The facts giving rise to this writ petition may be briefly summarised. Property bearing No. 4/399 comprising three residential portion, situate in Ward No. 4, Bhera, District Sargodha, was in possession of Firoze Din (a local), the first respondent, Rafi-ud-Din the second respondent, and one Muhammad Shafi. The portion in possession of Rafi-ud-Din as also of Muhammad Shafi has since been transferred to Rafi-ud-Din against his CH form and there is no dispute in that regard. The LH form of Feroze Din was rejected by the Assistant Settlement Commissioner on the: 26th of December 1959 on the ground that the applicant was not entitled to the transfer of the premises which had been converted into a. Commercial unit. He preferred an appeal against this order before the Deputy Settlement Commissioner, who also excluded him (by order dated the 15th of January 1960) for the further reason that the applicant's father is alive and owns a house and being a man of substantial means of earning, he could construct his own house if so desired. Rafi-ud- Din's appeal for inclusion of Feroze Din's portion in his transfer was also rejected, the por--petition was accordingly ordered to be included in the auction list. Both Feroze Din and Rafi-ud-Din remained unsuccessful in their revision petitions before the Additional Settlement Commissioner.
The said portion was purchased in auction sale (held on the 18th of August 1960) by Shah Din petitioner which auction was confirmed on the 16th of October 1960. A Permanent Transfer Deed in favour of Shah Din was issued on the 22nd= of May 1962. Meanwhile Feroze Din had submitted an application on the 29th of September 1961 for transfer of the portion in his possession as converted property, in view of the policy of the Settlement Department contained in the Press Note dated the 3rd of May 1960, appearing at pages 139 to 141 of the Settlement Manual (Old Edition). That applica- -petition appears to have been processed and then laid as an appeal before the Additional Settlement Commissioner against order dated the 15th of January 1960 of the Deputy Settlement Commissioner placing the portion in the auction pool for disposal as an industrial unit. The Addi-- tional Settlement Commissioner allowed Shah Din, the auction-purchaser (on his own application) to be impleaded as a party to the said proceedings. However, Shah Din's contention that the property had since been auctioned and the auction sale confirmed by an officer of concurrent jurisdiction prevailed and the appeal was rejected. Feroze Din went in revi--sion and the Settlement Commissioner finding that the original order of transfer of the entire property in question had been passed by an Assistant Settlement Commissioner, who was admittedly incompetent to pass such an order as he was never specially empowered under para. 42 of Settlement Scheme No. I to dispose of the forms, held the order of rejection of the --LH form of Feroze Din and forms of other applicants, as without jurisdiction. The-orders passed in appeal and revision, etc., were also held to be---equally untenable. The revision petition was accordingly accepted and all orders passed till that stage by the Settlement authorities in respect of the-- transfer of the entire property were set aside and the case was remanded to the Deputy Settlement Commissioner, Sargodha, with the direction that he --should dispose of the various forms in respect of the disputed property, on merits. The orders of transfer by auction, the auction sale and con--firmation thereof were also set aside as the said orders had been passed-- without disposal of the LH form of Feroze Din by a competent authority.. After remand the Deputy. Settlement Commissioner again rejected the LH form of Feroze Din and resurrected the auction sale in favour of Shah, Din. He also allowed the portion in possession of Rafi-ud-Din to remain. With him along with Muhammad Shafi's portion against the former's CH form. Two appeals were filed against the said order, one by Feroze: Din and the other by Rafi-ud-Din. Bpth these appeals have been disposed of by the Additional Settlement Commissioner, after spot inspection, by a. Single order. It has been held that the portion in possession of Feroze Din is being used as a residential house and in a portion of it an industrial concern (Atta Chakki) owned by Feroze Din has been set up and, therefore, it was not fair to deprive him of the portion in his possession, which portion is being used both as commercial as well as residential, premises, on the mere ground that his application under the said policy letter of the 3rd of May 1960, was received a bit late. Accordingly the portion in possession of Feroze Din was transferred in his favour as an independent unit. Rafi-ud-Din's claim for transfer of the portion in possession of Feroze Din, as well, was rejected and he was confined to his own portion and the portion of Muhammad Shafi. Shah Din went in revision against the said order. Rafi-ud-Din and Feroze Din also preferred separate revision petitions. All the three revision petitions have been disposed of by the consolidated impugned order. The learned Settlements Commissioner has found that because the L. H. Form of Feroze Din had not been disposed of by a competent officer in the first instance, the orders excluding him were in no manner binding and effective and, therefore, if subsequently in the revisional proceedings before the Settlement Commissioner the case had been remanded to decide the entitlement of the various applicants for the entire property afresh and. In remand proceedings the Additional Settlement Commissioner has come to the conclusion that the premises in possession of Feroze Din are to be transferred to him as a house against his L.
