' Through these three writ petitions, the orders, dated 16th January, 1985, passed by Secretary, Mangla Dam Affairs, Muzaffarabad, on the applications filed by the respondents, namely, Noor Alam, Hassaina, Muhammad Zaman and Shafi, have been impeached.
2. As identical points are involved in these three writ petitions, therefore, I have proposed to dispose of all of them through this single order.
3. The brief facts which gave rise to these petitions are that the respondents, Noor Alam and others who are refugees, were allotted evacuee land situate in village Pehl Bakhashi Mool Raj, Tehsil Dadyal District Mirpur. This land fell within the area covered by the Mangla Dam, as such, it was acquired by the Government and the compensation thereof was paid to the respondents, Noor Alam and others, as allottees.
4. The land, as I understand, is situate at the bank of the lake and when waters of the lake recede, it becomes available for cultivation and the Government leases it out every year. A perusal of the record shows that the petitioners, who possessed this land even before its acquisition by the Government, as tenants under the respondents, Noor Alam and others (allottees) purchased the lease rights of this land in 1976 and since then, they are continuing as lessees.
5. As thousands of Kanals of land covered by the Mangla Dam and acquired by the Government becomes available for cultivation every year, therefore, the Government has appointed a Tehsildar known as Tehsildar, Mangla Dam Affairs who sells out the lease rights of the land covered by the Mangla Dam which becomes available for cultivation at the time, the lake water recedes and present leases which are the subject-matter of the present writ petitions, were also sold out by the Tehsildar, Mangla Dam Affairs to the petitioners.
6. The respondents, Noor Alam and others who felt aggrieved of the orders passed by the Tehsildar, Mangla Dam Affairs, went in appeal to the Court of Additional Commissioner, Mangla Dam Affairs and the Additional Commissioner cancelled the grants of lease, remanded the case to the Tehsildar, Mangla Dam Affairs with the direction to hold an enquiry and grant leases on the basis of possession and the said Tehsildar, after holding an enquiry, through orders, dated 11th March, 1984, granted the lease of this land to the petitioners. The respondents, Noor Alam and others feeling dissatisfied with the aforesaid orders of the Tehsildar, Mangla Dam Affairs, went in appeal to the Court of Commissioner, Mangla Dam Affairs who made over all the three appeals to the Additional Commissioner, Mangla Dam Affairs and the Additional Commissioner Mangle Dam Affairs through order, dated 31st October, 1980, upheld the orders passed by the Tehsildar, Mangla Dam Affairs and dismissed the appeals filed by Noor Alam and others, respondents.
7. Noor Alam and others, respondents, filed appeals/applications to challenge the order passed by the Additional Commissioner, Mangle Dam Affairs before the Secretary, Mangla Dam Affairs (respondent) who held that keeping in view the directions given in Government Order No. MD/562- 68/73, dated 19th September, 1973, Noor Alam and others, respondents who were allottees of this land were entitled to the grant of the leases, thus, he vacated the order passed by Tehsildar, Mangla Dam Affairs on 11th March, 1989 and this order of Secretary Mangla Dam Affairs was the subject-matter of these writ petitions.
8. The learned counsel for the petitioners has assailed the aforesaid order on the following grounds:-
(i) The Secretary, Mangla Dam Affairs did not have the jurisdiction to entertain and hear the appeals/applications and pass the impugned orders, thus, the impugned orders were passed without lawful authority; and
(ii) The directions given in the Government order mentioned above, were not complied with correctly, while deciding the appeals/ applications.
9. The learned counsel for the respondents on the other hand controverted the stand taken by the learned counsel for the petitioners and stated that the petitioners have no right to challenge the order passed by the Secretary, Mangle Dam Affairs for the following reasons:-
(i) The petitioners accepted the authority of Secretary, Mangla Dam Affairs to hear and dispose of the appeals/applications, thus, they stood estopped to challenge his jurisdiction;
(ii) The writ can be issued in aid of justice and not to retain illgotton gains; and
(iii) The Government order did not provide any forum for the aggrieved persons to seek redress against the grant of lease and Tehsildar, Mangle Dam Affairs who granted the leases, worked under the administrative control of Secretary, Mangla Dam Affairs, thus, those orders were open to revision by the Secretary, Mangle Dam Affairs and cannot be said to have been passed with lawful authority.
10. I have considered the points raised, studied the record of the case; perused the Government order referred to above, and the authorities cited bv the learned counsel for the respondents.
11. The first stand of the learned counsel for the petitioners that the Secretary, Mangla Dam Affairs (respondent), who passed the impugned orders did not have the authority to hear the appeals/ applications against the orders passed by the Tehsildar Mangla Dam Affairs, was sound. The Government order referred to above, laid down that the land covered by the construction of Mangla Dam which becomes available for cultivation, would be leased out to the owners for cultivation and the said Government order did neither provide the right of appeals nor the forum from where the redress against the lease orders could be sought. The Secretary, Mangla Dam Affairs who did not figure anywhere in the aforesaid Government order, I think, was not competent to hear the appeals/applications against the lease orders. The right of appeal is creation of a statute and unless it is specifically provided, no appeal can be filed and this view finds support from a case decided by the Culcutta High Court and reported in AIR 1937 Cal.
