' MUNAWAR AHMAD M1RZA, J.-This petition is directed against the order dated 6-2-1982 passed by learned Member Board of Revenue Baluchistan, Quetta whereby he has remanded the case to Tribunal for adjudication of dispute afresh in accordance with the requirements of law.
2. There is a chequered history of the case, connecting it with civil dispute relating to the possession of the land in dispute, culminating in the impugned order. Since background of the case forms part of the petition and has been discussed by the counsel, therefore, it would be appropriate to make brief reference about the same. In fact dispute between the parties relates to landed property situated in Mohal Lila Karez Mauza Karezat Balaili (hereinafter called "The Property") description whereof is given below :-{{TABLE}} (i)
(ii) #TBS
(iii) =1/5th share out of total area of 20 Acres, 18 Rode 4 Poles (the balance is owned by private respondents) as indicated in recommendation of the tribunal and order dated 2-4-1970).
(iv) = 27 Acres and 2 Poles.
(v) #TBE
(vi) Khewat No, 1 Khatooni No, 1
(vii) Khewat No, 2 Khatooni No, 2 {{TABLE}}
2. It is case of the petitioners that "The Property" comprising total area of 34 Acres 19 Rode and 2 Poles detailed in para I exclusively belonged to Syed Ibrahim Shah (predecessor-in-title of petitioners), who claimed to have been in occupation of the same. It is alleged, that towards year 1958, Syed Ibrahim Shah (since deceased) went away towards province of Sind in connection with his business. During his absence private respondents illegally trees passed, and occupied. The Property and unjustifiably started excavating well, etc. And brought the same to their use.
According to petitioner when during year 1960, Syed Ibrahim Shah returned, he found illegal encroachment and occupation of private respondents. Efforts were made to pursuade private respondents to vacate "The Property" but in vain, ultimately on 25-8-1960, a complaint under section 447, P. P. C. Was instituted against these respondents. It appears that initially proceedings were recorded on the F. C. R. Side, but subsequently on account of the withdrawal of F. C. R. By means of Notification No, Jud1-1(72)/64-I, dated 17-12-1964 (PLD 1965 W. P. Statute 68) and later on promulgation of (Quetta Kalat Civil Laws) Ordinance III (PLD 1965 W. P. Statute 96) proceedings were drawn up under this Ordinance. However, Tribunal constituted under Ordinance III of 1965 gave its recommendation on 19-5-1969. All the four private members of the Tribunal found respondent No, 2 (Abdul Ahad) guilty of trespass and recommended for his conviction and simultaneously proposed that proceedings against Abdul Ghaffar respondent No, 1 be dropped whereas President of Tribunal who was (Agha Nasir Ali) E. A. C. And Magistrate First Class, Quetta observing that property was not mutated in favour of Syed Ibrahim Shah, therefore, his claim was defective and gave dissenting note. This divergent recommendation of Tribunal dated 19-5-1969, came up for consideration before District Magistrate Quetta who vide his order dated 4-2-1970 accepted the majority view and found respondent No: 2 guilty of the offence. The operative portion is reproduced below :- "I have heard the parties and have also gone through the record of the case. The evidence led by the accused in his defence has done nothing to dislodge the accusation brought up against him by the complainant from the prosecution evidence it has been proved beyond doubt (i) the land in question was duly mutated in favour of the complainant and (ii) possession was delivered to him.
The accused trespassed into the land and started cultivating it by force. This act of the accused constitutes an offence punishable under section 447, P. P. C. Accordingly agreeing with the 4/5th majority of the members of the Tribunal, I convict Abdul Ahad accused of an offence punishable under section 447, P. P. C. And under section 10 of the Quetta/Kalat Ordinance sentence him to pay a fine of Rs, 200 or to suffer three months' S. I. In default."
3. Late Syed Ibrahim Shah (predecessor in title of the petitioners) was not in possession of "The property", therefore, on 11-7-1970 he filed a civil suit for possession in the Court of -Deputy Commissioner, Quetta under the provisions of Ordinance I of 1968. He claimed that "The Property" belongs to him and since Abdul Ahad (respondent No, 2) has been foubd to be trespasser, thus for the reasons disclosed in the plaint-he was entitled to possession of the same. Respondents Nos. 1 and 2 filed written statement on 27-11-1971 wherein they disputed claim of the petitions. Meanwhile there was another development, whereby on an application submitted to the Chief Settlement Commissioner-cum-Custodian, the property in dispute was declared to be "Evacuee" vide order dated 31-3-1973. This order of Custodian was challenged by petitioner in C. P. No, 44-A/73 which was accepted vide order dated 26 9-1977 and as result thereof order of Custodian dated 31-3-1973, was declared to have been passed without lawful authority. After this decision proceedings in civil suit for possession which were filed on 11-7-1970 (referred to above) once again started. It appears that during this period late Syed Ibrahim Shah (Predecessor-in title of the petitioners) instituted two other suits for possession through pre-emption in respect of certain adjoining pieces of land.
