1. ' DR. GHOUS MUHAMMAD, J.---This Constitutional petition under Article 199 -of the Constitution calls into question the order dated 1-7-1986 passed by the respondent No,1, Secretary, Government of Sindh, Housing, Town Planning, Local Government and Rural Development Department, as illegal, without jurisdiction and of no legal effect.
2. ' It has been averred by the petitioner that she was allotted Quarter No,483/D, Block 'C', Unit No,6, Shah Latifabad, Hyderabad, by the Deputy Commissioner/Vice-Chairman Administrative Committee, Shah Latifabad Hyderabad, vide Allotment Order No,8 dated 8-6-1954. It is further alleged that since her husband was posted at Rawalpindi she remained there with him and handed over the possession of the said quarter to respondent No,2 as its custodian-in-trust. This arrangement is stated to have been reduced in writing as on 24-12-1963. It is further stated that due to their cordial relations the petitioner requested the respondent No,2 to apply for and secure the watoi and electric connection and also asked him for erection of the compound wall around the said quarter while necessary charges in that respect were also paid by her to the respondent No,2. That subsequently, the respondent No,2 received a show-cause notice dated 1-3-1968 from the office of the District Housing Officer and Secretary, Administrative Committee, Shah Latifabad, Hyderabad, whereby he was called upon to vacate the said quarter within 10 days on the ground that he was an unauthorised occupant. The respondent No,2 allegedly with mala fide intention sought cancellation of petitioner's allotment and in turn got an allotment issued afresh in his own favour on the premise that he had paid the rent towards the said quarter. It is further alleged by the petitioner that she had on the contrary entrusted the respondent No,2 with funds to be directed as payment towards the rent of the quarter to be deposited in the office of the Secretary, Administrative Committee, Shah Latifabad, Hyderabad, but the rent was not deposited in the year 1966 and 1968. On petitioner coming to know about these facts she visited Hyderabad and submitted an application before the Secretary, Administrative Committee, Shah Latifabad, Hyderabad, seeking orders for deposit of full rent and also requested for issuance of a 'Clearance Certificate'. She also sought directions that the respondent No,2 be ordered to hand over the vacant possession of the quarter to her. The Secretary, Administrative Committee accepted the application of the petitioner without deciding the question of possession, in view whereof the petitioner filed a Suit No,363 of 1963 in the Court of Civil Judge Hyderabad, against the respondent No,2 for possession of the said quarter. This suit was decreed on 23-12-1971, however, the appeal preferred by the respondent No,2 there against was accepted on 24-11-1973 and the plaint rejected on the preliminary point that the matter regarding the title of the said quarter was sub judice before the Deputy Commissioner and as such the suit in question was premature. In response the petitioner filed a Civil Revision, No,117 of 1974 in which this Court vide order dated 29-5-1983 remanded the case by consent to the First Appellate Court (II-Additional District Judge, Hyderabad) for disposal and adjudication on merits which matter is still pending decision.
3. ' Collaterally, the respondent No, 2 had also filed an application before the Deputy Commissioner/Vice-Chairman, Administrative Committee against the allotment order passed by the Secretary, Administrative Committee, Shah Latifabad, Hyderabad which was rejected on 13-8- 1974. The respondent No,2 subsequently challenged the order dated 13-8-1974 in an appeal before the respondent No,1. This appeal was allowed by the Additional Secretary, Government of Sindh Housing Town Planning and Local Government Department by order dated 7-8-1975 in terms that the respondent No,2 should pay Rs,8,000 to the petitioner as compensation resulting in the possession of the respondent No,2 being regularised, while also directing him to pay the remaining dues to the Shah Latifabad Administrative Committee. The petitioner challenged the order dated 7-8-1975 in a Constitutional petition No,1100/1975. By consent the said petition was allowed by this Court vide order dated 13-9-1983 whereby the order dated 7-8-1975 was set aside and the case was remanded to the respondent No,1 for decision afresh after hearing the parties. The respondent No,1 reheard the appeal on 30th April 1986 and by order dated 1-7-1986 he allowed the appeal and ordered for cancellation of the allotment order earlier issued in favour of the petitioner. The Hyderabad Municipal Corporation was also directed to complete the formalities regarding allotment of the disputed quarter in favour of the respondent No,2.
4. ' Learned counsel for the petitioner submitted that the respondent No,1 had no jurisdiction to pass the impugned order dated 1-7-1986. Even otherwise the appeal filed by the respondent No,2 to the respondent No,1 neither maintainable nor provided by any law or Statute. He further contended that the Notification dated 2nd April 1963 cited by the respondent No,2 is not relevant and does not pertain to the subject-matter. This also does not confer any jurisdiction on the respondent No,1 to entertain the so-called appeal. He pointed out that the said Notification at best speaks of a second appeal to the Government but the appeal filed by the respondent No,1 was the first appeal and not the second appeal. He also contended that section 88 of the Sindh Local Government Ordinance does not confer jurisdiction to file appeal on the subject-matter to the Government nor is applicable to the present case. He also clarified that the findings of the Civil Court regarding possession are still in favour of the petitioner and being the original allottee she has every right to claim the property as she has not violated any condition of the allotment order dated 18-6-1954.