H. Form for the added reason that he had also put in an application for transfer of the property as an industrial unit, the said orders of the Additional Settlement Commissioner are in no manner defective and the entitlement of Feroze Din cannot be ignored. On that view of the matter, he hag further found that the auction sale having been held during the pendency of Feroze Din's L. H. Form was bad in law and stood vitiated. Shah Din's revision petition was accordingly dismissed. For the same reason the revision petition of Rafi-ud-Din, claiming inclusion of Feroze Din's portion in his transfer was also dismissed. Feroze Din's revision petition for Muhammad Shafi's portion was dismissed, as being a local he could not be transferred any premises not in his possession. Feeling aggrieved, Shah Din has invoked Article 98(2) of the abrogated Constitution of 1962.
2. Shorn of all verbosity the argument before me has centred round the validity of the order passed by the Assistant Settlement Commissioner rejecting the L. H. Form of Feroze Din and the subsequent affirmance of the said order by the Deputy Settlement Commissioner and the Additional Settlement Commissioner in appellate and revisional jurisdiction, respectively. It has been contended by learned counsel for the petitioner that in view of the said orders being in the field, the subsequent application made by Feroze Din before the Additional Settlement Commissioner impugning the order of 15th January 1960, of the Deputy Settlement Commissioner placing the portion in question in the auction pool without disclosing the fact that his L. H. Form had been rejected earlier by the Assistant Settle--ment Commissioner and his appeal and revision petition had also failed, was incompetent. It is maintained that the Additional Settlement Commissioner had rightly rejected the application and the order of remand passed by the Settlement Commissioner in continuation of the aforesaid irregular proceedings was, bad in law because once Feroze Din had failed in his revision petition, the same matter could not have been re- agitated in another revision petition. However, when it was pointed out to learned counsel for the petitioner that the Settlement Commissioner was competent to revise an order passed by an Additional Settlement Commissioner in exercise of revisional jurisdiction, before the omission of subsection (4) of section 20 of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), learned counsel confined his argument to the contention that if the orders of rejection of Feroze Din's L. H. Form had been passed by the Assistant Settlement Commissioner, who was not competent to do so, for want of delegation of powers under para. 42 of Settlement Scheme No. 1, the decision of the Deputy Settlement Commissioner although in appellate jurisdiction, should be considered to be a valid rejection of the form of Feroze Din because admittedly the Deputy Settlement Commissioner was competent to dispose of the L. H. Form of Feroze Din. It is further contended that the said order of rejection of the L. H. Form of Feroze Din by the Deputy Settlement Commissioner in appeal having been affirmed in revisional jurisdiction by the Additional Settlement Commissioner clinched the matter. According to learned counsel if the order of the Assistant Settlement Commissioner passed incompetently is ignored, the orders of the Deputy Settlement Commissioner and the Additional Settlement Commissioner cannot be described as incompetent as the same have been grounded on reasons different from those given by the Assistant Settlement Commissioner. Support was attempted to be derived from the following observations in Mst. Bakho v. Mst. Sairan and another (PLD 1963 Lah. 72 "7. The order of the Deputy Settlement Commissioner dated the 11th of January 1960, was passed in absence of the petitioner and without notice to her. She challenged this order before the Addi-- tional Settlement Commissioner, who set it aside and in subsequent proceedings before the Settlement Commissioner and the Chief Settlement Commissioner the petitioner was a party and had been heard in support of her case. She has not been prejudiced at all. The learned council for the petitioner relied on Yusuf A.I v. Muhammad Aslam Zia PLD 1958 SC (Pak.) 104). It was observed by their Lordships of the Supreme Court as follows :----- "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 superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed position of the parties is m operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded."
The observations of their Lordships of the Supreme Court have been quoted in extenso with a view to show that the principle laid down therein applies only when subsequent orders are passed on the strength of an earlier order which is void. Here, the learned Additional Settlement Commissioner set aside the order of the Deputy Settlement Commissioner which order, according to the petitioner, was void. It was only by a subsequent order of the Settlement Commissioner, dated the 14th of April 1960, that the entitlement of the respondent was again acknowledged. That order was not passed on the basis of ..The order of the Deputy Settlement Commissioner, but it has been passed on the merits of the case without, in any way, taking the assistance from the order of the Deputy Settlement Commissioner, dated the. 11th of January 1960. A perusal of the order of the Settlement Commissioner -would show that the order of the Deputy Settlement Commissioner has not even been remotely referred to. This decision, therefore, is of no assistance to the petitioner.
It was also urged that the Deputy Settlement Commissioner passed an order without giving a notice to the petitioner as required by section 21(1) (b) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and it was otherwise in violation of the principles of natural justice.
