' Abdul Jabbar and 8 others having invoked the extraordinary Constitutional jurisdiction of this Court under Article 199 of the Constitu tion of the Islamic Repulic of Pakistan, 1973, seeking the indulgence of this Court to declare the order, dated 2-8-1980 passed by respondent No. 1 (Deputy Commissioner, D.I. Khan exercising powers of Deputy Rahibilitation Commissioner) -whereby he allotted the disputed property in favour of respondents 2 and 3, as ultra vires and of no legal effect.
2. Facts of the case leading to the instant writ petition briefly are that agricultural land bearing Khasra Nos. 3534/2093-2094-2099 measuring 21 Kanals and 3 Marlas situate in village D.I. Khan was allotted to Rahimuddin the predecessor-in-interest of the petitioner against his verified claim by order of Assistant Rehabilitation Commissioner, D.I. Khan, dated 13-8-1958 alongwith the house situate on the said premises. Agha Israil Shah predecessor-in-interest of respondents 2 and 3, also a displaced person, applied to the concerned authorities for the allotment of the said land and on the recommendation of Sub-Assistant Rehabilitation Commissioner, D.
1. Khan, on 28-6-1960 the matter was reviewed and ultimately on 29-6-1960 the Assistant Rehabilitation Commissioner allotted the said land to said Agha Israil Shah. Rehimuddin went in appeal before the Deputy Rehabilitation Commissioner who, however modified the order of the Assistant Rehabilitation Commissioner, referred to above to the extent that the land measuring 20 Kanals and 3 ] Marals was allotted to Rahimuddin while the house over an area of 1. Kanal was allotted to Agha Israil Shah. It is needless to point out that while Agha Israil had his claim against urban property, Rehimuddin had such claim against rural property. The order of the Deputy Rehabilitation Commissioner in appeal obliged the parties to file revision petitions before the Additional Settlement Commissioner where neither of them succeeded which forced them to file further revision petition before the Settlement Commissioner who per his order, dated 7-3-1964 remanded the case for giving findings and deciding the matter after ascertaining the facts whether the property in suit was situate within the municipal limits or otherwise. The Deputy Rehabilitation Commissioner after remand vide his order, dated 22-12-1966 allotted the entire premises in favour of Rahimuddin. This order was, however set aside by the Settlement Commissioner vide order, dated 22-9-1973 and the case was remanded. This time the matter was entrusted to Assistant Commissioner, Kulachi vide order of the Deputy Commissioner, dated 5-2- 1974 and the learned Assistant Commissioner, Kulachi exercising the powers of Deputy Rehabilitation Commissioner vide his' order, dated 21-2-1974 came to the conclusion that the claim of Agha Israil Shah had been fully settled in Peshawar and Kohat Districts and accordingly allotted the suit property in favour of Rehimuddin. The revision petition filed by Agha Israil Shah before the Settlement Commissioner, D. I. Khan also failed per his order, dated 28-5-1974 which obliged Agha Israil Shah to file a writ petition in this Court for declaring the said order as null and void and without jurisdiction and per his order of my Lord Mr. Justice S. Usman Ali Shah, dated 21-5-1980 the matter was remanded to the Deputy Commissioner, D. I. Khan with powers of Deputy Rehabilitation Commissioner holding that the Assistant Commissioner, Kulachi had no jurisdiction to act as Deputy Rehabilitation Commissioner and that the entire proceedings before him were non-existent in the eyes of law. Pursuant to the said judgment of this Court the matter was thrashed out by the Deputy Commissioner, D. I. Khan in his capacity as Deputy Rehabilitation Commissioner and vide his order, dated 2-8-1980 upheld the allotment of the suit property in favour of respondents 2 and 3 the successors-in-interest of Agha Israil Shah. Feeling dissatisfied with the said order of the Deputy Rehabilitation Commissioner the successor in-interest of Rahimuddin have come to this Court in this writ petition for their redress.
