' BASHARAT AHMED SHEIKH, J.---The facts necesary for the disposal of this appeal are that on 2-6- 1981 respondent Muhammad Khan filed a civil suit against Azad Government of the State of Jammu and Kashmir, Collector Land Acquisition Kotli and Brigade Commander Kotli. It was averred in the plaint that the land survey No.324 in Kotli Baliah, measuring 9 kanals and 7 marlas was duly allotted to the aforesaid plaintiff and that it was under the use and occupation of the Army for which rent was being paid to the plaintiff. The plaint went on to say that without the knowledge of the plaintiff the Army had secured an award under the Land Acquisition Act in respect of the land mentioned above from Revenue Assistant on 16-10-1977. It was alleged that the proceedings for acquisition resulting in passing of the award were based on collusion and that the plaintiff was neither summoned nor heard during the proceedings. The plaint also contained the averment that the plaintiff came to know of the award only about a month or so before the filing of suit when the defendants started asserting their rights in relation to the suit land. The plaintiff sought a declaration that the award made in respect of the suit land was illegal and without jurisdiction, inter alia, because Revenue Assistant Kotli made the award without possessing the powers of Collector Land Acquisition. The other ground related to the allegation that the plaintiff was not summoned or heard before making of the award.
2. In order to prove that on the relevant date, i.e. 16th of October, 1977 the Revenue Assistant had the authority to make the award, reliance was placed on behalf of the defendants on the two Government Notifications. One is Notification No.RS/624-25/64 dated 17th August, 1964 wherein Assistant Commissioner and Sub-Divisional Magistrate Kotli was invested with the power of Collector Land Acquisition within the territorial jurisdiction at Kotli. The Notification includes only the Assistant Commissioner or Sub-Divisional Magistrate Kotli on whom the powers under reference were conferred and does not refer to the Revenue Assistant Kotli. For obvious reasons it was found to be of no avail to the defendants in the previous round of litigation and since this matter stood concluded by a judgment of the High Court this notification was not relied upon before us. The other notification on which the defendants in the case relied before the learned Sub-Judge and subsequently before the appellate Courts is an order issued on 4th of February 1978. It recites that in order to accelerate the development work all the Revenue Assistants have been delegated the ex officio powers of Collector under the Land Acquisition Act w.e.f. March 1969. There are serious objections with regard to the admissibility or otherwise of this notification which were raised on behalf of the plaintiff-respondent, but we do not propose to decide this point because of the reason that we think it is not necessary to do so. More formidable objection which was put forth was that the notification was purportedly given retrospective effect which could not be legally done. As is apparent from its contents the powers of Collector Land Acquisition were given to the Revenue Assistant on 4th of February, 1978, on which date the award under dispute had already been announced, but was given effect from a date nine years earlier.
3. The learned Sub-Judge expressed the view that the Government order referred to above had not been duly proved because a copy of the gazette on which date it should have been published was not produced and found that the Revenue Assistant was not authorised under law to act as Collector under the Land Acquisition Act. The learned Sub-Judge, therefore, decreed the suit and declared that the award dated 16th October, 1977 made by the Revenue Assistant Kotli in respect of the suit land was void and therefore, inoperative against the rights of the plaintiff. He also issued an injunction that the defendants shall restrain from interfering in the rights of the plaintiff in respect of the suit land. This decree was passed on 31st of May 1983. No appeal was filed against it. However, on 31st of March 1984 a revision petition was filed in the High Court by the Government of Pakistan and the Military Estate Officer Abbottabad challenging the decree. A dispute arose, on an objection being raised by the plaintiff-respondent, about the maintainability of the revision petition which was decided by a learned Single Judge of the High Court in favour of the petitioners. The Single Judge in the High Court held that since the Revenue Assistant Kotli was not mentioned in the notification issued on 17th of August, 1974, mentioned above, authorising the Assistant Commissioner/S.D.M. Kotli to act as Collector under the Land Acquisition Act, Revenue Assistant Kotli was not competent to make the award which was declared as without authority and of no legal force. The decree passed by the learned Sub-Judge was upheld.
