P L D 1975 Supreme Court 331 (PLP)

In support of this appeal, it is contended by Mr. Maqbool Elahi Malik that the learned Judges in the High Court were in error in thinking that the Full Bench of the High Court had laid down in Syed Ali Iqtidar Shah's case, that a special tribunal had no jurisdiction to set aside an order obtained from it by fraud; and that in any case the Officer on Special Duty bad a statutory power, under Paragraph 15 of the Scheme prepared by the Chief Settlement Commissioner under Paragraph 5 of Martial Law Regulation No. 84, to reduce or revise the entitlement shown in the entitlement certificate issued under the Regulation. It is further submitted by the learned counsel that the finding recorded by the Officer on Special Duty in the Central Record Office to the effect that the respondent Raja Mohammad Fazil bad not obtained proprietary, or even occupancy rights in the agricultural land said to have been abandoned by him in India, is based on a proper appreciation of the documentary evidence submitted by the respondent himself, and accordingly the High Court, acting in the exercise of its extraordinary jurisdiction, should not have passed an order perpetuating fraud or up holding injustice. On behalf of the respondent, Mr. Karimullah Durrani has endeavoured to support the view expressed by the High Court that the Officer on Special Duty did not have any statutory or general jurisdiction to set aside the, entitlement certificate on the ground that it was obtained by fraud. The learned counsel submits that the Scheme prepared by the Chief Settlement Commissioner under Paragraph 5 of Martial Law Regulation No. 84 is no longer operative in view of the altogether different provisions contained in Martial Law Regulation No. 89, which, according to him, was intended to condone all frauds and irregularities which may have been committed by the claimants from non‑agreed areas. In the view of the learned counsel for the respondent, Martial Law Regulation No. 89 did not envisage re‑verification of already verified claims, and the authorities were content to adopt a sliding scale for reducing the amount of already verified claims, thus clearly indicating their intention that the verified claims were not to be recalled or cancelled on account of any alleged fraud. Mr. Durrani further contends that even if Martial Law Regulation No. 89 does not prohibit re‑verification or cancellation of already verified claims, yet such a process could be undertaken only by way of review by the Claims Commissioner, but all powers of review bad been taken away by Ordinance XIII of 1964. Finally, Mr. Durrani contends that the respondent had acquired certain property rights in India which were rightly verified by the Claims Organization, and no justification existed, on facts, for the Officer on Special Duty to cancel the respondent's claim. Although leave to appeal was granted in this case to examine only a single question regarding the powers and jurisdiction of a Officer on special Duty in tile matter of revision or cancellation of an entitlement certificate yet it appears, from the submissions made at the Bar by the learned counsel for the parties, that other important questions also arise for consideration, namely:‑ (a) Whether a tribunal of special or limited jurisdiction, as distinguished from an ordinary Court of general jurisdiction, has the power to recall, rescind or treat as a nullity, an order obtained from it or any authority by practising fraud; (b) Whether Martial Law Regulation No. 89 was promulgated with the intention and purpose of condoning any fraud or illegalities which might have been committed by claimants from non‑agreed areas, in getting their claims verified, and thereby conferring finality on the entitlement certificates issued under Paragraph 5 of this Regulation on the basis of a sliding scale; (c) If Martial Law Regulation No 89 does not prohibit revision or cancellation of claims or entitlement certificates already verified and issued, then which is the appropriate authority to undertake this process and is exercise of what powers or jurisdiction; (d) Assuming that the order made by the Officer on Special Duty was factually well‑founded, whether the High Court was right in making an order, in tile exercise of its writ jurisdiction, which had the effect of perpetuating fraud by enabling tree respondent to retain his ill‑gotten allotment of extensive areas of evacuee land; and (e) Whether, on facts available on the record, it could be said that the respondent's claim had been rightly verified and did not need any further scrutiny by any agency or organization. We shall first take up the general question, namely, whether a tribunal of special or limited jurisdiction, as distinguished from an ordinary Court of general jurisdiction, has the power to recall, rescind, or treat as a nullity, an order obtained from it or any other authority by practising fraud. There seems to be some uncertainty and conflict of opinion as to the validity of an order obtained by fraud, and the manner in which such an order can be avoided by those adversely affected by it. It is, therefore, both necessary and appropriate that the position may be clarified. The first question which arises in this connection is whether an order obtained by practising fraud on the Court, tribunal or authority concerned is a void order or only voidable. We are in respectful agreement with the view expressed by Waheeduddin Ahmed, J., in the case of Ali Iqtidar Shah Data, that an order obtained by fraud is not void, but only voidable. It remain operative as long as it is not set aside, rescinded, or recalled by a competent) authority in proper proceedings. An order is to be treated as void only when it is made by a Court, tribunal, or other authority, which had no jurisdiction either as regards the subject‑matter, the pecuniary value or tile territorial limits where the dispute arose. Such an order would amount to "a usurpation of power unwarranted by law", and accordingly it would be a nullity. If, on