' AJMAL MIAN, ACTG. C. J.-By this common judgment, we intend to dispose of the above two petitions. The brief facts leading to the filing of the above petitions are as follows :- A. Constitutional Petition No, 88 of 1982 ' Late Haji Sher Bahadur Khan, who died sometime back and is represented by his legal representatives i. e. Petitioner Nos. 1 to 10, obtained a lease from the Irrigation Department on 1st March, 1966 for a period of one year renewable annually in respect of a land measuring 7,884 sq. Ft.
At the rate of Paisa fifty per hundred square per annum out of Khasra No, 5176, situated at the berms of Habib Nala upto the railing of Habib Nala, bridge on the Mission Road, Quetta. Before the expiry of above period of one year, a second lease was granted on 22nd September, 1966 in respect of the above land measuring 812.96 sq. Ft. (hereinafter referred to as the (land) at the rate of Rs, 2 per hundred square feet per annum for a period of one year renewable annually. It may be pertinent to mention that prior to the above grants deceased Haji Sher Bahadur Khan had approached the Quetta Municipal Corporation for the grant of lease in respect of the land in 1962.
Originally the Quetta Municipal Corporation was inclined to grant the lease but subsequently it declined. Upon the grant of the above annual lease by the Irrigation Department, the Quetta Municipal Corporation protested, resisted and claimed that the land belonged to it. It may also be mentioned that the private respondents had raised certain constructions in the form of cabins on a portion of the above land. According to them, they were paying rent to the Quetta Municipal Corporation. Deceased Haji Sher Bahadur Khan filed a suit for declaration and permanent injunction against the Quetta Municipal Corporation, inter alia, for restraining it from interfering with his possession of the land and also for restraining it from permitting raising of any construction. In the above suit, issues were framed and the case was ripe for recording of evidence. In the meantime, the Executive Engineer, Irrigation Department purported to cancel the above lease. The Quetta Municipal Corporation filed an application in the above suit for framing of an additional issue on the ground that the above lease was cancelled and, therefore, the suit was liable to be dismissed. The learned Civil Judge framed an additional issue and after recording the evidence on the above additional issue by his judgment, dated 23rd October, 1967 held that the lease was cancelled. Consequently, he dismissed the suit. Deceased Haji Sher Bahadur Khan being aggrieved by the above judgment filed an appeal before the District Judge, Quetta, which was dismissed by a judgment, dated 17th April, 1968. Deceased Haji Sher Bahadur Khan filed second Appeal No, 22 of 1968, which was decided on 24th August, 1970 by a learned Single Judge of the erstwhile High Court of Sind and Baluchistan while sitting at circuit at Quetta. It was held by the learned Single Judge that the suit was wrongly dismissed as there was no plea in the written statement about the cancellation of the lease and the case was remanded to the learned Civil Judge with the directions to allow the parties to amend the pleadings on the question of cancellation. It may be advantageous to re-produce herein below a portion of Para. 7 and Para 10 of the above judgment, which read as follows :- "Para. 7.-I would, therefore, observe here only that for the reasons given herein, the evidence fails to establish that the appellant's lease had been cancelled. This is a finding based on the evidence on the record. Obviously the respondent may not have produced the evidence available to it, whilst the appellant has rightly exercised his right of not producing evidence at all, as the issue framed was illegal; therefore, when the case is remanded and heard, after the pleadings have been amended, the trial Court will decide the question of the cancellation of the lease on the basis of the evidence produced by the parties and should not be affected by my observations which have reference to the meagre evidence on the record."
Para. 10.-The next question is whether the case should be remanded to the trial Court. The case of the respondent is that there has been a change in the facts after it had filed its written statement. In view of my discussion in para. 2 it follows that the parties should be allowed to amend their pleadings in order to bring them in line with the changes, if any that have occurred after the pleadings have been completed. 1, therefore, remand the case to the trial Court for this purpose.
