1980 PLP 1771 (CLC)

ABDUL HAYEE KURRSVI, J.

The appellants Relumal and Kikkibai, respectively the on and widow of Chandumal have filed the present appeal under clause (10) of the Letters Patent to impugn an order of the learned Chief Justice dated 21-9-1969, whereby a petition filed by them under Article 98 of the Constitution of Pakistan was dismissed in limine. By this petition they had challenged the concurrent orders of the Settlement Commis sioner and Additional Settlement Commissioner, Sukkur, who had upheld transfer of a residential premises in favour of respondent Nizamuddin. We have heard Mr. Khalid Ishaque for the appellant and Mr. Maroof Ali Khan for the respondent Nizamuddin. The functionaries of the Settlement Department have not appeared or contested the appeal.

2. The brief facts of the case are that house No. D-724 in Ubauro within the District of Sukkur was in occupation of Chandumal, the predecessor of the petitioners. An L. H. Form was filed by the said Chandumal for transfer of the house in his favour on 12-8-1959. This form was considered to be barred by time and was for such reason rejected and returned to him. Such order of rejection was not challenged but Chandumal filed another Form on 1st April 1960, being for transfer of the house by reason of the fact that time for submitting such Form had in the meantime been extended. This Form was accepted by the Assistant Settlement Commissioner, who transferred the property to Chandumal and a P. T. O. was issued in his favour on 11-8-1960. In, the meantime, this house was put in the Earmarking list and lots were drawn in favour of respondent Nizarnuddin on 31-1-1960. A P. T. O. was also issued in his favour on 5-2-1960. On coming to know about the disposal of the house in favour of Chandumal, respondent Nizamuddin .filed an application before the Deputy Settlement Commissioner, Sukkur, to determine the entitlement to the said house. The Deputy Settlement Commissioner found that- Chandumal had not paid the public dues or the full price and since the property had been transferred to respon dent Nizamuddin in Earmarking proceedings, he cancelled the transfer in favour of Chandumal. An appeal was filed by Chandumal before the Additional Settlement Commissioner, Sukkur. The Additional Settlement Commissioner came to the conclusion that on the date the property was transferred in favour of Chandumal the same as not even available for transfer for the reason. of the earlier transfer in favour of respondent Nizamuddin and he also took notice of the fact that Chandumal had not paid the public dues and the full price of the property. On such premises .the appeal of Chandumal was. dismissed. The present appellants filed a Revision Application (Chandumat having died in the meantime), before the Settlement Commissioner, who, by an order dated 18--11-1968, dismissed the Revision Application on the grounds that the date on which the property had been transferred to Chandumal,- the same was not available for disposal and further that the Assistant Settlement Commissioner exceeded his powers in admitting the L. H. Form as he. was not, the competent authority to deal with such Forms The appellants being aggrieved by .the successive orders of the Settlement Officers invoked the constitutional jurisdiction of this Court and the petition was dismissed in limine.

3. The learned Chief Justice, in his order dismissing the petition took note of the fact that the earlier order whereby the first Form of Chandumal was rejected had not been challenged, that the second Form was not properly admitted and that on the date the property was transferred in favour of Chandumal the same was not available for transfer.

4. Mr. Khalid Ishaque, the learned Advocate for the appellants, has raised the following contentions before us :=-- (i) That the Settlement Authorities acted contrary to law because Chandumal was entitled to transfer of the property, and therefore, the property could not be disposed of by earmarking. (ii) That the face of Chandwnal having not paid up that the public dues or the full price (two instalments had been paid) would not disentitle him from transfer of the property ; and (iii) That the, order of rejection of the first Form of Chandumal was a void order and the failure of Chandumal to challenge such order is of no consequence. On the other hand, Mr. Maroof Ali Khan, appearing for the respondent, has raised the following contentions before us :- (i) That the first application of Chandurnal was time barred ; (ii) That the second application and transfer having been made by Assistant Settlement Commissioner was a nullity in law ; and (iii) That even if the appellants `had a right to claim-transfer of property they did not have a right to obtain transfer of the same.

