' SALAHUDDIN PANHWAR, J.---Through the instant petition, the petitioners have invoked writ jurisdiction and have prayed as under:-- "It is prayed that this honourable court may be pleased to set aside the order of Executive District Officer (Revenue) Tando Allahyar dated 24-12-2010, grant of Muhammad Ibrahim the father of the respondents may be cancelled and land may be reserved for the Asaish purpose of the village of Haji Ibrahim Mir Jat Baloach. Same may be used for villagers for cattle, wathan, otaque, mosque, madrasah, playground for students and other relief amenities of the villagers."
2. Succinctly, relevant facts, as pleaded by the petitioners, are that their village is established over an area of 2-32 acres of S.No.613/1, Deh Seharki, Taluka Jhando Mari, District Tando Allahyar; such land comes within the 20 chains of the village. The respondent No.6 obtained the same from the Barrage authority, through fraud and misrepresentation vide order dated 6-11-1961; petitioners filed miscellaneous application before the District Officer (Revenue) for cancellation thereof; during proceeding; they filed transfer application before the Senior Member Board of Revenue on the ground of partiality, while during pendency of such transfer application the respondent No.1, Executive District Officer (Revenue), in additional charge of respondent 2 (District Officer Revenue), delivered impugned order in favour of the respondent. It was also claim of the petitioners that the grantee Muhammad Ibrahim was not resident of same Deh or Taluka hence grant was against the land grant policy.
3. It is further revealed that during pendency of instant petition the site inspection was ordered. The site inspection report reflects that "after taking measurement /demarcation of the site in question, it is quite clear and found that there are katcha houses of the petitioners Nos.1 to 4 and other people of Mirjat community namely, Noor Muhammad son of Ismile Mirjat, Haji Ali Muhammad son of Haji Ibrahim Mirjat, Muhammad Essa and Muhammad Sajid. On query petitioner No.3 informed that they are residing there since long but the Mukhtiarkar has disclosed that he visited this area in 2010 and at that time this survey number was lying vacant and uncultivated and the houses of petitioners were housed in survey No.614 which is adjacent to survey number, in question.
4. Learned counsel for petitioners while reiterating the contents of the petition, inter alia, contended that impugned order is coram non judice; transfer application was pending hence respondent No.1 was not competent to pass such order; instant matter relates to public importance thus this court can cancel the allotment. In support of contention he has relied upon the case-law: Mst Ghulam Sakina v. Member (J) Board of Revenue Hyderabad and 4 others (PLD 2004 Kar.391), Bashir Ahmed and others v. M(colonies) B R and others (2008 SCM R 1208), Imam Baksh v. The Collector and others (1982 SCM R 149), Barkat Ali and others v. Bashir Ahmed and others (PLD 1980 SC 189).
5. Conversely, learned counsel for the respondent No. 6, while refuting the submissions raised by his rival, stoutly argued that this court has no jurisdiction to entertain this petition; matter pertains to revenue hierarchy; allotment in favour of respondent No. 6 was made in the year of 1961; application, moved by petitioners, was rightly dismissed by the respondent No.2, being hopelessly time barred.
6. On the other hand, learned A.A.-G., stressed that impugned order is in accordance with law, respondent No.1 was having powers, as vested under subsection (4) of section 64 of the Land Revenue Act. Petitioners failed to file appeal within time, and miscellaneous application filed by them cannot be counted as an appeal. He has relied upon case of Muhammad Yousif Khan Bugti and others v. Province of Sindh through Senior Member Board of Revenue and 5 others reported in 2013 CLC 1155.
7. Before, dilating upon the merits of the case, it would be significant to answer the objection with regard to the jurisdiction of this court that as to whether this court can examine the order passed by revenue authority. On this point the learned counsel for the respondents has emphasized that this court has no jurisdiction to examine the impugned order as same is in accordance with law and a legal course of appeal was provided which has not been availed by the petitioners. In contra, petitioners counsel has stressed that since order in question is coram non judice, therefore he has rightly invoked jurisdiction of this court.
