The petitioner has challenged the order of the Collector dated the 28 May, 1966, of the Additional Commissioner (Consolidation) dated the 12th November, 1966, and of the Board of Revenue dated the 6th October,. 1967, in Annexures 'E', 'G' and 'K' respectively. The matter pertains to the consolidation scheme of village Kalianpur, Tehsil Shakargarh, District: Sialkot. The consolidation scheme of this village was approved by the Collector under section 10(4) of the West Pakistan Consolidation of Holdings Ordinance, 1960. The matter had to be referred to the Collector because the land-owners including Mukhtar Ahmid, respondent No. 4 had raised certain objections. Mukhtar Ahmad filed an appeal against the order of the Collector in which he impleaded some persons other than the petitioners as respondents. Another appeal was filed by Ramaan Ali respondent No. 5 in which also the petitioner was a party. Both these appeals were allowed on the 26th May, 1965, by the Additional Commissioner (Cons.). The learned Additional Commissioner remanded the case to the Collector for a fresh decision. In post remand proceedings the Collector modified the scheme by his order Annexure 'E'. This order affected Allah Ditta petitioner also. Although it appears from the order that all the affected parties were given a hearing but it is established from the report dated the 11th March, 1967 (Annexure 'L') submitted by the Collector to the Board of Revenue that the petitioner was not heard by the Collector before passing his order (Annexure 'E') dated the 28th May, 1966. It is further clear from that report that a general proclamation was also not issued by the Collector for appearance of all the right-holders.
2. The petitioner along with some others filed an appeal against the order of the Collector before the Additional Commissioner inter alia, on the ground that some of the appellants including Allah pitta petitioner were not a party before the Collector and the order Annexure 'E' had been passedth without giving them an opportunity of being heard. This point was not considered or noticed by the learned Additional Commissioner. On merits he agreed with the arguments advanced on behalf of Mukhtar Ahmad respondent that Allah Ditta petitioner was a gainer in consolidation.
3. The petitioner filed a revision petition before the Board of Revenue but the same was dismissed on the 6th October, 1967, by Annexure 'K'. In addition to the arguments on merits it was contended before the Board of Revenue that the Collector's order bad been passed without affording him an opportunity of being heard and even the proclamation was not made. On behalf of the respondents it was urged that the Collector had summoned the parties several times and given a hearing to them. It was contended that proclamation was also issued and the modification was made. In the presence of his brother Muhammad Din. It was also urged that it was not material whether the petitioner had made any personal appearance before the lower Court since he had sufficient opportunity to ventilate his grievances before the Additional Commissioner in appeal. The learned Member, Board of Revenue did not give any finding on these points. He noticed on merits that the petitioner's case was that he should be accommodated as before on the western side near his tube well and the area given to him on the eastern side by the Collector should be withdrawn from him. The learned Member, Board of Revenue did not consider the argument about the claim that the area should be given to the petitioner near his tube well. He dismissed the petition .On the ground that the petitioner already held his major block on the eastern side where he had been given some more area contiguously.
4. The learned counsel for the petitioner contended that-
(a) the order of the Collector having been passed without hearing the petitioner notwithstanding the provisions of section 10(4), that order was an absolute nullity in so far as the petitioner is concerned. The Additional Commissioner or the Board of Revenue could not, there--fore, give findings on merits but should have at the most remanded the case to the Collector ;
(b) even if the order of the Collector be held to have contravened the principle of natural justice, the same result should follow ;
(c) the petitioner was not a party in the appeal decided by the Additional Commissioner by order Annexure'D' and that the order being only between the parties to the appeal, the Collector had no jurisdiction to pass an order against a non-party including the petitioner since he had no suo moto revisional jurisdiction, and on account of this illegality committed by the Collector the petitioner had been deprived of two wells without compensation ;
(d) Mukhtar Ahmad having in the first instance raised objections before the Assistant Consolidation Officer, could not improve upon those objections later on in appeal or post remand proceedings.
