' This Constitutional petition has been filed to challenge the validity of the proceedings taken and orders passed by the Board of Trustees of Abandoned Properties (Cabinet Division) and of the Deputy Administrator dated 18-6-1989.
2. To be very brief, the controversy involves a plot of land in Sector No,F-7/1, Islamabad which was allotted by the Capital Development Authority in 1969 to Mian Mansoor Ali, an ex-MNA from East Pakistan. The petitioner in August 1971 claims to have entered into an agreement coupled with a power of attorney to perfect his title to the plot purchased by him for a consideration of Rs,70,000.
The Capital Development Authority, it is further claimed, was also informed of this event. The petitioner then had to proceed abroad as he was taken seriously ill and in the process his two kidneys were removed and one kidney was transplanted and he remained there till 1978. The case set up by the petitioner is that he being a bona fide purchaser for consideration of the Plot No, 227(C) Sector F-7/1 before the target dated, that is, 16th December, 1971, the property was not covered by the definition of abandoned property as given in section 2 of Abandoned Properties (Management) Act, 1975. It is also being contended that the property which was declared as abandoned property vide Notification dated 17th March, 1976 was Plot No,1, Street No,30, Shalimar-7 whereas the proceedings which were being taken' by the respondents related to Plot No,227/C, Sector F-7/1, Islamabad. According to learned counsel the notification in respect of Plot No,1, mentioned above, could not have been considered or construed to be applicable in respect of Plot No,227/C, and at any rate it was too late now to extend the scope of the proceedings taken in respect of one property to another. The impugned orders consciously failed to establish a nexus between these two plots. A mere bald oral assertion by the learned counsel for respondent during the hearing of this Constitutional petition was said to be no substitute for a specific finding which should have been based on legal and proper evidence and recorded after due application of conscious mind of the competent authorities. The appellate authority that is, the Board of Trustees, it was submitted, was not competent to render any decision or to decide matters in controversy unless the designated original authority, the Administrator, had first exercised its jurisdiction and passed any order under the statute. The finding on the question of limitation was also assailed as being based on wrong assumptions and misreading and misapplication of law. Additionally, it was urged that as a result of visible errors of approach and procedure, the petitioner stands deprived of a valuable vested right of appeal under the statute. All these impugned acts are said to have brought about a vitiative infirmity in the proceedings.
3. I would, at first, deal with the ground relating to decision of the Board of Trustees which under the statute is the designated appellate and revisional authority. It declined the approval for confirmation as enumerated in para. 9 of the impugned order. It must be observed that section 15 of the Act provides that any person aggrieved by an order or decision of the Administrator within the prescribed period, which shall not be less than twenty-one days, may prefer an appeal to the said Board. From a plain reading of this section it is evident that it lays down certain condition for invoking or exercising appellate jurisdiction which must be shown to have been fulfilled before assumption of such jurisdiction. The first jurisdictional pre-condition for an appeal is that an order should at first have been passed by the original Authority, that is, Administrator in this case. The second such requirement is that a person must feel aggrieved by such an order. The third pre- condition is that the appeal must have been filed within the prescribed period laid down by section 15 of Act XX of 1975.
4. In a case like the present one, none of the pre-conditions spelt out above can be reasonably said to have been even adverted to . In the instant case unless an order was passed by the Deputy Administrator on the original side, no legal foundation was laid for exercise of an appellate power.
The decision of the appellate Board was thus devoid of legal effect. The perversity of procedure also had the deleterious effect of depriving the petitioner of a vested right of appeal in terms of section 15 of Abandoned Properties (Taking Over and Management) Act, 1975 (Act XX of 1975). In these circumstances approaching the Board of Trustees, designated as appellate Authority which was party to the impugned decision of the Deputy Administrator would have been no more than an idle ceremony. The so-called appeal in such set of circumstances could not reasonably be said to constitute an alternate adequate remedy. The petitioner, is, thus, not to be found on the wrong foot in law by not going up in appeal before an incompetent forum.