5. The first point for consideration is whether the property was available for transfer in favour of Chandumal on 11-8-1960. There is no dispute that on 31-1-1960, the house had been transferred to respondent Nizamuddin and there is also no dispute on the point that the first L. H. Form submitted by Chandumal had been rejected on 12-8-1959. It would thus seem that on 31-1-1960, when lots were drawn in favour of respondent Nizamuddin the property was available for transfer as the first Form of Chandumal had been rejected. Such order of rejection was not challenged so that it had acquired finality. Mr. - Khalid Ishaque has, however, contended that the order rejecting Form of Chandumal was a void order, as distinct from an illegal order because even time-barred Forms could be accepted. In that context we have taken note of a Press Note issued by the Chief Settlement Commissioner, on 7th July, 1959, whereby the last date for receipt of L. H. .Form was 31st July, 1959. Such Press Note appears at page . 603 of the Manual of Settlement law and Procedure. No doubt, the time for submission of L. H. . Forms was thereafter extended so that the L. H. Forms could be submitted even subsequent to 31st July, 1959, but anon 12th August, 1959, when L. H. Form was submitted by Chandumal the same was, not within . time. It is no doubt correct that even time-barred applications could be entertained but if the first application of Chandurnal had been wrongly rejected the proper remedy was to file an appeal which had not been filed. The order of rejection therefore, had become final. Mr. Khalid -Ishaque's contention that the order of rejection was a void order and even if the same was not set aside it had no validity whatsoever in law has not impressed us. The concept of void orders and illegeal orders was -examined by the Supreme Court in the case. of Raunaq All v. Chief Settlement Commissioner and others (P L D 1973 S C 236) Hamoodur Rahman, C. J. expressed 'as follows :~ "It is .no doubt true that there -is a cleat' distinction between an act wholly without jurisdiction and an act done in the improper exercise of that jurisdiction. Where there is jurisdiction to decide then as it has often been said there is jurisdiction to decide either rightly or wrongly, and merely a wrong decision does not, render the decision without jurisdiction. To amount to a. nullity, an act 'must be non-existent in the eye of law ; that is to say, it must be wholly without jurisdiction or performed in such a way that the law regards it as a mere colourable exercise of jurisdiction on unlawful usurpation of jurisdiction."

6. It. the subsequent case of the Chief Settlement Commissioner v. Raja Muhammad Fixzil Khan (PLD 1975SC331) the concept of void orders was again examined and Anwarul Haq, J', (as he then was) expressed that a void order is such order which is made by a Court, Tribunal, or other Authority, which had no jurisdiction either as regards the subject-matter, the pecuniary value or the territorial limits where the dispute arose. Such orders would of course be usurpation of power, and a nullity in law. On the other hand, if an order is passed by a Court or Authority having .the necessary jurisdiction it could not be termed to be a void order. An order which is not a void older would hold the field and bind the parties. unless it is set aside in proper proceedings. In the instant case, it can hardy be disputed that the Deputy 3 Settlement Commissioner had the power to deal with L.

11. Form and pass orders thereon. Any order that he passed was not a void order so as to be treated as nullity in law. If of course, the order was illegal or wrong it was subject to correction at the appropriate forum. Chandumal had not challenged the order of rejection of first L. H. Form and therefore, the matter has to examined in the light of rights flowing from the orders of transfer in his favour on 11th August, 1960. On this date, the house in dispute stood admittedly transferred to respondent Nizamuddin and therefore. The subsequent transfer in favour of Chandurnal was wrong and illegal,

7. Mr. Maroof Ali Khan has challenged the transfer of the property in favour of Chandurnal on 1Itb August, 1960, by the Assistant Settlement Commissioner. He has invited our attention to the provisions of section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, and the Press Not-- issued by the Chief Settlement Commissioner on 7th July, 1959. Section 10(i) of the Displaced Persons (Compensation and Rehabilitation) Act, provides that the Chief Settlement Commissioner or any other officer authorised in writing in this behalf by him may subject to the provisions of the Act and the rules made thereunder transfer or dispose of any property out of the compensation pool. By the Press Note dated 7th July, 1959, applications for transfer of houses and shops in the possession of non claimant displaced persons under Settlement Scheme No. I were to submitted to the Deputy Settlement Commissioner of the area within which the property was situated. Chandumat had made the second application before the Assistant Settlement Commissioner and such functionary of the Settlement Department had not been authorised to entertain applications under Settlement Scheme No. 1 nor could lie pass any order thereon. In such view of the matter even the subsequent transfer in favour of Chandurnal was void. This fact was taken note of by the Settlement Commissioner while rejecting the revision application and in our view such approach was correct.

8. In view of what is stated above, we do not think it necessary to enter into the remaining contentions. We hold that the first order rejecting the L. H. Form of Chandurnal had acquired finality because it was not challenged, that the subsequent order whereby the property was transferred to Chandurnal was illegal because property was not available for transfer and the Assistant Settlement Commissioner could not dispose of the property. In the result this appeal is dismissed with costs. M. Y. M. Appeal dismissed.