There was an allotment of land measuring 1894 Kanals and 13 Marlas at Khata RL-II No, 1007 Mauza Bikki Tehsil and District Sheikhupura in the name of Mst. Zainab Bibi made in the year 1961. On her death, a mutation of inheritance was sanctioned on 6.9.1961 in the name of Israr Ahmed Khan, Saifullah and Muhammad Zaman Khan as her legal representatives. They sold some land in favour of one Nabi Bukhsh through a registered sale-deed dated 25.6.1962 which was followed by a mutation sanction on 30.11.1962 in favour of the vendee. 349(K)-13(M) of land was purchased by Muhammad Ibrahim and his two brothers (petitioners) from the said Nabi Bukhsh through registered sale-deed dated 21.1.1964 and Mutation No, 909 was sanctioned in their favour on 22.3.1964. The allotment of Mst. Zainab became subject-matter of scrutiny on- a complaint by Abdul Hague. As a sequel whereof the Deputy Settlement Commissioner, West Pakistan, Lahore exercising powers of Chief Settlement Commissioner vide order dated 1.1.1965 cancelled her allotment. Israr Ahmed Khan assailed the order of the Deputy Settlement Commissioner through W.P. No, 267-R/65 which was dismissed by a learned Division Bench of this Court on 16.4.1965 whereagainst petition for leave (CPLA No, 227/65) was also dismissed on 1.7.1965 by the Hon'ble Supreme Court of Pakistan. Muhammad Ibrahim etc vendees thereafter filed W.P. No, 1018-R/69 which was disposed of on 25.6.1973 by remitting the matter to the Deputy Settlement Commissioner for decision afresh after hearing the parties. The matter was pending when the evacuee laws were repealed in 1975. It was eventually taken up by the Assistant Commissioner, Sadar Sub-Division/Notified Officer, Sheikhupura on 18.5.1995 who restored the allotment at Khata No, 1007 in favour of Mst. Zainab Bibi. Against the said order, an appeal was filed by Abdul Hague and Mst. Sardaran which was accepted by the Additional Commissioner (Revenue) Lahore Division, Lahore on 28.12.1995. The present writ petition was filed to assail the same inter alia on the ground that since the order passed by the Notified Officer on 18.5.1995 was not appealable, order dated 28.12.1995 was result of illegal assumption of jurisdiction and was without lawful authority.
The petition initially was heard by Ghulam Mehmood- Qureshi, J. (as he then was) who accepted the same exparte on 17.1.2000 which order was, however, set aside later on with the consensus of the learned counsel for the parties and the petition was then accepted vide judgment dated 3.5.2002 declaring order dated 28.12.1995 as unlawful and of no legal effect. C.P. No, 2122-L/02 and C.P. No, 395-L/03 were filed by Abdul Hague etc. and M/s Olympia Textile Mills (Pvt.) Limited etc. respectively which came up before their lordships of the Hon'ble Supreme Court of Pakistan on 25.1.2005 and were disposed of as follows: This order will dispose of Civil Petition No, 495-L/2003 and 2122L/2002 having commonality of facts and law, stemming out of the same judgment delivered by a learned Judge of the Lahore High Court dated 3rd of May, 2002 granting the captioned Writ Petition No, 64-R/1996.
2. Since admittedly the petitioners in the former petition despite being potentially affected party were neither arrayed nor heard by the Lahore High Court in the writ petition referred to supra, out of which the impugned judgment dated 3.5.2002 has precipitated, therefore, with the consent of the parties converting the petitions into appeal are allowed, setting aside the impugned judgment both the cases are remitted to the learned High Court where the writ petition mentioned above would be deemed to be pending for adjudication thereof afresh after hearing all the concerned parties. On the circumstances there shall be no order as to costs." The petition has, thus, come up for hearing again. During the pendency of the petition some more parties in addition to those who were party in the writ petition initially and those who assailed the judgment of this Court before the Hon'ble Supreme Court of Pakistan also applied to be impleaded who have with the consent of all been impleaded and arrayed as respondents.
2. All the parties are represented through their learned counsel who have been heard in the matter.
3. The learned counsel for the petitioners reiterates his contention as to the illegal assumption of jurisdiction by Respondent No, 13 on an appeal filed before him which was not competent. It is contended that the order being entirely without jurisdiction, the same is liable to be declared as of no legal effect.
