The petitioner , in this Constitutional petition, has impugned the proceedings before respondent No.1 on the application of respondent No.2 and in the alternative claims a directive that the respondent No.1 shall in the first instance decide the question of jurisdiction before embarking upon any factual investigation or dealing with the matter in the application on its merits.
2. Precisely the facts, as pleaded, are that the predecessor-in-interest of petitioner and respondent Nos.3 to 11, namely, Roheela statedly passed away in India. He had two sons Ghulam Ahmad and Subhan-ud-Din. Ghulam Ahmad too perished in India. When Partition took place Subhan-ud-Din migrated to Pakistan with his nephew Jan Muhammad son of late Ghulam Ahmad and alleged predecessor of the petitioners. Subhan-ud-Din was statedly allotted evacuee land against Claim in Okara and Surplus in Chak Mehman Fatweera, Tehsil and District Bahawalnagar while Jan Muhammad was allotted land at Mian Channu. Subhan-ud-Din died issueless and his estate was inherited by Jan Muhammad as nephew vide mutation No.9 dated 13.12.1959. This mutation was subsequently cancelled on 30.12.1960 on the ground that widow of Subhan-ud-Din , namely , Mst. Fatima was also entitled to get 1/4 share of inheritance. The allotted land in District Okara subsequently devolved through inheritance in favour of the widow Mst. Fatima while land in Tehsil Bahawalnagar was given in inheritance to Jan Muhammad; and in result direct entries in the register of rights were incorporated to reflect their ownership.
3. The grievance voiced is that on 27.10.2017 respondent No.2 filed an application before respondent No. 1, alleging that he and respondent Nos. 12 to 18, were also legal heirs of Subhan-ud-Din and that entry in the register of rights regarding land measuring 176 kanals 11 marlas under RL-II No. 39 in village Mehman Fatweera, Tehsil and District Bahawalnagar in favour of petitioner and respondent Nos. 3 to 11, showing them as the exclusive legal heirs of Subhan-ud-Din, was illegal and based on fraud and that his application was dismissed by ADC and Addl.
Commissioner . In response to the application dated 27.10.17 the petitioner statedly appeared before respondent No.2, and submitted application dated 14.2.2019 for the return/rejection of the application moved by respondent No.2 on the premise that evacuee property laws stood repealed and that at the time of repeal there was no pending application or issue before respondent No.1 and, therefore, he was not allegedly competent to receive, entertain or decide any such application after the repeal; as in law being notified officer, he could only deal with the pending matters or the matters which were to be transferred by the superior courts in the pending litigation. It is asserted that the application was fixed for arguments, on the application partial arguments were heard by respondent No.1, who instead of deciding the preliminary objection related to jurisdiction, proceeded to adjourn the case to 29.8.2019 directing Patwari Halqa to appear with the Jamabandi for the year 1993-94.
4. Petitioner in this petition, therefore, has challenged the proceedings before the respondent No.1 and in the alternate claims that respondent No.1 shall be directed to decide the application raising objection to his jurisdiction in the first instance, before embarking upon the merits of case or making any factual inquiry .
5. Learned counsel for the petitioner has been heard. Learned AAG, present in court has entered appearance and in principle does not oppose the proposition of law that where the jurisdiction of the forum is challenged, the forum concerned shall in the first instance decide the question of jurisdiction and, if the objection is overruled, could then proceed with the matter on merits.
6. On due consideration of the points raised and also the record annexed with the writ petition, it appears that the precise objection of petitioner pertains to the assumption of jurisdiction without finally disposing of his preliminary objections regarding non-existence of jurisdiction with respondent No. 1 in respect of the application moved by respondent No.2. Undeniably, Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (Act XIV 1975) was enforced with effect from 28.1.1975. Under section 2 of the Act ibid number of Acts and Regulations was repealed including the Displaced Persons (Land Settlement) Act, 1958 (XLVII of 1958) and the repeal was given effect from 01.7.1974. Sub-section (2) of section 2 envisages that on repeal of the Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified . Similarly , sub-section
(3) of Section 2 envisages that any proceedings transferred or remanded to an officer in pursuance of sub section
(2) shall be disposed of by him in accordance with the provisions of the Act or Regulation hereby repealed to which the proceedings relate . The provisions of section 2 of the Act supra have been subject-matter of interpr etation in various pronouncements of the honourable Supreme Court. In "Mst. Badshah Begum and others v. The Additional Commissioner (R) Lahore Division and others" (2003 SCMR 629 ) the august Court ruled as follows: "10. There can be no exception to the legal position that jurisdiction of Notified Officer under Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975) would confine only to the extent of pending cases of the categories mentioned in section 2(2) of the Act of 1975. The first category of cases was which were pending before Settlement Authorities and second of the cases which were pending before the Courts at the time of Repeal of the evacuee laws in which the orders of the Settlement Authorities were under challenge, set aside or recalled under the provisions of the relevant statue would not by virtue of an order passed by any Court or authority after repeal, be covered by the provisions of section 2(2) of the Ordinance, 1974 (Act XIV of 1975), and therefore, the Notified Officer appointed under the repealing Ordinance, 1974 (Act XIV of 1975) would not be competent to re-open the matter finalized under the relevant statute before the repeal of evacuee laws" ... "There can be no deviation from the legal position that a case which was not pending before any forum in terms of subsection (2) of section 2 of the repealed Ordinance, 1974 (Act of 1975) would not be treated as such under the orders of any authority or Court arising in consequence to proceedings initiated subsequent to repeal of evacuee laws and thus despite of remand of the case to the Notified Officer by the High Court, the limit of his powers under the law will not be extended to the cases which had attained finality under the statute. It is settled law that if any authority had no jurisdiction in the matter under the law, the jurisdiction could not be conferred on the said authority by an order of the Court".