427. The relevant observations are hereinafter reproduced:- "It is a proposition too well established that if a Court is not invested with jurisdiction to hear and determine a matter, the usurpation of authority for which there is no warrant in law would make all decrees and orders mere nullities which could be set aside and declared void as the circumstances might require. It is also settled that an appeal does not exist in the nature of things.
A right of appeal from any decision of any Tribunal must be given by an express enactment. Where there is no appeal provided for by law a consent or waiver on the part of the parties cannot invest the appellate Court with the jurisdiction it did not possess."
12. The learned counsel for the respondents stated that the petitioners accepted the jurisdiction of Secretary, Mangla Dam Affairs to hear the appeals/applications against the orders passed by Tehsildar Mangla Dam Affairs and confirmed by the learned Additional Commissioner, Mangla Dam Affairs, therefore, the petitioners were not entitled to challenge the jurisdiction of the Secretary, Mangla Dam Affairs to pass the impugned orders. He cited the following authorities in support of his contention: -
(1) PLD 1964 SC 829
(2) PLD 1973 SC 236
(3) PLD 1974 SC 106
(4) PLD 1976 A J& K 9
(5) PLD 1980 SC (A J& K) 1
13. The learned counsel for the respondents, to support the impugned orders, stated that the Tehsildar Mangla Dam Affairs, worked under the administrative control of the Secretary, Mangla Dam Affairs, therefore, orders passed by the former, were open to revision by way of application by the latter, I think, is also devoid of any force. The orders passed by an officer of the Government can only be agitated against, if the Government provided some remedy against those orders and in case, no remedy is provided, the officer under whom the officer who passed such orders, worked cannot ipso facto revise the orders by his subordinates, therefore, I hereby overrule this objection.
14. The first authority cited by the learned counsel for the respondents is PLD 1980 SC (A J & K) 1, wherein it was held that a circular letter containing instructions for the guidance of the District Magistrates to issue domicile certificates is at best an administrative order and cannot be equated with law and the rules having the force of law and cannot bar the Nomination Board to scrutinize the domicle certificates issued by the District Magistrates.
15. In the second authority relied upon by the learned counsel for the respondents and reported in PLD 1973 SC 236, laid down that before a person can be permitted to invoke the discretionary powers of the High Court, it must be shown that the order sought to be set aside, has occasioned some injustice to the party and if it does not work any injustice to any party, rather it cures manifestly an illegality, the extraordinary jurisdiction of the High Court cannot be allowed to be invoked. In the same authority it was held as under:- "It is now well-established that where an inferior tribunal or Court has acted wholly without jurisdiction or taken any action "beyond the sphere allotted to the tribunal by law and, therefore, outside the area within which the law recognises a privilege to err", then such action amounts to a "usurpation of power unwarranted by law" and such an act is a nullity; that is to say, "the result of a purported exercise of authority which has no legal effect whatsoever. In such a case, it is well- established that a superior Court is not bound to give effect to it, particularly where the appeal is to the latter's discretionary jurisdiction. the Courts would refuse to perpetuate, in such circumstances, something which would be patently unjust or unlawful."
It is no doubt true that there is a 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 as it has often been said that 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 perfomed in such a way that the law regards it as a mere colourable exercise of jurisdiction or unlawful usurpation of jurisdiction."
16. In a case reported. in PLD 1964 SC 829, it was laid down that failure to raise objection as to the jurisdiction before the Settlement authority concerned, at the earliest opportunity disentitles the party to relief of certiorari as such relief was only discretionary.
17. In a case reported in PLD 1976 Azad J & K 9, it was held that the defendant submitting to foreign Court's jurisdiction by voluntarily appearing, contesting and even depositing the part of claim debars him to turn back and repudiate the jurisdiction of the Court to decide the case. In a case reported in AIR 1954 SC (India) 340 it was held that a decree passed by a Court without jurisdiction, is a nullity in the eye of law. The relevant passage is reproduced below:- "It is fundamental principle that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter, of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties."
18. The point of jurisdiction was considered in Jowahir Singh's case reported in A I It 1960 Azad J & K 29, and it was held that where there is patent want of jurisdiction i.e. a want of jurisdiction apparent on the face of proceedings, acquiescence by submission to jurisdiction without objection, will not cure it and the proceedings are eminently liable to be quashed by certiorari. Whilst in cases of latent want of jurisdiction there has been always great conflict of judicial opinion as to whether the grant of writ was discretionary or not, authorities seem unanimous in deciding that where the want of jurisdiction is patent, the grant of writ of prohibition is of course. No doubt, the English decisions notified above, related to issue of prohibition but the principle underlying prohibition and certiorari in this regard is the same. As has been said:- "Certiorari lies where the usurpation of jurisdiction is a fait accompli, while prohibition lies when usurpation of jurisdiction has not yet taken place, but is merely proposed and there is still something to operate upon."
