' MIAN ALLAH NAWAZ, J.---The validity/propriety of the order of Senior Member of Federal Land.
Commission dated 24-5-1983, is called in question in this Constitution petition.
2. The few facts relevant for the disposal of this petition are; that the Agricultural land bearing Killas Nos23, 24 and 25 in Rectangle No,129/1 and Killas Nos,7, 8, 9 and 13 in Rectangle No,129/2, situated in Revenue Estate Shamasabad Tehsil Liaquatpur, District Rahim Yar Khan was surrendered by the owners under Martial Law Regulation 64 (shortly stated as MLR. 64). This land was not disposed of under the aforesaid Regulation and so became available for grant to tenants under Para No,18 of Martial Law Regulation 115 of 1972 (hereinafter described as MLR. 115). The Deputy Land Commissioner, Rahim Yar Khan, granted Killas Nos. 23, 23 and 25 in Rectangle No,129/1 to one Muhammad Sadiq (herein respondent No,1) while Killas Nos.7, 8, 9 and 13 in Rectangle No,129/2 in the same Revenue Estate was granted to Muhammad Sarwar (herein respondent No2). This happened vide separate orders dated 29-3-1974. None filed appeal/review or revision against the aforenoted orders and so these orders became final. However, it seems that one Phullan (now deceased), Ramzan (now deceased) and Shah Muhammad filed complaint to the Chief Land Commissioner, Punjab, alleging therein that the respondents. Nos.1 and 2 were not tenants over the land in dispute at the relevant time and were not entitled to grant of the land. These complaints were forwarded to the Deputy. Land Commissioner, Rahim Yar Khan to conduct enquiry into the allegations made in the complaints. It is necessary to note over here that neither these complaints nor the order of Chief Land Commissioner forwarding the same to the Deputy Land Commissioner was brought on record of this petition.
3. Pursuant to this order, the Deputy Land Commissioner, Rahim Yar Khan, deputed the Assistant Land Commissioner to visit the spot and enquire into allegations contained in the complaint referred to above and submit his report to him. In compliance with this order, the Assistant Land Commissioner visited the land in dispute, recorded the statements of parties to this petition and submitted a report on 24-5-1974 to the Deputy Land Commissioner stating therein that respondents Nos.1 and 2 were not in possession of the disputed land as tenant at the relevant time and thus were not entitled to its grant under para. 18 of the MLR 115. He recommended that the necessary correction be made in the revenue papers as well as in the orders of allotment. After the perusal of this report and without affording opportunity of hearing to respondents Nos.1 and 2, the Deputy Land Commissioner, recorded a note of assent with the aforesaid report. This happened vide order dated 13-64975.
4. Feeling dissatisfied, the respondents riled appeal which was rejected by the learned Land Commissioner by order dated 24-2-1975. Against this order, respondents Nos.1 and 2 preferred revision petition which was also rejected by the learned Addl. Chief Land Commissioner vide order dated 23-14983. Feeling aggrieved, respondents Nos.1 and 2 filed revision petition No,RP.1 (272/100)/FLC/83 before the Federal Land. Commissioner, Islamabad. Rawalpindi. This was disposed of by the Senior Member of Federal Land Commission who by the impugned order dated 24-5-1983 accepted the petition and restored the initial order of grant in favour of respondents Nos. 1 and 2.
5. The learned counsel, in support of this petition, raised following points:- ' Firstly; the Deputy Land Commissioner had passed the order dated 13-61975 in consonance with the direction of Chief Land Commissioner,' Punjab under Rules 4 and 5 of the Punjab Land. Reforms Rules, 1972 (hereinafter described as. Rules of 1972). On the basis of this argument it was contended that the Member, Federal Land Commission committed patent error of law by treating the impugned order of the Deputy Land Commissioner as having been passed in his review jurisdiction: Secondly; the respondents Nos.1 and 2 filed revision petition after the delay of three months. It was urged that without adverting to the question of limitation, the Senior Member of Federal Land Commission accepted the same on 29-5-1983.- On the basis of these facts, it was suggested that the revision petition filed before Federal Chief Land Commission was barred by time and as such the Commission had no, jurisdiction to adjudicate the same. Reliance was placed on Para. 29 of M.L.R.