the other hand, an order is made by a Court or authority having the necessary jurisdiction, it is not an order void ab initio, but an order which may be set aside on sufficient cause being shown in this behalf. While at is true, as has been so often stated, that fraud vitiates call proceedings, it must nevertheless, be borne in mind that allegations of fraud generally raise mixed questions of law and fact which can only be established in an elaborate) inquiry. It is for this reason that an order obtained by fraud can be regarded as only being voidable at the instance of any party adversely affected by it. As authority for this view, reference may be made to Dabendra Nath Dutt v. Administrator‑General of Bengal (35 I A 109), Hewson v. Shelley (2 Ch. D 13), Fazluddin v. Khetra Ghoria (A I R 1926 Cal. 167), Ambikamoni Dasi v. Khettra Ghosia (30 C W N 59), Mst. Siraj Fatima v. Mahmood Ali (A I R 1932 All. 293), Bishunath Towari v. Mst. Mirchi (A I R 1955 Pat. 66), Ahmed Khan v. Custodian of Evacuee Property (P L D 1963 Kar. 450) and Pakistan v. R. S Roopchand (P L D 1967 S C 479). If an order obtained by fraud is voidable, the question then is in what kind of proceedings can it be set aside or avoided. As stated lay Robinstein, in `Jurisdiction and Illegality', the validity of a decision or order can be challenged either directly by way of proceedings specially designed by law for the purpose of having such a decision set aside reversed or modified; or by way of collateral attack in which the Court is not asked to invalidate the disputed decision but in which the existence of this decision is relevant to the issue facing the Court. In such collateral impeachment the contention generally is that the impugned decision is a nullity in the eye of law and ca be disregarded by the Court before which it is sought to be relied upon b one party or the other. Direct proceedings for having a decision invalidated or set aside may either by way of appeal, revision or review, initiated by the affected party, 16 in accordance with the relevant law; or they may take the form of silo Motor recall of the order by the Court or authority which made it; or lastly, action may be taken by way of a regular suit before a Court of general jurisdiction for a declaration as to the invalidity of the order. There can be no difficulty in the way of the adoption of the first course when the same is permitted by the law applicable to the subject‑matter of the dispute and the parties thereto; nor can there be any controversy regarding the maintainability of a civil suit, for the same is clearly permitted under section 9 of the Code of Civil Procedure, which confers a general jurisdiction on civil Courts created and recognised by the Code. However, there appears to be a conflict of judicial opinion on the question whether an order obtained by fraud can be suo moto recalled or rescinded by the Court or authority which made it in the first instance. It is submitted by Mr. Karimullah Durrani that as a tribunal of special or limited jurisdiction possesses only those powers which are conferred on it by the relevant statute, and does not enjoy any inherent jurisdiction it is not open to such a tribunal or authority to suo moto recall an order obtained from it by fraud, unless statutory provision exists in this behalf. According to the learned counsel, if no statutory power or remedy is available, then the only course open to such a tribunal is to file a civil suit under section 9 of the Code of Civil Procedure, as held by Waheeduddin Ahmed, J., in the case of Syed Ali Iqtidar Shah Dara. In order to further reinforce his submissions, Mr. Durrani has placed reliance on some of the judgments, referred to by Waheeduddin Ahmed, J., in the case just mentioned. As already stated, the learned Judges in the High Court have relied on the judgment of the Full Bench of the High Court of West Pakistan in the case of Syed Ali Iqtidar Shah Data, for the proposition that a tribunal of Special or limited jurisdiction does not possess any power to disregard any order passed by it on the ground that it had been obtained by fraud. It. seems to us, however, that the learned counsel for the appellant is right in contending that this particular question was not finally decided by the Full Bench, although it was discussed by Waheeduddin Ahmed. J., who delivered the main judgment in the case. The learned Judge had considered this question in paragragh 9 of the judgment, and only Inamullah, J. agreed with him in entirety, whereas the remaining three Judges only expressed their agreement with the conclusions reached by Waheeduddin, J. in paragraph 18. of the judgment. In these circumstances, it is not possible to hold that the views expressed by Waheeduddin Ahmed, J., on the question we are consider ing were endorsed by all the Judges of the Full Bench or even a majority thereof. However, the views expressed by Waheeduddin Ahmed, J., who was later elevated to the Bench of this Court, are entitled to the greatest respect, and it is accordingly necessary to examine the conclusions reached by his Lordship in this behalf. It was contended in that case on behalf of the Custodian of Evacuee Property that in a case where a party had obtained an order by practising fraud on the Custodian, it was open to him on discovery of the fraud, to reopen and examine such‑case and treat the order as a nullity. The learned Judge repelled this contention by observing that, in the first place, the tribunals which either act in an administrative capacity, or do not possess inherent jurisdiction are not competent to disregard any, order passed by them on the ground that it was obtained by fraud. He next observed that in law a judgment or order obtained by fraud was. voidable and not void ab initio, and it was thus clear that so long as it' remained in the field and was not set aside, it was valid and became inoperative only after it was established that it was obtained by fraud. His Lordship concluded the discussion of this question with the following