7. It is discernible that in view of the above noted legal position, the petitioner raised an objection through his application before respondent No.1 that the respondent No. 1 had no jurisdiction in the matter; the application was filed on 27.10.2017 i.e. much after the repeal of evacuee laws, there being no pending issue/matter at the time of repeal before the Settlement Authorities or any forum acting in the Settlement hierarchy and being a Notified Officer, the respondent No.1 could not allegedly entertain or proceed with the application which was prayed to be returned or rejected for determination of the issue raised by the court of plenary jurisdiction i.e. the civil court. It is evident from the document annexed herewith including the order-sheet that respondent No.1 did entertain the application raising objection to the jurisdiction, directed the respondents to file reply thereto, fixed the matter for arguments; partly heard the submissions on application of the petitioner but thereafter instead of dealing with or disposing of the preliminary objection pertaining jurisdiction proceeded to adjour n the case to 29.8.2019 for the appearance of Patwari Halqa with Jamabandi from the year 1993-1994. The limited objection in this regard of the petitioner is that this act of respondent No.1 was tantamount to embarking upon the matter on merits by incorrectly assuming jurisdiction and that this conduct is likely to prejudice the decision on the application or other matters under consideration before respondent No.1.
8. It is a settled rule that where an objection to the jurisdiction of the forum/authority or a court is raised, the forum/authority or court is under a legal obligation to decide the question of jurisdiction before embarking upon merits of the issue. It is also a rule that the jurisdiction cannot be assumed by the consent of the parties and it is mandatory for the court to first decide the question of its own jurisdiction. In "Izhar Alam Farooqi, Advocate v.
Sheikh Abdul Sattar Lasi and others" (2008 SCMR 240 ) it was ruled by the honourable Supreme Court as below: "6. It is true that a Court which has the jurisdiction to adjudicate the dispute and pass an order has also implicit power to have the order implemented and merely an erroneous order passed by the Court of competent jurisdiction does not render the order without jurisdiction. This is an established law that jurisdiction cannot be assumed with the consent of the parties and notwithstanding the raising of such an objection of the parties, the forum taking cognizance of the matter must at the first instance decide the question of its jurisdiction.
There can be no exception to the principle that an order passed or an act done by a court or a tribunal not competent to entertain the proceedings is without jurisdiction and that it is mandatory for the court or tribunal as the case may be to attend the question of jurisdiction at the commencement of the proceedings because the jurisdictional defect is not removed by mere conclusion of trial or inquiry and objection to the jurisdiction can be raised at any subsequent stage. This court in Rashid Ahmad v . State PLD 1972 SC 271 held as under: - "If a mandatory condition for the exercise of a jurisdiction before a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any orders passed in continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction". "
9. In the case of "D.G.Customs Valuation, Karachi and another v. Messrs Trade International Lahore and others"
(2014 SCMR 15) while dealing with the objection relating to the jurisdiction of the Islamabad High Court it was observed by the honourable Supreme Court to the effect that perusal of the impugned order revealed that the question of jurisdiction had not been attended to but the writ petition filed by the respondent was finally disposed of by extending interim relief; the impugned order was set aside and the case was remanded to first decide the question of jurisdiction.
10. It is manifest from the available record that in the present case too, notwithstan ding the objection to jurisdiction and despite hearing of partial arguments on the application raising preliminary objections, respondent No. 1, the Settlement Commissioner , did not firstly decide the objection. Instead he proceeded to requisition the record which of course could have been requisitioned if jurisdictional objection was overruled and thereafter , he had opted to proceed on the factual side. Keeping in view the settled rule that after the repeal of Settlement Laws, Notified Officer could not entertain any fresh petition or a claim or decide the same if it was not pending at the time of repeal before any of the fora in the hierarchy of Settlement jurisdiction. The Settlement Commissioner , respondent No. 1, should have firstly dealt with the objection, decided the question of his jurisdiction and if the objection did not find favour with him, then he could proceed with the matter in accordance with law .
11. Instead of keeping this petition pending or dealing with the question of jurisdiction in the present proceedings it will be appropriate that this Constitutional petition be disposed of with the observation that the respondent settlement commissioner shall in the first instance determine the question of his own jurisdiction, decide the objection raised by the petitioner in his application and if after hearing both sides and considering the relevant law and also the facts of the case before him, the objection does not find favour , he may proceed with the matter on its own merits and in accordance with law .
12. It may, however , be clarified that the observations supra shall not prejudice the decision of respondent No. 1 and that the objection of jurisdiction shall be determined by the said respondent strictly in accordance with law and on its own merits without being influenced or prejudiced by any observations made hereinabove. Petition is disposed of accordingly.