MUHAMMAD AKRAM, J.---This is an appeal under Clause 10 of the Letters Patent of this Court against the judgment dated 4-2-1966, delivered by a learned Single Judge, dismissing the Writ Petition No. 951-R of 1962, filed by the appellant against the respondents.
2. The dispute relates to Property No. B-XX-1-S-28, Gujranwala. It is a three-storeyed building and is comprised of 4-5 shops on the ground floor, and the residential units. But the dispute before us is confined to the residential portion alone. It was, occupied by Mehr Din, Karam Din appellant, Abdul Majid and Muhammad Rafiq respondents. Mehr Din is a claimant non-allottee in possession of a portion of the premises and filed a CH Form. Karam Din appellant is a non-claimant and allottee in possession and filed an NCH form for the entire property. On 2-3-1961, Mr. Maqbool Sadiq, Assistant Settlement Commissioner with powers of the Deputy Settlement Commissioner, Gujranwala, after hearing the parties and on spot inspection, transferred the shops to the respective occupants. He, however, observed that there was no form for the transfer of the shop occupied by Abdul Majid, which was, therefore, included in the auction list. Similarly Muhammad Rafiq had filed no form and the portion in his possession (shaded green) in the plan (Exh. A), forming an independent house, was included in the pool for disposal by public auction. In his opinion the rest of the house was easily divisible and he therefore, transferred the portion shaded in red, consisting of a room with a kitchen to Mehr Din and the part shaded in blue, consisting of three rooms and a kitchen to Karam Din appellant, leaving the staircase common between them. Dissatis--fied with this order the appellant filed an appeal against it laying his claim to the entire property as the lawful allottee in possession of the whole. He alleged that the portion in the occupation of Abdul Majid was in fact a baithak of the house in their joint possession and that the portion in the occupation of Muhammad Rafiq formed an integral part of his house. But on 23-2-1962, the Additional Settlement and Rehabilitation Commissioner, Lahore--Division, Camp Gujranwala, dismissed his appeal, observing that he was a non-claimant and has already received generous treatment at the hands of the Deputy Settlement Commissioner and was allowed preference against Mehr Din claimant. He should, therefore, remain satisfied with the portion already transferred to him. The appel--lant went up in revision against the order alleging that he was the lawful allottee of the whole of the premises and as such the Deputy Settlement Commissioner had no jurisdiction to put a portion of the premises to auction in this manner. But the learned Settlement and Rehabilitation Commissioner, Lahore Division, rejected the revision on 2-4-1962. He declined to interfere with the division already made.
3. In these circumstances the appellant filed the Writ Petition No. 951-R of 1962 in this Court, challenging the validity of these orders passed by the Settlement Authorities. The writ petition was admitted to a regular hearing on the strength of the Single Bench decision in Jalil Ahmed v.
Settlement Commissioner (PLD 1962 Kar. 197) in which it was held that a composite property could be divided in order to adjust claim of more than one person and not for the purposes of including a part or parts thereof in the pool for disposal by unrestricted public auction. But ultimately, on 4-2- 1966 a learned Single Judge of this Court dismissed the writ petition relying on the dissenting decision by a Division Bench of this Court in Muhammad Hanif v. Chief Settlement and Rehabilitation Commissioner (PLD 1964 Lah. 261) to the effect that unless the Chief Settlement Commissioner or his delegate has declared a composite property or a part or parts thereof to be one property, each component part could be disposed of separately. The learned Single Judge has further repelled the contention advanced before him that the order passed by the Settlement Commissioner was based on incorrect facts. In his opinion the error, if any, in the statement of facts, in the order passed by the learned Settlement Commissioner was immaterial and did not affect the ultimate result and it was not liable to be set aside on this ground alone. He has also repelled the contention advanced before him to the effect that the portion on the ground floor in the possession of Abdul Majid was a baithak of the house and not a shop wrongly included in the auction pool.' In the opinion of the learned Single Judge this was a disputed question of fact and he was not prepared to substitute his own judgment for that by the Settlement authority. Before him it was further contended that the original order in this case was passed by the Assistant Settlement Commis--sioner with the delegated powers of the Deputy Settlement Commissioner and that he was not competent under the law to divide the property into different units. But the contention was repelled and in the opinion of the learned Single Judge, assuming that there was some irregularity in the original order the matter was considered afresh on the merits by the Settlement Commissioner in the exercise of his powers of revision under section 20(2) of the Act and the defect was thereby cured. On the question of the mode of division of the property, the learned Single Judge was not prepared to judicially review the order of the Settlement authorities.
4. In this appeal, Muhammad Rafiq and Muhammad Ibrahim were ordered to be impleaded as respondents 4 and 5 on their separate applications made to the effect that they were in continuing possession of portions of the property in dispute and eligible to the transfer under Settlement Scheme No. VIII.
