Through this Constitutional petition, the petitioners have called in question the- order dated 1-12- 1969 and 10-2-1975 passed by the Deputy Settlement Commissioner and the Additional Deputy Commissioner (General), Multan, respectively as being without lawful authority and of no legal effect.
2. The petitioners are claimant displaced persons from the State of Kapoorthalla, East Punjab. Their predecessor- in-interest named Chanda alongwith the petitioners had migrated to Pakistan in 1947 and settled down in Chak No.245/EB Tehsil Pakpattan, district Sahiwal. Chanda, predecessor- in---interest of the petitioners, was allotted land against his verified claim bearing Nos.1185 and 7186 in the said chak. He also claimed allotment against 121 P.1. Units as an heir of one A.I Ahmad.
The said units were also transferred from Chak No.247/EB to Chak 245/EB where land measuring 24 kanals was allotted and then confirmed in his name on 8-6-65. The said land had become available after cancellation, being in excess of entitlement, from the khata of one Mst. Rashidan Bibi daughter of Shahab-ud-Din vide order dated 20-1-1965. This order was subsequently modified on appeal filed by Mst. Rashidan Bibi vide order dated 27-11-1965 passed by the Additional Deputy Commissioner/Additional Settlement Commissioner (L), Montgomery.
3. It s submitted that Arshad Ahmad Khan, respondent No.3 got his units transferred, from Chak 138/9-L, Tehsil Depalpur to Chak 245/EB, Tehsil Pakpattan on 29-2-1966. The petitioners' units were not satisfied and on 1-12-1969, respondent No.3 illegally got the, land proposed and confirmed in his name. The said allotment was secretly made in violation of para 68 of the scheme. It is further submitted that on coming to know about the order dated 1-12-1969 in January, 1972, the petitioners filed an appeal on 11-1-1972 in the Court of the Additional Deputy Commissioner (General) with powers of Additional Settlement Commissioner. An application under section 5 of the Limitation Act for condonation of delay was also filed.
4. During the pendency of the appeal, Act No. LV of 1973 was enforced, whereby the powers of revision of the Additional Deputy Commissioner (General) were taken away and the cases pending before him were ordered to be transferred to the Court of Settlement Commissioner. Thereafter Evacuee Property and Displaced Persons Laws (Repeal) Act XIV of 1975 was also enforced w.e.f. Ist of July, 1974, whereby all the Evacuee Laws were repealed. The pending cases stood transferred to the notified officers. For district Multan, the notified officer was the Additional Commissioner as mentioned in Notification No.296(Misc) Admn., 1 70/74 dated 16-11-1974, published at page 28 in PLD 1975 Provincial Acts. The learned counsel for the petitioners contends that on 10-12-1975 respondent No.1 had absolutely no jurisdiction to decide the appeal. Initially, it was to be transferred to the Court of the Settlement Commissioner but subsequently, by virtue of the provisions of the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974, only the notified office was competent to decide the appeal. This legal position was frankly conceded by Mr. M. Z. Khan Burki, learned counsel for respondents Nos.1 and 2. However, the learned counsel appearing for respondent No.3 has raised an objection that the question of jurisdiction ought to have been agitated before respondent No.1 in the first instance. True, ordinarily, the objection regarding jurisdiction has to be raised before the authority, tribunal or the Court concerned in the first instance. However, there may be exceptions to the above said general rule. If a Court is not properly constituted or has no jurisdiction in the matter, its orders do not acquire legal sanctity by absence of challenge to its jurisdiction. The failure on the part of the petitioners to raise the said objection before the Additional Deputy Commissioner (General) respondent No.1, did not clothe him with the authority to decide the appeal. The appeal stood transferred to the notified officer (the Additional Commissioner) by virtue of the provisions of section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, read with Notification No.296 (Misc) Admn. 170/74 dated 16-11-1974, referred to above. Hence, respondent No.1 became functus officio and could not decide a case which was no longer pending before him on 10-2-75. The proceedings taken by him were a mere exercise in futility and the ultimate order passed was a nullity in the eye of law. It was open to any party to challenge the same on the ground of lack of jurisdiction. The judgment reported as Mst. Ghulam Fatima v. Muhammad Hussain and 5 others PLD 1976 SC 729 is clearly distinguishable and not applicable to the facts of the present case. In that case, the High Court had refused to exercise its discretionary constitutional jurisdiction in favour of a person who had twice invoked the jurisdiction of the Board of Revenue and even filed a review application before the Board and thereafter challenged the order of the Board on the ground of lack of jurisdiction. It was held that discretion could not be exercised in his favour due to his conduct which clearly amounted to waiver and acquiescence. While referring to the case of Muhammad Afzal v. Member, Board of Revenue PLD 1967 SC 314 it was explained that the Court did not hold that a writ could be barred in every case in which the petitioner had failed to challenge the jurisdiction of the tribunal at the relevant time. In the present case, respondent No.1 obviously had the jurisdiction to hear the appeal/revision as Settlement Commissioner when it was filed before him in 1970. He was subsequently divested of his jurisdiction by operation of the law. It was only the notified officer who was competent to decide the appeal/revision. It was held in Chittaranjan Cotton Mills Ltd. v. Staff Union PLD 1971 SC 197 that a question about jurisdiction could be raised at any stage if the Court was not properly constituted. Improper constitution meant that legally there was no Court to deal with a case. In the matter in hand, respondent No.1 was neither the competent authority nor any case was pending before him. Hence, the petitioners can certainly raise the objection to the jurisdiction of respondent No.1 at this stage as well.
5. For the foregoing reasons, this writ petition is allowed, the impugned order dated 10-2-1975 passed by respondent No.1 is declared to be without Jurisdiction and hence a nullity in the eye of law.
6. The result is that the appeal/revision filed by petitioners would be deemed to be pending and the same shall be decided on merits in accordance with the law, by the Additional Commissioner (Revenue), who is the notified officer for such like matters.
7. Since it is an old matter, it is hoped that the notified officer shall expeditiously dispose of the case preferably within a period of four months. The parties are left to bear their own costs.
H.B.T/M-1538/L