3. Arguments of the learned counsel from both the sides were heard at length and record of the case was thoroughly examined.
4. In the very outset the learned counsel for the respondents Mr. Fazal Hussain, Advocate raised a preliminary objection that the present writ petition could not be entertained because it had been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 which was declared to be kept in abeyance by the proclamation, dated 5th day of July, 1977 of the Chief Martial Law Administrator. The learned counsel elaborated that the powers to issue writ by the High Court were restored in the Provisional Constitutional Order, 1981 to the extent and in the manner as detailed in Article 9 of the said Provisional Constitution Order. Learned counsel for the petitioner on the other hand however contended that the Provisional Constitution Order was issued on the 24th Day of March, 1981 while the instant writ petition was filed on the 20th day of August, 1980 and since at the time of filing this writ petition the Provisional Constitution Order had not been promulgated, therefore, it was well within the competency of this Court under Article 199 of the Constitution.
Undoubtedly despite the proclamation, dated 5th, July, 1977 rendering the Constitution of Pakistan, 1973 in abeyance, in Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan PLD 1977 SC 657 it was held that the powers under Article 199 of the Constitution were available to their full extent and could be exercised notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, Presidential Orders or Ordinance. This situation however drastically changed after the promulgation of Provisional Constitution Order, 1981 which not only superseded the Constitution of Islamic Republic of Pakistan, 1973 but under which oath was administered to the Judges of the Superior Courts to perform their functions and discharge their duties in accordance with the terms of the said Provisional Constitution Order and therefore on its application any Orders issued in the extraordinary Constitutional jurisdiction are governed by the Provisional Constitution Order, 1981. True, Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 did hold the field until the Provisional Constitution Order had been promulgated but after its promulgation this Court became functus officio to issue a writ or to declare the order impugned in the instant writ petition as null and void because it could not be so declared under Article 199 and instead these powers could be exercised under Article 9 of the Provisional Constitution Order. The petitioner should have got his writ petition amended to the extent as aforesaid and should have applied for getting the relief sought under the new provisions. In Bilqees Begum v. Lahore Municipal Corporation PLD 1983 Lah. 121 it was held that:-
5. "It may be pointed out that this petition has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, read with Article 9 of the Provisional Constitution Order, 1981. The Provisions of Article 199 of the 1973 Constitution cannot be invoked after the promulgation of Provisional Constitu tion Order, 1981. Thus visualised, the petition even otherwise is not maintainable in its present form."
' Learned counsel for the petitioners urged that in the aforesaid reported case the writ petition was filed after promulgation of the Provisional Constitution Order while the instant one was filed when the 1973 Constitution was in force. There can be no dispute on this analogy but question for determination is as to under what that statute this Court inherits authority to issue the declaration sought by the time it is granted. Naturally by the time this Court is pondering over the matter the provisions of Article 199 are not in force and instead they have been substituted by Article 9 of the Provisional Constitution Order and any order issued under the extraordinary Constitutional jurisdiction would be governed by the said Article 9 and not under Article 199. I am, therefore, in full agreement with the learned counsel for the respondents that this writ petition is not maintainable in its present form and accordingly 1 uphold the preliminary objection raised by the learned counsel for the respondents.
5. Learned counsel for the petitioners contended that vide Government of North-West Frontier Province Revenue Department Notification No. 6345/PB, dated 7th November, 1974 Annexure-J powers of Deputy Rehabilitation Commissioner had been conferred on the Assistant Commissioner and therefore the Deputy Commissioner in exercise of his powers as Deputy Rehabilitation Commissioner had assumed a wrong jurisdiction which did not vest in him and therefore the order impugned in this writ petition having been passed by the Deputy Commis sioner having no jurisdiction to ponder over it, it was bad in law and therefore was ineffective on the rights of the petitioners. It was pointed out to the learned counsel that jurisdiction to dispose of the matter was conferred upon the Deputy Commissioner in his capacity as Deputy Rehabilitation Commissioner by the order of this Court, dated 21-5-1980 of my Lord Mr. Justice S. Usman Ali Shah. The relevant part of the said order reads as under:- "The result is that this petition is allowed and the case is remanded to the Deputy Commissioner with direction that he should dispose of the case in accordance with law after affording full opportunity to the parties to present their respective cases before him in the light of oral and documentary evidence. The Deputy Commissioner as Deputy Rehabilitation Commissioner would proceed with the case from 11th June, 1980 and decide it within two months."
