' The orders passed by the Land Commissioner respondent No, 4 on 1-5-1967 and 19-6-1983 are assailed through this Constitutional petition. The petition was first decided on 12-2-1984, by the High Court, whereby accepting the writ petition, the impugned orders were quashed. But on appeal before the Supreme Court, the order was set aside on 21-3-1989 and the case was remanded for a fresh decision formulating the following two points: ' Whether the writ was competent with regard to a matter which attained finality prior to 1971 when for the first time writ jurisdiction was given to the High Court; and ' whether the review petition later on moved in the year 1979, was a pretext to persuade the High Court to exercise the writ jurisdiction and the High Court was thus not competent to decide an issue decided finally prior to 1971?
2. The facts necessary for disposal of the petition are that land measuring 7 Kanals 18 Marlas comprising number Khasra 738, situated in village Dhamni, Tehsil Rawalakot was in the occupancy tenancy of respondents 1 to 3, while the petitioner was its landlord. On the enforcement of Land Reforms Act, 1960 (hereinafter to be called as Act) the Sub-Assistant Land Commissioner, in exercise of his Powers under section 25 of the Act, ordered occupancy tenants on July 26, 1961, in the presence of Noor Muhammad, one of the respondents, to deposit the compensation in the sum of Rs,13.44, within one year from the date of order. The occupancy tenants failed to deposit the same. On their failure, the landlord was directed to deposit the sum of Rs,24.06 on August 5, 1964, as compensation for the payment to occupancy tenants for extinguishment of occupancy rights and reversion of property to the landlord. The amount was deposited within stipulated period by the landlord. Gul Muhammad, one of the respondents, preferred a revision petition on August 3, 1965, before the Land Commissioner, against the order of Sub-Assistant Land Commissioner dated August 5, 1964. The Land Commissioner was pleased to accept the revision petition ex parte on May 1, 1967, and, after setting aside the order dated August 5, 1964, the respondents were allowed to deposit the amount of compensation within a period of one month from the date of order. On being informed of the order, the petitioner moved an application before the Land Commissioner for discharge of ex parte order, but the application was dismissed on June 19, 1983. Consequently, the Constitutional petition was lodged on August 15, 1983 for declaring the orders passed by the Land Commissioner on 1-5-1967 and 19-6-1983 as without lawful authority. The order in hand shall dispose of the petition on merits in the light of the directions of the Supreme Court mentioned above.
3. The learned counsel appearing for the petitioner, inter alia, argued that the ex parte order passed by the Land Commissioner on 1-5-1967 was without authority as being contrary to the provisions of the Order 5 of the C.P.C. which was applicable to the case of the petitioner; that the Land Commissioner was wrong in holding the application of the petitioner for vacation of ex parte order as a review petition; that the extension of period allowing the respondents to deposit the compensation is without authority of law. On the points formulated by the Supreme Court for decision by the High Court, it is argued that though the first order passed by the Land Commissioner is dated 1-5-1967, but the same has merged in his later order, dated 19-6-1983, when the writ jurisdiction was available to the Courts, hence, according to the learned counsel the High Court is competent to look into the legality of the order in exercise of its Constitutional jurisdiction. The learned counsel has relied upon the following authorities:
(1) 1983 CLC 1317; (2) 1984 CLC 668; (3) 1983 SCM R 569; (4) PLD 1989 SC 18; (5) PLD 1975 Azad J&K 114;
(6) PLD 1985 SC (AJ&K) 163 and 174; (7) PLD 1974 SC 134; (8) PLD 1958 SC 201 and (9) PLD 1959 SC 296.
' The only argument addressed from the other side is that as the matter was closed in 1967 when the writ jurisdiction was not available to the High Court, hence, according to the learned counsel for the respondents, the pre-Constitutional matters cannot be opened in the Constitutional jurisdiction of the Court. The learned counsel has not cited any case-law in support of his contention.
4. After hearing the learned counsel for the parties, I have gone through the record in the light of arguments and considered the law points argued at the Bar. Besides the points formulated by the Supreme Court, points which arise for disposal of this writ petition are, as to whether the ex parte order passed by the Land Commissioner was without lawful authority and as to whether after expiry of period allowed to the tenants to deposit the compensation, the period could not be extended; and if so, what is the effect of these orders. The points formulated by the Supreme Court cannot be properly attended unless the points argued at the bar are first resolved.
