1987 PLP 2390 (MLD)

(5) All Deputy Settlement Commissioners including Assistant Accounts Officers with ex-officio powers of Deputy Settlement Commis sioner in the District and Central Settlement Cells. Cases pending in the original jurisdiction under the Displaced Persons (Compensation and Rehabili tation) Act, 1958, Registra tion of Claims (Displaced Persons) Act, 1956, and Recovery of Price of Evacuee Property & Public Dues Registration Regulation, 1971. (6) Mr. Ansar Hussain, Deputy Settlement Commissioner, Hyderabad with ex-officio powers of Deputy Custodian, Evacuee Property. Cases of applications under sections 20, 22 or 14 of the Pakistan (Administration of Evacuee Property Act, 1957 in original jurisdiction. (7) Mr.Iqbal Ahmad Bukhari, Assistant Accounts Officer with ex-officio powers of Deputy Settlement Commissioner and Deputy Custodian, Evacuee Property at Nawabshah. -do- (8) All Divisional Commissioners. Cases of Revision and Appeals under the Displaced Persons (Land Settlement) Act, 1958, and Pakistan Rehabilitation Act, 1958. (9) All Deputy Commissioners. Cases under sections 10 & 11 of the Displaced Persons (Land Settlement) Act, 1958. (10) All Assistant Commissioners/ Additional Deputy Commissioners. Cases of original jurisdiction under the Displaced Persons (Land. Settlement) Act, 1958 or Pakistan Rehabilitation Act, 1958: Provided that the Additional Member, Board of Revenue (Incharge Settlement Cell) will be authorised to transfer cases mentioned at Serial No.- 8 from any of the Divisional Commis sioner to any other Commissioner, and cases mentioned at Serial No. 9 to any A from any Deputy Commissioner in the interest of justice and/or administration: Provided that Mr. S. Wasim Hamid Rizvi, Settlement Commissioner Sind will be authorised to transfer cases to the officers mentioned at Serial Nos. 2 to 7 or recall the same to his own file for disposal or transfer to other officers mentioned at Serial Nos. 2 to 7 having relevant ex-officio powers under the relevant repealed Act, in the interest of justice and/or administration: Provided further that the concerned Commissioner will be authorised to transfer a case from any officer mentioned at Serial No.10 to any other Additional Deputy Commissioner/ Assistant Commissioner in the interest of justice and/or administration. Sd/ (O.M. QARNI) Addl: Member, Board of Revenue/ Secretary Rehabilitation Department, Government of Sind." In partial modification of the above Notification the Government of Sind issued another Notification No.SCK/77/1126, dated 4-9-1977 which read as under:- In partial modification of Notification No.SCK/74/2048, dated 24-12-1974 issued in exercise of the powers conferred by Sub section (2) of Section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974 (XV of 1974), the Government of Sind is pleased to adopt the said notification as the one issued under subsection (2)' of section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. The Government of Sind, is further, pleased to direct that the Member, Board of Revenue Sind (Incharge Settlement Cell) 'may transfer a 'case or cases pending under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958, with a Deputy Commissioner or Additional Deputy Commissioner, to the Deputy Settlement Commissioner exercising powers of Additional Settlement Commissioner (Urban) at Sukkur or Deputy Settlement Commission' r exercising powers of Additional Settle ment Commissioner ("0ustries and Rural) at Karachi. . Sd/-3-9-1977 (ABDULLAH D. BALUCH) Member, Board of Revenue, Sind, (Incharge Settlement Cell) at Karachi." Thereafter, a third notification was issued authorising Mr. Mukhtar Ahmed Khan Deputy Settlement Commissioner (Grade 17), Karachi to act as "the authorised officer" for disposal of cases which might be transferred to him by the Member, Board of Revenue Sind (Incharge Settlement Cell) or Settlement Commissioner Sind. The said Notification is reproduced in extenso as follows:

"No.SCK/80-Admn-774 Dated, the 14th June, 1980. In partial modification of Notification No. SCK/74-2948, dated 24-12-1974 read with Notification No.SCK/77-1126, dated 4-9-1977, the Government of Sind, in exercise of the powers conferred by subsection (2) of section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, is pleased to notify Mr. Mukhtar Ahmed Khan, Deputy Settlement Commis sioner (Grade 17) Karachi as the authorised officer for the disposal of cases which may be transferred to him by the Member, Board of Revenue Sind (Incharge Settlement Cell) or Settlement Commissioner Sind for disposal, in accordance with the provisions of the repealed Act or Regulation namely (1) The Displaced Persons (Compensation and Rehabilitation) Act, 1958 (2) Registration of Claims (Displaced Persons) Act, 1956 (3) The Scrutiny of Claims (Evacuee Property) Regulation, Act, 1961 (4) Pakistan Rehabilitation Act, 1956 and (5) recovery of Price of Evacuee Property and Public Dues Regulation Act, 1971. Sd/- (ALI MUHAMMAD G. SHAIKH), Secretary of Government of Sind, Member, Board of Revenue (Incharge Settlement Cell) at Karachi." The first notification, dated 24-12-1974, indicates that certain' officers had been notified by the Government of Sind to exercise jurisdiction in respect of cases as contemplated by section 2(2) of Act XIV of 1975. This notification also shows that Mr. S. Wasim Hamid Rizvi, the then Settlement Commissioner Sind, whose name appears at serial No.1 in the notification, had been further authorised to transfer cases to the officers mentioned at serial Nos. 2 to

