' SH. HAKIM ALI, J.--Litigating and struggling since 1972 for the return of his agriculture lands, measuring about 160 Kanals, situated in Mauza'Mukhtiar Miani, Tehsil and District Bahawalpur, appellant is seeking this remedy of appeal from this Court, after the remand of the case from the Hon'ble Supreme. Court of Pakistan on 22-2-1999, the case which has yet not seen its final phase.
2. The background of this protracted litigation of the case commences when appellant had borrowed a loan-of Rs,20,000 from the. Co-operative Society of village Mukhtiar Miani, Tehsil and District Bahawalpur against the mortgage of his above mentioned agricultural lands. On 9-11-1966 two persons namely, Aaqil Khan son of Sanjar Khan and Paloo son of Haji had also stood sureties for Mukhtiar Ahmad, the principal borrower, by mortgaging their lands to the extent of 195 kanals 4 marlas and 174 kanals 15 marlas respectively for the aforesaid loan. Registrar of the Co-operative Societies made an award on 16-5-1966 through which he determined the liability by fixing responsibility on Malik Mukhtair Ahmed, appellant to pay the loan amount.
3. But the real dispute originated through the publication of a notice in the daily newspaper of "Rahber" dated 23-2-1972 which was issued against the appellant and to his two above noted sureties, under para. 6 of Martial Law Order 241, for the repayment of loan within seven days. On 6- 3-1972, warrant of attachment was issued under aforesaid M.L.O. 241, while attachment was made on 8-3-1972. On 7-3-1972, Assistant Registrar, Co-operative Societies issued orders to auction the, properties of the appellant as well as those of his two sureties. It is pertinent to point out here that the auction was conducted on 10-3-1972 after two days from the attachment of the above noted lands, and confirmed for Rs,55,538.11 within the next four days by the Assistant Registrar, Cooperative Societies i,e,, on 13-3-1972. Taking a prompt action, the possession of the whole of the property was also delivered by the officials of the Co-operative Societies on 19-4-1972, to the auction purchasers.
4. Aggrieved from the proceedings of attachment and the conduct of auction, the appellant filed a civil suit on 14-3-1972 but withdrew it on 8-6-1974 as delivery of possession had thereafter taken place. So, he filed a Writ Petition No,5 of 1975/BWP with 'the title of "Malik Muhammad Mukhtiar versus Province of Punjab" in this Court. The writ petition was decided by a learned Judge of this Court, on 7-4-1987. The judgment delivered by the learned Single Bench was challenged before the learned Division Bench of this Court, which through Intra-Court Appeal was held on 28-2-1993, it to be not maintainable. Not deterred from the failure, appellant 'knocked the door of the Hon'ble Supreme Court of Pakistan through Civil Appeal No,651 of 1994, which was accepted on 22-2-1999 by the august Court, and the case was remanded for re-hearing and decision on merits afresh in accordance with law to this Court. So, this Intra-Court Appeal has been heard with the assistance of learned counsel of the parties. After hearing and consulting the record, we propose to decide the fate of this case, in this Court finally in the following paras.
5. The learned counsel appearing on behalf of the appellant has raised the following points for adjudication for this Division Bench:-
(i) Para. 6 of the Co-operative Societies and Co-operative Banks (Repayment of loans) Order 1972 which name was given to Martial Law Order No,241 had provided that the Registrar or an officer authorized by him in this behalf, could recover loan by attachment or by attachment and sale of moveable and immovable property. As per learned counsel, the ordei of attachment passed on 6- 3-1972 and the order to commence the auction on 7-3-1972, by Assistant Registrar were without jurisdiction, as the Assistant Registrar was not authorized to recover the disputed loan under the aforementioned provision.
(ii) The Martial Law Order No,241, referred to above had not provided any procedure to be followed for the attachment and sale of the moveable or immovable property, therefore, the procedure was to be adopted which was supplied by Cooperative Societies and Co-operative Banks (Re-payment of. Loans) Ordinance 1966, (West Pakistan Ordinance XIV of 1966). The aforementioned Ordinance had prescribed the procedure which was available for the recovery of arrears of land revenue. The Assistant Registrar while passing an order of attachment, auction of the property, confirmation of the auction and delivery of possession on 19-4-1972 had violated the mandatory provisions of aforesaid law.