4-A. On behalf of the appellant it was strenuously contended before us that he was the lawful allottee of the whole of this property, and had already cleared the arrears of rent due in respect thereof, and that Abdul Majid was his brother-in-law and Muhammad Rafiq a close friend, in occupation of the portion merely as the licensees under him. They did not apply for the transfer and as such they were not entitled to the preference over him. Once again relying on the Single Bench decision in Jalil Ahmad v. Settlement Commissioner (PLD 1962 Kar. 197) it was stressed that the Settlement Authorities had acted against law in including a portion of this property for disposal by public auction. It was further argued that the appellant, even though a non-claimant in possession, was entitled to the whole as the rightful allottee thereof in preference to Mehr Ding the claimant in unauthorised possession and respondents 4 and 5 the licensees under him. Last but not the least, it was vehemently stressed before us that Mr. Maqbool Sadiq, Assistant Settlement Commissioner with powers of the Deputy Settlement Commissioner, Gujranwala, had no jurisdiction and authority under the law to divide this property and as such his order of division was ab initio void and incompetent, and likewise the subsequent orders based on it, passed in appeal and revision, cannot be sustained.
5. The appellant has also challenged before us the propriety and the mode of division of this property by the Settlement Authorities. In this connection the learned counsel has relied on the latest pronouncement in Abdul Majid Khan v. The Chief Settlement and Rehabilitation Commissioner, Pakistan, Lahore (PLD 1968 SC 154) to the effect that the word "unit" occurring in the first proviso to clauses (4) and (12) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 must be interpreted in the ordinary and popular sense of an integrated portion of a building structurally capable of being used as a self-contained portion. According to the learned counsel, by virtue of this division made by the Settlement Authorities in this case, the resultant units formed do not constitute self-contained and integrated houses. But there is hardly any force in this contention. There is nothing to show that the integrity of the unit in dispute was actually disrupted by this division of the property by the Settlement authorities and we are in agreement with the learned Single Judge in holding that in the exercise of our jurisdiction under Article 98 of the late` Constitution we cannot substitute our own judgment for that delivered by the competent Settlement Authorities vested with the lawful authority in the matter. In Muhammad Yusuf v. The Chief Settlement and Rehabilitation Commissioner, Pakistan, Lahore and others (PLD 1968 SC 101) the Supreme Court has held that the terms in which the power in question conferred by the first proviso to section 2(4) of the Act are stated do not allow interference by the Courts, in the exercise of their power under Article 98 of the Constitution, with any decision by Settlement authorities as to the divisibility of the house.
6. In this case before us the reliance placed by the learned counsel on the Single Bench decision in Jalil Ahmad v. Settlement Commissioner is hardly helpful to him. The view taken in that case to the effect that a composite property can be divided only in order to adjust claims of more than one person and not for the purposes of including a part or parts thereof in the list of evacuee property to be sold by unrestricted public auction, was not approved by a Division Bench of this Court in Haji Muhammad Hanif v. Chief Settlement and Rehabilitation Commissioner, and others (PLD 1964 Lah.
261). Morever, as pointed out by their Lordships of the Supreme Court in Master Nikka and another v.
Ghulam Nabi and others (Law Notes 1969 SC 35) this decision by the learned Single Judge, was set aside on appeal under the letters patent by a Division Bench (L. P. A. No. 68 of 1961), decided on 9- 2-1966.
7. In this case, the original order dated 2-3-1961, dividing this property, was passed by Mr. Maqbool Sadiq, Assistant Settlement Commissioner invested with powers of the Deputy Settlement Commissioner, Gujranwala. It was conceded before us on all hands that at the relevant time Mr. Maqbool Sadiq was not himself the Deputy Settlement Commissioner or and that he had passed the impugned order in pursuance to the powers delegated to him in this behalf by the Deputy Settlement Commissioner with the prior approval of the Additional Settlement Commissioner, under paragraph 42 of the Settlement Scheme No. 1 reproduced below:- "The Deputy Settlement Commissioner may with the prior approval of the Additional Settlement Commissioner and by an order issued in writing and displaced on the notice board of his office, delegate any of his powers under this Scheme to an Assistant Settlement Commissioner subordinate to him."