7. It appears that on the basis of this notification, another notification was issued on 14-6-1980 whereby the Government of Sind while purporting to exercise powers under subsection (2) of section 2,I notified Mr. Mukhtar Ahmed Khan, Deputy Settlement Commissioner, Karachi as the authorised officer but as the notification indicates the' appointment was only for the purpose of disposal of cases which might be transferred to him by the Member, Board of Revenue Sind A (Incharge Settlement Cell) or Settlement Commissioner Sind for disposal. This notification, in my opinion, seems to have been issued without any regard to the relevant provisions of Act XIV of 1975. First of all the notification authorised Mr. Mukhtar Ahmed Khan to dispose of on15, such cases which were transferred to him by the Member, Board of Revenue Sind. The relevant provisions of Act XIV of 1975 which have already been reproduced above clearly indicate that the Board of Revenue has not been authorised to exercise power in respect of cases which may be remanded from the Supreme Court' or a High Court. According to subsection (4) of section 2, the Board of Revenue has been authorised to execute a final order which may be passed under subsection (3) of section

2. Similarly according to section 4 of the Act, the residual work connected with documentation and other incidental matters has been assigned to the Board of Revenue of the Province. Consequently, without going into the question of further delegation of powers by the Board of Revenue Sind, the Board of Revenue was not competent to entertain matters which were received on remand from the High Court and consequently it could not transfer the same to Mr. Mukhtar Ahmed Khan. However, as the impugned order indicates, the case after its remand by this Court was entrusted to Mr. Mukhtar Ahmed Khan by the Settlement Commissioner Sind. Now, after the repeal of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 no officer with the designation of Settlement Commissioner would be deemed to be in existence. No doubt that the officers who were originally working under the repealed Act have retained their designations and they continue to perform functions under the provisions of the Act, but they can perform only such functions or exercise such powers which have been either given to them by the Act itself or assigned to them by the Government under the Act. Although reference has been made in the notification dated. 14-6-1980 to the notification, dated 24-12-1974 whereby Mr. S. Wasim Hamid Rizvi, Settlement Commissioner Sind had been empowered by his name to transfer cases to some other officers mentioned at serial Nos. 2 to 7 in the notification, but even if it is assumed that Mr. S.Wasim Hamid Rizvi could delegate his functions or transfer cases to other officers under the provisions of Act XIV of 1975, such powers could only be exercised by him and by no other officer even if he was designated as Settlement Commis sioner, Sind. Consequently I have no doubt in my mind that notifica tion, dated 14-6-1980, could not legally authorise Mr. Mukhtar Ahmed Khan, Deputy Settlement Commissioner to perform functions as notified officer under section 2(2) of Act XIV of 1975. The proceedings before him resulting in the impugned order, dated 29-12-1983 were therefore, coram non judice and without lawful authority. It was however, argued by Mr. Maroof Ali Khan, learned counsel for the respondents Nos.3 and 4 that even if the order passed by Mr. Mukhtar Ahmed Khar was without lawful authority the petitioner was estopped from raising the question of jurisdiction since the petitioner had submitted himself before the jurisdiction of Mr. Mukhtar Ahmed Khan without raising any objection thereto. It was further argued, in the alternative, that in any case, the petitioner had not approached this Court with clean hands as through manipulation he had tried to get false entries made in his P . T . D . I find both the contentions to be without substance. First of all the petitioner could take objection to the jurisdiction of the learned Deputy Settlement Commissioner before this Court, even if no such objection had been taken during the pendency of proceedings before the learned' Deputy Settlement Commissioner. In Rashid Ahmed v. The State (P L D 1972 S C 271), it was held by the Supreme Court that objection to jurisdic tion of the Court could be taker, at any stage of the proceedings. Reference in that case was also made to the case of Chittaranjan Cotton Mills Ltd. v. Staff Union (PLD 1971 S C 197), wherein it was held by the Supreme Court that question relating to jurisdiction of the Court could be raised at any stage of the proceedings. In Mansab Ali v Ameer and others (P L D 1971 S C 124), it was held by the Supreme Court that if a mandatory condition for exercise of jurisdiction before a Court, Tribunal or authority is not fulfilled then the entire proceedings which follow become illegal and suffer from want of jurisdiction, It may be pointed out that since the proceedings before Mr. Mukhtar Ahmed have been held to be coram non judice on account of inherent lack of jurisdiction in him to entertain such proceedings, even if objection to jurisdiction of Mr. Mukhtar Ahmed Khan was not taker, by the petitioner before him, such objection can be raised by him before this Court. So far as the next argument as to the conduct of the petitioner is concerned, the contention of Mr. Maroof Ali Khan is not well-founded as the mere fact that some entries in the P.T.D. were found to be unauthorised does not ipso facto raise a presumption of dishonesty against the petitioner. I am, therefore, unable to agree with Mr. Maroof Ali Khan that the impugned order is not liable to be struck down for the abovementioned reasons. The next argument of Mr. Muhammad Ali Sheikh was that Mr. Mukhtar Ahmed Khan had erroneously observed in the impugned order that property hearing No.II-D-187 could not have been auctioned to the petitioner as the same was a charitable well. According to the counsel, since the case had been remanded to him for determination of a question of limited nature, viz., what City Survey number corresponded to property No.II-D-187, the learned Deputy Settlement Commissioner was not competent to enter into controversies extraneous to the point in issue. However, since I have already held that the proceedings before the learned Deputy Settlement Commissioner were coram non judice any, discussion on the point would be futile. As a result, this petition is allowed and the order passed by Mr. Mukhtar Ahmed Khan, Deputy Settlement Commissioner, Karachi is declared to be without lawful authority and of no legal effect. The case is consequently remanded to another officer, duly empowered to exercise jurisdiction under section 2(2) of Act XIV of 1975 for a decision in terms of the judgment of this Court dated 11-10-1983. S.Q/M-244/K Petition allowed.