Both the parties will be free to amend their pleadings and the amendment applications shall be decided by the trial court according to the provision of Order VI, rule 17, C. P. C. This will naturally reopen the case for evidence and before parting with this judgment I would again like to repeat that the trial Court should determine the claims of the parties on the basis of the evidence recorded and should not be affected by my observations in this judgment."
' Deceased Haji Sher Bahadur Khan obtained a fresh lease on 22-3-1975 from a learned Member of the Board of Revenue Baluchistan in respect of the land for a period of 99 years in his own name to the extent of 2/3rd share and 1/3rd in the name of petitioner No, II Muhammad Shafi son of Amir Ali at the rate of Rs, 5 per hundred square feet per annum. Upon the grant of the above fresh lease, deceased Haji Sher Bahadur Khan withdrew his above suit from the Court of the learned Civil Judge, Quetta.
' It may also be stated that the Martial Law Administrator, Zone 'D' Baluchistan issued Martial law Order 16 on or about 22nd December, 1977 providing that any allotment of State land (the words or water right were added to by M.L.O's. 34 and 40 of 1978) during the period between the 1st day of January, 1972 and 4th day of July, 1977 which was not covered by any regular scheme issued for the purpose under section 10 of the Colonization of Government Lands Act, 1912 or which had been obtained by using official position or political influence or by means of fraud or misrepresentation of facts or in violation of relaxation of law, rule, condition, policy, instructions or orders may notwithstanding anything contained in any law for the time being in force, or any order or decree of a Court, Tribunal or Authority, be cancelled by the Board of Revenue or any Officer authorised by it in this behalf, after providing a reasonable opportunity of being heard to the allottee. The above Martial Law Order was re-constituted as Martial law Order 46 on llth February, 1979 (hereinafter referred to as the M. L.
0. ).
' A Member of the Board of Revenue examined the above lease in favour of deceased Haji Sher Bahadur Khan and Muhammad Shafi under the M. L. 0 and by his order, dated 14th November, 1.978 hold that the above lease granted on 22nd March, 1975 was in continuation of the lease of 1966, which was upheld by the High Court in the aforesaid second appeal No, 22/68 and, therefore, it was not covered by the M. L. 0 but at the same time, he offered to sell the land to deceased Haji Sher Bahadur Khan and Muhammad Shafi at the rate of Rs, 28 per sq. Ft. It was also ordered by him that if the above offer would not be accepted by deceased Haji Sher Bahadur Khan and Muhammad Shafi, the land would be resumed by the Government. It may be advantageous to re-produce herein below the operative portion of the above order, which reads as follows :- "I, therefore, withdraw the show-cause notice under M. L. O.
16. Respondents should be given the option of purchasing this land on the price fixed in the year 1975 by paying Rs, 28 per sq. Ft. To the Government payable in 14 half yearly instalments. If the respondents do not exercise this option to purchase the land, then it will be resumed in favour of Government.
' As regards Noor Bakhsh and 7 other applicants, I have no authority to set aside the order of the learned M. B. R., dated 20th January, 1976, whereby their Review Petition was dismissed. If they feel aggrieved by this order they can, if they so desire, seek redress in competent civil Court of law, by filing a declaratory suit against the respondents. In the instant case they cannot be impleaded as a party they being the squatters and unauthorised occupants of the land."