Record disclosed that the tribunal on 22-1-1980 made a joint proposal in all these 3 cases and recommended that the same be decreed. Besides on this report of the tribunal learned Additional Deputy Commissioner and Magistrate First Class, exercising powers of Deputy Commissioner under Ordinance I of 1968 passed final order as contemplated under section 10 of the said Ordinance and decreed all the 3 suits vide order dated 2-2-1980. The operative portion of the order, which relates to suit for possession, culminating in the impugned order of Member Board of Revenue is reproduced below :- {{URDU TEXT}} ' The respondent No, 1 filed an appeal in the Court of Additional Commissioner, Quetta challenging the above-mentioned order which was dismissed by Additional Commissioner, Quetta on 17-11- 1980. Thereafter, respondent No, 1 filed Revision Petition before Member Board of Revenue.
Baluchistan challenging order dated 2-2-1980 passed by Additional Deputy Commissioner Quetta and 27-11-1980 passed by Additional Commissioner, Quetta which was registered as Civil Revision No, 71/BR-80 (Reader). This petition was accepted by the Member Board of Revenue (Agha Nasir Ali) vide his order dated 6-2-1982. The operative portion is reproduced below :- "After hearing the arguments Of the counsel for the parties and perusal of the records of the case, I find that the case has not been proceeded properly and as laid down under the law inasmuch as that the points at issue should have been framed and referred to a tribunal for adjudication as well as the point of limitation be also determined. As such the suit is remanded back for fresh trial under the law and the orders of the lower Court are set aside."
' Aggrieved by this order .Of remand, the present petition has been filed on 20-5-1982."
4. Syed Riazul Hassan learned counsel for the petitioners in support of his case has vehemently urged that (i) litigation is pending for the last more than 25 years and the petitioner is being deprived of utilising his own property thus order of remand is oppressive. (ii) Petitioner in previous round of litigation had stated that he has no concern with "The Property" therefore, according to him respondent No, 1 had no locus standi to file revision petition before the Member Board of Revenue, (iii) The impugned order has been passed by Agha Nasir Ali Member Board of Revenue. In fact in previous round of criminal litigation this officer while acting as President of the Tribunal gave dissenting recommendation on 19-5-1969 by rejecting claim of the petitioner, therefore the order of remand was biased, (iv) that decree was passed by Additional Deputy Commissioner on the basis of unanimous recommendation of Tribunal which was later con-, firmed by appellate authority, therefore, interference by the Member Board of Revenue in the exercise of Revisional authority was not called for. .5. On the other hand, Mr. Basharatullah, learned counsel for the respondent has strongly contended that (i) delay per se does, not constitute any justification for invoking writ jurisdiction specially when there was no illegality or element of lack of jurisdiction in the impugned order ; (ii)
Respondent No, 1 is party in the civil suit, therefore, he has full right to contest the proceedings in accordance with law ; (iii) No prejudice has been caused to the petitioners on account of the fact that impugned order was passed by Agha Nasir 'Ali as Member Board. Of Revenue because merits touching the rights of the parties have not been dealt with in the impugned order and only glaring illegalities have been pointed out which were factually ignored by two Courts below; (iv) the petitioner did not raise any objection when case came up for hearing before Agha Nasir Ali as Revisional authority. According to him petitioner having allowed said officer to pass the order, cannot later turn round and challenge competency of the officer by way of Constitutional Petition.
(v) Member -Board of Revenue has the jurisdiction to pass the order and there being no apparent impropriety or illegality, writ was not maintainable.