5. It is now too late for the petitioner to urge the first point. He does not appear to have raised this point in his .Appeal or revision before the Commissioner or the Board of Revenue and cannot be allowed to raise the same for the first time before this Court.
6. On the second and third points the learned counsel for the petitioner relied upon Leary v.
National Union of Vehicle Builders (1971 Ch. 34=(1970) 2 All ER 713in which Megarry, J. Held that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body. The learned Judge observed that "If the rule and the law combine to give the member the right to a fair trial and the right of appeal, why should be be told that he ought to be satisfied with an unjust trial and a fair appeal."
7. The English law has never been uniform in applying the principle of natural justice. As stated by Jackson in his book "Natural Justice", "the eagerness with which the Courts have applied these rules have varied from generation to generation" The superior Courts in Pakistan have shown more consistency in this respect. Before dealing with our own precedents, I would briefly narrate these juristic changes.
8. In English law origin of the principle of natural justice is traceable to divine justice. Fortescue, J.
Observed in R. v. Chancellor of Cambridge172 Medea 195=(1723) Fortoscue 202 "The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man upon such an occasion, that even God himself did not pass sentence upon Adam, before he was called upon to make his defence. Adam (says God where art thou ? Hast thou not eaten of tree whereof I commanded the that thou shouldst not eat ? And the same question was put to Eve also"
9. The principle was recognized by the common law and it was held generally that an order passed in disregard of the principle is void. Lord Reid summed this up with reference to old cases in Ridge v. Baldwin (1964 A C 40"Time and again in the cases I have cited it has been stated that a decision given without regard to the principles of natural justice is void and that was expressly decided in Wood v. Wood (1874 L R 9 Ex. 190 In Spackman v. Plumstead District Board of Works ((1885) 10 A C 229 Lord Selbourne gives the following underlying reasons "There would be no decision within the meaning of the Statute if there was anything of that sort done contrary to the essence of justice."
Lord Wright said in General Medical Council v. Spackman (1943 A C 627 "If the principles of natural justice are violated in respect of any decision, it is indeed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision."
Clearly if a decision is no decision it might be regarded as destitute of all legal authority and void ab anitio. But then the question arises whether a person can treat the decision as non-existing. It may not be possible to raise successfully such an objection before the authority implementing the order. It is not necessary to consider whether this objection can be raised before a Court of law executing the decree that the decree or order being a nullity is not executable. It is, however, clear that no authority implementing such a decision of a quasi judicial tribunal or administrative authority shall give effect to such an objection. Will this breathe life into what is dead. Again there may be cases where the party against whom the decision is taken acquiesces to it or by his inaction raises no dispute. Can his action or inaction validate it and convert what was not adecision into a decision.
Can a police constable dismissed in violation of the principle of natural justice treat the order of dismissal as non-existent and continue performing his duty. Clearly the person in authority who has passed the order of dismissal cannot countenance this. He will see that his order produces all legal consequences of a valid action unless the constable successfully invokes the assistance of the Court to invalidate it. Similarly in case of acquiescence of the constable or his inaction to invoke the Court's jurisdiction, can a third person treat the appointment of the successor of the dismissed constable as a nullity ? The answer should be clearly in the negative as it would create chaos in the society if every citizen becomes the judge of validity of administrative or quasi judicial or judicial actions. The answer to this difculty is furnished by Rubeinstein (see his 'Jurisdiction and Illegality' pages 204 to 208), by saying that the defect in appointment of an office-holder is protected by the doctrine of "Officers de facto". The voidness cannot therefore be treated as absolute. The decision of an authority should either be declared void or set aside in appeal or revision if there be any provision for such procedure or be invalidated by a Court of law. This is corroborated by Kelsens' General Theory of Law and State (L. 161) cited by Dr. Rubienstein in his book "Jurisdiction and Illegality", p. 5: "The decision made by the competent authority that something that presents itself as a norm is null ab initio because it fulfils the condition of nullity determined by its legal order is a constitution act ; it has a definite legal effect ; without and prior to this act the phenomenon in question cannot be considered to be null. Hence, the decision is not 'declaratory' that is to say, it is not, as it presents itself, a declaration of nullity ; it is a true annulment, an annulment with retroactive force. There must be something legally existing to which this decision refers. Hence, the phenomenon in question cannot be something null ab initio, that is to say, legally nothing. It has to be considered as a norm annulled with retroactive force by the decision declaring it null ab initio. Just as everything King Midas touched into gold, everything to which the law refers becomes law i.e. something legally existing."