4. The Federation of Pakistan and Military Estate Officer Abbottabad filed a petition for leave to appeal in this Court which was granted and the appeal filed by them was accepted on the ground that the learned single Judge in his judgment dated 27-2-1985 did not dispose of an important point involved in the case, namely, whether the notification of 4th of February 1978, mentioned above, which had been given retrospective effect validly conferred the power of Collector on the Revenue Assistant. This Court, therefore, remanded the case with the direction that the High Court may re-hear arguments and decide this point. On re-hearing, another learned Single Judge of the High Court has dismissed the revision petition holding that the Government order did not legally operate retrospectively. The High Court has held that delegated legislation cannot operate retrospectively unless such a power is conferred by law which makes provision for delegated legislation. Consequently, the High Court has dismissed the revision petition, as already noted, and held that the award made by the Revenue Assistant was without lawful authority and a nullity in the eye of law.
5. Against the order of the High Court a petition for leave to appeal was filed on behalf of, the Federation of Pakistan, through Ministry of Defence, and Military Estate Officer Hazara Circle. These two parties were before the Court in the previous round of litigation also but this time they have been joined by the Custodian of Evacuee Property who claimed that his interests were involved since the property is evacuee and in case of acquisition a part of the compensation would go to the evacuee pool. Leave to appeal was granted on 5-3-1990 to all the three.
6. Appearing for the appellants Raja Muhammad Hanif Khan vehemently contended that the view taken by the High Court that a notification giving retrospective effect to delegation of power to a Government functionary was not contemplated by law and was, therefore, inoperative to the extent of its retrospectivity was not correct. He submitted that such notifications are issued in exercise of powers conferred by law and it is well settled, according to him, that a law can be either prospective or retrospective. He relied upon the following reported judgments:--
(1) Burmah Oil Company Ltd. v. The Trustees for the Port of Chittagong [PLD 1961 SC 452],
(2) Bhagwat Dayal Mattu Mal v. Union of India Ministry of Works Housing and Supply, New Delhi [AIR 1959 Punjab 479].
(3) Bhagwat Dayal v. Union of India [AIR 1959 Punjab 544],
(4) Prof. Dr. Raja Muhammad Ayub Khan v. Azad Jammu and Kashmir Government [1990 MLD 1238].
(5) Muhammad Akhtar Hussain v. Government of West Pakistan [PLD 1970 SC 146].
7. Sardar Rafique Mahmood, the learned counsel for Muhammad Khan defendant in the case, submitted that the High Court has reflected the settled position of law that a notification could not be given retrospective effect and relied on the following reported cases:--
(1) Collector of Central Excise and Land Customs v. Azizuddin Industries Ltd., Chittagong [PLD 1970 SC 439],
(2) Mian Muhammad Latif v. Province of West Pakistan [PLD 1970 SC 180].
(3) Kohinoor Textile Mills Ltd. v. Commissioner of Income-Tax, Lahore [PLD 1974 SC 284].
(4) The Province of Pakistan v. Major Nawab Khawaja Hasan Askary [PLD 1971 SC 82].
8. The powers under the Land Acquisition Act of making an award are exercisable by the Collector as defined in clause (c) of section 3 of the Act which runs as follows:-- "(c) the expression "Collector" means the Collector of a district, and includes a!Deputy Commissioner and any officer specially appointed by the Provincial Government to perform the functions of a Collector under this Act;"
As a general concept, which is also strongly supported by the phraseology reproduced above, it is elementary that appointment precedes and does not follow the exercise of power. The exercise of power presupposes the existence of that power. If no authority is available how can it be exercised?