5. The respondents were admittedly occupancy tenants when the law was promulgated. Under section 25 of the Act, the occupancy tenants are given a right to deposit the compensation at the rate of 20 times of the rent for the landlords within a period of one year from the date of order, so as to obtain the ownership rights. On the failure of the occupancy tenants to deposit the compensation in accordance with law, the landlords are allowed to deposit the compensation at the same rate as for the tenants and get their right of proprietorship confirmed. The provisions of section 25 of the Act relevant for the purpose are reproduced as: "25(2) An occupancy tenant, who at the time of the coming into force of this Act, occupies any land as such shall become owner as under:
(a) Of the entire land comprised in his tenancy without payment of any compensation where he pays no rent therefor beyond the amount of the land revenue, and rates and cesses for the time being chargeable therefor;
(b) of such portion of land comprised in his tenancy without payment of any compensation as corresponds to his share of the produce, where he pays rent in the form of a share of the produce; and of the remaining portion on payment of compensation by him to the landlord at eighty times the land revenue of the said remaining portion of the tenancy;
(c) of the entire land comprised in his tenancy on payment of compensation to the landlord at 20 times the annual rent including land revenue and rates and cesses within one year from the date of the commencement of this Act, where he pays rent only in cash;
(d) of the entire land comprised in his tenancy on payment of compensation to the landlord at 20 times the annual rent (consolidated cash rent plus produce rent) including the land revenue, and rates and cesses within one year from the date of commencement of this Act, where he pays rent partly in cash and partly in kind."
6. The consequences of the failure or deposit of the compensation by the tenants are provided under subsections (4) and (6) of section 25 of the Act, which are reproduced below as: "25(4). If a tenant fails to pay the compensation to the landlord within the period of one year as prescribed in clauses (c) and (d) of subsection (2) of this section, the rights of occupancy on payment of such compensation by the landlord to the tenant, shall be extinguished and shall vest in the landlord and he shall be entitled to the possession thereof free from any encumbrance or lease created by the tenant.
(6) The amount of compensation to be paid by a tenant to the landlord in accordance with the provisions of this section shall be paid in lump sum within the prescribed period by a deposit in the Government treasury under the head 'Land Revenue Compensation', and on receipt of the amount of compensation the Commissioner shall get the necessary mutations effected through the concerned revenue officers and allow the landlord to draw the amount."
7. The brief facts of the case stated in para. 2 above, unequivocally reveal that the tenants failed to deposit the compensation within one year as ordered. Consequently, for non-compliance of the order, the occupancy rights of the tenants extinguished and the land vested in landlords in view of subsection (4) of section 25 of the Act. The tenants had a right to challenge the order passed by Sub-Assistant Land Commissioner before the Deputy Land Commissioner under rule 10 of the AJ&K Land Reforms Rules (1960) (hereinafter to be referred as Rules) within 10 days of the date of the order of Sub-Assistant Land Commissioner. The remedy was not availed, instead, a revision petition was filed before the Land Commissioner on August 3, 1965, against the order passed by Sub- Assistant Land Commissioner on August 5, 1964. ~~The Land Commissioner is competent to hear the revision petitions against the orders passed by the Deputy Land Commissioner only, not against the order of Sub-Assistant Land Commissioner, neither is the provision relating to revisional powers so extensive, so as to include all the authorities under the Act or Rules. The provisions of Rule 12 relating to revision petitions are reproduced as:~~ "12(1). The Land Commissioner may, at any time, on his own motion or on an application made to him in that behalf within 30 days of the passing of any order, call for the record of any case or proceeding under the Act which is pending or in which a Deputy Land Commissioner has passed any order for the purposes of satisfying himself about the correctness, legality or propriety of any such order, and may pass such fresh order in relation thereto as he thinks fit."