words:‑ "Fraud being a mixed question of law and fact could only be established in an elaborate inquiry. I have no doubt that in ordinary cases the Custodian can investigate this question in his revisional or review jurisdiction, but in those cases which are covered by section 3(1) of Act XII of 1957, the Custodian is not competent and has no jurisdiction to enter upon any such inquiry. In clause (2) of this section the Legislature has specifically saved certain class of cases from the purview of subsection (1) but the cases involving the question of fraud' do not find any place in it. It is, therefore, not possible in such cases to treat an order obtained by fraud on a different footing from an order which is otherwise illegal or bad. Either section 3(1) applies to such cases or it does not apply. I am not inclined to interpret' this subsection in a manner which would destroy its full effect, particularly as the provision relating to ouster of jurisdiction of special tribunal is to be construed in a strict manner. On the language of the subsection under consideration, the jurisdiction of the Custodian except in those cases which are provided in subsection (2) is totally, barred. In view of this, it cannot be held that the Custodian in such cases is competent to treat any order passed by him or his subordinate as a nullity on the ground that a person or a property was illegally' treated as non‑evacuee. In such cases the only remedy open to the Custodian is to file a suit in a competent Court of civil jurisdiction." In the present case we are not concerned with the interpretation placed by the learned Judge on section 3(1) of the Administration of Evacuee Property Act 1957, (Act XII of 1957), but it is clear from the observations reproduced above, that it was only because of the specific prohibition y contained in that section that the learned Judge came to the conclusion that the Custodian could not himself re‑open the matter on the ground of fraud; but otherwise the learned Judge had no doubt that in ordinary cases the Custodian could investigate this question in his revisional or review jurisdiction. It would thus appear that, irrespective of the fact that the views expressed by the learned Judge in paragraph 9 of the judgment in question were not endorsed by the majority of the Judges of the Full Bench of the High Court, even the learned Judge himself did not purport to lay down any general and sweeping rule that a tribunal of special or limited jurisdiction has no power at all to re‑open a matter in which an order has been obtained from him by practising fraud; on the contrary, the general rule approved by him is that in ordinary cases the matter could be investigated and an order obtained by fraud set aside by the tribunal from which it had been earlier obtained. Let us now turn to an examination of the other cases relied upon by Mr. Durrani. In Mst. Siraj Farina v. Mahmood Ali (A I R 1932 All. 293), the question before the Full Bench was whether a decree for the partition of property made by a revenue Court could be set aside in a suit brought by the minor on the ground of the gross negligence of his guardian during partition proceedings before the revenue Court. It was held by majority that such a suit was maintainable under section 9 of the Code of Civil Procedure. Sulaiman, J., observed that "in the present case there is char reason for allowing a separate suit. There is no provision for a review of judgment by a subordinate revenue Court under the U. P. Land Revenue Act. The doctrine of inherent jurisdiction can hardly be invoked in such a case. It would not be open to the revenue Court to re‑open the partition on the allegation that the guardian of the minor had been negligent. As a matter of fact, so far as the provisions of that Act go, there is no section expressly applying the provisions of the C. P. C. relating to the appointment of a guardian for a minor to the proceedings in the revenue Court. The remedy of the minor, if any, can be only by a separate suit. The suit for avoidance of a previous order of a competent Court is undoubtedly one of a civil nature and falls within the scope of section 9, C. P. C. Such a suit is maintainable in a civil Court. If a review of judgment by the revenue Court is not permitted, there is no reason why remedy by way of a fresh suit in the civil Court should not be allowed". Sen, J., concurring with Sulaiman, J., observed that "if fraud or collusion vitiates the order or decree passed by a civil Court, there does not appear to be any ground for holding that it does not or cannot make inoperative or nugatory an order passed by the revenue Court in a partition proceeding. If a minor plaintiff has a right either to ignore or to challenge the propriety of an order passed by the revenue Court against him in partition proceedings, the said right is undoubtedly a substantive right. If the minor possesses a substantive right, the right should be capable of being enforced by a suit." It will be seen that the main question before the Court was regarding the maintainability of the civil suit, and it was in that connection that Sulaiman. J., observed that the revenue Court had no inherent jurisdiction to review its previous judgment or decree on the allegation that it was made as a result of the negligence of the minor's guardian. The observations have reference to the statutory powers of the revenue Court as obtaining under the U. P. Land Revenue Act, but they were not sought to be justified on general considerations arising in cases of fraud. In Biswambar Biswas v. Aparna Charan Mohry (A I R 1935 Cal. 290), which was again a case decided by a Full Bench of the High Court, the question was whether an executing Court, acting under section 73(2) of the C. P. C., was entitled to enquire as to the validity of a decree put forward as the basis for claiming a share in the distribution of the assets of the judgment‑debtor. The learned Judges held that the executing Court in such cases functioned in an administrative and not in a judicial