18. The principle has been very clearly laid down in (1894) 1 Q B 552. Lord Halsbury at page 556 pointed out:- "In this case, with every disposition to decline to interfere with the proceeding in the country Court on the ground that, if it is possible for a person to render himself incapable of applying for a prohibition in such a case as this, the appellant has done so, I feel nevertheless constrained to decide that the writ must issue to prohibit further proceedings on the order of the country Court so far as it is applicable to that portion of the award which is in respect of matters outside the Agricultural Holdings Act. It has been long settled that, where an objection to the jurisdiction of an inferior Court appears on the face of the proceedings, it is immaterial by what means and by whom the Court is informed of such objection. The Court must protect the prerogative of the Crown and the due course of the administration of justice by prohibiting the inferior Court from proceeding in matters as. to which it is apparent that has no jurisdiction. The objection to the jurisdiction does not in such a case depend on some matter of fact as to which the inferior Court may have been deceived or misled, or which it may have unconsciously neglected to observe, and the Judge of such Court, therefore, must or ought to have known that he was acting beyond his jurisdiction. 1 find no authority justifying the withholding of a writ of prohibition in such a case."
' Lord Justice Lopes observed at p. 557:- "It seems to me that there has always been recognized a distinction between what I will call a latent want of jurisdiction, i.e., something becoming manifest in the course of the proceedings, and what I will call a patent want of jurisdiction, i.e., a want of jurisdiction apparent on the face of the proceedings.
Whilst in cases of latent want of jurisdiction there has always been a great conflict of judicial opinion, as to whether the grant of the writ was discretionary or not, the authorities seem unanimous in deciding that, where the want of jurisdiction is patent, the grant of the writ of prohibition is of course."
19. In case of want of territorial jurisdiction, if the defendant submits to the jurisdiction of the Court and contests the case, such defendant cannot be allowed to repudiate the jurisdiction of that Court but in other cases where the Court lacked inherent jurisdiction to hear the D case and such want of jurisdiction was patent on the face of proceedings, the submission of the party to the jurisdiction and not raising the objection, cannot bestow the jurisdiction on the Court to hear the case and conduct the case proceedings.
20. In another case reported in PLD 1974 SC 106, it was held:- "Grant of relief in writ jurisdiction being entirely discretionary with the High Court, the learned Judge would have certainly acted in aid of justice in refusing any relief to the respondents on the facts of the case, even if because of any technical reason, the order of Khan Saeed-ud-Din Khan, was not strictly found justifiable. It is well-settled principle that the High Court's writ jurisdiction can be invoked in aid of justice and not to help retention of ill-gotten gains."
21. The impugned orders were not passed in aid of justice. The petitioners were tenants of the land since before the land was acquired, rather allotted in favour of the respondents and had the right to retain the possession and pay share of produce to the allottee (respondent). The land was acquired and the entire compensation thereof was paid to the respondent without paying any part of share of compansation to the petitioners (cultivators). In this view of the matter, the right of he allottee on receipt of compensation, submerged in the lake water for ever and for all times and what comes out at the time, the water recedes, is the right of the cultivator for which nothing was paid to the petitioners (cultivators). The right of tilling is the right of tiller and no one, who held right of allotment in the land and who sold that right cannot claim priority over those who were paid nothing for the right they held. The Government order referred to above, recognized the right of old owners of the land and as none of the parties claim to be the old owners of the land, therefore, the provisions of the said Government order, cannot be made applicable to this case. The Secretary Mangla Dam Affairs, in his order, held that the respondents who were allottees of this land, would have been granted the proprietary rights, had this land not been acquired. Thus, the allottee- respondents had better claim, was also not correct. Had this land not been acquired and had been available for the grant of proprietary rights by the Custodian, the petitioners who claim to be its old tenants, would have not been ejected by the proprietors which would also show that the right of tilling was granted by the amendment effected in the Rehabilitation Law.
22. In the present case, the Secretary, Mangla Dam Affairs, as a perusal of the impugned order would show, was aware of the fact that he did not have the jurisdiction to hear the appeals/applications, therefore, the order passed, by him, cannot be protected on the simple ground that the petitioners submitted to his jurisdiction. Had there been any doubt about the point of jurisdiction, or the want of jurisdiction would not have been patent, the matter would have been different. But here in this case, the want of jurisdiction was patent on the face of it, therefore, the orders passed by the Secretary, Mangle Dam Affairs cannot be said to have been passed with lawful authority and are hereby quashed.
23. The grant of lease of the land which becomes available for cultivation is now a permanent work, therefore, it is the duty of the Government to make enactments to regulate the grant of lease, provide the right of appeals or revisions etc., as well as the forum for the aggrieved party to seek redress.
24. The netshell of the above discussion is that the writ petitions are hereby accepted in the manner indicated above. Parties are left to bear their own costs. A copy of the above order shall be sent to the Government for necessary action.