JALAL-UD-DIN AKBARJI, J: --Nazir Ahmad Lughmani and 13 others, petitioners herein, have instituted on 27-8-1983 this Writ Petition No.49 of 1983 and are aggrieved of the orders dated 29-7- 1982 passed by Senior Member, Federal Land Commission, respondent No.1 herein, and subsequent order dated 22-3-1983 of the Deputy Land Commissioner, Abbottabad now Mansehra, respondent No.4 herein, wherein the order dated 10-8-1972 of the Land Commissioner, Peshawar and the order dated 5-9-1972 of the Chief Land Commissioner, N: W.F.P. Was set aside and Deputy Land Commissioner, Mansehra was directed to re-determine the land holdings of Abdul Latif (now deceased) declarant under M.L.R. 115 and resume land in excess of the limits prescribed under para.8 of the Regulation.
1. The petitioners are transferees of the land of Abdul Latif declarant to the extent of land mentioned in the decrees dated 26-10-1971, 13-3-1971, 31-1-1970, 31-1-1970, 26-6-1971, 24-2-1976, 13-1-1971, 19-2- 1971, 30-7-1973, 23-10-1971, 8-10-1973, 10-11-1969 and 10-1-1969 according to the index of documents appended with the petition. Ghulam Sarwar son of Khanizaman, respondent No.6 herein, is contesting respondent and will be beneficiary as tenant allottee of the land according to the orders dated 29-7-1982 of respondent No.1 and of the land mentioned in the said decrees.
2. Abdul Latif Khan of Phulra was owner of the property affected under Land Reforms Regulation, 1972 better known M.L.R. 115 promulgated on 11-3-1972. Previously the property of Abdul Latif Khan was placed under Court of Wards by Notification dated 21-2-1951 under the Punjab Court of Wards Act, 1903. The property/estate of Abdul Latif Khan of Phulra was released from the control and superintendence of the Court of Wards in March, 1965. On the application of M.L.R. 115 to the property of Abdul Latif the following query was made by Deputy Land Commissioner, Harzara in the case of declarant by Abdul Latif:-- "Since the transfer of property is involved within the meaning of paragraph 7, therefore, the case is submitted to the Land Commissioner for final adjudication:"
The Land Commissioner, Peshawar Division passed an order on 10-8-1972 and the following is the operative part of the order:-- "I have given thought to the observations of the Deputy Land Commissioner and the arguments of the various counsels. I agree with the contention that under the provisions of M.L.R. 115 we cannot question the validity of various decrees passed by the Civil Courts before 20-12-1971. The alleged violation of Court of Wards Act cannot be a subject-matter for adjudication in this Court. This should be agitated by the Board Of Revenue or their representative in a Civil Court. Here I am only concerned with finding out the alienations between 1-3-1967 and 20-12-1971 and to see whether these are bona fide as explained under para.7 of M.L.R.
115. There is enough evidence on the record to establish that these alienations were made when the declarant had no idea that the Land Reforms through this Regulation are in the offing. I, therefore, hold that these alienations. Should be taken into account while considering the total holding of the declarant provided the decrees were instituted and passed before 20-12-1971.
Sultan Jadoon Advocate has pointed out that in case of his client the land has not been transferred but only leased out by the declarant. His interest may be safeguarded in the light of para.13 of M.L.R.
115 at the time of deciding about the surrender of excess land."
Ghulam Sarwar respondent No.6 preferred an appeal from the order dated 10-8-1972 of the " Land Commissioner before the Chief Land Commissioner N.-W.F.P. And the appeal was dismissed by order dated 5-9-1972. Mr. Abdul Qayum, Member Federal Land Commission, Rawalpindi assumed suo motu powers of revision under MLR 115 against the order dated 5-9-1972 of the Chief Land Commissioner, N: W.F.P. And by order dated 2-7-1976 gave his own concluding finding as under:--- "The view taken by the two lower forums is untenable. A transaction which is not countenanced by the law of the land cannot but be held to be wanting in bona fides. Bona fides in the sense of motivation for the transaction becomes irrelevant when a transaction is simply against a law. Land Reforms Tribunals are not competent to make lawful what is unlawful. There was, therefore, no way of finding the impugned transactions as lawful and valid.