It is true that the Courts of law have held unanimously that making of a law includes making of law prospectively or retrospectively but that power is only vested in the legislature and does not extend to delegated legislation or delegatees of statutory power. Similarly the legislature has power to take away even vested rights and destroy them but again such powers are not available to the delegatees except when the parent law which provides for delegation makes a special provision for it. These propositions of law are fully elucidated in the aforementioned cases cited before us by the learned counsel for the plaintiff-respondent Sardar Rafique Mahmood Khan, as well as two cases relied upon by the High Court in its judgment under appeal namely, Sh. Rehmatullah v.
Deputy Settlement Commissioner Centre 'A', Karachi [PLD 1963 SC 633] and Sh. Fazal Ahmad v. Raja Ziaullah Khan [PLD 1964 SC 494].
9. The view of this Court is also the same as is evident from Abdullah Shah v. Aziz-ur-Rehman [PLD 1983 SC (AJ&K) 20], wherein it is laid down that rules come into operation on the date they are made unless otherwise provided in the law or rules. This Court has also followed as a rule the following view of the Supreme Court of Pakistan expressed in Mst. Bibi Jan and others v. Miss R.A.
Monny and another [PLD 1961 SC 69] that:-- "....Ordinarily a notification, issued under statutory powers, should be deemed to come into effect on the date when it is published and not from an anterior date. Whether it should have any retrospective or retroactive effect, would depend entirely on the terms of the notification itself and the statutory mandate behind it. The declaration that the notification would be deemed to be good with effect from a date prior to that of its publication, may, therefore, be disregarded."
10. Out of the cases in which this view was followed we may mention Shakar Khan v. Muhammad Lai [PLD 1978 SC (AJ&K) 126] and Gulzaman Khan v. Ghulam Hussain [1980 C.L.C. 1887]. Incidentally these two cases illustrate the proposition how a notification can apply retrospectively so as to take away the right of pre-emption after it has accrued to a party, except when it has been incorporated in a decree. The retrospectivity of a notification was partly upheld in these cases because it was authorised by the statute under which it was issued and validity was refused because the phraseology employed in the parent statute was not found wide enough.
11. In Rehmatullah's case, relied upon by the High Court, the Supreme Court of Pakistan held that a notification by the Government under the Displaced Persons (Compensation and Rehabilitation)
Act could not have retrospective effect. B.Z. Kaikaus, J. Speaking for the Supreme Court of Pakistan in Fazal Ahmad's case observed that subordinate legislative power is to be permitted only to the extent to which it is necessary for proper exercise of its function by the legislature and a power to legislate with retrospective effect has never been accepted as included in a power of subordinate legislation.
12. In Collector of Central Excise and Land Customs v. Azizuddin Industries Ltd., Chittagong [PLD 1970 SC 439] the Supreme Court of Pakistan laid down the rule that it was a settled rule that an executive authority cannot in exercise of the rule-making power or the power to amend, vary or rescind the earlier order take away the right vested in the citizen by law.
13. In Commissioner of Sales Tax v. Messrs Kruddsons Ltd. [PLD 1974 SC 180], it was considered as settled proposition that a notification could not operate retrospectively to impair an existing right or to nullify the effect of a final judgment of a competent Court even if the notification be expressly so designed. In the same year the Supreme Court in Kohinoor Textile Mills Ltd. v. Commissioner of Income-Tax [PLD 1974 SC 284] held that a notification could never be retrospective.
14. We have gone through the cases cited by Raja Muhammad Hanif Khan, the learned counsel for appellants. Prof. Dr. Raja Muhammad Ayub Khan v. Azad Jammu and Kashmir Government (1990 MLD 1238) is authority on the proposition that a promotion can be retrospective. In doing so this Court formed the opinion that power to give retrospective promotion could flow from section 22 of the Civil Servants Act as well as rule 9 of the Civil Servants Rules. It is thus apparent that retrospectivity of a promotion was upheld when it was found that the parent law gave such a power.