4. The, learned counsel for the respondents have mainly devoted their attention to attack the order passed by the Notified Officer on 18.5.1995 and contend that he had acted contrary to the earlier orders passed up to the Hon'ble Supreme Court of Pakistan which operate as res-judicata. It is contended and urged vehemently that since the predecessor-in-interest of the petitioners had committed fraud in obtaining the allotment and concealing the material facts from the Court, they should be denied relief by dismissing the writ petition and that being vendees from the allottee (whose allotment had been cancelled) they had no right in the land nor could maintain a petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 which jurisdiction is discretionary in nature and cannot be invoked by a person whose object is to retain ill gotten gains.
Reference has been made to Nawab Syed Raunaq All etc. v. Chief Settlement Commissioner and others (PLD 1973 SC 236), Manzoor Hussain v. Fazal Hussain and others (1984 SCM R 1027), Gul Muhammad and others v. The Additional Settlement Commissioner and others (1985 SCM R 491), Zameer Ahmad and another v. Bashir Ahmad and others (1988 SCM R 516), Syed Ali Shah v. Abdul Saghir Khan Sherwani and others (PLD 1990 SC 504), Muhammad Baran and others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others (PLD 1991 SC 691), Province of the Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari (PLD 1997 SC 351), Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others (PLD 2001 SC 415), Mst. Aziz Bibi and 22 others v. Additional Commissioner (Revenue) Lahore and another (PLJ 2002 Lah. 612), Talib Hussain and others v. Member Board of Revenue and others (2003 SCM R 549), Mst. Bilqees Begum and others v.
Additional Commissioner (Revenue), Lahore and others (PLD 2003 SC 899), Muhammad Sharif through Legal Heirs and 4 others v. Sultan Hamayun and others (2003 SCM R 1221), (Major (Retd.)
Barkat Ali and others v. Qaim Din and others (K.L.R. 2005 S.C. 33), Chairman Pakistan Agricultural Research Council (PARC), Islamabad and another v. Dr. Abdul Rashid, Scientific Officer, Oilseed Research Programme, PARC, Islamabad (PLJ 2005 SC 709) and M/s M.KB Industries (Pvt.) Ltd. etc. v.
Chairman, Area Electricity Board, WAPDA, (Peshaivar Electric Supply Corporation Ltd. (PESCO), Peshawar and others (2005 SCJ 919).
5. From the factual background it is discernable that the allotment of Mst. Zainab Bibi was ordered to the cancelled by Deputy Settlement Commissioner on 1.1.1965 and the writ petition filed by Israr Ahmed Khan was dismissed on 16.4.1965 and even petition for leave was also dismissed on 1.7.1965 by the Hon'ble Supreme Court of Pakistan. Muhammad Ibrahim and his two brothers who had before the cancellation of allotment of Mst. Zainab Bibi purchased the land in dispute i,e, 349(K)-13(M) when learnt of the same, filed W.P. No, 1018-R/69 which as mentioned above was disposed of on 25.6.1973 remanding the matter to the Deputy Settlement Commissioner. The said judgment became final qua the parties, not having been assailed further in terms of Pir Bakhsh represented by his legal heirs and others v. The Chairman, Allotment Committee and others (PLD 1987 SC 145). An application under Section 12(2) of Code of Civil Procedure, 1908 (C.M. 109/2000) made in the said petition qua the same has been dismissed vide the separate order of even date.