In the above view of the matter, it is found that the transactions being in clear violation of the express provisions of section 16 of the court of Wards Act were ab initio void, the consent decrees notwithstanding. It is according directed that the learned DLC, Hazara should re-work out the area to be resumed from the declarant in the light of this order and resume it after giving due choice of surrender to the declarant."
3.This Court in Writ Petition No.253/76 and Writ Petition No.503/77 decided on 26-.11-1979 remitted the case to the Federal Land Commission for fresh decision after giving an opportunity of hearing to all the concerned parties. Mr. Iqbal Masood, Senior Member Federal Land Commission, Rawalpindi after receiving the remand order of this Court dated 26-11-1979 and after hearing the parties again decided the matter by an order dated 29-7-1982 and set aside the order dated 10-8- 1972 of the Land Commissioner, Peshawar and order dated 5-9-1972 of the Chief Land Commissioner, N.-W.F.P. And directed the Deputy Land Commissioner, Mansehra to re-determine the land holdings of Abdul Latif Khan declarant under MLR 115 and to resume the land in excess of the limits prescribed under para 8 of the Regulation. The Senior Member of the Federal Land Commission in substance held that Abdul Latif Khan was under the legal disability to transfer the land to the petitioners without previous sanction of the Provincial Government under section 16 of the Punjab Court of Wards Act. The transfers as such are void ab initio and the decrees obtained by the petitioners are nullity in law. Reference was made to the judgment of the august Supreme Court of Pakistan reported in 1974 SCMR 448 Ahmad Nawaz Shah v. Chief Land Commissioner Punjab.
4. Learned counsel for the petitioners vehemently argued that the order dated 10-8-1972 of the Land Commissioner, Peshawar Division and the order dated 5-9-1972 of the Chief Land Commissioner, N.-W.F.P. Had become final as no petition for revision was filed under paragraph 29 of MLR 115 within the period of 60 days by respondent No. 6 Ghulam Sarwar and that the Federal Government could not exercise suo motu revisional jurisdiction after 30-11-1976 and even otherwise suo moto powers of revision cannot be exercised on the application of an aggrieved person i.e. On the application of respondent No.6 Ghulam Sarwar after the expiry of 60 days from the orders dated 10-8-1972 and 5-9-72. Reliance was placed on judgment reported in PLD 1976 Peshawar 66 and upheld in judgment reported in 1989 SCMR 6 and judgment reported in PLD 1977 Lahore 461.
Learned counsel for the petitioners further argued that the case of the petitioners will not be hit by the provisions of the Punjab Court of Wards Act and the decree is passed in their favour by a competent Court of law with jurisdiction unless set aside by another competent Court of law with jurisdiction, cannot be set aside under paragraph 7 read with paragraph 29 of MLR 115. Learned counsel for the respondent No.6 Ghulam Sarwar submitted that the Federal Government had the jurisdiction under paragraph 29 to suo motu revise the orders dated 10-81972 and 5-9-1972 as the Federal Government had not passed any orders in revisional jurisdiction in the case. It was contended by the learned counsel for the said respondent that within the meaning of paragraph 7 the Federal Government can go beyond the decree of the Civil Court and adjudge the bona fides of the same within the meaning of paragraph 7 of MLR 115.