10. The usual sense in which the term 'void' or 'nullity' is used, there--fore, appears to have been qualified. In Smith v. East Elloe Rural District Council (1956 A C 736) whom Lord Radcliff at the end of his speech (vide page 769 of the report) said while interpreting the "shall not be questioned" clause :- "At one time the argument was shaped into the form of saying that an order made in bad faith was in law a nullity and that consequently all reference to compulsory purchase orders in paragraphs 15 and 16 must be treated as references to such orders only as had been made in good faith. But this argument is in reality a play on the meaning of the word 'nullity'. An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders."
It was held that despite its being a nullity (something non-existing) the order will remain effective unless it is set aside by legal proceedings. Now this difficulty has been solved by the Courts by introduction of term 'voidable to orders.
11. The word 'voidable' divided the House of Lords in Ridge v. Baldwin. 1n that case the dismissal of a Chief Constable on grounds of misconduct by the Brighton Watch Committee without giving him fair hearing was declared to be void and of no effect in law, by the majority of the House of Lords.
But Lord Morris who was one of the majority said (1964 A C 40 at page 125) :- "It was submitted that the decision of the Watch Committee was voidable but not void. But this involves the inquiry as to the sense in which the word 'voidable', a word deriving from the law of contract, is in this connection used. If the appellant had bowed to the decision of the Watch Committee and had not decided that it was void, then no occasion to use either word would have arisen. When the appellant in fact at once repudiated and challenged the decision, so claiming that it was invalid, and when in fact the Watch Committee adhered to their decision, so claiming that it was valid, only the Court could decide who was right. If in that situation it was said that the decision was voidable, that was only to say that the decision of the Court was awaited. But if and when the Court decides that the appellant a right, the Court's deciding that the decision of the Watch Committee was invalid and of no effect and null and void. The word 'voidable' is therefore opposite in the sense that it became necessary for the appellant to take his stand, he was obliged to take action, for unless he did, the view of the Watch Committee, who were in authority, would prevail. In that sense the decision of the Watch Committee could be said to be voidable."
12. The Judicial Committee of the Privy Council in Drrayappah v. Fernando ((1967) 3 W L R 289) held the impugned order to be voidable and not a nullity. The Minister of Local Government in Ceylon in exercise of powers under the Municipal Councils Ordinance had dissolved the Jaffra Municipal Council .On ground of its incompetence to perform its duties, without giving to it an .Opportunity to meet the charges against it. The Mayor of the Council who automatically lost his office challenged the Minister's order. It was held that the Mayor was not entitled to challenge the order because the Council had not challenged it, nor was the Mayor suing on its behalf. The Judicial Committee said that "being voidable it was voidable only at the instance of the person against whom the order was made, that is, the Council" It was observed :- "The answer must depend essentially upon whether the order of the Minister was a complete nullity or whether it was an order voidable only at the election of the Council. If the former, it must follow that the Council is still in office and that, if any Councellor, rate-payer or other person having a legitimate interest in the conduct of the Council likes to take the point, they are entitled to ask the Court to declare that the Council is still the duly elected Council with all the powers and duties conferred upon it by the Municipal Ordinance."
The term 'voidable has been used by the Judicial Committee to reach the same result which could be reached by considering whether the Mayor had locus standi to challenge the order of dismissal of the Municipal Council. This is a sense which appears to be slightly different from the sense in which this term was used in Ridge v. Baldwin. The distinction drawn between an order which may be nullity and the order which may be 'voidable' in a case in which the order was being impeached on ground of violation of principle .Of natural justice shows that such an order was not treated as absolute nullity. In Ridge v. Baldwin, Lord Morris also maintained the distinction between an 'absolute nullity' and 'voidable'.