The fact that the original order was passed without notice does not mean that the order has necessarily to be set aside. It is not possible to lay down such general rule. The proceedings, as a whole, have to be considered and the best criterion to determine is if any prejudice has been caused by the fact that the party was not heard by the Authority that passed the original order. In this case if I consider the original, appellate and revisional proceedings together it becomes clear that the petitioner had presented her case substantially as she wanted to do. No prejudice whatsoever has been caused to her. The decision of the Chief Settlement Commissioner is, therefore, not bad merely on the ground that notice was not given to her by the first Tribunal, i.e., the Deputy Settlement Commis--sioner. The non-compliance of the procedure necessary under the law was an error which can hardly be doubted, but as I have come to the conclusion that the order of the Deputy Settlement Commissioner has not worked to the prejudice of the petitioner, I see no reason why the entire proceedings of the Settlement Authorities should be declared in-- operative".
On that basis it is contended that since the L. H. Form of Feroze Din did not await disposal any more, the auction sale held in favour of Shah Din was valid and the same could not have been interfered with by any subsequent order whether by an appellate or revision authority. This argument has been met by the learned counsel appearing for the contesting respondents by saying that if the initial order of rejection of the L. H. Form lacked in jurisdiction because of the authority concerned having not been empowered to dispose of the various forms of the applicants, any subsequent orders passed in connection therewith by the appellate or the revisional authority also fall to the ground. Reliance has been placed on Major Walayat Shah v. Muzaffar Khan and others (PLD1971SC184and Mansab A.I v. Amir and others PLD1971SC124
3. It is admitted on all hands that the Assistant Settlement Commis--sioner inherently lacked jurisdiction to dispose of the L. H. Form of Feroze Din because the power of the Deputy Settlement Commissioner under para. 42 of Settlement Scheme No. 1 had not been delegated to him. The subsequent order passed in appeal impugning the void order of the Assistant Settlement Commissioner cannot be said to be an independent order of rejection of L. H. Form, not passed on the strength of the earlier order which is void. The additional reason given, for eliminating Feroze Din, by the Deputy Settlement Commissioner did not alter the basic ground of rejection by the Assistant Settlement Commissioner, which ground as a matter of fact found favour with the revisional authority. Both the appellate and the revisional authorities have affirmed the order of the Assistant Settlement Commissioner without being conscious of the fact that the said order was itself a nullity. Affirmance of a nullity by an appellate tribunal which itself may be competent to dispose of the matter as a tribunal of first instance in no manner cures the defect of jurisdiction.
The same is true in the case of a revisional authority. The following dictum of their Lordships of the Supreme Court appearing at page 127 of the report in Mansab A.I v.
Amir and others is in point :---- "It is an elementary principle that if a mandatory condition for the exercise of jurisdiction by a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in continua--petition of those proceedings in appeal or revision equally suffer from illegality and are without jurisdiction."
The view expressed in Mst. Bakho v. Mst. Sairan and another has to be read in the light of Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others (PLD 1971 SC 61wherein the Supreme Court has examined the cases in which issuance of a show-cause notice is a statutory obligation and when it is merely a requirement of the natural justice. The terse observations may be borrowed with advantage :----- "The argument that the appellant had an opportunity of being heard by the Settlement Commissioner, which is a sufficient redress for his grievance, may be well-founded when the grievance is made to rest on the principle of natural justice, viz., audi alteram partem (nobody is to be condemned unheard). But when, as already stated above, an absolute requirement of the statute has been defined, the order passed is a nullity . . . . . . ."
'The result of the discussion above is that the order passed by the Assistant Settlement Commissioner being void and a nullity in the eye of law, was to be ignored altogether and since no order had been passed by the competent authority rejecting the L. H.- form of Feroze Din, the order including the said portion in auction list or transferring it by auction and the order confirming the auction sale all fall with the original order of rejection of L. H. Form. That being the case, the order of the Settlement Commissioner remanding the case to dispose of the forms of the various applicants by a competent authority, therefore, cannot be taken exception to.
4. There is yet another aspect of the case. The petitioner has participated in the proceedings, after remand, before the Deputy Settlement Commissioner. Thereafter, he has appeared before the appellate authority and then has invoked revisional jurisdiction of the Settlement Commissioner against the appellate order of 'the Additional Settlement Commissioner. His acquiescences in the order of remand disentitles him to challenge the 'validity of the order of remand. He has been sitting on the fence and now when he has lost the battle before the Settlement Commissioner he C has turned round to attack the order of remand passed by the Settlement Commissioner. The ratio decidendi of Ghulam Mohy-ud-Din's case (PLD 1964 SC 829) applies with full force. The result is that the writ petition fails and is dismissed. There will be no order as to costs.