' The Quetta Municipal Corporation and one Noor Bakhsh and 7 others 1. e.; some of the private respondents filed a review petition against the above order which was dismissed by a learned Member, Board of Revenue by his order, dated 20th January, 1976. It seems that off and on, applications and representations were made to the Martial Law Authorities against the above sale in favour of deceased Haji Sher Bahadur Khan and Muhammad Shafi. In consequence thereof, the case was re-examined by a learned Member, Board of Revenue in pursuance of a decision taken by the Martial law Authorities. Upon re-examination of the above case on a review application, a fresh order, dated 19th April, 1982 was passed by a learned Member, Board of Revenue whereby inter alia, it was ordered that the portion of the land in possession of the private respondents in the form of cabins should be sold to them at the rate of Rs, 28 per sq. Ft. And the remaining portion be allowed to be retained by deceased Haji Sher Bahadur Khan and Muhammad Shafi. The petitioners being aggrieved by the above order of bifurcation of the land filed the above petition. It is the case of the petitioners that they had paid a sum of Rs, 1,22,696 against the total consideration of Rs, 1,75,000 in pursuance of the above order, dated 14th November, 1978.
B. Constitutional Petition No, 224 of 1982 ' The petitioner who claims to be President of Horse Rehri Union made efforts to become a party to the proceedings initiated under the M. L. 0 on the ground that the owners of Horse Rehris had been using a portion of the land as Horse Rehri stand, but his efforts proved to be abortive. The petitioner has filed the above petitions, in which inter alia he has impugned the aforesaid sale of the land in favour of deceased Haji Sher Bahadur Khan and Muhammad Shafi and the above orders, dated 14th November, 1978 and 10th April, 1982.
2. In support of the above C. P. No, 88 of 1982, Mr. Muhammad Nawaz Ahmad learned counsel for the petitioners has urged as follows :-
(i) That since the Member, Board of Revenue was competent to sell the land under the Delegation of powers under the Financial Rules and the Powers of Re-appropriation Rules, 1962 and as the petitioners had paid a substantial amount of the sale consideration, another Member Board of Revenue was not competent even under M. L. 0 to deprive the petitioners of a portion of the land ;
(ii) That the petitioners in C. P. No, 224 of 1982 has no locus standi to file the above petition as at no stage of the proceedings, he was impleaded as a party and that even otherwise, he has no interest. On the other hand, Mr. Amirul Mulk Mengal, learned Advocate-General appearing for the official respondent has contended as follows :-
(i) That since the impugned orders were passed under the M. L.
0. Both the petitions are not competent ;
(ii) That even otherwise, these petitions are not competent as the M. L. 0 provides alternate remedy in the form of a review.
' Mr. Tahir Muhammad Khan, learned counsel appearing for the petitioner in C. P. No, 224 of 1982 has urged as follows :-
(1) That the order of sale passed by the Member, Board of Revenue on 22nd March, 1975 was a fresh transaction and not in continuation of the lease obtained by deceased Haji Sher Bahadur Khan in 1966.
(ii) That the erstwhile High Court in the aforesaid second appeal No, 22 of 1968 in his judgment, dated 24th August, 1970 did not hold that the lease of 1966 in favour of the deceased Haji Sher Bahadur Khan was valid; and
(iii) That since the private respondents and the petitioners in C. P. No, 224/82 alongwith other Members of the Horse Rehri Union had been using a portion of the land for quite considerable period, they have every right to contest the grant of land in favour of deceased Haji Sher Bahadur Khan and Muhammad Shafi.
3. Before taking up any contention on merits, it will be appropriate to take up the two points raised by the learned Advocate-General as to the maintainability of the above two petitions. In this connection, it may be pertinent to state that the learned Advocate-General has candidly conceded that the learned Member, Board of Revenue while examining the validity of the above grant made on 22nd March, 1975 under the M. L. 0 was not competent to order the sale of the land as his jurisdiction was confined to the question whether the above grant made by a Member of the Board of Revenue in favour of deceased Haji Sher Bahadur Khan and Muhammad Shafi was hit by the provisions of the M. L. O. He has further conceded that the learned Member, Board of Revenue while re-examining the case under the M. L. 0 upon the review application was not competent in law to order the sale of a portion of the land in favour of the private respondents for the above same reason.