8. Ordinarily, the provisions relating to revision are extensive enough, so as to authorise the revisional authority to scrutinize the orders passed by all the subordinate authorities, but the power given under the above provisions is of restricted application. Thus it cannot be stretched to an extent, the Land Commissioner has gone, moreso, when finality is attached under rule 14 of the Rules, to orders passed under the Act. The rule reads as: "14. Finality of orders. Subject to the foregoing provisions of this Chapter, any order made under the Act shall be final and shall not be questioned in any Court." ~~The rule is clear enough to attach finality to all. the orders passed by any authority under the Act, of course, subject to the orders in revision, and appeal. Thus the order passed by the Sub-Assistant Land Commissioner on August 5, 1964 having gone unchallenged became final and the Court of Land Commissioner was not competent to question the same in view of rule 14 of the Rules, besides the hierarchy of system, visualized by rules. Moreover, the words embodied in section 25(4) of the Act, are of mandatory character and are of automatic operation. In a case where the operation of law is automatic on the happening of a contingency, no formal order is required to make the action final. The omission or commission visualized by law itself generates the action or result.
While discussing almost similar phraseology used in Order XX, Rule 14 of Code of Civil Procedure; it is held in PLD 1983 SC (AJ&K) 163:~~ "15. With the state of law discussed above, let us examine the issue in the present case. The decree of the trial Court used the words. that 'in the event of default the suit will be treated as dismissed'.
These words are of automatic operation for they contemplate no further order by the Court. The words used are the words of finality and are to take effect automatically. There appears to be no case in which it has been held that the time of deposit of pre-emption money can be extended by a Court which has no control on the cause and no appeal is pending against the original decree or an appeal from such a decree has been disposed of earlier. It is also now well settled that when a final appeal is dropped the time for payment must be regulated by the original decree and the operation of decree, passed by the Court of first instance is not suspended automatically on the mere filing of an appeal therefrom.
16. Our conclusion, therefore, is that a decree passed in a successful pre-emption suit is of composite and contingent character. If the pre emptor satisfies the condition imposed on him with regard to the deposit of the pre-emption money the decree becomes operative in his favour, but if he commits a default in that respect the decree becomes ineffective."
' The disobedience of the mandatory provisions of law entails the consequences provided by the law itself, moreso, when the application of provisions is C automatic and not dependent upon any order of the Court. Section 25(4) of the Act visualise the same position.
9. Even if the revisional powers of the Land Commissioner are assumed by any remotest imagination, the process adopted and the manner of passing of order by him vitiates the proceedings. On the presentation of the revision petition, before the Land Commissioner, a summon was issued against the petitioner on 24-5-1966, which was reported bank by the process- server with the following report: {{URDU TEXT}}
10. The learned Land Commissioner was pleased to order his service through proclamation on 7-7- 1966. The learned counsel for the petitioner challenged the legality of the process adopted by the Land Commissioner. According to the learned counsel for the petitioner under rule 5 of the Rules, the officers under the Act, have been vested with powers of a Civil Court, as provided in the Code of Civil Procedure, 1908, when trying a suit for summoning and enforcing the attendance of any person other than a 'parda nashin' lady and examining him on oath or affirmation.
11. The contention of the learned counsel for the petitioner is that after receipt of the report of the process-server whereby it was reported that the petitioner was serving in the Court of Sessions Judge at Mirpur, it was incumbent upon the Land Commissioner to issue the summons on the address recorded at the back of the summons by the process-server, and the process of substituted service under rule 17 or rule 20 of Order 5 of Code of Civil Procedure, could be ordered only if the petitioner refused to sign the acknowledgment or could not be found, or when the learned Land Commissioner after recording his reasons believed that the petitioner was keeping out of way for avoiding service or if the summons could not be served in the ordinary way. The sequence in which the rules for service are condified under Order 5 of the C.P.C., has a sense behind it. It is the duty of the Court issuing the process to ensure the personal service of the person summoned or as near to personal service, as in the ordinary course of business a person of average intelligence can believe that service has been duly effected. The substituted service is the last resort in the sequence of the processes provided for service under Code of Civil Procedure. I may refer here 1984 CLC 668, where before complying with the other rules, resort was had to Order 5, rule 20 of the C.P.C. by the trial Court and on revision before the High Court it was observed: "Petitioner making no attempt to avoid acceptance of service in ordinary way---Trial Court by ordering substituted service, without justifiable legal basis and proceeding ex parte against him, held committed material irregularity."