5. Mr. Iqbal Masood, Senior Member, Federal Land Commission, Rawalpindi in his elaborate judgment/order dated 29-7-1982 by reference to the judgment reported in 1974 SCMR 448 held that the Federal Government had suo motu revisional jurisdiction under paragraph 29 of MLR 115 to look into bona rides of the transaction between Abdul Latif Khan and the petitioners and as Abdul Latif Khan was under legal disability under section 16 of the Punjab Court of Wards Act to alienate any part of his immovable property without the previous sanction of the Provincial Government, therefore, the decrees passed by the learned Judges of the Civil Courts were void ab initio. In the case of Ahmad Nawaz Shah reported in 1974 SCMR 448 a Muslim minor aged about 8 years had transferred by way of gift and got mutation attested to the same effect on 17-2-1971 and the Chief Land Commissioner declared that the transfer was not bona fide within the meaning of para 7 of MLR 115. The august Supreme Court of Pakistan ruled as under in the case:--- "Therefore, if any transfer is void ab initio because transferor is under a disability, it is no transfer in the eye of law and it can be struck down on that score, independently of the provisions of the statute. Therefore, the learned Single Judge and the Chief Land Commissioner were right to treat the impugned gift by the petitioner a nullity."
Mr. Iqbal Masood, therefore, on the authority of this judgment scrutinized the decrees of the Civil Courts and by his judgment/order dated 29-7-1982 set aside the same.
6. Two questions will arise (1) whether the Federal Government exercising suo motu revision under para 29 of MLR 115 can set aside or ignore a decree of a Civil Court of competent jurisdiction and
(2) whether the decrees will be void ab initio as Abdul Latif Khan had not obtained previous sanction for alienating the property to the petitioners under section 16 of the Punjab Court of Wards Act. In the case of Ahmed Nawaz Shah the decree of a Civil Court of competent jurisdiction was not under the scrutiny of the Supreme Court of Pakistan. The disability of Ahmad Nawaz Shah was that he was not competent due to minority to gift the property which the principles of Muslim law do not permit and, therefore, it was ruled that the transfer by way of gift through attestation of the mutation was no transfer in the eyes of law and could be struck down independent of the provisions of the Statute i.e. Para 7 of MLR 115. It will be relevant to reproduce section 16 of the Punjab Court of Wards Act as under:--- "16.--(l) When the property of any land-holder, in respect of whom an order has been made under subsection (1) or on the last ground stated in subsection (2) of section 5, is released from the superintendence of the Court of Wards, such land-holder shall not be competent without, the previous sanction of the (Local Government), to alienate the whole or any part of the immovable property which has been so released in any way, or to create any charge upon any such property extending beyond his lifetime, and every transfer made to or attempted to be made, or charge created or attempted to be created, in contravention of this provision, shall be void.
(2)No suit shall be brought whereby to charge any person upon any promise made after he has ceased to be a ward to pay any debt contracted during the period when he was a ward, or upon any ratification made after he has ceased to be a ward of any promise of contract made during the above period, whether there shall or shall not be any new consideration for such promise or ratification."
In the case of Mian Jamal Shah v. The Member, Election Commission and others reported in PLD 1966 SC 1 in regard to a decree i.e. a valid decree it was ruled as under:--- "Let me refer to examples where a Court acts illegally in the exercise of jurisdiction. A Court acts illegally in the exercise of jurisdiction when, by a misinterpretation of the relevant provision, it entertains a suit which is barred by res judicata, or Order II, rule 2, or Order IX, Rule 8, CPC, or which is time-barred. Now it is impossible to say about the decree passed by the Court in such cases that it has no legal effect. It is a good and valid decree binding on the parties unless it is set aside in appeal or revision. On the other hand if a Court acts without jurisdiction its order or decree is of no legal effect and has to be ignored. If a Court which has no jurisdiction under the Succession Act grants a succession certificate or probate of a will, or a Court which does not possess any jurisdiction under the Guardians and Wards Act appoints a guardian of a minor, or a Small Cause Court passes a decree for possession of land, or a- Civil Judge with pecuniary jurisdiction up to Rs.1,000 passes a decree for Rs.2,000 the order or decree has no legal effect. Such is the decree or order which is covered by para (ii) of Article 98 (2)(a).