' Learned counsel for the petitioners however contended that in the light of the notification referred to above jurisdiction could not be conferred upon the Deputy Commissioner but since that said notification had not been brought into the notice of his Lordship at the time of disposal of the earlier writ petition filed by the predecessor-in-interest of the present respondents therefore being a question of law the present petitioners had filed a review. Petition to correct the error on the face of record but the said review petition was not decided when the Deputy Commissioner passed the impugned order and therefore ultimately the petitioner was forced to withdraw the review petition.
Firstly this assertion of the learned counsel is not supported by the record of the review petition.
Review petition No. 453 of 1980 was filed on 26-7-1980 and was fixed before Court for preliminary hearing on 20-8-1980 on which dated the instant writ petition was also filed in the High Court. On 20-8-1980 my Lord Mr. Justice S. Usman Ali Shah directed the hearing of the review petition in motion alongwith the W.P. On 23-8-1980 the writ petition was admitted to full hearing and the review petition was directed to be heard alongwith the said writ petition. While the writ petition and review petition remained pending disposal, on 16-4-1984. Learned counsel for the petitioners requested for withdrawal of the review petition which was dismissed as withdrawn. In the light of these circumstances it would be justifiably presumed that there was virtually no review petition.
Secondly the broad fact remains whether as order once passed in exercise of the extraordinary Constitutional jurisdiction is open to review under Order XLVII of the Code of Civil Procedure. In Muhammmad Khan v . Border Allotment Committee, (P .L D 1965 SC 623 the August Supreme Court held:- "The writ petitions came up for hearing on the 15th of July, 1963, when it was held by the Full Bench that in the case of an order in the writ jurisdiction the provisions of Order XLVII of the Civil Procedure Code cannot be invoked and, therefore, the High Court had no power to review its decisions in the writ jurisdiction even assuming that an error had been committed."
' Following the same principle the Lahore High Court in Mian Muhammad Atta U.11ah v. The Deputy Commissioner, Lyallpur and others PLD 1967 Lah. 1072 held:- "Several of the Judges of this Court have followed the principle laid down by the Full Bench, in the case of Jalal Din v. Major Muhammad Akram Khan. We are of the view that this Court having passed an order on 23-1-1967 is functus officio and cannot review its order.
' In the second place the learned Advocate very strenuously contended that as we dismissed the petition in limine without summoning the other side, no right can be said to have accrued to the respondents and, therefore, this Court is competent to review its order on valid grounds. There is not much force in this contention. The primary question would be as to whether we are competent to review our order or not. Even though technically no right my have accrued to the other side, we cannot interfere with our order unless we review the same."
' On the strength of the aforesaid clear authorities on the point I am of the firm view that the order of my Lord passed in the earlier writ petition as referred to above was not open to review in any case.