' To properly attend this issue, it would be advantageous to reproduce the provision of sub-clauses a (i) and a (ii) of the Article 199 of the Constitution which reads as follows:-- "(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do, or
(ii) declaring that any act done or proceedings taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federal, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; "
The plain reading of the above makes it clear that object and purpose of the writ of prohibition and writ of certiorari is nothing but that the Constitution itself has vested the High Court (s) with the jurisdiction to declare the legal status of act done or proceedings taken by such person therefore, subject to limitation(s), explained by the Constitution itself, the act done or proceedings taken by such a person can well be examined by a High Court within meaning of the Article 199 of the Constitution.
' Here it is important to add that the writ of prohibition is an order directing an inferior tribunal or authority to refrain from continuing with a proceeding therein, on the ground that the proceeding is without or is in excess of jurisdiction or contrary to the laws of the land, and proceedings may be without jurisdiction if they contravene some enactment or some principle of common law hence the writ of prohibition lies on said ground during pending proceedings while the writ of certiorari comes into play when tribunal or authority has passed or done the act. Certiorari and Prohibition are based on the same principle but while the former can issue before the act is done, the latter is used to vacate the act after it is done.
' Worth to add here that the purpose of writ of prohibition and that of writ of certiorari appears to be nothing but that of making it clear that the High Court (s) have got the supervisory jurisdiction in respect of the acts done or proceedings taken by an authority or inferior Court (s), performing or acting within jurisdiction of such High Court. The legislature has never intended to allow an act of an authority or that of an inferior Court to go unchecked; however, the supervisory jurisdiction of the High Court(s) is also not to be substituted from that of a legal remedy of appeal etc which the law itself has provided.
' Where it is prima facie found that there is violation of statutory rules by an authority or patent deviation from the prescribed procedure or that the authority acted beyond its jurisdiction then such action (s) can well be brought before the High Court(s) for examination because mere availability of alternate remedy would not absolutely bar High Court from entertaining such petition. Reference, if any can be made to the case of Independent Music Group, SMC (Pvt.), v.
Federation of Pakistan, reported in PLD 2011 Karachi 2494.
8. At this juncture, It would be conducive to reproduce the operative part of the judgment of honourable Supreme Court passed in the case of Corruption in Hajj Arrangements in 2010, reported as PLD 2011 SC 963; which reads 8 under:- "29. The jurisdiction of this court is always exercised judiciously and with judicial restraint. All those cases which are quoted hereinabove clearly indicate that in the matter of exercise of power of judicial review in Pakistan we have not travelled so far as in the position in the neighboring country. By now, the parameters of the court's power of judicial review of administrative or executive action or decision and the grounds which the court can interfere with the same are well settled. Indisputably, if the action or decision is perverse or is such that no reasonable body of person , properly informed, could come to or has been arrived at by the authority misdirecting itself by adopting a wrong approach or has been influenced by irrelevant or extraneous matters the court would be justified in interfering with the same . [Commissioner of Income Tax v.
Mahindra, (AIR 1984 SC 1182)]. The exercise of constitutional powers by the High Court and Supreme Court is categorized as power of judicial review. Every executive or administrative action of the state or other statutory or public bodies is open to judicial scrutiny and the High Court or the Supreme Court can, in exercise of the power of judicial review under the Constitution, quash the executive action or decision which is contrary to law or is violative of Fundamental Rights guaranteed by the Constitution. With the expanding horizon of Articles dealing with Fundamental Rights, every executive action of the Government or other public bodies, if arbitrary, unreasonable or contrary to law, is now amenable to the writ jurisdiction of the Superior Courts and can be validly scrutinized on the touchstone of the Constitutional mandate '
' The above principle, so held by the honourable Supreme Court of Pakistan, has made it quite clear that even every executive or administrative action of the State or other statutory or public bodies is open to scrutiny for the honourable Supreme Court and High Court, within meaning of judicial review. The above principle has further cleared that if in result of judicial review the executive action or decision is found to be contrary to law or is violative of Fundamental rights the same can be quashed under such jurisdiction because it is the honourable Supreme Court and High Court, which are the ultimate guardian of the fundamental tights and supervisory authority of exercise of jurisdiction, power and authority by the executive.