5. It follows as a logical corollary that in the facts of this case an appellate Authority like the Board of Trustees could not exercise original jurisdiction. Wherein a case the original authority had passed no order, the appellate Authority could not assume appellate jurisdiction nor exercise appellate powers because its jurisdiction would be confined to examining the order under appeal on factual and legal plane and therefore, it could set aside, modify, or reverse the impugned order or remand the case to the original authority. I have already elaborated this legal position in earlier decisions. Reference may also be made to the case of Collector of Customs, Madras v. A.H.A.
Rahiman (AIR 1957 Mad. 496).
6. As to the defect in the notification noticed above, there has been no adjudication made in the impugned order dated 18-6-1989. Per se, in the absence of any evidence, Plot No,1, Street No,30, Shalimar-7 cannot ipso facto be substituted for or equated with Plot No,227/C, Sector F-7/1, Islamabad, unless as is being contended by the petitioner, there was some tangible evidence on record to show that the very same plot had two descriptions.
7. Apart from this aspect of the matter, a further question that would arise is whether the notification in respect of Plot No,1, Street No,30, Shalimar-7, Islamabad, as originally made on 6th April, 1976 would encompass Plot No, 227/C. Moreover, an amended notification subsequent to 6th April, 1976 could not be given effect retrospectively. It must not also be overlooked at the same time that an adjudication was to be made and the decision rendered by the Deputy Administrator after application of his own independent mind free from all external influences as rights in valuable property were to be decided. The Administrator was to act judicially or at any rate in a quasi- judicial and just manner. The decision rendered by the Board prematurely which the Deputy Administrator treated as fait accompli and felt obliged to follow amounts to dictation in law which constitutes a patent illegality that would bring about vitiative infirmity in the impugned proceedings and orders.
8. The crucial aspect of the case to be noted is that Mr. Muhammad Qamash Khan, Deputy Administrator, vide paragraph (6) of his impugned order dated 18-6-1989 has recorded the clear finding that Power of Attorney Exh. A/I and Sale Agreement Exh. A/4 coupled with the fact that the petitioner is in possession of all original documents including allotment order and allied correspondence "leads one to the inevitable conclusion that the transaction claimed has taken place between the specified person and the petitioner much before the terminal date i.e, 16-12-1971.
Consideration involved is also fair enough in view of the prices prevailing in th market during the deal". The affidavit of the vendor was also believed. The position may have been different if the documents had been found to be spurious, fabricated, forged or inadmissible in evidence which is not the position found by the authorities in the case in hand.
9. I allowed ample opportunity to learned counsel for respondents to substantiate the pleas he wished to raise in opposition to the case set out by the petitioner. Learned counsel submits that the Constitutional petition was not maintainable because the petitioner failed to prefer an appeal. This objection already stands answered. As to the plea of want of jurisdiction of this Court to interfere, suffice it to observe that no sub-constitutional law can whittle down or take away the undoubted jurisdiction of the High Courts under Article 199 of the Constitution. The legal position is so well- settled and obvious that it calls for no elaborate reiteration on the part of this Court.
10. At this stage learned counsel agreed that since both the sides have been heard, the matter may be treated and disposed of as a notice case.
11. For the reasons listed above, the impugned orders including decision taken in the Board's meeting are found to be wholly unsustainable and are declared to be without lawful authority and of no legal effect. Since the material questions required to be resolved for rendering a just decision have been left undecided, the decision of the appellate Authority touching upon the merits of the case preceded the adjudication by the original functionary and thus prejudicially influenced the result of the decision which amounted to dictation in law, irrelevant considerations have influenced the proceedings which constitute grounds for the impugned decision and the questions which went to the root of the jurisdiction have been left undecided, the proper order to pass would be to send the case back to the Deputy Administrator (Abandoned Properties) for fresh decision in accordance with law after application of his own independent mind and uninfluenced by the Board's decision. It would be a perversity of approach and the purpose of law if appellate or revisional authority become a party to the original order and thus render futile the very substantive right of appeal and revision.
12. The learned counsel for respondent has no objection to the remand of the case. The Deputy Administrator will decide the case afresh in accordance with law after giving a reasonable opportunity of hearing to the parties. All the parties would be free to raise whatever pleas of law and fact are available to them in support of their respective pleas. The question of jurisdiction must be adverted to before taking steps in the proceedings on ascertainment of jurisdictional facts.
There would be in the circumstances no order as to costs.