I had said in the last but one paragraph that the examples which I cite will show that the view involved in section 115 is the only reasonable view to take. I have cited examples of decrees passed by Courts on a misinterpretation of the provisions relating to res judicata, Order 11, rule 2, and Order IX, rule 8, C.P.C. Etc. These are cases of illegal exercise of jurisdiction and it should be clear that unless we are to create utter confusion in the administration of justice these decrees though truly the result of illegal exercise of jurisdiction cannot be held to be without jurisdiction for what is without jurisdiction is a nullity and has no existence in the eye of law, and a Court before whom a decree or judgment based on a misinterpretation of res judicata was produced will have to ignore the judgment or decree although it had never been set aside. Also objection could be taken in execution of such a decree that it was a nullity and not capable of execution. Such a situation is not envisaged by our procedural provisions which proceed on the basis that mistakes of illegal or irregular exercise of jurisdiction have to be corrected by appeal or revision and if these are not resorted to the judgment, decree or order, in spite of its defect becomes binding.
It is a distinction attaching only to judicial tribunals that their acts within their jurisdiction though illegal are not null and void. So far as administrative officers and authorities are concerned there is no distinction between illegality and want of jurisdiction. When an administrative officer acts illegally he acts without jurisdiction. An administrative officer has authority to pass order or to take action if certain' facts exist. If these essential facts do not exist his order or action is void:'
7. It can be safely said on the authority of this judgment that the decrees passed by the Court of competent jurisdiction will be binding as to the dispute in the suits unless the decrees are set aside by a Court of competent jurisdiction. Mr. Iqbal Masood has set aside the decrees of the Courts on the grounds that the transfer by itself was void ab-initio. He had no jurisdiction to set aside or ignore the decrees of the Courts in this case as the dispute in A regard to transfer by Abdul Latif Khan in favour of the petitioners had settled in the judgment and decree of the learned Judge of the trial Court who had the jurisdiction to hear and decide the suit. The decrees pressed prior to 20- 12-1971 are binding between the decree-holders and Abdul Latif Khan and the authorities under MLR 115 have no jurisdiction to ignore the same. These decrees have not been set aside. If the Provincial Government was aggrieved of these decrees because no sanction was obtained then it is the Provincial Government which is to proceed under Code of Civil Procedure for setting aside these decrees, which is not the case here and the Member, Federal Land Commission has no jurisdiction and lawful authority to ignore and for that matter set aside the said decrees. All the decrees of the Court of competent jurisdiction are to be given lawful sanctity even if the same are passed in irregular manner otherwise there will be utter confusion in the administration of justice.
8. The language of section 16 of the Punjab Court of Wards Act will indicate that some superintendence is maintained upon the person whose property was once placed under the Court of Wards. The property of a person which is placed under the Court of Wards does not become the property of the Provincial Government. Granting sanction for alienation of such like property will be in general and routine as a rule but withholding of sanction by the Provincial Government will require reasonably strong legal grounds. In this case nothing has been pointed out that there were reasonably strong grounds for refusing sanction to Abdul Latif Khan by the Provincial Government.
Moreover, subsection (1) of section 16 of the Punjab Court of Wards Act contemplates alienation by land-holder whose lands were once under the superintendence of the Court of Wards and subsection (2) is corollary of the same.
9. The assumed legal disability of Abdul Latif Khan for not obtaining sanction of the Provincial Government for the transfer of his own property may be irregular but not void ab initio. Abdul Latif Khan was not under legal disability to defend the case in the years 1979, 1970 and 1971, whereas the Court of the Wards had ceased to have control and superintendence over the property in the year 1965. The sanction of Provincial Government and the superintendence and control of Court of Wards are two distinct matters. A property under Court of Wards does not remain with the Ward in the legal sense of possession and exercise of rights of ownership therein and the Ward acting as such, will be acting without legal effect and subsequent decree passed could be ignored for want of jurisdiction of the Court passing the decree but when a person does not remain a Ward then rigours of control and superintendence of Court of Wards do not apply and the legal rights and the exercise of the same in the property may be irregular but not void ab initio. The restrictive embargo of "sanction" is for convenience of acts of the Court of Wards arid its facilitations in respect of property so that there may not be conflicting rights created in the property. This situation or circumstances of fact is not forthcoming in this case. Therefore, to assume on fanciful interpretation of section 16 of the Court of Wards Act that acts of Abdul Latif Khan were void ab initio and the transactions of Abdul Latif Khan are not countenanced by the law of the land is neither the object nor necessary intendment of the Court of Wards Act, especially when the Act ceased to apply to the property of Abdul Latif Khan.