capacity and no procedure was provided under the provisions of section 73 of the Code of 1908, and no machinery existed for the holding of an inquiry of the kind involved in the ascertainment as to whether or not the decree was not a bona fide or proper decree. A perusal of the separate judgments delivered by the learned Judges constituting the Full Bench shows that they were directly and primarily concerned with interpreting the scope of section 73 of the Code, under which the executing Court is not necessarily the Court which bad passed the decree in the first instance. This judgment, therefore, does not appear to us to be an authority for the proposition that a Court of special jurisdiction cannot review or recall an order which has been obtained from it by fraud; on the contrary, this cage is one of collateral impeachment of the decree, which is a separate matter altogether, involving considerations different from those which apply in cases of a direct attack on the validity of the order or decision passed by the Court or tribunal itself. As against these cases relied upon by the learned counsel for the respondent, our attention was drawn by Mr. Maqbool Elahi Malik to Grindlay's Bank Ltd. v. Murree Brewery Co. Ltd. (P L D 1954 Lah. 745), which is indeed highly instructive on the point we are considering here. Certain directors of the Murree Brewery Co. Ltd. had obtained an order from a Division Bench of the Lahore High Court for the holding of a general meeting of the company on the representation that a number of shares of the company were still the property of a certain other director of the company and not of the Bank to which, it was alleged, the shares had been transferred by that director in order to escape liability for acts committed by such director against the interests of the company, while one director, from among the directors, who had obtained the order on the above representation, had been negotiating for the purchase of self‑same shares from the transferee Bank, and had in fact purchased the shares three days before obtaining the order for a general meeting. These facts were brought to the notice of one of the learned Judges constituting the Division Bench, which had issued the original order for convening the general meeting of the company. The learned Judge held that the order in question bad been obtained from the Division Bench by fraud and was thus void and of no effect. This order of the learned Single Judge was challenged by way of a Letters Patent appeal. While delivering judgment for the Letters Patent Bench, Mohammad Munir, C. J. observed: "In law a judgment or order, however high or independent the tribunal delivering or making it and however exclusive its jurisdiction, is a nullity if it be proved that it was obtained by fraud. This fraud may be proved not only in the proceedings in which it was committed but also in a suit to set aside that judgment or order, the only limitation on the Court's power to avoid such adjudication is that the fraud should have been set up under sections 40, 41, 42 and 43 of the Evidence Act by the party relying on it. In appropriate cases it is the duty of the Court that has seisin of the case to re‑call suo moto an order procured by fraud .This fraud was discovered in the proceedings taken on the application of Saeed Sehgal and if it had come to the knowledge of both the Judges they would certainly have been competent to recall the order of 15th May. Cannot then one of them sitting singly pronounce the order to be a nullity? Since fraud vitiates all proceeding, and a lower Court in a suit properly constituted is certainly competent to set aside a judgment of a higher tribunal if it be proved that such judgment was obtained by fraud, it must a fortiori follow that a Judge of this Court sitting singly has jurisdiction to pass such order provided the issue whether the judgment was obtained by fraud properly comes up before him . . . . . . . This application was before the learned Judge and, therefore, it had become necessary for him to determine whether the meeting of 20th of March was held on the authority of a valid order. He was thus properly seized of the issue and fully competent, sitting singly, to declare that the Division Bench order of 15th February 1954 was a nullity because it was procured by fraud . . . . . ." There can be no doubt that ordinarily an order made by a Division Bench of the High Court could not be re‑called or reviewed by a Judge sitting singly, except in the special circumstances provided by law, but in this case the Letters Patent Bench approved of the action of the learned Single Judge on the fundamental principle that fraud vitiates all proceedings and, therefore, it became the duty of the Judge, although sitting singly, to re‑call the previous order once the fraud had been brought to his notice by means of a proper application. A similar view was expressed by a learned Single Judge of the East Pakistan High Court in Muhammad Idris Khan v. Erfanudin (P L D 1958 Dacca 132). That was a case arising under the East Bengal Premises Rent Control Act (XVI of 1953). The landlord had filed an application before the House Rent Controller for permission to sue the tenant for eviction on the ground that suit premises were required for his own use and occupation and that the opposite‑party had been habitual defaulter. The Rent Controller allowed the application ex parte, and clothed with the order the landlord filed a suit for ejectment which suit was also decided ex parte. In execution of that decree the landlord obtained delivery of possession of the premises, but the tenant applied to the civil Court for setting aside the ex parte decree, and also to the Rent Controller for review of the ex parte order made by him permitting the landlord to bring the suit for ejectment. The ground urged by the tenant was that he had not been served with summons and the orders had been obtained by fraud. While the civil Court granted the application and set aside the ex parte decree and restored the suit, the