latter's discretionary jurisdiction and that the Courts would refuse to perpetuate, in such circumstances, something which would be patently unjust or unlawful". On the basis of the above dictum, which I respectfully follow, I find that the order passed on 23‑7‑1964 by the O.S.D. of C.R.O., Lahore, cancelling the claims of the petitioners, was the order completely without jurisdiction, as he had g so authority to deal with tint claims verified by the Additional Claims Commissioner. The said order was a nullity in law and has to be ignored and, therefore, I declare that the same was passed without jurisdiction and does not exist in law. I have ignored the delay in filing of the present petition by the petitioners in 1975 on account of the fact that the impugned order was a complete nullity and should not be allowed to come in the way of the petitioners, whose claims had been verified earlier and should be re‑considered by the Claims Organization, as had been done in the case of Raunaq Ali and others or as ordered by the High Court in the case of Shahabuddin. I am, therefore, of the view, that after the decision of the Supreme Court in 1973, a fresh situation had been created, which could be availed of by the petitioners and the petitioners had thereafter moved for fresh decision in respect of their entitlements before the Claims Commissioner, which was dismissed by the Authorised Officer in 1976 Therefore, there cannot be any serious question of the laches involved on the part of the petitioners. In P L D 1982 S C 330, the Supreme Court had approved the action taken by the High Court in setting aside an order of the Custodian, which was completely without jurisdiction, although a delay of about 20 years in filing of the petition. The petition it, therefore, allowed but, as done by the Supreme Court in Raunaq Ali's case and also done by the Lahore High Court in Petition 521 of 1966, I remand the case of the petitioners back to the Officer authorised under section 2(2) of Repeal Ordinance, 1974, by Notification dated 30‑9‑1976/Central Settlement Cell, Board of Revenue, Additional Settlement Commissioner, Hyderabad Sind, Camp at Karachi, who had decided the case of Shahabuddin, to make a fresh decision in respect of the claims of the petitioners in the light of the observations made by the Supreme Court in Raunaq Ali's case cited above. A.A./M‑416/K Case remanded.