(iii) The proceedings of attachment, auction, confirmation and the delivery of possession of the lands in question, were based on mala fides of the officials of the department, especially the Assistant Registrar, Co-operative Societies who had sold out the property of the petitioner which consisted of not only the 20 acres of agricultural lands but the Oil Expellers and Flour Chakki (small grinding factory) and Tube-well also for a petty sum of Rs,4,060.
(iv) The basis of the judgment of the Hon'ble Judge in Chambers of the Single Bench with regards to section 6 of MLO 241 was not in accordance with law.
(v) The reserve- price for the agricultural lands and the immovable property was not fixed prior to its auction. The immovable property, was sold, and its price was fixed without examining its value at the site so the auction of all these properties was not in accordance with law.
6. Replying to the contentions/submissions of the learned counsel for the appellant, the learned counsel for the respondents has submitted that reference to para. 6 of Martial Law Order 241 with regard to the objection that the Assistant Registrar was not empowered to order the auction of the property, was not available to the appellant. To amplify it more, it has been argued that the Registrar was empowered to authorize to an officer for the recovery of such loan by attachment and sale of the properties and it is not correct that Assistant Registrar could not conduct such, proceedings of recovery. According to the Notification dated 14-1-1968 the Governor of the Punjab had empowered all Deputy Registrars, to exercise the power under para. 6 of the MLO, 241. So, the orders impugned were passed with jurisdiction. Learned counsel for the respondents has also referred to another Notification No,240-44/DRH/G dated 17-2-1972 to contend that Deputy Registrar had delegated the powers to Assistant Registrar to perform the functions of Registrar. The following objections have also been submitted by the learned Counsel:-
(i) This Court has got no jurisdiction to entertain, examine or to adjudicate upon any act performed under MLO, 241 as provided by para. 7 of MLO 241.
(ii) As regards the procedure prescribed for conduct of auction, it was argued that the Co- operative Societies (Repayment of Loans) Ordinance, 1966 had provided that for the recovery of loans the procedure prescribed for arrears of land revenue by Punjab Land Revenue Act, 1967 was to be adopted, therefore, the actions of the Assistant Registrar were performed within the parameters of law.
(iii) On 2-3-1972, as appellant had himself given consent for conduct of auction, so the auction cannot be disputed through this appeal.
(iv) Even if an order is illegal, it cannot be set aside and in every case a writ does not lie. He has referred to 1984 SCMR 143 (Chairman, Employees Old-Age Benefit Institution and others versus M.
Ismail Munawar), PLD 2000 Karachi 186 (Habib Bank Ltd, v. Messrs Dost Muhammad Cotton Mills) and PLD 2003 Karachi 111 (The State versus Faisal Mushtaq and another).
7. We have considered the lengthy arguments of the learned counsel appearing on behalf of the parties and have consulted the record of the case.
8. Before discussing the merits of the case it is necessary that the jurisdictional bar as has been raised and agitated by the learned counsel for the respondents be discussed and decided first.
Para. 7 of the Cooperative Societies and Co-operative Bank (Repayment of Loans) Order, 1972 is reproduced as follows for ready perusal of it:-- "Any provision of this Order or any action taken by any person or authority in pursuance of this Order, shall not be called in question by or before any Court".
9. It has now been settled through plethora of rulings that sub-Constitutional enactments cannot bar the jurisdiction of superior Courts, which has been granted to them under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (to be referred as the Constitution in this Judgment). PLD 1996 SC 632 (Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others), has clearly laid down that the barring provisions for the jurisdiction of superior Courts however, comprehensively worded, cannot affect or take away the jurisdiction of superior Courts, conferred upon them under the Constitution. In that authoritative ruling, it has clearly been held that the mala fide orders/acts or actions taken without jurisdiction fall within the definition of legal maxim of coram non judice and those can be set aside under Article 199 (3) of the Constitution. If an authority having no jurisdiction has acted or assumed the jurisdiction the order of that authority can be turned down/set aside. For this proposition, 1993 SCMR 1173 (Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid) can be referred to with benefit. In PLD 1998 Karachi 111 (Sawan and others v. Abdullah and 2 others) it was held that the orders which were passed strictly within four corners of the Statute could be immuned. It could not be claimed for those orders which were apparently passed in the exercise of powers, and had a look of statutory cloak also but were passed with mala fides in fact and on law. In such cases ouster of jurisdiction of civil Courts could not be claimed. Another citation which has been considered by us for this proposition is PLD 1984 Karachi 114 (Muhammad Afzal Khan v. Karachi Development Authority and 6 others) which has laid down that order passed even by Martial Law Authorities can be examined by the High Court to see as to whether the order impugned was passed under the relevant law in terms of relevant Martial Law Order because the immunity from scrutiny can be claimed if the order is passed within the four corners of that law.