Rent Controller dismissed the tenant's application. On appeal, the learned District Judge set aside the order of the Rent Controller on the ground that it had been obtained by the landlord by means of fraud. It was contended in the High Court, on behalf of the landlord, that the allegations in the petition for review filed by the tenant before the Rent Controller did not bring the case under subsection (5) of section 29 of the East Bengal Premises Rent Control Act, that the application was made beyond thirty days, and that the application was filed before the Controller other than the Controller who, had passed the original order. All these contentions were repelled by the High Court which held that "no order obtained by practising fraud on the court and on the parties should be allowed to stand on the record. If it allowed to stand, in that case the Court will be a party to fraud and the arties will be encouraged to commit fraud which, in my opinion, cannot be parties under any circumstances." The learned Judge expressed the view that in cases of fraud the Rent Controller had inherent jurisdiction to set aside such an order. In Ahmad Khan v. Custodian of Evacuee Property (P L D 1963 Kar. 450), a Division Bench of the High Court took the view that where an order concerning the non evacuee character of the property had been obtained by fraud from the Custodian of Evacuee Property, it could be set aside by the Custodian in exercise of the powers conferred on him under section 43(4) of Act XII of 1957, irrespective of the fact oat the order had been obtained prior to 1-1‑1957 and would ordinarily be immune from attack under section 3(1) of the same Act. The learned Judges based this conclusion on the reason that fraud vitiates every thing, even judgments and orders of the Court, and an order obtained by fraud must be reversed or set aside when it comes to light. In Pakistan v. R. S. Roopchand (P L D 1967 S C 479) one of the points arising for consideration was regarding the effect of an order obtained from the Custodian of Evacuee Property by a misrepresentation of facts. It was observed that so long as the order remained in the field and was not set aside in proper proceedings, its effect could not be ignored, but in the circumstances the proper remedy open to the appellants was to apply for review of the order of the Custodian dated the 25th of March 1950, or take any other appropriate step in law to avoid the said order, In other words, the Court did not take the view that the Custodian had no power to review or re‑call an order obtained by fraud or misrepresentation of facts, and that the only course open to him was to file a civil suit for having the order set aside. It seems to us that while there are cases in which the power of a Coup, or tribunal of special or limited jurisdiction to suo motu recall or review any order obtained from it by fraud has been doubted, yet the preponderance of judicial authority is in favour of conceding such a power to ever authority, tribunal or Court on the general principle that fraud vitiates the most solemn proceedings, and no party should be allowed to take advantage of his fraud. There can be no rational basis for discriminating between their powers available in this behalf to a Court of general jurisdiction and a court or tribunal of special or limited jurisdiction, for in either case the effect of fraud is the same, and the duty to undo that effect must lie on the authority on which fraud is practised. We are, therefore, of the view that even a tribunal of limited or special jurisdiction has the power to suo motu re‑call or review an order obtained from it by fraud. However, in the matter of collateral impeachment of such an order, the position appears to be different. Whereas, a superior Court or a Court of general jurisdiction has the power to disregard, as a nullity, an order obtained by fraud or collusion, or on the ground of want of jurisdiction in the Court or authority making it, such a power is not available to al tribunal which either acts in an administrative capacity, or enjoys only a special or limited jurisdiction in a defined sphere. As this question has only recently been examined by this Court at some length in Raunaq Ali v. Chief Settlement Commissioner (P L D 1973 S C 236) it is not necessary to go over the same ground again, and it would suffice to state that the conclusion reached in that case to the effect that where finality is given to the decision of a certain body which has also the jurisdiction to decide finally, facts upon v. which its own jurisdiction is founded, that decision cannot be called in question in any other collateral proceeding by another tribunal or body o. limited jurisdiction. We may now turn to the question on which leave to appeal was granted in this case, namely, whether the entitlement certificate issued under Martial Law Regulations Nos. 84 and 89 of 1960 could be cancelled by an Officer on Special Duty in the Central Record Office on the ground that it had been obtained by practising fraud on the Settlement and Rehabilitation Department. In order to answer this question, it is necessary to make a brief reference to the relevant provisions of the two Regulations in question. As already stated, Paragraph 3 of Martial Law Regulation No. 84 required all claimants, covered by the Regulation, to submit written statements relating to all the true facts of their claims: Paragraph 4 of this Regulation placed a restriction on the powers of Officers appointed under the Registration of Claims (Displaced Persons) Act, 1956, to verify or re‑verify any such claims after the commencement of this Regulation. Paragraph 5 provided that the Chief Settlement Commissioner shall prepare a scheme for the verification or re‑verification of claims on the basis of the record, which was expected to be received from India. Under Paragraph 7, orders passed on verification and re‑verification under the scheme prepared under Paragraph 5 were to be the basis of fresh allotment and on such fresh allotment earlier