' The petitioner seeks the quashment of the orders dated the 1st of May, 1967 and 19th of June, 1983, passed under tne Land Reforms Act by Land Commissioner, respondent No, 5, in exercise of writ jurisdiction contained in section 44 of the Azad Jammu and Kashmir Interim Constitution Act of 1974.
2. The controversy has arisen, in consequence of enforcement of the Land Reforms Act of 1960 (hereinafter referred as the Act). The Land in dispute measuring 7 Kanals and 18 Marlas comprising survey number 738, situate in village Dhamni Tehsil Rawalakot, was in occupancy tenancy of respondents Nos. 1 to 4 and the petitioner was one of its landlords. On the enforcement of the Land Reforms, the Sub-Assistant Land Commissioner passed an order in the light of the provisions of section 25 of the Act and ordered the occupancy tenants to deposit the rent in the sum of Rs, 13.44, within one year from the date of order. The order was recorded on the 26th of July, 1961, in presence of Noor Muhammad, respondent No, 1 one of the occupancy tenants. The occupancy tenants failed to deposit the rent in compliance with the order of the Sub-Assistant Land Commissioner. On expiry of the requisite period, the Sub-Assistant Land Commissioner, on the 5th of August, 1964, directed the landlords to deposit sum of Rs, 24.06 as compensation, for payment to occupancy tenants, for extinction of occupancy rights, and reverting of property to the landlords. It is alleged that the amount was deposited within the specified period. On the 3rd of August, 1965, Gul Muhammad, respondent preferred a revision petition before the Land Commissioner against the order of Sub- Assistant Land Commissioner, dated the 5th of August, 1964. The Land Commissioner was persuaded to record ex parte order against the petitioner and set aside the impugned order by allowing the respondents to deposit the amount of rent within a period of one month from the date of the order. The order was passed on 1st of May, 1967. On knowing the reversal of the order of the Sub-Assistant Land Commissioner, dated the 5th of 'August, 1964, the petitioner moved an application before the Land Commissioner seeking discharge of ex parte order. The application was dismissed by respondent No, 5 on the 19th of June, 1983. Having no other adequate remedy, the petitioner felt advised to invoke special jurisdiction of this Court under section 44 of the Azad Jammu and Kashmir Interim Constitution Act of 1974 to seek the quashment of the order. The writ petition was lodged on the 15th of August, 1983.
3. The impugned orders were sought to be discarded on the following grounds :- (i)That the Land Commissioner fell in error to revise the order of Sub-Assistant Land Commissioner, dated the 5th of August, 1964 ;
(ii) that the impugned order was recorded without providing the petitioner an opportunity of being heard. Thus, it was .Hit by the principle of vaudi alteram partem ; and
(iii) that the petition, to set aside the ex parte order, was erroneously treated as review petition and dismissed for want of limitation.
4, It is settled rule that a Tribunal, vested with the jurisdiction to decide a particular matter, was equally competent to decide it rightly on wrongly. The fact that a decision of Tribunal is incorrect, by itself, does not justify to render the decision without jurisdiction. An act of a Tribunal was nullity when it was done without jurisdiction or performed in disregard on law so as it appeared as a mere colourable exercise of jurisdiction. An incorrect or wrong order passed by a tribunal, was not available' to discarded in exercise of Constitutional jurisdiction of this Court, unless I was found an act without jurisdiction.. The authority in support of the view is Ronak Ali's case (1). The relevant part of the observations is as below :- "It is no doubt true that there is a clear distinction between an act wholly without jurisdiction and an act done in the improper exercise of that jurisdiction. Where there is jurisdiction to decide, then it has often been said there is jurisdiction to decide either rightly or wrongly, and merely a wrong decision does not render the decision without jurisdiction. To amount to a nullity, an act must be non-existent in the eye of law ; that is to say, it must be wholly without jurisdiction or performed in such a way that the law regards it as a mere colourable exercise of jurisdiction or unlawful usurpation of jurisdiction."