13. The terms 'void' and 'voidable' have been discussed in the law of contract. Under that law a contract is void which does not bind either party but is voidable if it binds the parties till it is challenged by any party as not binding him. A voidable contract is avoided if the party disclaims its obligations. But Kelsen says in regard to orders that they cannot be null and void except with a declaration by the competent authority of their .Annulment and then the annulment is retroactive.
An order of an authority will therefore be treated as voidable at the instance of the Court and not only at the instance of the party. This is true because the law of procedure places several restrictions in the way of a suitor. A suit or proceeding can be filed by parties who would be aggrieved of the order and not by all. Before passing an order of annulment the Court or the competent authority has to go into the locus standi of the party making a motion for avoidance.
Then there is a law of limitation. While dealing with applications for ,certiorari the Courts have been invested with a discretion to quash the order sought to be avoided though it may be void or may have been passed without lawful authority. This discretion can be exercised against an applicant if 'he invokes the Court's jurisdiction after some delay which is not explainable; .Or because of the equities of the case, or again the failure of the applicant to do equity by approaching the Court with clean hands. It is unnecessary to give an exhaustive enumeration of the circumstances in which or the reasons for which the Court may refuse to give any relief to the petitioner before it. In my view it will be more correct to say that the Court having a discretion sin the matter, the order impugned before it must be treated as voidable at the instance of the Court and not only at the instance of the applicant.
14. Megarry, J. Considered the term 'voidable' a; misleading in Houslow L. B. C. v. T. Wickehham Garden Developments (1971 C L 233He said :- "A decision reached by a tribunal wholly outside its jurisdiction and in complete defiance of natural justice is about as void as anything can be ; but if nobody who is entitled to challenge or question it chooses to do so, it remains in being. Yet to describe such a decision as being. 'voidable' is to use that word in a sense that is not only very special but also liable to mislead."
Megarry, J. Considered in Leary v. National Union of Vehicles Builders (1970 All. E R (Ch. D)
713)whether a deficiency of natural justice before a trial tribunal can "be cured by a sufficiency of natural justice before an appellate tribunal". Despite the fact that in that case the appellate council had in substance given to the plaintiff complete rehearing, with the witnesses called and heard and complete liberty of action for the plaintiff to present his case in full he held that failure= of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body. He held that there was no such doctrine that if a man has never had a fair trial by the appropriate trial body, it is open to an appellate body to discard its appellate functions and itself give the man the fair trial be has never had. He observed :- "If one accepts the contention that a defect of natural justice in the --trial body can be cured by the presence of natural justice in the --appellate body, this has the result of depriving the member of his right of appeal from the expelling body. If the rules and the law continue to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an, unjust trial and a fair appeal ? Even if the appeal is treated as a.. Hearing de novo, the member is being stripped of his right to appeal to another body for the effective decision to expel him. I cannot think that natural justice is satisfied by a process whereby an unfair trial, although not resulting in a valid expulsion, will nevertheless have the effect of depriving the member of his right of appeal when a valid decision to expel him is subsequently made. Such a deprivation would: be a powerful result to be achieved by what in law is a mere nullity, and it is no more triviality that might be justified on the ground that natural justice does not mean perfect justice."
15. Megarry, J. Who as seen above was not happy with the use of the --word 'voidable' has reverted back to treating the order passed in violation of audi alteram partem as "a mere nullity" which must be so declared notwithstanding that no prejudice might have been caused to the plaintiff.. He did not agree with the view taken by the Supreme Court of Canada in King v. University of Saskatchewan (1969 SCR 678 that if there was any absence of natural justice in the inferior tribunal, it was cured by the presence of such natural justice before the Senate Special Committee.