allotments were to stand cancelled or modified as the case may be. According to Paragraph 8 any order passed in pursuance of the scheme was to be final. In the scheme prepared by the Chief Settlement Commissioner, under Paragraph 5 of this Regulation, an elaborate procedure was laid down for the verification of claims on the basis of the record received from India, and powers were conferred on the Officer on Special Duty to carry out this verification on the basis of the record. In Paragraphs 11, 1 t‑A, I I‑B and 12, a procedure was provided for the disposal of any objections which may be raised by the claimants to the verification carried out by the Officer on, Special Duty. Powers to pass final orders in this behalf were conferred on the Settlement Commissioners concerned. It was then provided in Paragraph 15 of the scheme that "the Settlement Commissioner concerned or the Officer on Special Duty, on grounds to be recorded in writing, may, after giving notice to any claimant, cancel or modify the entitlement shown in Form M. R.‑V, so far justice may require to correct errors or, omissions which are apparent on the face of the record". As observed in the case of Raunaq All, to which reference has already been made in another context, the scheme prepared under Paragraph 5 of 84 shows that the Officer on Special Duty was merely an Regulation officer entitled to check the details and to see that the entitlement certificate conformed to the verification order, having no jurisdiction to correct, alter or modify the verification order itself or to cancel any allotment of land. All objections to the final verification were to be decided by the Settlement Commissioner. It appears, therefore, that the power conferred on the Officer on Special Duty by Paragraph 15 of the Scheme to cancel or modify the entitlement shown in M. R.‑V. was of a limited nature, and did not extend to cancelling or modifying the verification of the claim itself. The entitlement certificate issued by the Officer on Special Duty was merely in the nature of an implementation of the final verification order, and did not empower the Officer on Special Duty to sit in appeal on the final orders made by the Officers of the Claims Organization. As a result, it follows that the Officer on Special Duty could cancel an entitlement certificate if the same had been obtained from him by practising fraud in the matter of furnishing the written statement or other particulars required by the scheme, but he could not do so on the ground that the verification of the claim had been obtained by practising fraud on the Claims Organization. However, even this position appears to have undergone a change with the promulgation of Martial Law Regulation No. 89 in replacement of the original Martial Law Regulation No.

84. It appears that the records mentioned in Paragraphs 5 and 6 of Martial Law Regulation No. 84 as well as in the scheme prepared under Paragraph 5 thereof were not forthcoming, and, therefore, the Chief Martial Law Administrator was compelled to devise a plan for scaling down the entitlement under claims already verified by the Claims Organization. In Paragraph 5 of the new Regulation a formula was prescribed for reducing the entitlement of every claimant. Only in the case of pending claims it was provided in Paragraphs 3 and 4 that they shall be verified by Officers not below the rank of an Additional Settlement Commissioner as may be appointed by the Chief Settlement Commissioner in that behalf. The new Regulation did not contain any provision comparable to the one contained in Paragraph 5 of Martial Law Regulation No. 84, with the result that the scheme previously prepared by the Chief Settlement Commissioner under that Paragraph became irrelevant and inoperative. It is true that Paragraph II of Martial Law Regula tion No. 89 enjoined the Chief Settlement Commissioner to prepare a scheme for the purpose of giving effect to the provisions of this Regulation, and for allotment and surrender of land to and by the claimants, but the purpose of this scheme was obviously different from the one prepared under Paragraph 5 of the previous Regulation. This difference becomes abundantly clear from a perusal of the scheme in fact prepared by the Chief Settlement Commis sioner under this Paragraph. The effect of this change in the law appears to be that whatever powers might have been previously conferred on the Officer on Special Duty in regard to the verification or re‑verification of claims, they disappeared with the promulgation of Martial Law Regulation

89. On this view of the matter, it has to be held that the High Court was right in observing that the Officer on Special Duty did not have any statutory or inherent powers to cancel an entitlement certificate on the ground that the verification of the claim itself had teen obtained by practising fraud on the Claims Organization. As observed by his Lordship the Chief Justice in Raunaq Ali's case, the Officer on Special Duty could not sit in judgment over the verification order and decide for himself as to whether it should be given effect to or not by the issuance of a proper entitlement certificate. He could only refer the matter to the Claims Organization to review or revise the verification order as the case may be. We have already found that, on general principles even a tribunal of limited or special jurisdiction has the power to cancel, recall or rescind an order obtained from it by fraud. If, therefore, it is alleged in a given case that the verification of the claim has been obtained by practising fraud on the Claims Officers, then we see no reason or justification to hold that the same cannot be suo motu revised or cancelled by a competent Officer in that Organization. This bring us to a consideration of the question whether there is any statutory bar in the way of the Claims Commissioner revising or reviewing such an order. It will be re‑called that the submission made on behalf of the respondent is two‑‑fold:‑ (a) That the power of review was taken away