15. The other case relied upon by the learned counsel is Burmah Oil Company Ltd. v. The Trustees for the Port of Chittagong [PLD 1961 SC 452]. It is a case in which it was held that if there occurs an accidental omission in notification it could be corrected at a later stage and such correction would date back to the time when the notification was issued. At the same time the Supreme Court made it clear that this rule only was available for making good an accidental omission and not for introducing substantial change and material alteration in the notification itself. This judgment in fact recognises the fact that a notification could not be retrospective.
16. There are however two cases from Indian jurisdiction which have been cited by Raja Muhammad Hanif Khan, the learned counsel for the appellants, in which it has been held by the Punjab High Court that a notification appointing a Collector under the Land Acquisition Act may be retrospective. These two cases are reported as: Bhagwat Dayal Mattu Mal v. Union of India, Ministry of Works, Housing and Supply, New Delhi [AIR 1959 Punjab 479] and Bhagwat Dayal v. Union of India and others [AIR 1959 Punjab 544]. The view expressed in these two cases by the learned Judges of the Punjab High Court in India is at variance with the view held by this Court and the Supreme Court of Pakistan. These two cases do not have any binding or pursuasive authority. But we have gone through the reasoning adopted by the learned Judges and, with due respect, we are unable to subscribe to these views. In Bhagwat Dayal's case a learned Single Judge in para. 12 of the report recorded his view in the following words:-- "(12) It seems that the acquisition proceedings during 1956 were conducted before some other Land Acquisition Collector and that Murari Sing, who delivered the award, appeared on the scene only in January, 1957 and merely heard arguments and drafted the award. He was apparently an Additional Revenue Assistant at Delhi and it seems that by an oversight he took charge of the proceedings and announced the award without his appointment to perform the functions of a Collector under the Land Acquisition Act having been duly notified.
' This omission was ratified by a Notification dated 30-3-1957 which was made retrospective as from 7-1-1957. It was thus contended that the award was delivered by an officer without jurisdiction.
This objection would certainly have had some force if in any sense of the word a Collector under the Land Acquisition Act, could be deemed to be a Court. There is no doubt about the proposition that in the case of a Magistrate or a Civil Judge any proceedings taken before such an officer before his office and powers had been duly gazetted would have to be held coram non judice.
There is however, some authority for holding that an Officer of this kind is only performing an administrative function.
' In Sm. Kako Bai v. Land Acquisition Collector, Hissar AIR 1956 Punj. 231, Bishan Narain, J. Has expressed the view that an enquiry by a Collector under the Land Acquisition Act is an administrative and not a judicial proceeding and that the award made by the Collector under section 11 of the Act is not a final award binding on the claimant but merely a tender or an offer of an amount mentioned in the award as compensation payable by the Government to the claimant.
An award is in fact merely the starting point of other proceedings, and is almost invariably followed by a reference to the District Judge, which is called a reference rather than an appeal although in effect it is virtually an appeal, and then an appeal to the High Court. In the circumstances I do not consider that there is any ground for interference and dismiss the petition with costs. Counsel's fee Rs.100 to each of the respondents."
17. We may 'observe that the main reason which pursuaded the learned Judge to reach the conclusion as he did was the distinction between administrative and judicial functions. In our view this distinction, we say so with respect, does not warrant the conclusion. No reasoning has been recorded by the learned Judge for the proposition that in case of an administrative functionary the principle applicable to a Civil Judge or Magistrate would become inapplicable.
18. The other case is reported in the same volume on page 544 and the proposition under reference can be found in para. 32 of the report. The two Judges who heard that case were confronted with the similar situation that on the date on which the award was given the appointment had not been notified as such a subsequent notification was issued which was given retrospective effect. While dealing with the situation the learned Judge who wrote the judgment stated that in the same year he had said that Collector Land Acquisition who had not been appointed in accordance with law could not give a valid award (AIR 1959 Punj. 538). But after mentioning this fact the learned Judge proceeded to observe as follows:-- "It has, however, been brought to my notice by my learned brother that similar question was raised before a Full Bench of this Court at Chandigarh recently and in that case the Notification with retrospective effect was held to be valid. In that case I am informed by my learned brother the Government appointed an Additional Director (Consolidation) to hear appeal under section 21(4) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act. By an oversight, however, he was not given any power to hear the appeals. The Additional Director so appointed, heard the appeals and decided them.