16. Wade has criticised the use of the term 'voidable' in his article 'Unlawful Administrative Action' 83 L Q R 499. Jackson in 'Natural Justice', p. 66 has cited in support of his own opinion from de Smith that "analysis (of this question) is bedevilled by terminological inconsistencies, in particular by the bewildering use of the term, `void' and 'voidable'. Jacksun stopinion is that nothing turns on the use of the word 'voidable'. Respectfully speaking I do not agree with this criticism. I have already detailed the circumstances which necessitated the use of the word 'voidable' in preference to the word `void'.
17. The view taken by the Courts in Pakistan is contrary to the view taken by Megarry, J. The Courts here have distinguished between the violation of the principle of audi alteram partem and violation of any directory law providing for hearing on the one hand and contravention of a mandatory provision of law providing for such hearing. The defect in the first category was held cured by a hearing given at later stages of the proceedings while it was found to be incurable if the matter fell in the second category. The question whether hearing given by an appellate or revisional authority cured the defect of natural justice by the tribunal trying the case was answered in the affirmative by the High Court of West Pakistan in an unreported judgment in New Industries Ltd. v. Rehabilitation Board and others (W. P. No. 253 of 1956). This question was again considered by a Full Bench in Mohammad Ishaq and another v. Dr. Said-ud-Din Swaleh and another (PLD 1959 Kar. 669 The majority agreed with the view taken in the above case. It was held :- "The answer to the question appears to us to be simple. Whether the principle of natural justice that no order is to be passed affecting the rights of a party without giving him an opportunity to show cause, has or has not been violated, depends upon the particular facts of each case and it is not possible to lay down a general rule. We will have to consider the proceedings as a whole. The question to be decided would be whether any prejudice has been caused by the fact that the party was not heard by the authority that passed the original order. If the objection to his ejectment be of a kind that can very well be disposed of by an appellate or revisional Court, the order should be held to be valid. If on the other hand it is found that on account of the lack of an opportunity to show cause before the officer who passed the original order some relevant fact which may have been proved was not proved and this affected the order passed there would be good ground for setting aside the order. Prejudice to the petitioner would be there if the petitioner could show a reasonable possibility of the order having been different had he been allowed to raise a plea before the first officer. In order to decide whether there has been prejudice the Court will consider what was the plea that the party wanted to take and whether the Rehabilitation authority had acted on assumption of facts which were inconsistent with that plea. If they did so act, the party would have a legitimate grievance that he was not allowed to disprove that assumption"
It was argued before the Full Bench that an order suffering from violation of principle of natural justice was void and could not be validated by an appellate or revisional authority. The argument did not find favour with the majority (Kaikaus and Wabeeduddin, JJ.), it was held that such an order is not void, for what is void has no existence in the eye of law. As an illustration it was pointed out that if the person affected does not challenge the order, it remains valid and a plaintiff who is directed to execute it cannot refuse to execute it on ground of being void. It was also observed that sometimes the order was described as being without jurisdiction but this expression should be regarded as being used in a general sense and not in the sense of a nullity. "The expression" it was said, "is used in such cases as only implying a qualified lack of jurisdiction, that is, the order can be set ;aside in further proceedings in the same matter, by an appellate or revisional authority or in the exercise of writ jurisdiction, but is valid for the purpose of collateral proceedings." The Full Bench did not decide the question whether this principle would apply where the violation is not of the principle of natural justice but of some statutory provision. It however observed that if the statutory provision for notice be mandatory, the order without notice may be wholly void but if it to directory the Court may still presume prejudice for want of notice till the contrary is shown.
18. The effect of violation of principle of natural justice was considered by the Supreme Court in Mohammad Swaleh and another v. United Grain :& Fodder Agencies (PLD 1964 SC 97In that case an ex parte order was passed against the defendant on a date which was not a date of hearing and later on ex parte decree was passed. About three months later, an application for setting aside the ex parte order as well as decree was submitted under section 151, C. P. C. The Sub-Judge accepted the application on his finding that both the orders which were required to be set aside were passed without jurisdiction. He also held that the matter was not governed by Art. 164 of the Limitation Act but was covered by Article 181 of that Act. This order was set aside in revision by the High Court which applied Article 164 to the case. Their Lordships of the Supreme Court held that ex parte order having been passed on a date which was not a date of hearing. It was not a "valid order." It was urged on behalf of the respondent that even if the order was not valid an application for setting aside the ex parte decree was governed by Article 164 of the Limitation Act. It was, however, contended on behalf of the appellant that the order of proceeding ex parte was completely without jurisdiction and a nullity and as such it did not stand in need of being set aside.