by Ordinance XIII of 1964; and (b) That Martial Law Regulation 89 was specifically promulgated with the intention and purpose of condoning any frauds or illegalities which might have been committed by claimants from non‑agreed areas in getting their claims verified. By Ordinance XIII of 1964, called the Displaced Persons (Laws Amendment) Ordinance, promulgated on the 28th of December 1964, a new subsection (3‑A) was added to section 7 of the Registration of Claims (Displaced Persons) Act, 1956, in the following terms:‑ "The Claims Commissioner may, at any time before the 31st day of March 1965, after giving notice to the parties concerned, review any order passed under subsection (3)." The submission made by the learned counsel for the respondent is that in view of this newly added subsection the Claims Commissioner had no power to review any order after the 31st day of March 1965, and, therefore, it was too late in the day to urge that the matter might go back to that officer for reviewing the verification order which has already become final in favour of the respondent. The argument is clearly untenable in view of the judgment of this Court is Abdul Rehman v. Settlement, Rehabilitation & Claims Commissioner (P L D 1966 S C 362) and the views expressed by one of us (S. Anwarul Haq, J.) in Mahmood Sharif Beg v. Claims Commissioner, Pakistan, Lahore (P L D 1973 Lah. 114). In the first mentioned case, this Court has observed that by the mere issuance of an entitlement certificate under Paragraph 4(1) of Martial Law Regulation. 89 the verification order would not become final, and pending revision petitions would continue to be governed by subsection (3t of section 7 of the Registration of Claims (Displaced Persons) Act, 1956. In the second case, the effect of the newly added subsection (3‑A) to section 7 of the Act was considered, and it was concluded that "the provisions contained ire subsection (3‑A) of section 7 of the Act cannot be interpreted as meaning that the pending review petitions would automatically lapse after the 31st of March 1965. All that the subsection means is that after this date the power of review would not be available to the Claims Commissioner so as to enable him to entertain new petitions in this behalf. The pending proceedings would continue to be governed by the law operating at the time they were instituted, and could, therefore, be disposed of in accordance with that law seven after the 31st of March 1965." Now, in the present case, as already stated, the matter had been reported to the learned Claims Commissioner by the Enforcement Staff in 1962 but he had refused to review the case, by his order dated 31‑10‑62, on the mistaken idea that the entitlement certificate issued in favour of the respondent under Paragraph 5 of Martial Law Regulation 89 was final and could not be called in question by the Claims Organization. The Officer having refused to exercise jurisdiction vesting in him on a mistaken view of the law, she review matter must be deemed to be still pending with aim on the date Ordinance X111 of 1964 was promulgated. It could, therefore, still be disposed of in spite of the time limit specified in subsection (3‑A) of section 7 of the Act. There is thus no statutory bar in the way of the Claims Commissioner reviewing the previous order of verification already made in favour of the respondent, even if there was no inherent power, on general principles, to re‑call or rescind an order obtained by fraud. In support of his submission that Martial Law Regulation 89 was intended to condone all frauds and irregularities, learned counsel for the respondent has placed reliance on at least two unreported judgments of the former High Court of West Pakistan. In Writ Petition No. 63 of 1962 C. Samuels v. The Rehabilitation & Claims Commissioner, Peshawar and 2 others decided by a Division Bench of the High Court at Peshawar on the 6th of December 1962, it was held that once an entitlement certificate had been issued to a claimant under Paragraph 5 of Martial Law Regulation 89, under Paragraph 15(2) of the said Regulation, by any Court or authority (sic). In Writ Petition No. 593 of 1963 Mannu Khan v. The Settlement & Rehabi litation Commissioner, Hyderabad and others decided by a Division Bench of the former High Court of West Pakistan at Karachi, on 1‑11‑1965, it was held that under Paragraph 4 of Martial Law Regulation No. 89, the decision given by an Additional Settlement Commissioner, acting in revision, in the matter of the verification of a pending claim, was final and could not be questioned in any Court of law, under Paragraph 12 of the said Regulation. It was also observed that "the alleged exaggerated claim filed by the petitioner can have no material bearing on the facts of this case. This is not the solitary instance. It was to obviate this unfortunate situation that Martial Law Regulation 89 was brought into force. Under it all verified claims were to be accepted without demur, and pending claims were to be scrutinised by competent Officers appointed under clause (4), whose decision is final and not subject to any further appeal or revision before any higher Settlement authority". After giving our careful consideration to the two judgments relied upon by the learned counsel appearing for the respondents, we consider that, in the first place, they do not spell out the proposition canvassed by Mr. Durrani namely, that Martial Law Regulation 89 was specifically promulgate by the Chief Martial Law Administrator to condone all frauds and irregularities which might have been committed by the claimants concerned in obtaining verification of their claims under the Registration of Claims (Displaced Persons) Act, 1956. All that they purport to lay down is that J the claims already verified were not to be re‑opened under this Regulation, and that the entitlement certificates issued, and orders made, under the relevant Paragraphs of this Regulation are final and not open to question in any manner. If, however, the two judgments in question are susceptible of the interpretation placed upon them by Mr. Durrani, then to that extent, in cur view, they do not lay down the correct law. We agree that there is a radical difference between the provisions originally promulgated as Martial Law Regulation 84, and those subsequently "bodied in Martial Law Regulation