' On discovering the mistake the punjab Government issued a notification with retrospective effect.
The Full Bench upheld the Notification as valid. The principle laid down in the Full Bench case applies to the present case and moreso when the consolidation proceedings are of a quasi- judicial nature while the Land Acquisition Collector acts only as an authority to make an offer on behalf of the Government. For these reasons this contention of the petitioners also fails.".
19. It is clear from the above that the learned Judge who wrote the judgment was himself of the view that an award given by a Land Acquisition Collector at the time he had not been duly appointed could not be validated by a retrospectively notification, but followed a Full Bench of the Punjab High Court. It is also clear from the above report that the Full Bench judgment was not before the learned Judge who wrote the judgment but he was only informed by the other Judge who sat with him on the Division Bench. We are not in a position to know the reasoning adopted by the Full Bench in the case referred to in the judgment. So far as the judgment under examination is concerned it only follows the Full Bench view because it was binding on Division Bench but it does not contain any reasoning. Therefore, since we are unable to benefit from the reasoning adopted by the Full Bench, we are unable to change the view adopted by this Court in the previous cases mentioned elsewhere that a notification cannot be retrospective. In our view a repository of delegated statutory authority cannot act retrospectively, whether by making a rule or passing an order, except when authority to act retrospectively has also been delegated.
20. This brings us to the conclusion that the appointment under question was not -valid appointment so far as the retrospcctivity mentioned therein is concerned. The award, therefore, was coram non judice and we find that it was rightly held so by the High Court as well as the learned Sub-Judge.
21. However, during the arguments in the case we asked the learned counsel for the parties whether, if we came to the conclusion that retrospective part of the notification was not valid and that the award under dispute was coram non judice, would in that case de facto doctrine be applicable to the case. In a recent case Amjad Hussain and others v. Mir Ghulam Rasool [Criminal Appeal No.6 of 1990.1991 PCr.11 685], we have applied this doctrine for the first time in Azad Kashmir but it is a well established doctrine and has been given judicial recognition in many parts of the world. In England this doctrine was recognised from the earliest times. It can be said on authority that the first reported case in which this doctrine received judicial recognition was Abbe de Fontaine [1431 Year Book 9 H 6 Fol 32] decided in 1413. The doctrine briefly stated, is that if right to hold an office is found defective the acts performed by the person who held that office de facto are treated as valid and binding. This doctrine is based on good sense and sound policy and is aimed at prevention of endless mischief. Although we applied this doctrine in Amjad Hussain's case which is recent but there were two points which created some doubt whether this would be applicable to the present case or not. The first point is that in Amjad Hussain.; case we were dealing with the appointment of a Judge and not an officer, therefore, the question was whether the principle underlying this concept w941d or would not be extended to an officer of the Government. The second factorin our mind was that in Amjad Hussain's case there was order of appointment;which existed when the Judge started functioning and delivered his judgment and it was at a subsequent stage when the challenge had been thrown to his appointment but in the present case the Collector Land Acquisition had not been appointed Collector Land Acquisition when the award under dispute was made by Therefore, we adjourned the case and requested the counsel appearing for, the parties to assist us on the point whether this doctrine would be applicable to die - facts of the present case. Subsequently we heard the learned counsel on those , points also. We now advert to this aspect of the case.