5. The Land Reforms were introduced in the State to eliminate exploitation of tenants by landlords and class distinction in society. The law on the subject was framed with the object to extinguish occupancy tenancy " and to raise the level of tenants equal to the proprietors. Therefore, the scheme was drawn to confer proprietary rights on the tenants, on payment of nominal compensation to the landlords. It was equally outlined that where a tenant failed to avail the concession by paying the compensation within the stipulated period, such tenant shall lose his right, subject to payment of compensation to him by the landlord. Thus, the scheme was divided into two sets. Under the first set of the proceedings, the occupancy tenants were given the chance to pay the compensation at 20 times of the rent to the landlords. The amount of compensation was to be deposited with the authorities within. a period of one year. On failure of the tenant to compel with the order of the authorities, the law provided an opportunity for the landlords to pay compensation at the same rate to the tenants and there get affirmation of proprietary title in the land. This scheme was laid I section 25 of the Act. Subsection (2), clauses (a), (b), (c) and (d) provided a mode of payment of compensation by occupancy tenants to the landlords to acquire proprietary rights. The relevant clause to the proposition in hand, I clause (c) of subsection (2). It stipulates that a tenant shall acquire proprietor rights of the entire land comprised in his tenancy on payment of compensation to the landlord at 20 times, the annual rent including land revenues and rate and cesses,. Within one year- from the date of commencement of the Act. Subsection (4) of section 25, on the other hand, provides that if a tenant fail to pay the compensation to the landlord within the period-of one year a: prescribed in clauses (c) and (d) of subsection (2) of this section, the rights on occupancy tenants on payment of such compensation by thalandlord to the tenant, shall be extinguished and shall vest in the landlord and he shall entitled to the possession thereof, free from any encumbrance or lea created by the tenant. It is manifest from the aforesaid scheme of law that first priority is given to the tenant to acquire proprietary rights of his on payment of compensation to the landlord, within the statutory period The law, further provides a device, VS hereby machinery established under the Act, to adieve its object and the purposes, was empowered to enquire into {{FOOT NOTE}}
(I) PLD 1973 SC 43 {{FOOT NOTE}} the rights of the tenants and landlords and to settle them finally. The remedies in that behalf were provided in the shape of appeal, revision and review, exerciseable by the Land Commissioner and Deputy Land Commissioner, as the case may be. The statute also prescribed limitation for such remedies. This aspect of the case shall be examined subsequently, while discussing objection No, 2 as raised by the learned counsel for the petitioner. At this stage, only that part of the proposition is sought to be determined which deals with the scheme under which tenants and landlords were supposed to pay compensation under the direction of the authorities and to acquire title in the land. We have seen that under subsection (2). Clause (c), it was enjoined upon a tenant to acquire proprietary rights on payment of compensation to the landlord within the stipulated peria. It is shown that a tenant is given priority to acquire proprietary rights in his tenancy on payment of compensation. The Land Commissioner and subordinate staff; obviously, would ask the tenant to paythe compensation to the landlord within a period of one year, as provided under law. This period was allowed to be extended, in the light of each case so as to make it convenient for a tenant to avail the opportunity. The scheme of law, therefore, suggests that Land Commission was under duty to exhaust the first part of the scheme Orce the first priority requiring the payment of compensation by tenant, was completely exhausted, the law authorised the Commission to enter into the second stage. In this view of the proposition of law, the Land Commission was competent to order a tenant to pay rent within a period of one year. Before the expiry of such period or in rare cases, where a sufficient cause was slow, before the expiry of extended time, the Land Commission was authorised to allow the tenant to deposit, the compensation. But once a, tenant was found to have failed to deposit the compensation within the period of one year, fixed by the Land Commission, or within the extended period, such tenant and the Land Commission were not empowered to seek further extension and to grant time for payment of compensation. Order or direction of the Land Commission, passed on lapse of the statutory period or the period fixed by the Commission for payment of compensation by a tenant, was obviously without jurisdiction. Besides that, on termination of the first stage, and commencement of second stage under subsection (4) of section 25 when Land Commission called upon the landlord to pay compensation to tenant to get extinction of occupancy tenancy, thereafter the Land e Commission was not authorised to revert to the first stage. This was so, as on failure of a tenant to avail the opportunity by payment of compensation, the door of first stage was completely sealed. In that state of things, the landlord alone was left with the option of depositing the compensation for its payment to the tenant, under the provisions of subsection (4). This suggests that when the earlier stage was completely exhausted, the Land Commission had no jurisdiction to reopen the matter, particularly in presence of its order to landlord to pay the compensation.
6. The facts of the case, as enumerated in the earlier paragraph are that respondent-tenants were ordered on the 26th of July, 1961 by the 'Sub-Assistant Land Commissioner to deposit the compensation within one year. The respondent-tenants failed to avail of the opportunity. On expiry of the requisite period, the authorities entered into the premises of second phase and thereby ordered the petitioner-landlord on 5th of August, 1964, to deposit the compensation for its payment to the tenants. Applying the rule, discussed in the preceding paragraphs, to the present case, it is quite clear that on exhausting the first stage of the scheme of law, in the light on the order dated 26th of July, 1961, and failure of the respondent-tenant to deposit the compensation within time as well as their failure to seek extension of time till 5th of August, 1964, when the petitioner-landlord was directed to deposit the compensation, the respondent-tenants lost their due right to gain proprietary rights. At that stage, the Land Commission was equally divested of its jurisdiction to provide further opportunity to respondent-tenants to deposit the amount within the extended time.
Thus, act of the Land Commission to extend time in favour of the tenants for deposit of the compensation, after the 5th of August, 1964, was without jurisdiction. It is also noticed that respondent-tenants did not seek modification of the order dated 26th of July, 1961, whereby they were directed to deposit the compensation, rather they filed revision petition against the order dated the 5th of August, 1964, passed in favour of the petitioner-landlord. By seeking revision of the order dated 5th of August, 1964, the relief likely to be allowed to the respondent-tenants was modification of such order, if passed illegally, improperly or incorrectly and without jurisdiction. The Land Commissioner failed to assign any one of aforesaid attributions to the order of 5th August, 1964. Contrary to the Rule, the Land Commissioner allowed further time to the respondent-tenants.