4. The factual position is that the impugned orders are admitted1A4 without jurisdiction. It is also an admitted position that the above' impugned orders have been passed by a Civil functionary, which is otherwise amenable to writ jurisdiction of this Court. The question whether a writ can be issued against a civil functionary in respect of an order passed by it in purported exercise of power conferred on it under a Martial Law Order in violation of the same, came up for consideration before a D. B. Of the Sind High Court (to which one of us Mr. Justice Amjal Mian Acting C. J. Was a party) in the case of Abdul Hai v. The Administrator, Hyderabad Municipal Corporation, Hyderabad and another (1) and in that context, the following observations were made :- "5. Though no objection was raised before us on the ground that the petitions were hit by the P. C. 0 but we have examined this aspect. In our view, a distinction is to be drawn between an order passed by personnel of the Martial law Authority and an order passed by a delegate of the Martial Law Authority i. e. a civil functionary, which is otherwise amenable to writ jurisdiction. In the latter case if the impugned order before the High Court is admittedly beyond the scope of the relevant M.
L.
0. And a civil functionary will be amenable to writ jurisdiction. In this regard reference may also be made to the case of Shaikh Muhammad Ashraf v. Assistant Registrar, Cooperative Societies and others, 1983 CLC 918 in which a learned Single Judge of the Lahor High Court has adverted to the question of immunity from attack of an order passed under M. L. O. 241 issued by Martial La Administrator Zone 'A' and observed as follows :-
7. It is also to be noticed that when a borrower denies his liability determination of such liability in terms of section 6 of the Cooperative Societies and Co-operative Bank (Repayment of loans)
Ordinance, 1966 is the foundation of commencement of proceedings under M. L.
0. 241 against him. It is not disputed that no such determination is not disputed that no such determination was made. On behalf of the respondent, however reliance is placed on the acknowledgment of his liability by the petitioner (Annexur R/12) before the Assistant Registrar on 31-3-1972. The background of this acknowledgment however is that when the petitioner received the intimation that his house was attached he gave in writing to the Assistant Registrar that he would pay Rs, 7,000 on 10-4-1972 and the rest of the amount within a further period of fifteen days and in case he failed to adhere to this commitment, his house may be put to auction. Evidently, this written statement was made by the petitioner long after the commencement of the coercive measures under M. L. 0 241. When such measures were started against the petitioner there was no determination of his liability within the meaning of section 6 of the Ordinance. The condition precedent for invocation of the provision of M. L. O. 241 was thus not satisfied. This subsequent acknowledgment, therefore, would not validate these proceedings. Furthermore, the record is suggestive of the inference, that the petitioner was under burden and out of his keenness to save his house from being disposed of through auction he made the said statement. It thus loses much of its sanctity. It is true that action taken under M. L.
0. 241 is immune from attack before the Courts but such immunity is available only if the functionaries under
(1) PLD 1985 Kat. 319 ' M. L.
0. Do not exceed their jurisdiction and act within the ambit of their statutory powers. It is a case in which the Assistant Registrar acted beyond such powers. Upon the facts of this case, the jurisdiction of this Court cannot be shut out."
5. We are inclined to subscribe to the above quoted view and we are of the view that since the impugned order was passed by a civil functionary which is admittedly beyond the scope of M. L.
0. And also in violation of the same, a writ petition is competent.
6. Adverting to the second submission of the learned Advocate-General, namely that the petitioners should have filed a review as provided for in para. 5 of the M. L.
0. It may be stated that in the above cited Karachi case, it was urged that the writ petition was not competent as an appeal was provided but the above contention was repelled and the following observations in that behalf were made :- "The only question in issue before us is, as to whether we should compel the petitioners to file appeals after the expiry of more than six years from the dates of filing the above petitions. In this regard, it may be pointed out that no right of appeal was provided at the time when the above petitions were filed but para 5 was added to in the M. L.
0. On 26-4-1979 by M. L.
0. 87 and, therefore, it cannot be urged that the petitioner had alternative remedy at the time of filing of the above petitions. Since it is an admitted position that the impugned orders were beyond the scope of the M. L.