On repeal of the laws by means of Evacuee. Property and Displaced Persons Law (Repeal) Act, 1975 (Act XIV of 1975), the Notified Officers took over the functions of the defunct Settlement Authorities and various notifications were issued from time to time notifying officers to perform such functions as Notified Officer. All the Assistant Commissioners in the Punjab except the district of Lahore were notified as Notified Officers to exercise the powers of Deputy Settlement Commissioners. Order ,dated 18.5.1995 was, thus, passed by the Assistant Commissioner Sheikhupura exercising the powers as Notified Officer pursuant to notification dated 3.11.1991. The said order was not appealable under any law and wholly an incompetent appeal was filed by Abdul Haque etc. before the Additional Commissioner (Revenue) Lahore who assumed jurisdiction in the matter without any lawful authority and acted without jurisdiction whatsoever in passing the impugned order. He was non-entity under the law i,e, Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (Act XIV of 1975). The legal position is fairly settled and there is no obscurity that remedy of appeal can only be availed if so provided by law. It does not inhere in any party. Such a remedy (of appeal) is creation of the Statute and unless it is so provided by law it can neither be availed nor assumed inferentially. Reference in this context may be made to a Full Bench judgment of this Court in Irshad Imran Sulehri v. Election Tribunal etc. (PLJ 1998 Lahore 779 (FB)wherein it was observed that "right to appeal must be expressly conferred and cannot be implied. That being so, the appeal of Respondent No, 3 was clearly incompetent and Tribunal could not have assumed the jurisdiction of such an appeal." Similar position had been stated in Muzaffar Ali v. Muhammad Shafi (PLD 1981 SC 94) wherein it was observed that "a right of appeal from any decision of any Tribunal must be given by express enactment." Even if the learned Additional Commissioner (Revenue) had felt some taint of illegality in the order, he should have in view of lack of jurisdiction left the party to avail the legal remedy elsewhere as per law. The whole emphasis of the learned counsel for the respondents is that since there had been an element of fraud, this Court should not interfere in the matter. Their precise contention is that neither while passing order dated 25.6.1973 this Court could have then remanded the matter to the Deputy Settlement Commissioner at the instance of the petitioners/vendees nor should the Court now interfere. Their contention, however, overlooks an essential aspect that what has been assailed before this Court through the present petition is order dated 28.12.1995 passed by the Additional Commissioner (Revenue) who purported to act as an appellate forum on an appeal which was not at all competent or maintainable. Since assumption of jurisdiction by him was provenly being without the backing of any contemporaneous law, the order passed by him was wholly without jurisdiction and without lawful authority. Indeed such an assumption of jurisdiction and order passed as a consequence thereof fell within the ambit of Clause (ii)(a)(1) of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 which reads as follows: "199. (1) Subject to the Constitution, a High Court many, if it is satisfied that no other adequate remedy is provided by law,-(a) on the application of any aggrieved party, make an order-- Declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or"
(i) While exercising writ jurisdiction as envisaged by Article 199 of the Constitution of the Islamic Republic_ of Pakistan, 1973, the provisions of Clause (2) of Article 175 of the Constitution 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 or by or under any law." Thus, jurisdiction exercisable by any Court is only to the extent that may be conferred by the Constitution or by or under any law. Even the jurisdiction of this Court under Article 199 9f the Constitution is not an inherent jurisdiction' but is subject to all inhibitions and its limitations. 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 under the law under which he purported to act. Such an act is ultra-wires 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 and of. no legal effect. The order passed by the Additional Commissioner (Revenue) on 28.12.1995 falls within such category of orders. IX may be mentioned that legality or otherwise of order of Notified Officer dated 18.5.1995 is not the subject-matter of challenge in the writ petition. Since none of the respondents have assailed the same through any proper proceedings, no comments are called for about the same. I fail to understand how the respondents can in this petition seek to assail the said order and impress upon the Court to ignore or declare the same as illegal. The precedents sought to be invoked by the learned counsel for the respondents proceed on the peculiar facts of those cases. The principle that relief should not be granted by the Court when the same could result in injustice is deducible from. Nawab. Syed Raunaq All (supra) which finds mention in most of the subsequent cases. The ratio of that case is that discretionary relief should not be granted where. it would amount to perpetuation of injustice.
But it is not so in the instant case inasmuch as the petitioners are not asking for the grant of a relief which may permit them to retain ill-gotten gains rather they are asking for striking down of an order which is wholly without jurisdiction. While considering this aspect of the matter, a question had been agitating my mind as to what would have been the fate of an order passed by a Sessions Judge purporting to have acted as appellate Court qua the order of Notified Officer.
Would the Court overlook or condone such an order merely" for the reason that the jurisdiction being exercised by this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 was of discretionary nature? Refusal to exercise jurisdiction by this Court, according to my respectful view, would in such a situation, result in perpetuation of usurpation of power not warranted to law and would be contrary to the mandate of Article 175(2) and Clause (ii)(a)(1) of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. Since in the instant case the order passed by the Additional Commissioner (Revenue) dated 28.12.1995 has been found as the one without jurisdiction, the same is liable to be declared as of no legal effect.
In view, of the above, the assumption of jurisdiction by Respondent No, 13 in entertaining the appeal and passing the ultimate order dated 8.12.1995 is declared as without lawful authority and of no legal effect. The writ petition is accepted accordingly. No order as to costs.