6. The first contention raised by learned counsel for the petitioners, hardly needs any discussion. No doubt inordinate delay has been, caused in the disposal of case, but delay per se would not create any right in favour of petitioners. In the same way it would not debar Courts from exercising lawful jurisdiction vested in them for rectifying illegalities or improprieties committed by subordinate Courts while adjudicating a dispute. It is always desired that proceedings of a case are not designedly delayed, but all the same patent illegalities cannot he allowed to be perpetuated merely because disposal of the matter has taken a long time. While strongly disapproving conduct of forums responsible for causing delay we are inclined to hold that mere delay cannot be made sole basis for ignoring illegalities committed below. It is admitted position that respondent No, 1 has been impleaded as party in the civil suit filed by petitioner. Besides decree for possession passed in this case was also sought to be executed against him. Therefore, under all norms and standards of law he was competent to agitate against the order passed against him before forum provided for by the statute. Objections of the counsel that respondent No, 1 did not have locus standi to file revision petition is totally, misconceived. Previous statement of respondent would be at best piece of evidence which can always be taken into consideration by the competent forum subject always to its admissibility and relevancy etc. In the case.
7. It is admitted position that Agha Nasir Ali had given a dissenting note in the recommendation dated 19-5-1969 acting as President of the Tribunal whereas now in the capacity of Revisional authority said Agha Nasir Ali has passed the impugned order of remanding the case. Normally a person cannot be expected to sit on judgment against his own order. In la the instant case the position is not exactly the same. As a matter of, fact, recommendation dated 19-5-1969 never came for consideration at the time of passing impugned order. In order to properly appreciate circumstances of this case it is pertinent to note that factually no evidence whatsoever was recorded by the tribunal constituted in this matter, under the provisions of Ordinance I of 1968. Even otherwise this position is specifically reflected from recommendation of Tribunal dated 22-1-1980.
Extract is reproduced below :- {{URDU TEXT}} ' Learned Member Board of Revenue in the impugned order reproduced in para (3) above; has not dealt with merits of the case at all. It has merely restricted himself to the apparent violation of law indicated to . Have been committed by the trial Court, in recording the proceedings and has consequently directed to rectify the same and to carry out proceedings by complying with law. In the peculiar circumstances of this case it is to be seen whether by pointation of defects in evidence on the face of record can be construed to cause prejudice to the petitioners. Learned counsel for the petitioners in furtherance of his arguments submitted that tribunal constituted under the provisions of Ordinance I of 1968 was competent to proceed in the matter even without recording any evidence, and, therefore, Revisional authority mis-exercised its jurisdiction by directing them on the consideration, not warranted by law. In this behalf. Reliance is placed on the observation of Division Bench of this Court Mir Rehman Khan v. Sardar Asadullah Khan and others (1) and PLD 1983 Quetta 75. It would be seen that while deciding the case quoted above, map question for consideration was whether the forums created by Ordinance I of 1968 are at all "Courts" and in this context it was opined that forums under this Ordinance do not constitute "Courts" in strict sense of the terms whereas question relating to procedure for conduct trial vis-a-vis provisions of this Ordinance was not in issue before the Division Bench. The observations with regard to trial procedure thus would not constitute ratio decendi of the case and those references do not factually deal with real controversy subject-matter of consideration by the Court at that time. In this behalf we are in agreement with the observation in case Mir Abdul Ghafoor v. Mst. Lqbal Begum
(2) we consequently have no doubt in our mind in holding that reference relied by learned counsel for the petitioners extract whereof is reproduced below is merely an obiter. Our view is further supplemented by observations in case Pakistan Electrical and Mechanical Constructors Ltd. v.
Chairman National Industrial Relations Commissioner and another (3) in which one of us Ajmal Mian, Actg. C. J. Was party. It is pertinent to mention here that Ordinance I of 1968 lays down a specific procedure for recording evidence. Section 8, which is relevant is reproduced below :- "8. Procedure before the Tribunal.-(1) For the purpose of coming to a finding on a matter or issue referred to it, the Tribunal shall give opportunity to the parties to appear before it-and take or hear, in such manner as it may think fit, such evidence as may be adduced on behalf of the parties or as may be called for by the Tribunal ; ' Provided that the Tribunal may in its discretion refuse to take or hear any evidence which in its opinion is being tendered for the purpose of vexation or delay or for defeating the ends of justice ; ' Provided further that the provisions of sections 121 to 126 of the Evidence Act, 1872 shall apply to any proceedings before a Tribunal as they apply to proceedings before a Judge or Magistrate.
(2)The Tribunal shall give the parties an opportunity of cross-examining the witnesses deposing against them.
(3)The Tribunal may administer oath to a witness in such form or manner, consistently with the religion of the witness, as it deems fit."