It was held that the "difference between a total lack of jurisdiction and an irregularity is sometimes one of degree and is a matter of difficulty. A reference to the provisions of section 115 of the Civil Procedure Code would show that every irregularity or even illegality in the exercise of jurisdiction does not render the order void and without jurisdiction . . . . . By merely showing therefore that an order passed was in violation of some law or procedure, the conclusion that the order is a nullity would not follow. It should further be shown that there was such a violation of some statutory provision or principle of natural justice as would render the proceedings coram non judice." It was further observed that since the order was liable to be set aside on the ground that it was not in accordance with law, it was not necessary to consider whether it was wholly void.
19. In Mohammad Siddiq v. Chief Settlement and Rehabilitation Commis--sioner (PLD 1965 SC 123 the Settlement Commissioner had passed the order affecting property rights without hearing the transferees thereof. It was held that "without giving them any notice or an opportunity to be heard the Settlement and Rehabilitation Commissioner could not have interfered with their property rights. In so far as he did so, he contravened the principles of natural justice and this circumstance alone would invalidate the impugned order".
20. It will be noticed that the Supreme Court avoided using the words 'void', 'void ab initio' or `nullity' in regard to an order passed in contravention of principle of natural justice. Only the words 'valid' or 'invalid' have been used.
21. In Pir Farid fan v. Colonization Officer etc. (PLD 1965 SC3 99 the appellate order .Of Revenue Officer was declared to be nullity since he was not invested with power of the Commissioner. A second appeal was disposed of by the Additional Commissioner. Regarding his order it was held that the order of the Revenue Officer being itself a nullity, it was inapt to make it the subject of an appeal without convassing the point of jurisdiction of the officer hearing the first appeal. Despite the fact that the two appellate orders suffered from an infirmity and one of them had been specifically held to be a nullity, it was held that the order of the Member, Board of Revenue passed in revision was not open to any such exception on the legal plane. It was observed that :- "By section 211 of the Act, the Board of Revenue possesses power to revise an order passed by any subordinate officer and question of legality as well as propriety of such a decision would be open to revision before the Board. The order of the Board was passed after full hearing of both parties on the merits of the case. Even if, there--fore, the intermediate links were weak, the final order of revision, referable as it was to section 211 of the Act could not be successfully assailed as illegal."
'The Court also found that the Board of Revenue was not influenced by the appellate order of the Revenue Officer but had given its own finding.
22. This is an authority for the propositions firstly that even if the intermediate order is a nullity, it does not affect the validity of the ultimate order in revision if the Revisional Authority gives its own grounds and secondly that the defect of natural justice in the tribunal trying the cause is cured by hearing given by the Revisional Authority.
23. The question about the effect of violation of a statutory provision about hearing being given to the parties came up for consideration before the Supreme Court in Atta Mohammad Qureshi v. The Settlement Commissioner, Lahore (PLD1971 SC61It was held that if such provision be mandatory and an order is made without fulfilment of the pre-requisite of hearing, it would lack jurisdiction and be a nullity. For the effect of nullity the following passage was referred from Yousuf Ali v. Mohammad Aslam Zia (PLD 1958 SC (Pak.) 104 "If on the basis of a void order, subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with superstructure of rights and liabilities built upon them must, unless some stature or principle of law, recognising as legal the changed position of the parties, is in operation, fall to the ground, as such orders have as little legal foundation as the void order on which they be founded."