10. In 1983 CLC 387 (Muhammad Afzal v. Registrar Co-operative Societies and 2 others) it was held that action under Martial Law Order 241 must be taken in due and proper exercise of powers otherwise no protection could be claimed. If the actions of the authority or by any person in pursuance of Martial Law Order 241 have been found, performed without due and proper exercise of powers, those can be declared void and without lawful authority. In PLD 1976 Lahore 1521 (Begum Kishwar Abid Hussain and another v. Jhang Central Cooperative Bank Ltd.,,Jhang and 2 others), it was declared that the orders passed under Martial Law Orders were subject to scrutiny by the High Court and it could be examined as to whether the orders were passed within the scope or ambit of its powers. If the authority had got no power under the Martial Law Order, that was not to be maintained and could be held illegal and without lawful authority. After the birth of the Constitution of Islamic Republic of Pakistan, 1973, the Martial Law Orders and Regulations, having sought their protection from the Constitution, had come under the umbrella of the Constitution for their survival and continuance of their life. If these orders and regulations were not saved and protected by the Constitution, those could not have been sustained with their actions taken. As their survival, life and existence is the result of protection granted by the Constitution, therefore, these Martial Law Orders and Regulations have accepted the supremacy of the Constitution and have entered into the Sub- Constitutional domain provided to enactments. Therefore, the actions taken and acts performed are to be presumed to have been done under laws, which are subordinate to the Constitution. They are as good laws as the others. So, they cannot claim any superiority above the Constitution. PLD 1996 SC 632 (Mst. Zaheer Abbasi and four others vs. President of Pakistan and others) has declared all these laws at par with the other laws of the country, enacted under the Constitution. So, para. 7 of the Co-operative Societies and Co-operative Banks (Repayment of Loans) Order 1972 cannot be used as blank cheque of powers conferring jurisdiction upon the authorities named therein and the acts performed and actions taken are subject to scanning of this Court. The jurisdiction of this Court, therefore, cannot be considered to have been taken away by such orders and regulations.
11. The next question arises as to whether Assistant Registrar had the power to proceed for recovery of such loans by attachment and sale of the property in dispute under para. 6 of the aforesaid Martial Law Order 241. Sub para. 1 of para. 6 of the Co-operative Societies and Cooperative Banks (Repayment of Loans) Order, 1972 is being reproduced which is as follows:- "(i) If any borrower does not pay a loan in the manner provided in paragraph 3 and is not prosecuted, or if prosecuted, is not convicted, the Registrar or any officer authorized by him in this behalf, may recover such loan by attachment and sale of movable and immovable property and other assets belonging to him notwithstanding any alienation made by him by way of sale, gift, exchange, will, lease or by any other mode by any Court or authority of such property and assets in favour of any person after the date of grant of loan."
'12. The words used are "the Registrar or an Officer authorized by him in this behalf" the respondents have failed to produce any order which could prove that Registrar (not an incharge or officiating) at that time had delegated or authorized the Assistant Registrar through any order to exercise the powers of para. No, 6 of the aforesaid Order. The reference to Notification No,240-44/DRH/G dated 17-2-1972 is of no avail because this was issued by Deputy Registrar of Cooperative Societies who was not an appointed Registrar as envisaged by para.6 sub-para. (1) of the aforesaid Order of 1972.