' Since to have a fair trial is now guaranteed and protected within meaning of the Article 10-A of the Constitution. The purpose of writ of prohibition and that of writ of certiorari is nothing but in other words the legislature has intended to ensure 'fair trial' for every single individual and proceedings and exercise of jurisdiction by the authorities or inferior Court (s) cannot be left to go unchecked else it would take away the very guarantee provided by the induction of Article 10-A in the Constitution. Hence, I safely conclude that objective and purpose of the writ of prohibition and Certiorari is to come for aid, within meaning of Article 199 of the Constitution, in matter (s) where violation of law and mandatory procedure or violation of fundamental rights are visible and patent without any factual inquiry else the objective whereof would lose its substance.
9. Having attended to above question of maintainability of petition, we have scanned the material on record, it is surfaced that petitioners filed application before respondent 2 (District Officer Revenue) by challenging the original grant order, made in favour of respondent No.6 and during pendency whereof the petitioners approached Senior Member Board of Revenue for transfer of such pending application on the count of having lost faith. Further, perusal of record reflects that letter No.118 of 2010 dated 23-9-2010 issued to Mukhtiarkar (Revenue) Tando Allahyar, by DO Revenue is evident that appeal was pending before respondent 2(District Officer Revenue). Thus it becomes manifest that matter was pending adjudication before the respondent No.2 (the District Officer Revenue) and not before the respondent No.1 (Executive District Officer Revenue). It is further surfaced from the record that per Notification dated 18th October 2010 the respondent No.2 (District Officer Revenue) was assigned additional charge of the office of Executive District Officer Revenue i.e. Respondent No.
1. Hence, by virtue of such notification the respondent No.1 (District Officer Revenue) was acting in dual capacity yet his act (s) were, at all material times, were required to let concerned know as to what act was done in what capacity because such act (s) not only bring consequences but also create certain rights and obligations. If things are not specified then concerned will remain wondering for the forum or way to follow or question the consequences whereof. However, mere holding of the office of the Executive District Officer (Revenue) by the District Officer (Revenue), in no way, can change the legal position that Executive District Officer Revenue is the appellate authority to that of District Officer Revenue but the perusal of the impugned order reflects that same has been passed in capacity of Executive District Officer (Revenue) though matter was never pending adjudication before the Executive District Officer (Revenue) but was pending before the District Officer (Revenue) hence is nothing but coram non judice hence of no legal consequences.
One can competently hold two offices, if law so permits, yet the authority cannot use such dual capacity to frustrate the law or to take away the right of aggrieved party to approach higher forum (s), which, otherwise, is a legally created course.
10. Regarding the later part of prayer clause for reserving land for village purpose it would suffice to say that dispute with regard to the grant of land, between parties cannot be resolved in writ jurisdiction as same requires evidence, thus parties are at liberty to agitate their pleas before proper forum .
11. As discussed above, impugned order is without jurisdiction, consequently same is hereby set aside; application filed by petitioner's will be deemed pending for decision in accordance with law.
12. While parting we would also attend to the plea of the learned A.A.-G. Regarding application of section 164(4) of the West Pakistan Land Revenue Act and can safely say that it is also of no help because the provision, no doubt, speaks about sou motu jurisdiction of authority yet this would not absolve the authority from legal obligation and duty that every exercise of such jurisdiction has to be undertaken in the manner as required by the law itself which would require the authority to taking jurisdiction strictly within meaning of the prescribed procedure it) putting parties on notice about taking sou motu notice/action and an opportunity of hearing. In the instant matter no such thing has been done but it appears that since the petitioners had filed an application before the Board of Revenue seeking transfer of the matter from the file of the District Officer Revenue (respondent No.2) therefore, the respondent No.2 might have resorted to pass the order within capacity of respondent No.1 to avoid question of legality of order during pendency of transfer application, which cannot be approved.