It was further clarified that "the argument that the appellant had an opportunity of being heard by the Settlement Commissioner, which is a sufficient redress for his grievance, may be well-founded when the grievance is made to rest on the principle of natural justice viz. audi alteram partem . . . .
".
24. Their Lordships laid down the criteria for judging whether the provision about affording opportunity for hearing in a statute is directory or mandatory. It was observed :- "It is not possible to lay down a general rule of universal application in this behalf, but the one which is suggested by reported authorities in this connection is the affirmative or negative character of the language in which the provision is couched. If it is regative, that is to say, if the statute enacts that certain action shall be taken in a certain manner and in no other manner, it has been held that the requirements are absolute and that neglect to attend them will invalidate the whole procedure, If on the other hand, the language is affirmative, it may be considered as a directory provision."
After referring to certain English authorities, it was concluded ---.- "One other principle which has been enunciated in this behalf is that as a general rule, statutes, which enable persons to take legal proceedings under certain specified circumstances, demand that these circumstances must be accurately obeyed, notwithstanding -the fact that the provisions thereof are expressed in merely affirmative language."
In Mansab Ali v. Amir (PLD 1971 SC 124) it was argued that the failure to give notice to the respondents was more than cured by the opportunity granted to them in subsequent proceedings.
This argument was repelled and it was held :- "It is an elementary principle that if a mandatory condition for the exercise of jurisdiction by a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction, Any orders passed in continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction."
Although in the last two cases the order passed in violation of a mandatory provision about hearing has been held to be a nullity but this has not been used in the sense that such order can be considered to be non-existing without being declared as such by the Court. The term has been used only to nullify the orders subsequently passed, on the principle enunciated in the case of l Zia.
Otherwise even the orders passed without fulfilling the pre--requisite of hearing provided by a mandatory provision of law are voidablel and become void only if so declared by the Court. This is particularly true of Article 199 of the Constitution which vests the High Court with a discretion to refuse to interfere even with an order which is absolutely without jurisdiction. See Raunaq Alb etc. v.
Chief Settlement Commissioner and others (PLD 1973 SC 236).
25. In view of the case-law cited above, the argument of the learned counsel based on the violation of the principle of natural justice is without force. In order to apply the principle of the three cases i.e. Atta Mohammad Qureshi v. The Settlement Commissioner ; Mansab All v. Amir and Yousuf All v. Mohammad Aslam Zia it is necessary to consider whether the provision of section 10
(4) of the West Pakistan Consolidation of Holdings Ordinance for "giving notice to the persons concerned and bearing them" is mandatory. This provision is couched in affirmative language. It, however appears from j the scheme of the Ordinance that at could not have been intended to be; directory. The object of the Ordinance is to secure agreement of the land--owners as far as possible to the scheme of consolidation which it is no t-- possible to secure without giving each individual owner an opportunity o being heard. The Consolidation Officer is competent to confirm the Scheme of consolidation under subsection (3) of section 10 only when be succeeds in bringing about an amicable settlement. He has no jurisdiction to confirm a Scheme which is objected to even by one land-owner holding an infinitesimal share in the estate. In a case where there is the slightest objection to the Scheme he has to refer the same to the Collector "who after giving notice to the persons concerned and hearing them if they so desire may after further inquiry . . . . . . As he may deem fit, reject the Scheme or confirm it, with or without modifications. It is clear that the Collector cannot decide the matter without hearing the objector. Hearing of others may also be necessary since in some cases it may not be possible to remove the objections without making adjustments of Khatas of non-objectors. I am, therefore, of the I view that the provision of notice in section 104) of the Ordinance is I mandatory. In absence of such notice to the petitioner the order of th le Collector must be held to have been passed without jurisdiction. The orders of the Commissioner and the Board of Revenue also cannot therefore bel sustained.
26. The fourth point raised by the learned counsel is not necessary to be decided since I am inclined to declare the three orders in Annexures `E', 'G' and 'K' to have been passed without lawful authority. I allow this petition and declare the above orders as having been passed without lawful authority. Respondents Nos.4 and 5 shall pay the petitioner's cost.