6. Learned counsel for the petitioners contended that writ jurisdiction is invoked in those cases where as a result of an error on the face of record has affected the valuable rights of a party and to correct that error there is no other remedy available for the redress. The grounds of the writ petition filed by the petitioner also mostly are confined to this aspect of the matter. In this connection it may be stated that firstly it was the fault on the part of the writ petitioner who was contesting respondent in the earlier writ petition that he failed to bring on record the notification on which he now places his reliance, in that, the Deputy Commissioner could not be invested with the powers of Deputy Rehabilitation Commissioner. The petitioner, was fully represented by Mr. Z. Mahfooz Khan a prominent counsel at the time of hearing of the earlier writ petition and if by the time of disposal of that writ petition this notification was not in his knowledge and was not placed on record he should curse his own stars. Once a particular matter was finally adjudicated upon in exercise of writ jurisdiction by competent Court of law, this Court cannot be expected to declare those findings as null and void because it is well-settled principle that no writ can be issued to quash an order of the Court itself even if passed without jurisdiction. In Bashir Hussain v. The State PLD 1961 (W.P.) Lah. 164 it was held:- "Even if we had come to a contrary conclusion on the question of the jurisdiction of the appellate and the revisional Courts, we would still have been confronted with the position that no writ of certiorari lies for quashing an order of the High Court itself."
Besides it is an undisputed legal proposition that a Judge of the High Court cannot be regarded as being an inferior or subordinate to another Judge of the High Court. In the aforesaid authority it was held:- "In the present case the final order which operates against the petitioner is the one, dated 19th April, 1960 passed by Archison, J. sitting as a Judge of the High Court. We cannot hold that in that capacity he can be treated as an inferior Court to a Division Bench of the same Court. In Malik Feroz Khan Noon v. The State PLD 1958 SC 333 their Lordships held that even where an appeal lies to a Division Bench of the High Court under section 411-A against an order of conviction etc. passed by a single Judge of the High Court in the exercise of its original criminal jurisdiction, the Single Judge cannot be regarded as being an inferior or subordinate Court to the Division Bench."
' In the light of aforesaid discussion this Court cannot be deemed to be a Court of appeal against the order of my Lord and since the order, dated 21-5-1980 had not been challenged in the Supreme Court, the only legal remedy available to the petitioners that order becomes final and is no more open to comments.
7. Once it has finally been resolved that the Deputy Commissioner in exercise of his powers as Deputy Rehabilitation Commissioner had the jurisdiction to ponder over the matter pursuant to the order of this Court, it cannot be agitated that the order was without jurisdiction. It is no more controverted that an authority having jurisdiction can dispose of the matter rightly or wrongly and the High Court does not issue a writ in a case where the authority having jurisdiction to dispose, of the matter has come to a firm view. It is proved from record that the land in suit falls within the municipal limits of D. I. Khan and thus it falls within the definition of urban immovable property because all immovable property situated within the limits of corporation, municipal committee, a notified area committee, a town area committee, a small town committee, senatory committee and a cantonment are called urban immovable property. It is also not disputed that the predecessor-in interest of the petitioners did not have a claim for urban immovable property while the predecessor-in-interest of the respondents did have such claim. The contention of the learned counsel for the petitioners that the disputed land did not fall within the purview of urban immovable property is a question of fact which is beyond the scope to be adjudicated upon in writ jurisdiction.
8. Learned counsel for the petitioners tried to persuade this Court to establish that the order of the Deputy Commissioner impugned in this writ petition was based on mala fide in that he did not stop the proceedings despite the fact that it was brought to his notice that a review petition had been filed in the High Court. Firstly as I have observed earlier no review lies against an order of the High Court passed in writ jurisdiction and secondly there was no specific direction to the Deputy Commissioner to stop the proceedings. On the other hand the Deputy Commissioner was required to finally adjudicate upon the matter referred to above within two months and to conform with said direction of my Lord if the learned Deputy Commissioner continued proceedings on a closed day that cannot be termed as either mala fide or with some ulterior motive.
9. The perusal of the contents of the writ petition would suggest that the petitioners have invoked the extraordinary jurisdiction of this Court almost on the question of facts which I am afraid is beyond the writ jurisdiction of this Court.
10. From whatever angle I have thrashed the matter out I am but to hold that the order of Deputy Commissioner in his capacity as Deputy Rehabilitation Commissioner suffers from no legal infirmity as to invite the invoking of the writ jurisdiction. I, therefore, dismiss this writ petition, with no order as to costs.