115.
6. On the contrary, the learned counsel appearing for respondents Nos.1 and 2 vigorously supported the impugned order by saying that neither any appeal nor any revision or review was filed by the petitioners against the initial order of allotment in favour of respondents Nos.1 and 2.
According to the learned counsel these orders had become final and could not be set aside by the Deputy Land Commissioner in miscellaneous proceedings. On the strength of this fact, it was urged that the order passed by the Deputy. Land Commissioner dated 13-6-1975 was totally null and void and was not creative of any legal right in favour of petitioners. Elaborating his contention further; he contended that the orders passed by the Land Commissioner dated 24-2-1976 as well as Addl.
Chief Land Commissioner, Punjab dated 23-1-1983 were mere superstructure on void order. These were mere nullities and were correctly struck down by Member, Federal Land Commission by impugned order dated 24-5-1983. As regard question of limitation, it was canvassed that, he. Order of the Deputy Land Commissioner dated 13-6-1975, the order of Land Commissioner and the order of the Addl. Chief Land Commissioner dated 23-1-1983 were, void orders. As such no limitation ran against these orders. Reliance was placed on Khuda Bakhsh v. Khushi Muhammad and 3 others (PLD 1976 SC 208).
7, Before we proceed to deal with the contentions of the learned counsel for the parties, we feel it necessary to note that the order of the Chief Land Commissioner Punjab forwarding the complaint of petitioners to Deputy Land Commissioner was not placed on record. Even the perusal of the report of Assistant Land Commissioner as well as the order of the Deputy Land Commissioner does not show any reference to such order. We further note with anguish that the Deputy Land Commissioner, Rahim Yar Khan, while passing the impugned order dated 13-6-1975, did not apply his independent mind, to facts and circumstances of the case. The perusal of this order shows that the Deputy Land Commissioner merely recorded a note of agreement with the report of Assistant Land Commissioner dated 24-5-1975. Can such note be treated as an order passed after application of independent mind. Answer is simple and in negative. It is hardly necessary to be stated that our Government is a Government of laws. The functionaries of the State/Administrative agencies derive their powers from the Constitution and laws of land. They arc required to exercise their powers in a given case after taking into, consideration the relevant facts and circumstances of the case A within the delimited area of their authority. In doing so they are bound to decide the matters by independent application of mind free from extraneous influences/dictation from outside. Agencies, 'howsoever high they, may be Reference be made to A.W Malik v. The Authorised Officer, Dacca Improvement Trust and others (PLD 1970 Dacca 178) Riaz Ahmad v. Sccy.(Information Culture and Tourism Dcptt,) Govt. Of Punjab and 3 others (PLD 1977 Lahore 307) and Muhammad Yousuf v. Province of Sindh and 2 others (PLD 1976 Karachi 1219).
8. This being the legal position, we have no doubt in our mind that the Deputy. Land Commissioner, while passing the order dated 13-6-1975 did not apply his mind to the facts and circumstances of this case, and merely concurred with the report of the Assistant Land Commissioner. It is, thus, clear to us that the order of the Deputy Land Commissioner dated 13-6-1975 is destitute of legal authority and cannot be sustained. Since this order is void order, the subsequent orders of Land Commissioner and Addl. Chief Land Commissioner are, therefore, a mere superstructure on void order and cannot I be legally maintained.