89. The first mentioned Regulation contemplated re‑verification of even those claims which lead already been verified by the Claims Organization, whereas Martial Law Regulation 89 abandoned that attempt, owing to the obvious impossibility of the task. It accepted the previous verifications as the basis for the issuance of entitlement certificates of a sliding scale, and contemplated verification of only pending claims by Officers appointed under the Regulation instead of those belonging to the Claims Organization. Finality was attached by this Regulation, under Paragraph 12 thereof, to orders passed or entitlement certificates issued under the Regulation, and the jurisdiction of the Courts was excluded in respect of these matters by Paragraph 15, but nothing was said at all about the verification orders which had already been made by the Officers of the Claims Organization, acting under the Registration of Claims (Displaced Persons) Art, 1956. While the Regulation thus accepted the previous verification orders as the basis of the issuance of the new entitlement certificates, it did not contain any prohibition against the re‑opening of previously verified claims by the competent Officers of the relevant organization, if the facts and circumstances justified the adoption of such a course under the law. It is, therefore, erroneous to think that Martial Law Regulation 89 was intended to deliberately condone all frauds and irregularities which could otherwise be rectified under the law relating to the verification of those claims. Such a startling proposition could be accepted only if the law‑maker had spelt out his intention in this behalf in clear and unambiguous language. However, such is not the case with Martial Law Regulation

89. As a consequence, we have no hesitation in holding that the Regulation does not stand in the way of re‑opening or scrutinizing a verification order obtained by practising fraud on the Officers of the Claims Organization. The question whether the High Court, acting in tile exercise of its writ jurisdiction, should have granted relief to the respondent merely on technical grounds, assuming that the order made by the Officer on Special Duty was factually well‑founded, has to be answered in the negative in view of the opinion repeatedly expressed by this Court in several cases, namely, Azmat Ali v. The Chief Settlement and Rehabilitation Commissioner (P L D 1964 S C 260), Tufail Muhammad v. Muhammad Ziaullah Khan (P L D 1965 S C 269), Merajuddin v. Director, health Services (1969 S C M R 4) and Wali Muhammad and others v. Sheikh Muhammad and others (P L D 1974 S C 106). In all these cases it has been observed that the discretionary relief ought not to be granted by the High Court to help retention of ill‑gotten gains by a party even if because of any technical reason an order made by a tribunal is not found justifiable, as the writ jurisdiction is nit to be invoked in aid of injustice. It is clear, therefore, that if we were to agree with the learned counsel for the appellant that the respondent had indeed obtained the verification of his claim by practising fraud on the Officers of the Claims Organization, we would have no hesitation in setting aside the impugned order of the High Court, which undoubtedly proceeds on technical grounds alone, and does not touch the merits of the case. However, we have no intention of deciding the case ourselves on merits. We have found that as fraud vitiates all proceedings, even a tribunal of limited jurisdiction has the power to suo moto recall or rescind an order obtained from it by fraud, even though it may have no such power to treat as a nullity, in collateral proceedings, orders obtained by fraud from other authorities or tribunals. As a result, although the officer on Special Duty could not cancel the order of verification obtained by the respondent from the Claims Commissioner, yet the latter was himself fully competent to re‑open the matter and examine the allegations made against the respondent by the Director of Enforcement. Our examination of the relevant provisions of the Registration of Claims (Displaced Persons) Act, 1956, as well as of Martial Law Regulation 89 has led us to the conclusion that there was no statutory bar in the way of the Claims Commissioner under taking this scrutiny, and the learned Claims Commissioner was, therefore, in error in thinking that he could not examine the matter in view of the provisions contained in Paragraph 5 of Martial Law Regulation

89. What he had been called upon to examine was the verification order obtained from the Claims Organization and not the entitlement certificate issued under the aforesaid Paragraph 5 of the Regulation. The learned Claims Commis sioner, therefore, erroneously refused to exercise jurisdiction vesting in him, and for that reason the reference made by the Enforcement Directorate against the respondent must be deemed to be still pending. In the circumstances, it is necessary that this reference should be examined on merits by the learned Claims Commissioner. We would accordingly set aside the impugned order of the High Court, the order made by the Claims Commissioner on 31‑10‑1962, and also the order made by the Officer on Special Duty on the 10th of March, 1965, and remit the case to the learned Claims Commissioner for decision on merits. He shall afford due opportunity to both sides to substantiate their respective positions. The appeal is accordingly accepted in these terms, but the parties are left to bear their own costs. We direct that, pending the decision of the matter by the Claims Commissioner, the respondent shall not alienate or encumber the land in dispute in any manner. K. B. A. Appeal accepted. Case remanded.