22. While examining the true import of de facto doctrine we may begin with reproducing the following passage from Colley's "Constitutional Limitations", Vol. II, page 1357:-- "No one is under obligation to recognize or respect the acts of an intruder and for all legal purposes they are absolutely void. But for the sake of order and regularity and to prevent confusion in the conduct of public business and in security of private rights the acts of Officers de facto are not suffered to be questioned because of the want of legal authority except by some direct proceedings instituted for the purpose by the State or by someone claiming the office de jure or except when the person himself attempts to build up some right, or claim some privilege or emolument, by reason of being the Officer which he claims to be. In all other cases the acts of an Officer de facto are as valid and effectual, which he is suffered to retain the office, as though he were an officer by right, and the same legal consequences will flow from them for the protection of the public and of third parties."
' In this passage the learned author has referred to "officers" without creating a distinction whether they perform judicial or administrative functions which leads to the conclusion that the doctrine is not restricted to Judges but also other functionaries. The other conclusion which follows from the above extracted passage is that de facto doctrine does not apply to intruders and acts performed by them are void.
23. In "Black on Judgments" it was observed by the learned author that:- "A person may be entitled to his designation although he is not a true and rightful incumbent of the office, yet is no more usurper but holds it under colour of lawful authority. And there can be no question that judgments rendered and other acts performed by which a person who is ineligible to a judgeship but who has nevertheless been duly appointed, and who exercises the power and duties of the office is a de facto Judge, and his acts are valid until he is properly removed."
24. What follows from the above is that the doctrine applies to those situations where an appointment is made but the incumbent is ineligible to hold the office. Black has referred to de facto Judge only but since the treatise deals with "JUDGMENTS" in our view it does not follow that the author has restricted the application of the doctrine to Judges.
25. We may now advert to some reported cases. In Saedding v. Lorant [1851] 3 HLC 418: 15 Jur. 955; 10 ER 164 (HL) there were some vestry men who were found to be vestry men de facto and not de jure on account of some dispute about their election. By applying the de facto doctrine their acts were treated valid. It appears from the report that before they acted they had been elected and dispute had arisen about it subsequently.
26. In Milward v. Thatcher [1987] 2 TR 81, 87: 10 ER 45 a English Judge observed as follows:-- ". Suppose a person were even criminally convicted in a Court of Record, and the Recorder of such Court were not duly elected, the conviction would still be good in law, he being the Judge de facto."
' It is clear that the Judge applied the doctrine in a situation where election existed as a fact and may have been defective in law.
27. In Nortan v. Shelby Country ((1871) 38 Conn 449) Field, J. Said that this doctrine gives validity to acts of officers de facto whatever defects there may be in the legality of their appointment or election. This observation shows that appointment or election should be in existence at the time when the act is performed but this appointment or election may not be legal. It is also clear that the doctrine applies to all officers without distinction.
28. This doctrine was applied by the Supreme Court of Pakistan in Lt.-Col. Farzand Ali v. Province of West Pakistan [PLD 1970 SC 98]. In that case dispute related to certain members of the National Assembly. Appellants before the Court who had been adversely affected by some laws made by the National Assembly of Pakistan challenged the actions taken under those laws and one of the grounds was that certain persons who had been elected members of the Assembly were disqualified from becoming and continuing as members of the Assembly and thus the laws made with their participation were void. The Supreme Court, apart from holding that the acts performed by such members and their participation in the proceedings of the National Assembly was protected by constitutional provisions, also held that they were not intruders and applied the de facto doctrine. In this case the members of the Assembly had been elected and on the face of it had the authority to sit in the National Assembly and the challenge was thrown on the validity of their election. It is therefore, that it was said that they were not intruders.
29. In Abdul Salam Qureshi v. Judge Special Court of Banking for Sindh [PLD 1984 Kar. 462] a Division Bench of the Karachi High Court applied this doctrine in the circumstances that a judicial officer was appointed as Special Court under the Banking Companies (Recovery of Loans)
Ordinance, 1979 and a decree passed by him was challenged amongst others on the ground that on the date when he was appointed as Judge Special Court he was not a District Judge while only a Distict -Inge could have been appointed as Special Court. The facts of this case show that the appointment order existed when the order challenged was passed by the Judge.