9. It is well known rule that where a power is conferred on one person then that person cannot transfer its exercise to another person. Thus an act may be ultra vires because it is done by the wrong person. Reference be made to a passage on the doctrine of substantive ultra vires by Introduction to Administrative Law by David Foulkes, Fourth Edition: "An act may be ultra vires because it is done by the wrong person. This raises particluarly the problem of delegation of functions. Where a power is conferred on one person then the general rule is that he cannot transfer its exercise to another person--delegatus non potest delegare. In Allingham v. Minister of Agriculture and Fisheries (1947) 1 All ER 780, the Minister had by regulations lawfully delegated to a County War Agricultural Committee his powers to give directions concerning the use for agricultural purpose of land specified in the notice of direction. The committee decided that eight acres of sugar beet should be grown by the occupier of certain land but left it to its executive officer to select the acres to which the direction would apply. The officer consulted a local sub-committee appointed to make recommendations to the committee; acting on its advice he served a notice on the occupier specifying the acres. The notice was held to be invalid as the committee had left to the officer the duty of deciding something they had to decide for themselves of course, where the delegate is expressly empowered by statute to sub-delegate, then no objection can be made. Section 101 of the Local Government Act, 1972 gives a wide power to local authorities to make what are popularly called "agency arrangements" (though the section does not use the word agent or delegate). By it a local authority may "arrange for the discharge of any of their functions (a) by a committee, a sub-committe or an officer of the authority; or (b) by any other local authority."
10. Judged from this angle it is clear that the Deputy Land Commissioner had no authority to depute the Assistant Land Commissioner to make enquiry and report. Similarly, he failed to perform his functions in proceeding with the acceptance of the Assistant Land Commissioner. We are clear in our mind that the order of Deputy Land Commissioner dated 13-6-1975 cannot be sustained.
11. It is settled law that where an inferior Tribunal/Court, Administrative Agency has acted wholly without jurisdiction, that such action amounts to usurpation of power and such action amounts to usurpation of power as such act is a nullity. Reference be made to rule laid down in Raunaq Ali v.
Chief Settlement Commissioner (PLD 1973 SC 236). It was held therein: "This is no doubt correct, but it, is also now well-established that where an inferior Tribunal or Court has acted wholly without jurisdiction or as Rubinstein puts it in his book on "Jurisdiction and Illegality", taken any action "beyond the sphere allotted to the Tribunal by law and, therefore, outside the area within which the law recognizes a privilege to err", then such action amounts to a "usurpation of power unwarranted by law" and such an act is nullity; that is to say, "the result of a purported exercise of authority which has no legal effect whatsoever." In such a case, it is well- established that a superior Court is not bound to give effect to it, particularly where the appeal is .To the latter's discretionary jurisdiction. The Courts would refuse to perpetuate, in such circumstances, something which would be patently unjust or unlawful."
' This principle was reiterated in the Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331), Khuda Rakhsh v. Khushi Muhammad and 3 others (PLD 1976 SC 208), Mst. Amina Begum v. Deputy Settlement Commissioner, Circle I, Lahore and .3 others (PLD 1980 Lah. 571) and Mazhar Hussain Khan and another v. Government of West Pakistan and 5 others (1983 SCMR 40).
13. Applying these principles to the facts and circumstances of the case, we are of the view tht the order of Deputy Land Commissioner dated. 13-6-1975 was wholly without jurisdiction. We have examined rules 4 and 5 of Rules, 1972 and are of considered view that these are not applicable to the facts and circumstances of this case. These rules,in fact, deal with the power of Chief Land Commissioner while dealing with the subordinate land reforms authorities in administrative matters. Accordingly this contention is repelled.
14. The only question left for determination is as to whether the revision petition filed by respondents Nos.1 and 2 before the Federal Land Commissidn, was barred by time and as such the Member, Federal Land Commission had no authority to adjudicate it. It is sufficient to say that the, impugned orders passed by the Deputy Land Commissioner dated 13-6-1975 by the Addl. Chief Land Commissioner dated 23-1-1983 were coram nonjudice. As such no limitation commenced against such order. If any authority is noted in support of this proposition, i,e. Khuda Bakhsh v.
Khushi Muhammad and 3 others (PLD 1976 SC 208), Yousaf Ali v. M. Aslam Zia and 2 others (PLD 1958 SC 104), Hussain Bakhsh and others v. Settlement Commissioner and another (PLD 1969 Lahore. 1039) and Syed Nazir Hussain v. Settlement Commissioner, Lyallpur and another (PLD 1974 Lahore 434).
15. In the light of foregoing discussion we do not find any merit in this petition which is accordingly dismissed. There shall be no order as to costs.