' Of course, the application of this rule as well, without resorting to earlier provisions of the Order, cannot, altogether be excluded even in the first instance as well, but the reasons for such a course must be recorded and these must be supported by the accompanying circumstances. In the instant case it was unequivocally reported by the process-server that the petitioner was serving in the Court of Sessions Judge at Mirpur. The address was so unambiguous that the service upon the petitioner could not be believed to be avoided. What prevented the Land Commissioner to summon the petitioner on the address given by the process-server or obtaining fresh address from respondents, is not recorded in any of his orders placed on the file. The mode of service, notwithstanding the jurisdiction of the Commissioner to hear the revision petition, is itself contrary to law. Thus the ex parte order passed on the basis of above service cannot be said to be a legal order.
12. This brings me to the other point for which the learned Land Commissioner dismissed the application of the petitioner filed for vacation of ex parte order passed against him on 1-5-1967.
Through the impugned order i.e. 19-6-1983, the learned Land Commissioner has opined that the application for review of the order passed on 1-5-1967 has been filed on 24-7-1979, 12 years after the passing of the order sought to be reviewed, while according to the learned Land Commissioner, the limitation for an application for review of an order is only 10 days, from the date of order. The contention of the learned counsel for the petitioner is that the Land Commissioner has grossly misread the application filed by the petitioner for vacation of ex parte order, as according to him, the application was not for review of the order, but was for vacation of ex parte order. I have gone through the relevant application, no para. of the application suggests that the application was for review of the order. The subject of the application is "Application for vacation/cancellation of ex parte order dated 1-5-1967" and the relief is sought in the following words: {{URDU TEXT}}
13. As stated earlier, the Code of Civil Procedure is applicable to the poceedings before the authorities under the Act to the extent of the matters specified under rule 5 of the Rules. Besides others, two provisions to which the Code of Civil Procedure is made applicable are: "5(g) -- Restoration of case dismissed in default; and 5(i) -- Any other matter connected with holding of an inquiry or hearing of an appeal."
' The matter of ex parte proceedings/order is in fact a matter connected with the holding of an inquiry. Thus Order 9 of the Code of Civil Procedure alongwith all the relevant laws and rules applicable to the vacation or setting aside of ex parte order including Limitation Act, shall be deemed to be applicable in such like cases. For vacation of ex parte order, limitation for filing an application under Article 164 of the Limitation Act, is 30 days from the date of knowledge, not from the date of order. In the application for vacation of ex parte order, the petitioner has in para.7 of the application alleged that he came to know about the ex parte order on 19-6-1979, while the application for vacation of order was filed on 17-7-1979, the application is, thus well in time. The order of the learned Land Commissioner sought to be set aside, if at all passed in a legal manner, was well in time requested for vacation, through an application for setting aside the same. The application was not for the review of the order. The application before the Land Commissioner as well as the writ petition, are supported by uncontradicted affidavits. The Land Commissioner was wrong in holding the application as a review petition.
14. ~~The most important proposition formulated by the Supreme Court in the case, when viewed against the above background, whether the Land Commissioner assumed the jurisdiction without having the same, exercised the jurisdiction in a way not warranted by law and passed the order on the assumption which is not borne out from record and all the facts being supported by uncontradicted affidavits, the only conclusion which can be drawn is that the orders of the Land Commissioner were not passed with a lawful authority and the application for review was a bona fide exercise. Therefore, the suggestion formulated as a point of law by the Supreme Court is answered as follows i.e. the writ petition cannot be held to have been moved as a pretext to persuade the High Court to exercise the jurisdiction.~~
15. It is of course arguable as to whether the jurisdiction of the High Court under section 44 of the Interim Constitution Act, 1974, can or cannot be invoked against an action which has taken place before the jurisdiction was so conferred, i.e. before the writ jurisdiction of the High Court. Assuming no direct petition can be filed challenging the validity of a pre-Constitutional action or order, but once the matter is brought before the High Court in any regular and lawful manner and is not found to be a pretext for persuading the Court to exercise the jurisdiction not then vested, and a bona fide case is made out where the authority exercised by the person performing his functions within the territorial jurisdiction of the High Court is found to have been exercised in a way not warranted by law or is found coram non judice, the High Court will be failing in its duty to allow the illegality to perpetuate for the simple reason that the day when the illegality was committed, it did not have the jurisdiction to cure it. An act without authority of law remains as such, notwithstanding the fact that it was not set aside. Moreover, section 44 of the Interim Constitution provides a remedy, it does not confer or create a right. In PLD 1958 SC 201, the Supreme Court when faced with such a proposition, it was held: "Section 223-A, Government of India Act, merely provides a new remedy for existing right; it may therefore, have a retrospective effect.