The learned counsel for the appellant has further correctly argued that a delegatee cannot delegate power further to any other party or person. Mr. S.A. Jafari, Deputy Registrar who had issued that notification dated 17-2-1972 was himself a delegatee of powers of Registrar, so he could not delegate his powers further to the Assistant Registrar. The wording of the notification are clear that he was a Deputy Registrar, Co-operative Societies and was vested with powers of Registrar. In other words he was not a full-fledged Registrar himself but was delegatee of the powers of Registrar. He was not appointed as Registrar but was having the powers of Registrar as a temporary measures. So, the aforesaid notification dated 17-2-1972 referred to above cannot extend any benefit to respondents. In PLD 1992 Lahore 277 (Shaukat Ali v. Government of Punjab though Secretary Industries and Mineral Department and 8 others) it was held that a delegatee cannot further delegate his powers without permission of delegator. In this regard another citation can be referred to as 1992 CLC 1975 (Phulan (deceased) through his legal heirs and others vs. Muhammad Sarwar and two others). The Assistant Registrar who had acted beyond his powers, his acts could not be claimed with immunity, 1983 CLC 918 (Sh. Muhammad Ashraf v. Assistant Registrar, Cooperative Societies and others) can be relied upon with benefit for this purpose.
13. Therefore; we are of the considered view that the Assistant Registrar had no power to conduct the proceedings impugned in the writ.
14. Seen from another angle, the order of attachment, the auction of the chunk of valuable lands and properties for a meagre amount and the prompt confirmation and the delivery of its possession, depict that the actions were not being taken in accordance with law prescribed for the recovery of loans. Clause (b) of sub section (1) of section 59 of the Cooperative Societies Act, 1925 has clearly provided that the execution of awards or the arrears for recovery of money have to be performed under the rules for the time being in force for the recovery of arrears of land revenue.
Para. 8 of the Co-operative Societies and Co-operative Banks (Repayment of Loans) Ordinance, 1966 has provided that the recovery of loans has to be made in accordance with the law and rules framed for the recovery of arrears of land revenue. So, we have to examine the impugned orders in accordance with the procedure prescribed for the recovery of arrears of land revenue as prescribed in the Punjab Land Revenue Act, 1967. Section 80 has provided processes for recovery of arrears and from section 92 to section 112, the procedure of sales has been provided by the Punjab Land Revenue Act, 1967. When examined and analyzed through these provisions of the Punjab Land Revenue Act, 1967, the impugned orders of attachment, auction, confirmation and delivery of possession cannot be blessed with approval from this Court as those. Are clearly issued and performed without complying with the requirements of those above noted provisions. The dates on which the actions have been taken are not in dispute between the parties in the writ petition. The procedure for publication of proclamation, the time and conduct of sale as provided by sections 94 and 95 having not been complied with, and not fixing the reserve price, the impugned orders cannot be sustained in the eye of law.
15. The conduct of proceedings has shown that there was a much haste to have the taste of the lands and properties in dispute, by the Assistant Registrar or the auction purchaser. No exceptional circumstances have been pointed out by the learned counsel for the respondents to show to take measures of special immediate nature to auction the property after attachment within two days, on 10-3-1972 and to confirm it within next four days and to deliver immediately the possession of the property to the auction purchaser, although amount was already received by the Department.
All these hurriedly taken actions speak volumes against bona fide of the Assistant Registrar, which, prima facie, display something fishy in the water and cannot be held bona fide on facts and law.
The meagre amount of sale for Rs,55,538.11 of huge property is also an evidence which reflects the mala fide of the authorities attaching, auctioning, approving and delivering the possession of it to the auction purchaser.
16. So, the judgment dated 4-4-1987 in Writ Petition No,5 of 1975/BWP passed by learned Single Judge in Chambers is set aside. The auction dated 10-3-1972 and consequently its confirmation on 13-3-1972 of the disputed lands by Assistant Registrar, Co-operative Societies, are declared illegal and unlawful.
17. But the declaration of the aforesaid orders to be illegal and without lawful authority do not put an end to the dispute. It is an admitted fact that the appellant was held liable to pay the loan amount but this finding having attained finality, the appellant is bound to pay it. An amount of Rs,51,029.25 was deposited by the appellant in compliance with the order of Hon'ble Supreme Court, vide reference in order dated 11th April, 1990 passed by Hon'ble Supreme Court in C.P.S.L.A. No, 675 of 1987 titled as "Malik Muhammad Mukhtiar v. Secretary to Government and another". That amount with all its profits shall be paid to the purchaser as the Punjab Provincial Co-operative Bank has already been compensated and was paid its loan amount through the sale of mortgaged property of the appellant.
18. With these declarations, observations and directions, the I.C.A having borne the fruits is disposed of accordingly.