It is important to note that no time could be extended, in absence of modification of the earlier order recorded on the 26th of July, 1961. It obviously leads to the conclusion that the Land Commissioner was misled to set aside the order dated the 5th of August, 1964 and it did so by usurpation of jurisdiction.
7. The other objection raised by the learned counsel for the petitioner is that the petitioner was not heard at the time of passing of order dated 7th of June, 1967. It is noticed that the order in question was recorded in exercise of revisional jurisdiction. Remedy or appeal, revision and review is provided under the Rules framed in exercise of powers contained in section 6 of the Act. Rule 12(1) pertains to revisions. It lays down that the Land Commissioner may, at any time of his own motion or on application made to him, in that behalf, within 30 days of the passing of any order, call for the record of any case or proceedings under the Act, which is pending or in which the Deputy Land Commissioner or Assistant Land Commissioner passed any order, for the purposes of satisfying himself about the correctness, legality or propriety of the said order and to pass such orders, as he may think fit. Sub-rule (2) of rule 12, provides that the Land Commissioner or the Deputy Land Commissioner, as the case may be, shall not pass any order affecting any person, without affording such person an opportunity of being heard. The restrictions in exercise of the revisional jurisdiction, as shown above, are :-
(I) That when such powers are exercised on an application of a party, the application must be made within 30 days of the passing of the impugned order ; and
(ii) that no order or proceedings shall be revised without affording an opportunity of hearing to the person, likely to. Be affected by the proposed order.'
In the present case, the claim of the petitioner is that the revision petition filed by the respondents was presented beyond 30 days and secondly he was not afforded an opportunity of being heard.
The first part of the objection, finds support from the order dated 7th of June, 1967. The second part of the objection is equally supported by the record as the order was recorded ex park ageists the petitioner. It may be argued that ex park order was recorded on failure of the petitioner, to appear despite due service. But such an objection cannot be sustained for the reason that on filing of the revision petition, process was issued. The process-server reported on 4th of June, 1966 that petitioner was serving in the Court of District and Sessions Judge, Mirpur. The report is appended as Annexure `E'. In presence of cl report containing the address of the petitioner, the Land Commissioner failed to effect due service on the petitioner, as ignoring the address and particular of the petitioner, mentioned in the report, the Land Commissioner ordered substituted service. This fact was supported by interim orders dated 7th on July, 1966 and 10th of October, 1966, appended as Annexure 'F'. At this stage, it may be made clear that in present case, substituted service was not justified. It is, therefore, a case of non-compliance of sub-rule (2) of rule 12. Besides that, the order is hit by the principle of audi alterm pattern.
8. It is interesting to note that the petitioner presented an application before the Land Commissioner to set aside ex parte order. It is true that the application 4'eas presented after many years but the fact remains that it was simply an application to set aside the ex parte order. The Land Commissioner, instead of dealing with the application in the desired manner, dismissed it by misconstruing it as a review petition. A reading of the application, by no stretch of imagination, justify to treat it a review petition. It appears that the Land Commissioner felt persuaded to dismiss the application and in order to justify his decision, he did so by treating the same as a review petition. May it be, that it was done so to bring the application within the mischief of limitation, applicable to review petitions. The learned counsel for the respondents was unable to point out from the Act and Rules framed thereunder, any limitation prescribed for the application to set aside the ex pane order. The impugned orders, obviously lead to the conclusion that these were passed in utter disregard of law. The Land Commissioner was shown to have usurped jurisdiction for recording the impugned orders. Even if it is accepted for the argument sake that the Land Commissioner was vested with the jurisdiction to interfere in the order of Sub-Assistant Land Commissioner, the ensuing inference is that the impugned orders were recorded by the Land Commissioner in colourable exercise of jurisdiction.
9. The main plank of the learned counsel for the respondents against the contentions of the petitioner, was delay in filing the writ petition. It I correct that laches are fatal to grant relief by invoking special jurisdiction but it was not an absolute rule. The fact of the matter is that the objection on laches may prevail, in a case, in the light of its own peculiar facts. In the instant case, it is clearly told that the impugned orders were recorded I absence of the petitioner. Despite the report of process-server and well knowing that the petitioner was an employee of the Court of District an Sessions Judge, Mirpur, the Land Commissioner did not take trouble to satisfy that the petitioner was duly. Served. Second time, when the petition sought indulgence of the Land Commissioner through an application to sea side ex parte order, his application was dismissed on the short ground limitation. This state of affairs coupled, with the passing of an order ii favour of the petitioner, under subsection (4) of section 25 of the Act which created a vested right in him, obviously persuade indulgence of this Court, in exercise of its special jurisdiction. The objection is, therefore, not sustainable.
10. In view of the aforesaid Position of the case, the petition is allowed and the impugned orders are hereby quashed. The parties are left to bear their own costs.