1. The dispute in this case is regarding the leasing out a Waqf property premises located in the city of Chiniot. A dispute was going on between the petitioner and Dost Muhammad respondent No.2 regarding the sale of the super-structure made in his favour by Ahmad Ali, brother of Dost Muhammad. This was followed by a dispute between the two parties. The parties were litigating before the civil Court. Thereafter, the petitioner straightaway approached the Chief Administrator Auqaf for grant of tenancy rights for the land under the structure in dispute. The Chief Administrator entertained that application and granted the tenancy to Abdur Rashid writ- petitioner. Thereafter, Dost Muhammad respondent No.2 approached the Chief Administrator, Auqaf and challenged the earlier order in favour of Abdur Rashid. This resulted in earlier order having been varied and order favouring Dost Muhammad being passed on 12th of March, 1987.
2. Now the parties are before this Court.
2. The short law point that arises in this case is as to the true scope, powers and jurisdiction of appellate authority under the Punjab Waqf Properties Ordinance (Ordinance No.IV of 1979). The relevant provision for this purpose appears to be section 10 of the aforesaid Ordinance which reads as under:- "10. Appeal and finality.-(1) Any person evicted under the provisions of section 8 or aggrieved by an order of termination of lease or resumption of tenancy made under section 9 may, within sixty days of such eviction or within thirty days of the order of termination of the lease or resumption of tenancy, prefer an appeal to the Chief Administrator and the Chief Administrator, after giving such person an opportunity of being heard, confirm, modify or vacate the order made by the Administrator under section 8 or 9.
(2) If there is no appeal against an eviction order under section 8 or an order of termination of lease or resumption of tenancy made by the Administrator under section 9 the eviction, termination of lease or resumption of tenancy, as the case may be, shall be final, and when there is an appeal, the decision of the Chief Administrator in appeal shall be final."
3. It will be seen that the law has designated the Chief Administrator Auqaf as the appellate authority.
4. The right of appeal has been conferred upon a person evicted under the provisions of section 8 or who is aggrieved by an order of termination of lease or termination of tenancy made under section 9 of the aforementioned Ordinance. Subsection (2) of section 10 attaches finality to acts or orders stipulated in terms of sections 8 and 9 of the Ordinance where no appeal has been filed. If there is an appeal, then the decision of the Chief Administrator in appeal shall be final. It is crystal clear from a bare but careful perusal of the scheme of section 10 of the Ordinance that the Chief Administrator is constituted as appellate authority in respect of matters covered by sections 8 and 9 and that in this behalf he had not been clothed with any original jurisdiction. The occasion for exercise of appellate jurisdiction arises only in those cases where the original authority has passed an order which has been made appealable by the statute. It is equally well understood that the appeal is a creation of the statute and this power must be specifically conferred. This requirement seems to have been fulfilled by virtue of section 10 of the Punjab Waqf Properties Ordinance, 1979.
5. On the question of powers and jurisdiction of an appellate authority reference can be made to the case of Barnad v. National Dock Labour Board, 1953-2 QB 18 (L) and in particular the observations of Denning L.J. Which are as under:- "So far as the decision of the appeal Tribunal is concerned, it seems to me that, once the port manager's order is found to be a nullity, it follows that the order of the appeal Tribunal is also nullity.
6. The appeal Tribunal has no original jurisdiction of its own; it cannot itself make a suspension order; it can only affirm or disaffirm a suspension order which has already been made. If none has been made because it is a nullity, the Tribunal can do nothing. It cannot make something out of nothing any more than anybody else can."
7. 3.In the present case, the learned counsel for the Auqa.f Department is unable to contend or to substantiate that any original authority had passed an order so as to clothe the appellate authority with jurisdiction to interfere with or to look at any other aspect of the matter. It is also well-settled that an appeal is a continuation of the original proceedings and the whole matter becomes re- opened and sub-judice on institution of an appeal. So, where no original proceedings were taken or order passed as stipulated by section 10, the appellate authority is totally devoid of any jurisdiction to interfere in such matters. Therefore, in any view of the matter, the impugned order is not liable to be sustained. It may be pointed out that both the parties have committed the same mistake in going before the appellate authority straightaway. The proceedings before the Chief Administrator were, therefore, coram non judice and complete nullity in law. In the circumstances, both the orders are liable to be ignored. 1t has been held by the Supreme Court in the case of Altaf Hussain v. Chief Settlement Commissioner PLD 1965 SC 68 at page 79 to the following effect:- ,, The Chief Settlement Commissioner, it would appear, had misconceived the position in law when he directed that the review petition already filed, should be disposed of by the successor of Mr. Riazuddin Ahmad. He could not confer any such jurisdiction against the plain provisions of the Act.
8. The order of Mr. Farzand Ali Khan passed in review did not require to be set aside formally.
9. 4.None of the parties can base any right or raise superstructure on the basis of such an ab initio void order which is a complete nullity in law. If any authority is needed, reference may be made to the case of Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC (Pak.) 104.
10. 5.The impugned orders are therefore, declared to be without lawful authority and of no legal effect.
11. It is left open for the parties to approach the Zonal Administrator of Waqf Properties who according to the learned counsel for the Department, is the competent authority in the matter. Needless to point out that the Administrator will decide the lis between the parties after due observance of law and giving an opportunity of being heard to both the parties and in a just manner. In the circumstances, there shall be no order as to costs.