10. The revisional jurisdiction of a Court of law, Tribunal, Authority is never curtailed by the period of limitation because it is exercised at any time before the legal rights and obligations are settled for correcting material irregularity and illegality in a decided matter by the lower forums. The period of limitation if is prescribed then it is usually for advancement of the procedure for deciding any irregularity or illegality in the decided matter. The Court, Tribunal or Authority if once has exercised its revisional jurisdiction either suo motu or on the application of a party then it becomes functus officio for either of the procedure in exercise of revisional jurisdiction because two orders cannot be passed in exercise of revisional jurisdiction or an order passed in revisional jurisdiction cannot be again revised. All the matters in a dispute or litigation must end somewhere and attain finality. The exercise of revisional C jurisdiction suo motu or on the application of a party is provided in many statutes.
In the case of Abdul Rehman and others v. Settlement Rehabilitation and Claims Commissioner, Karachi and another reported in. PLD 1966 SC 362, the provisions of suo motu revision under section 7(3) of the Registration of Claims (Displaced Persons) Act, 1956 came up for consideration and it was ruled that this subsection (3) which gives revisional power to the Claim Commissioner in the words of the widest aptitude must necessarily be assumed to cover revision filed by an aggrieved party. Reference to judgment reported in PLD 1957 SC 63, the suo motu powers albeit in review has been held so. In the case Laik and 31 others v. Additional Chief Secretary Government of Sindh, District Khairpur and 2 others, reported in PLD. 1977 Karachi 874, the implication, purport and meaning of suo motu exercise of power in revision under section 91(3) of Sindh Irrigation Act (VII of 1879) was examined. It was held that powers of revisions under section 91(3) are exercisable suo motu as well as on application of any party. Mr. Iqbal Masud, Senior Member, Federal Land Commission was competent to exercise suo motu revisional jurisdiction under paragraph 29 of MLR 115, for the reason that this Court by judgment dated 26-11-1979 in W.P. No. 253/76 and W.P.
No.503/77 remitted the case to the Federal Land Commission for decision it its revisional jurisdiction on the petition of the petitioners and the Federal Land Commissioner had not passed any order earlier in revisional powers on the application of Ghulam Sarwar. This matter stood clinched when the aforementioned writ petitions were decided. The suo motu exercise of revisional powers of the Federal Land Commission thus cannot be circumscribed, as the petitioner desires in this case.
11. The present petition has clubbed together the cases of decrees passed on 24-2-1976, 30-7-1973 and 8-10-1973 of Taj Muhammad Abbasi petitioner No. 5, Nawab Khan petitioner No. 9 and Haji Muhammad Yousaf Petitioner No.10 correspondingly with the other petitioners Nos. 1 to 4, 6 to 8 and 11 to 14, who are holding decrees passed earlier to the date 20-12-1971. There was no reference or arguments in the cases of petitioners Nos. 5, 9 and 10, because these cases were not before the Land Commissioner when order/judgment on 10-8-1972 was passed. This judgment, therefore, will not apply to them and they will be deemed to have been struck off from the panel of petitioners from the date of institution (27-8-1983) of this W.P. No. 49 of 1983. They can seek their remedy, if any, before appropriate forums.
12. This petition is accepted. The order/judgment dated 29-7-1982 of Mr. Iqbal Masud, Senior Member, Federal Land Commission is set aside along with the subsequent order dated 23-3-1983 of the Deputy Land Commissioner, Abbottabad now Mansehra and orders/judgments dated 10-8- 1972 of the Land Commissioner and dated 5-9-1972 of the Chief Land Commissioner, N.-W.F.P. Are restored. The concerned authorities under MLR 115 will now proceed in view of the orders/judgments dated 10-8-1972 and 5-9-1972.
No order as to costs.