P L D 1969 Lahore 694 (PLP)

This view was upheld by the Settlement Commissioner in Revision Petition No. 146 of 1960, decided on the 5th of April 1961. The matter was then taken to Malik Fateh Khan, the delegatee of the Chief Settlement Commissioner, who, by order dated the 22nd of July 1961, dismissed the second revision on the ground that "all the Courts below have held that the house is not divisible and I see no sensible ground to come to a different conclusion." These orders are being challenged in this writ petition.

2. In support of the petition, Mr. Fazle Mahmood, learned counsel for the petitioner has urged‑ Firstly, that Mr. Waris Husain was only an Assistant Settle ment Commissioner and was not invested with the powers of the Deputy Settlement Commissioner, thereby having no jurisdiction to transfer the property in dispute, and Secondly, that the order of Mr. Waris Husain being a nullity in the eye of law, any superstructure raised on it has no validity and the impugned order should be set aside.

3. In reply, Ch. Muhammad Husain, learned counsel for respondent No. 1, has contended that the objection about the jurisdiction of Mr. Waris Husain having not been raised before the Settlement authorities cannot be allowed to be raised for the first time in writ jurisdiction of this Court. The learned counsel further contended that the question whether or not the house in dispute was divisible was considered by the Additional Settlement Commissioner and the Chief Settlement Commissioner and, therefore, no prejudice has been caused to the petitioner.

4. After hearing the learned counsel for the parties I am satisfied that none of the points urged on behalf of the petitioner has any force. In the first place, the petitioner failed to raise objection as to the jurisdiction of Mr. Waris Husain, Assistant Settlement Commissioner before the Additional Settlement Com missioner or any other Settlement authority. In fact, the petitioner took the order of Mr. Waris Husain as that of a Deputy Settlement Commissioner and filed an appeal before the Additional Settlement Commissioner; otherwise he would have filed the appeal before the Deputy Settlement Commissioner. In any case, since he failed to take this objection before the Settlement authorities at the earliest possible opportunity, he cannot be allowed to raise this objection for the first time in the writ petition of this Court. I am supported in this view by al decision of the Supreme Court in Ghulam Mohi‑ud‑Din v. Chief Settlement Commissioner (P L D 1964 S C 829), in which their Lordships observed as under :‑ "Against one of the grounds upon which the Courts in England have consistently held a party seeking such a writ to have disentitled himself to this extraordinary remedy is his failure to object to such usurpation of jurisdiction before the Tribunal concerned or to raise the objection at the earliest opportunity before the Tribunal whose illegal order he seeks to have quashed by the writ, if he was aware that the Tribunal lacked the jurisdiction it purported to exercise." There is a very instructive case on this point of the Bombay High Court in the Indian Jurisdiction reported as Chandhinagar Motor Transport Society v. State of Bombay (A I R 1954 Bom. 201), in which case also objection about jurisdiction of an inferior Tribunal was raised for the first time in the High Court. In this connec tion: the following observations of the learned Judges of the Bombay High Court may be quoted with advantage :‑ "Equally so, a defendant may not raise the question of jurisdiction in the Court of first instance, he 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 jurisdiction 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 ask for a writ'." I consider that the above principle is applicable in the present case. The petitioner did not raise any objection about the jurisdiction of Mr. Waris Husain before the Additional Settlement Commissioner. In fact, he treated the order of Mr. Waris Husain as one having been passed by him in exercise of the delegated authority of the Deputy Settlement Commissioner and chose to prefer an appeal against his order before the Addi tional Settlement Commissioner. He also did not raise it before the Settlement Commissioner, nor even before Malik Fateh Khan, the delegatee of the Chief Settlement Commissioner. In these circumstances, he cannot be allowed to raise this objection for the first time in the writ jurisdiction of this Court.

5. Moreover, whatever irregularity was committed by Mr. Waris Husain has been cured by the circumstance that the merits of the case were considered both by the Additional Settlement Commissioner and the delegatee of the Chief Settlement Commissioner. Both of them had considered the question of divisibility of the house in dispute and had come to the conclusion that it was indivisible. In these circumstances, respondent No. 1, who is a claimant displaced person, could only be given preference and the petitioner had no right to the transfer of the property in dispute or to the transfer of any portion of it. This aspect of the question was considered by the Supreme Court in S. Niaz Ali Shah v. Settlement Authorities etc. Civil Appeal No. 3 of 1965. In this connection, their Lordships observed as under :‑ "It is true that the Deputy Settlement Commissioner had no authority to review his order. Hence his order transferring the property to respondent No. 2 may be described as irregular. The order dated 10th June 1961, passed by the Settlement Commissioner, however, cured this irregularity because he had ample power of revision suo motu under section 20(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, to correct any error that might have crept in the order of the Deputy Settlement Commissioner. From the order of the Settlement Commissioner it is clear that he himself fully went into the merits of the case and then transferred the "house to respondent No. 2, Messrs Yar Muhammad Khan Saeed Ahmad Khan, because the disputed plot constituted a part of front courtyard of their building. 7his he had full power to do." Judging the case of the petitioner from this angle, it is quite clear that whatever irregularity had been committed by Mr. Wari Husain was cured when the matter was considered on merits by the Additional Settlement Commissioner, the Settlement Commissioner and by Malik Fateh Khan, the delegatee of the Chief Settlement Commissioner. This point also has no merit whatsoever.

6. It was urged before me that the fact that the claim of the petitioner to the transfer of the property was not considered by the Deputy Settlement Commissioner has prejudiced the case of the petitioner and, therefore, it was a fit case which should be sent back to the Deputy Settlement Commissioner for decision on merits. I am afraid this point has no merit whatever. The merits of the case were gone into by the Additional Settlement Commissioner. It is true that the Settle ment Commissioner refused to go into the question of the divisibility of the house in dispute on the ground that it is a question of fact and had been decided by the Additional Settle ment Commissioner but the delegatee of the Chief Settlement Commissioner (Malik Fateh Khan) who had suo motu revisional powers had gone into the question and had held the house to be indivisible. In these circumstances, it is not possible for me to hold mat any prejudice has been caused to the petitioner. His case was considered on merits by the high hierarchy of the Settlement authorities and I see no ground to ‑remit back the case to the Deputy Settlement Commissioner. In the circumstances, there is no force in the petition. Accordingly, it is dismissed with no order as to costs. A.E. Petition dismissed.