0. In our view it will not be just and proper to decline the relief to the petitioners on that ground. It may be observed that in the case of Muhammad Saleem v. Provincial Election Authority, Karachi and others (Constitutional Petition No, D-870 of 1983) decided by a D. B. Of this Court on 15-11-1984, the right of appeal was provided, during the pendency of the said petition and a similar objection was raised but the Court declined to entertain the aforesaid objection and observed as follows :- `For more than one reason, we are not inclined to sustain the above subject as to the maintainability of the above petition. Firstly, the petition was filed at the time when there was no right of an election petition available to the petitioner, and therefore, the petitioner had no alternate adequate remedy and hence the petition was competently filed. It may be pointed out that in the above cited Supreme Court case of Sadruddin Ansari PLD 1967 SC 569, the right of an election petition was available to the petitioner under rule 7 of the relevant rules but its scope was limited and during the pendency of the petition scope of the above rule 7 was extended by substituting above rule 7 which amendment was considered by the Supreme Court as procedural so as to make it applicable to the pending case. But the instant case is on a higher pedestal as a right to file an election petition, which is a substantive law and not procedural has been conferred during the pendency of the petition as hereinabove pointed out. Secondly no disputed question of fact is involved. The controversy centers around the construction of the rejected ballot paper.
Thirdly there seems to be unanimity of view among the superior Courts on the point in issue.'
' Even otherwise, it has been the consistent view of the superior Courts that in case of an order without jurisdiction a party can press into service writ jurisdiction of the High Court without invoking the right of appeal or any other remedy provided for. In this regard reference may be made to the following cases :-
(i) Anjuman-e-Ahmadia Sargodha v. Deputy Commissioner Sargodha PLD 1966 SC 639 and (ii)
Murree Brewery Company Limited v. Pakistan through Secretary to the Government of Pakistan, Works Division PLD 1972 SC 279.
' The above contention of Mr. Syed Zaki Muhammad is, therefore, not sustainable."
In the instant case, there is no right of appeal but a review was provided before the same forum i,e, Member, Board of Revenue under para. 5 of the M. L. O., A right to file a review petition before the sam forum cannot be equated with a right to file an appeal. The scope of a review is generally limited as compared to an appeal. In the above cited judgment inter alia it was held on the basis of the Supreme Court cases, namely Anjuman-e- 4hmedia Sargodha v. Deputy Commissioner, Sargodha (1) and Murree Brewery Company Limited v. Pakistan through Secretary to the Government of Pakistan, Works Division (2) that even otherwise, a party can press into service the writ jurisdiction of the High Court without invoking the right of appeal or any othe remedy provided for, if the impugned order is without jurisdiction. Thi is a common ground in the instant cases that the impugned order bifur cating the land could not have been passed under the M. L.
0. We are therefore, of the view that the present petition is competent. Furthermore, it will not foster the cause of justice if the petitioners are now compelled to file a review after the expiry of more than three years from the date of filing of the above petition.
8. Since we are remanding the cases to the learned Member, Board of Revenue, we would not like to dilate on the merits of the case but it will suffice to observe that the grant of lease of the land by the learned Member, Board of Revenue on 22nd March, 1975 in favour of th deceased Haji Sher Bahadur Khan and to Muhammad Shafi to the extent of 2/3rd and 1/3rd share respectively was a fresh lease for all intents and purposes and it was not in continuation of the lease obtained by the deceased Haji Sher Bahadur Khan in the year, 1966 for more than one reason, namely, (i) that the lease of the land in 1966 was granted by the Superintending Engineer, Irrigation Department, whereas the lease in March, 1975 was granted by a learned Member, Board of Revenue, Balu chistan, (ii) that the lease of 1966 was for a period of one year renewabl annually whereas, the lease of 1975 was for a period of 99 years, (iii) tha the lease of 1966 was exclusively in favour of deceased Haji Sher Bahadur Khan, whereas the lease of 1975 was in the joint names of deceased Haji Sher Bahadur Khan and Muhammad Shafi to the extent of 2/3rd and 1/3rd respectively, and
(iv) that the rent fixed in the terms of lease of 1966 was Rs, 2 per hundred sq. Ft. Per annum, whereas under the lease of 1975, the rent was at the rate of Rs, 5 per hundred sq. Ft. Per annum.