30. In Muhammad Iqbal and another v. Member, Board of Revenue, Punjab and 2 others [1991 CLC Note 264 at p. 204] an order passed by a learned Single Judge of the High. Court was challenged on the ground that the appointment of the learned Judge was not valid and constitutional, hence, his order may be ignored. The Division Bench of the Lahore High Court dismissed this argument holding that even otherwise the proceedings taken by a Judge cannot be set aside or ignored even if it is found subsequently that his appointment was not valid. In ibis case also there was an appointment order under which the Judge was functioning.
31. The Supreme Court of India adopted this doctrine in a judgment which is reported as Gokaraju Rangaraju v. State of Andhra Pradesh [1983 PSC 890]. The facts before the Supreme. Court of India were that the Supreme Court , quashed the appointment of some judicial officers who had been appointed as District Judge Grade II on the ground that their appointment was in violation of the provisions of Article 23 of the Constitution. Thereupon their orders were challenged by the persons against whom orders had been passed by those Judges' that their judgments were nullity in the eye of law and should be quashed. The Supreme Court applied the de facto doctrine and upheld the judgment of the Judges whose appointments had been quakhed earlier. In this case also there was an appointment order which was subsequently challenged and was found to: be defective.
32. In Parameswa ran Pillai Bhaskaran Pillai and another v. State Prosecutor [AIR 1951 Travancore- Cochin 45] challenge was to a judgment of the learned Judge of the High Court and his appointment was challenged as being in contravention of some provision of law. As is obvious from the facts of the case there was appointment order existing at the time when the order was passed by the Judge.
33. In P.S. Menon v. State of Kerala and others [AIR 1970 Kerala 165], a Full Bench case the legal point raised was regarding the competency of the Chairrnan and members of the Public Service Commission relating to the violation of some constitutional provisions when the appointment was made. It is also apparent that when the impugned acts were performed by the Public Service Commission, its member had an appointment order under which they were functioning and question of their defect arises subsequently.
34. In light of the two treatises on the subject and the reported cases noted above it has crystallised that:-- ' firstly, the de facto doctrine is not restricted to Judges but is also applicable to other functionaries; and ' secondly, it applies only to persons who are appointed or elected before they start funtioning but there is a legal defect in such appointment/election.
35. In the present case when the Revenue Assistant Kotli performed functions as Collector under the Land Acquisition Act he had not been appointed to perform those functions and in our view coram non judice acts performed by him do not qualify for validation under the de facto doctrine.
His actions as Collector cannot be equated with colourable exercise of powers merely because he holds another appointment under the Government. If such an appointment forms a basis of validation it would lead to total confusion in society. In that case we may have to treat as validly made a detention order under the Safety Act issued by a Revenue Assistant or an order passed by an Additional Custodian in exercise of revisional powers which are vested in the Custodian. The de facto doctrine is clearly inapplicable to such interlopers.
36. Before parting with the case we wish to make some observations so as to eliminate chances of any confusion which may arise. In the suit Muhammad Khan sought a declaration in respect of the award made by the Revenue AsSistant dated 16th October, 1977 but he did not challenge the acquisition proceedings which had preceded the impugned acts of the Revenue Assistant. Before the Revenue Assistant started proceedings for formulation of award many other steps had been taken in respect of acquisition of land by authorities other than the Revenue Assistant starting from a notification under section 4 of the Land Acquisition Act. Since these acts were never challenged we wish to make it clear that the judgment or decree passed by the learned Sub-Judge would not in any way affect the notification issued or proceedings taken by any authority other than the Revenue Assistant Kotli. Consequently, the concerned authorities may recommence the proceedings under the Land Acquisition Act from the stage the Revenue Assistant Kotli started his proceedings.
' With the observations made above the appeal is dismissed with costs.