P L D 2006 Lahore 597 (PLP)

SYED ZAHID HUSSAIN, J.

Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 order dated 4-3-2006 passed by respondent No.1, is sought to be assailed. W.P. No.2677 of 2006 also challenges the same order passed by the same respondent. The petitions have thus been heard together and will stand disposed of through this judgment. The learned counsel for the parties have been heard. Though the matter has a long drawn background of litigation yet for the purpose of adjudication of the issue arising in this petition the same may not be necessary to be repeated. Suffice it to observe that Muhammad Ijaz respondent No.3, had made an application before the Chief Minister Punjab and the District Coordination Officer, Kasur which resulted in the initiation of proceedings (termed as review of mutations) and eventually the District Officer (Revenue) Kasur proceeded to pass order dated 4-3-2006. Operative part whereof reads as follows:-- "I have gone through the record and material placed on the file. There is nothing contrary to the facts submitted by the Revenue Officer. The allotment under reference does not have any basis from RL-II which was prima facie obtained illegally and fraudulently. There are a number of citations of the Superior Courts that an illegal act is always illegal and to take action against the delinquent persons for illegal act, notice is not necessary. Hence in the light of the report of Revenue Officer duly forwarded by DDO(Rev.) Pattoki, the Mutations bearing No..470 and 477 dated 26-6-1972 of Mauza Thathi Otar and Mutation No.1764 dated 26-6-1972 of Mauza Jamber Kalan which were obtained sanctioned through bogus and fake order are recalled and review of the mutations is allowed in favour of Provincial Government. File be consigned to record room." It is evident from the above that while passing the said order respondent No.1, purported to examine/scrutinize the allotment and thus observed that "The allotment under reference does not have any basis from RL-II which was prima facie obtained illegally and fraudulently". The District Officer (Revenue) Kasur who passed that order is not a Notified Officer under the Evacuee Laws i.e. Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (Act XIV of 1975) he could not have assumed the jurisdiction to determine the legality or otherwise of an allotment, as it was not his function and the mutations were merely consequential entries in the record. Great emphasis has been laid from B the respondents' side that since there was element of fraud involved the Court should not interfere in the matter. The contention however, overlooks an important aspect of the matter that respondent No.1, had got no jurisdiction whatsoever under the law to make adjudication in the matter of allotment. Since assumption of jurisdiction by him was without any backing of the contemporaneous law he acted without lawful authority. It may be observed that while exercising writ jurisdiction as per Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 the provisions of clause (2) of Article 175 of the Constitution of the Islamic Republic of Pakistan, 1973 also need to be kept in view that "No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution of the Islamic Republic of Pakistan, 1973 or by or under any law." There is no law or statutory instrument empowering him to set aside an allotment. It may be observed that an act is without lawful authority and of no legal effect when the person doing it had no authority or jurisdiction to do it. Such an act is ultra vires and without jurisdiction. A case of inherent incompetency, total lack or want of jurisdiction cannot be overlooked which is liable to be declared as without lawful authority. In Shabbir Ahmad v. Mst. Kabir-un-Nisa and others PLD 1975 SC 58, it was observed that "an assumption of jurisdiction upon a clear misreading of the provisions of the law is an error apparent on the face of the record and such an error does furnish a ground for interference in writ jurisdiction". In Sindh Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and another PLD 1975 SC 450 also noting the "defects of jurisdiction as apparent on the face of record." It was observed that " I have not the slightest doubt that if respondent No.2 proceeds to hear the complaint of respondent No.1, the proceedings will be wholly without jurisdiction and therefore a nullity". In the instant case I have no doubt whatsoever that respondent No.1 had no jurisdiction whatsoever in the matter who proceeded to assume the power not vested in him under the law and eventually passed an order which is wholly without any lawful authority and of no legal effect. The same is liable to be struck down. The petition is accordingly accepted. Since respondent No.1 has chosen to pass the impugned order despite the order passed in W.P. No.16285 of 2004, he should bear the costs of the petition. S.A.K./J-16/L????????????????????????????????????????????????????????????????????????????????????? Petition accepted.