9. We may also observe that since the above fresh lease was granted on 22nd March, 1975 the same was covered by the period, namely from 1st day of January, 1972 upto 4th day of July, 1977 mentioned in the M. L. 0 and was, therefore, subject to scrutiny in terms of the M. L.
0. By the learned Member, Board of Revenue in his aforesaid order, dated
(1) PLD 1966 SC 639 (2) PLD 1972 SC 279 14th November, 1978 held that it was not covered and proceeded to dispose of the land in favour of the petitioners at the rate of Rs, 28 per sq. Ft.
' In Constitutional Petition No, 88 of 1982, the petitioners have impugned only the above subsequent order dated 19th April, 1982, whereby a portion of the land was ordered to be transferred to the private respondents, which was admittedly beyond the purview of the M. L.
0.
10. The question, which needs further examination is, as to whether we should declare the above subsequent impugned order, dated 19th April, 1982 as being without lawful authority or should we also declare the aforesaid earlier order dated 22nd March, 1975 ordering the sale of the land in favour of the petitioners at the rate of Rs, 28 per sq. Ft. As being without lawful authority. In our view, if we are going to hold that the above subsequent order, dated 19th April, 1982 passed by the learned Member (III), Board of Revenue, Baluchistan was without lawful authority for the reason that under the M. L.
0. He had no power to order the sale of portion of the land in favour of the private respondent, the same parity of reason is equally applicable to the above earlier order, dated 22nd March, 1975, whereby the learned Member (II) Board of Revenue, Baluchistan purported to give option to the petitioners to purchase th land at the rate of Rs, 28 per sq. Ft. Failing which the land was to be resumed in favour of the Government.
11. It is a well-settled principle of law that a superior Court while exercising writ jurisdiction will not perpetuate an order which may b E without jurisdiction in the absence of good reasons. We do not see any plausible reason to allow the above order, dated 14th November, 1978 in the field as admittedly it is also without jurisdiction.
12. It was vehemently urged by Mr. Muhammad Nawaz Ahmed, learned counsel for the petitioners in the above first petition that the petitioner in C. P. No, 224 of 1982 has no locus standi either to file the above petition or to contest the legality of the grant in favour of the petitioners. It was also pointed out by him that at no stage, the petitioner was made a party to the proceedings and his request to become a party was declined. In our view it is not necessary to go into the above question for the reason that the order which we intend to pass will safeguard the interest of the petitioners in C. P. No, 88 of 1982, the petitioner in C. P. No, 224 of 1982 and also of the other parties.
13. We, therefore, declare the order, dated 14th November, 1978 and 19th April, 1982 as being without lawful authority and of no legal effect. The case is remanded to the learned Member, Board of Revenue, Baluchistan for the purpose of examining the legality of the grant dated 22nd March, 1975 in terms of the Martial Law Order 16 as reconstituted by Martial Law Order.
14. The private respondents in C. P. No, 88 of 1982 and the petitioner in C. P. No, 224 of 1982 may be heard by the learned Member, Board of Revenue, Baluchistan while considering the above question, but it will be open to the petitioners in C. P. No, 88 of 1982 i. e. Salahuddin and others to urge that the above private respondents and the petitioner in the other petition have no locus standi. The Petitions Nos. 88, of 1982 and 224 of 1982 stand disposed of in the above terms with no orders as to cost.
' The above are our reasons in pursuance of a short order of even date.