8. Faced with this situation, the learned counsel for the contesting respondents 4 and 5 has, however, argued that this plea in its present form was never taken by the appellants before any of the Settlement authorities and should not be allowed to be raised for the first time in this Court in the course of the proceedings in the writ petition. In support of his contention in this behalf the learned counsel has strongly relied on the authority in Ghulam Mohi-ud-Din v. Chief Settle--ment Commissioner, Lahore and others (PLD 1964 SC 829) to the effect that one of the grounds upon which the Courts in England have consistently held a party seeking such a writ to have disentitled himself to this extraordinary remedy is his failure to object to such usurpation of jurisdiction before the Tribunal concerned or to raise the objection at the earliest opportunity before the Tribunal, whose illegal order he seeks to have quashed by the writ, if he was aware that the Tribunal lacked the jurisdiction it purported to exercise. The principle upon which the writ is refused, in such cases, is not that the jurisdiction has been con--feered on the Tribunal concerned by waiver and acquiescence but that although the impugned order is without jurisdiction the person seeking to have it quashed should not be granted that discre--tionary relief as he had stood by and allowed the Tribunal to usurp a jurisdiction which it did not possess knowing that the Tribunal concerned was committing such an illegality in consequence of something done by that person himself. This case was noticed with approval by their Lordships of the Supreme Court in Ch. Altaf Hussain v. The Chief Settlement`s Commissioner, Pakistan, Lahore (PLD 1965 SC 68). But this is only a rule of equity and by no means an absolute one in its application. In Muhammad Afzal v. Board of Revenue, West Pakistan and another (PLD 1967 SC 314) their Lordships of the Supreme Court observed that; "by mere submission in the capacity of a respondent, to the authority of the Member, the appellant could not be thought to have conferred a jurisdiction on the Member which he did not Kara possess, or to have waived his right to challenge the Member's power to interfere with the order of the Commissioner. In this connection our learned brother Karam Elahi Chauhan, J.
In Khair-ud-Din v, Abdul Hamid and others (PLD 1966 Lah. 362) after an elaborate discussion has held that:- " ------------------------------------------------.The rule of disallowing objections of jurisdiction to be raised for the first time in writ jurisdiction is not an absolute rule. There are some well-known exceptions to that. As for example, where the defect of jurisdiction was not known to the petitioner or where the defect is apparent on the face of the record, there this rule is not applied. Again there may be cases in which failure to raise objection is not material, because the view of the domestic tribunal may be so well-known due to having been expressed in large number of cases that even if this objection had been raised before it, it would not have given effect to that. There may still be another case where the position of law on the subject was not certain."
This case was cited with approval by a Division Bench of this Court in Muhammad Sharif v. Sh.
Muhammad Rafique. Settlement and Rehabilitation Commissioner, Lahore and others (PLD 1968 Lah. 263). The above observations are fully attracted to the instant case before us. We find that the question that the Assistant Settlement Commissioner was not competent to divide the property was not altogether free from difficulty. In these circumstances it cannot be said that the appellant had participated in the proceedings and knowingly and wilfully failed to raise the objection before the Settlement authorities concerned and as such was estopped by his conduct and acquiescence from raising this objection for the first time in this Court. This objection goes to the very root of the order passed by the learned Assistant Settlement Commissioner to divide the property. In the eye of law the impugned order thus passed by him was ab initio void, it did not at all exist and was, therefore, liable to be ignored.
9. Nevertheless, the learned counsel for the contesting respondents has argued before us that this impugned order passed by Mr. Maqbool Sadiq, Assistant Settlement Commissioner was upheld on the merits on appeal by the Additional Settlement and Rehabilitation Commissioner and then on revision by the Settlement and Rehabilitation Commissioner in their two respective orders dated 23-2-1962 and 2-4-1962 and the irregu--larity, if any, in the original-order was thereby cured in the subsequent orders passed in the case by the higher authorities.
But in this connection in Yousaf A.I v. Muhammad Aslam Zia and 2 others (PLD 1958 SC (Pak.) 104) the Supreme Court has held that if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders together with the super-structure of rights anti obligations built upon them, must, fall to the ground because such orders hive as little legal foundation as the void order on which they are founded.
Even otherwise we find that in this case, on appeal, the Additional Settlement and Rehabilitation Commissioner in his impugned order dated 23-2-1962 did not apply his own independent mind to the question of the divisibility of the premises. He has merely affirmed the order of his subordinate under appeal before him for quite a different reason that the non-claimant could not be allowed to have any, preference over a claimant and that he was already accorded a generous treatment.
Similarly on revision the learned Settle--ment and Rehabilitation Commissioner in his impugned order dated 2-4-1962 did not fully address himself to the merits of this controversy about the divisibility of this house. After a cursory discussion on the subject he has merely declined to interfere with the division already made. He did not bring to bear his own independent mind on this question. He has merely based his opinion on the void order passed by the Assistant Settlement Commissioner. Therefore, these two orders, in appeal and revision, have no independent existence of them own and for these reasons they must fall with the basic order passed by him. On this view of the matter we have to differ with the judgment under appeal passed by the learned Single Judge. This appeal before us must therefore succeed on this short ground alone and we have no option but to quash the three impugned orders, concerning these parties before us, and remit the case to the Deputy Settlement Commissioner, Gujranwala, for a decision afresh between them.
Here we would like to add that in the writ petition the appellant did not implead Mehr Din and Abdul Majid, the transferees of the shops as parties They are not parties before us in this appeal also.
Therefore, this decision shall be binding only on the parties before us.
12. For the foregoing reasons we accept this appeal, reverse the judgment under appeal and in accepting the Writ Petition No. 951-R of 1962, we quash the three impugned orders passed by the three Settlement Authorities and remit this case to the Deputy Settlement Commissioner, Gujranwala, for a decision afresh between these parties. But there shall be no order as to costs under the circumstances of this case.