' From the bare reading of this section it is abundantly clear that Tribunal
(1) PLD 1983 Quetta 52 (2) PLD 1975 Lah. 524
(3) 1984 PLC (C. S.) 325 is bound to provide opportunity to the parties to allow such evidence as may be sought to be adduced on their behalf, of course with a limitation only that tribunal may refuse to take or hear any evidence which in the opinion of tribunal is intended to cause delay Of result in defeating justice or would be vexatious. Sub-clause (2) of section 8 makes it further obligatory for the Tribunal to allow an opportunity of cross-examining the witnesses who deposed against them, therefore, it is quite clear that opportunity must be given to the parties, and type of evidence contemplated by law is such to which cross-examination must be permitted. This, there- C fore, pre-supposes that evidence must be recorded allowing cross-examination and thereby excludes possibility of taking into consideration any oral discussion on information of any of the parries or members of the tribunal not subjected to cross-examination, Therefore, taking in view specined provisions of law, regulating the procedure for adjudication of civil disputes under Ordinance I of 1968 the evidence to be recorded should be in writing and must be in the manner, provided for under section 8 of the said Ordinance. Oral discussion or statement without opportunity of cross- examination has not been visualised by law. In the instant case, it is admitted in the recommendation dated 22-1-1980, that on the date when respondents attended the Tribunal, there was oral discussion and examination of record including copy of judgments etc. But no evidence was recorded. Later these recommendations were approved by the authority exercising powers of Deputy Commissioner ride order dated 2-2-1980 without bothering about inherent defects of the proceedings. In view of facts discussed above we are inclined to hold that since admittedly no opportunity was afforded to the parties to lead evidence was recorded by the Tribunal and no material was at all available before Tribunal to make recommendations, therefore, order dated 2- 2-1980 passed by Additional Deputy Commissioner exercising powers of Deputy Commissioner under the Ordinance is defective and deserves to be set aside. It is well-settled that if a Tribunal or Court 6r authority violates, the statutory requirements and limitation relating to the disposal of the matter before it or exceeds F sphere of jurisdiction allowed to it by law in that case action taken by that forum is a nullity in the eyes of law, and all the superstructure constructed over it crumbles alongwith it. Reliance in this behalf may be placed on the following cases. Muhammad Aslam Zia and others v. Yousaf Ali (1) ; Khuda Bakhsh v. Khushi Muhammad and others (2) ; Mansab Ali v. Amir and others (3) and Major Syed Walayat Shah v. Muzafar Khan and others (4). The learned Additional Commissioner has not applied his mind to any of these aspects. In fact he has passed a short and brief order without giving any reasons. The illegalities apparent on record have been pointed out by Member Board of Revenue in the impugned order, withont commenting G over merits of the claim. In these peculiar circumstances it is to be seen whether this order passed by Agha Nasir Ali as Revisional Authority could cause any prejudice to petitioner specially when previous recommendation dated 19-5-1969 as President of the Tribunal were not considered, more so that petitioner while arguing the, case before him submitted to his authority and jurisdiction and did not raise any objection. It will, therefore be fair to interfere with the impugned order merely on account of the fact that said Agha Nasir Ali made some recommendation in this matter, prior to that. On the contrary in the instant case, Member Board of Revenue by remanding the case has only rectified the illegalities whereby
(1) PLD 1958 SC 104 (2) PLD 1976 SC 208
(3) PLD 1971 SC 124' (4) PLD 1971 SC 184 Tribunal had flouted the requirements of law. To appreciate this aspect we have also considered the ratio decendi of the following cases :- Muhammad Ayub v. Pakistan through Secretary Ministry of Rehabilitation and Settlement Commissioner Rawalpindi (1) ; Abdur Razaq v. Ch. Sultan Muhammad Khan and others (2) and Aurang Khan and others v. Member Board of Revenue III and others (3) wherein submission to jurisdiction disentitled the party from seeking discretionary relief by invoking writ jurisdiction. We are also conscious of legal position that writ cannot be issued to perpetuate illegality. In case impugned order is knocked down on any technical ground, the same in turn would restore the orders which as already discussed are totally devoid of lawful authority.
Thus on consideration of peculiar circumstances of this case and the effect of the impugned order, which tends to merely rectify illegalities we are inclined to hold that in spite of technical infirmities in the impugned order, it would not be appropriate to grant discretionary relief to the petitioner, consequently writ is refused.
' However, keeping in view inordinate delay caused in disposal of the case we direct that proceedings before the Tribunal be conducted expeditiously, at the most within six months. With the above observations petition is disposed of with no orders as to costs.
Writ refused and .
(1) 1969 SCMR 961 (2) 1975 SCMR 13