' Where an order passed in review by a Rehabilitation Commissioner was not in accordance with the provisions of the Rehabilitation Ordinance and thus was passed without jurisdiction: ' Held that the order could be set aside by the High Court by the exercise of their writ jurisdiction under section 223-A, Government of India Act, 1935, even if the latter section was not in existence when the impugned order was made. In such a case there was no question of taking away any right, because no right was conferred by an order which in law could not be made."
16. Under section 44(2)(a)(ii) of the Interim Constitution Act, 1974, it is discretion of the High Court to make an appropriate order in a case declaring the action of an authority as of no legal effect, if it is found that the aggrieved person has made out a justiciable case and has no other adequate remedy available. The order passed by the Land Commissioner is patently without lawful authority and the petitioner has no other remedy available, the jurisdiction of the High Court, therefore, cannot be withheld. The phraseology of the words used in the Constitution is "act done or proceedings taken" which, prima facie, include pre-Constitutional actions as well, but, jurisdiction, of course, is subject to all the celebrated principles of law applicable to writ proceedings, i.e. bona fides of the petitioner, laches, alternate, adequate and a efficacious remedy etc. etc. The case of the petitioner is covered by all the canons.
17. In the case in hand, one of the orders impugned before the Court is dated June 19, 1983, the date on which the writ jurisdiction of the High Court was very much in force. This order was passed under a misconceived impression that the application for setting aside the ex parte order is an application for review of the order dated May 1, 1967. As the application, the portions of which are recorded above, was not for review of the order, but for vacation of the ex parte order and was well in time from the date of the knowledge of the petitioner, the order sought to be vacated merged in the order dated June 19, 1983 and in fact, on passing the latter order, the entire matter is reopened and the proceedings shall be deemed to be continuing, hence open to review by the High Court in its writ jurisdiction. I may refer here PLD 1957 Dacca 404. The brief facts of the case are that on February 3, 1951, certain premises were allotted to Molla Baling Agency and on February 18, 1954, the order of requisitioning of the said premises was passed in favour of the allottee, which was a private concern. On being informed, the owner of the concern applied for the derequisitioning of the said premises. In the meantime, Government passed an order to keep the requisitioning and acquisitioning proceedings in abeyance and directed the authorities to make an amicable settlement. The matter was entrusted for inquiry to Land Acquisition Collector for assessment of the value, who passed an ex parte order of valuation of the premises. The order requisitioning and acquisitioning was challenged before the Dacca High Court in its writ jurisdiction: An objection was raised that as the order was passed on February 18, 1955 i.e. before the Constitution of Islamic Republic of Pakistan came into force, that order being a pre-Constitutional executive order cannot be challenged under Art.170 of the Constitution. It was held that: "Article 15(2) of the Constitution of Pakistan empowers the Court to scrutinize and decide upon the facts whether the powers of Government have been exercised in good faith in the interest of the public and whether the land was acquired for a public purpose. Therefore, the question whether a particular requisition is for a public purpose is now justiciable in a Court of law, even if the impugned order of requisition related to a date before the enforcement of Constitution provided only that proceedings in requisition or acquisition were still pending."
18. The propositions evolved by the Supreme Court, therefore stand resolved in the manner stated above.
19. For the reasons stated above, the petition is accepted. Orders passed by the learned Land Commissioner on 1-5-1967 and 19-6-1983 respectively, are declared as without lawful authority and the order passed by Sub-Assistant Land Commissioner on 5-8-1964 is restored. As the case involved substantial questions of law and interpretation of Constitution, no order is made as to costs and a certificate is also granted for an appeal to the Supreme Court.
Order announced.