5. On the other hand it was also contended that the respondent No,2 has no claim or right legally or factually in the disputed quarter.
6. ' Learned counsel for the respondent No,2 submitted that the impugned order is just and proper as the petitioner has handed over the possession of the disputed quarter to the respondent No,2 as per `Iqrarnama' dated 24-12-1963 and by adhering to the proper procedure the Administrative Committee Shah Latifabad, Hyderabad had validly allotted the disputed quarter to the respondent No,2.
7. On careful examination we find no force in the submissions of the learned counsel for the respondent No,2. Right of appeal is a creature of Statute and must be expressly granted. The same cannot be granted by way of implication. This appears to be the settled preposition of law. If there is any authority needed in this context it is the case reported in PLD 1966 Lahore 684 (Wahid Bus and Mailsi Transport v. Afzal Transport Co. Ltd., Multan). Learned counsel for the respondent No, 2 has not cited any provision of law or statute which empowers the respondent No,1 to hear the appeals against the order passed by the Deputy Commissioner/Vice-Chairman, Administrative Committee, Shah Latifabad, Hyderabad. He has however placed reliance on the following Circular No, SO (TP) -IX-3/72, Karachi dated 12-8-1975: "GOVERNMENT OF SINDH, HOUSING TOWN PLANNING AND LOCAL GOVERNMENT DEPARTMENT NO.SO
(TP) -IX-3/72 KARACHI DATED 12-8-1975 ' To
1. The Commissioner, Hyderabad Division at Hyderabad.
2. The Deputy Commissioner, Hyderabad.
8. ' Subject: POWERS AND FUNCTIONS OF THE SHAH LATIFABAD ADMINISTRATIVE COMMITTEE, HYDERABAD ' Consequent upon the reconstitution of Shah Latifabad Administrative Committee, Hyderabad under this Department Notification of even No, dated 11-8-1975, the Government of Sindh are pleased to delegate the following powers to the Chairman, Vice-Chairman and District Housing Officer and Secretary, Latifabad Administrative Committee Hyderabad with immediate effect:-- ' POWERS OF THE COMMISSIONER AND CHAIRMAN, SHAH LATIFABAD ADMINISTRATIVE COMMITTEE, HYDERABAD
(1) To preside over the meetings of the Shah Latifabad Administrative Committee. The minutes of the meetings will, however, be approved by the Minister, through the Government (HTP and LGD)
(2) To hear first appeal against the orders of the Deputy Commissioner, Vice-Chairman, Shah Latifabad Administrative Committee, Hyderabad.
9. ' POWERS OF THE DEPUTY COMMISSIONER AND VICE-CHAIRMAN SHAH LATIFABAD ADMINISTRATIVE COMMITTEE HYDERABAD
(1) To issue allotment orders after getting approval of the Shah Latifabad Administrative Committee, Hyderabad.
(2) To earmark Nos. Of quarters of plots to the grantees of plots/quarters.
(3) To issue orders for ejectment in case of encroachment of plot quarters.
(4) To cancel the allotments of plots and quarters on account of infringement of conditions of the allotment orders.
(5) To accept solvent sureties as per instructions of the Chairman of the Committee and attest their signatures.
(6) To appoint staff of the Committee except District Housing Officer and Secretary, Shah Latifabad Administrative Committee.
(7) To regularize the possession of new occupants of 'TY Type Plot and quarters and issue of allotment orders.
10. ' POWERS OF THE DISTRICT HOUSING OFFICER AND SECRETARY SHAH LATIFABAD ADMINISTRATIVE COMMITTEE, HYDERABAD
(1) To supervise the work of the Committee and his staff.
(2) To issue show-cause notices in respect of recovery of Government dues and non-construction of building over the plots during the stipulated period after getting orders from the Deputy Commissioner and Vice-Chairman of the Committee.
(3) To execute and sign lease deeds/purchase agreements on behalf of the Government before the Sub-Registrar, Hyderabad.
11. ' All other functions of the Shah Latifabad Administrative Committee, Hyderabad issued by the Government from time to time will, however, continue to be enforced unchanged.
12. (Sd.)
13. (SAJJAD HUSSAIN), ADDITIONAL SECRETARY TO GOVERNMENT OF SINDH HOUSING TOWN PLANNING AND LOCAL GOVERNMENT DEPARTMENT."
14. ' Even regarding the said quoted circular no authority where under the same has been issued has been pointed out. Hypothetically, even if the said circular is construed to have been issued under the exercise of legitimate authority, two issues can be mooted:
(a) Whether a subordinate piece of legislation can confer the substantive right of appeal;
(b) Whether the impugned order has been framed by an authority having the jurisdiction to do so under the procedure prescribed by the said circular.
15. ' As regard issue No, (a) above, the matter would entirely depend upon the ambit of delegation spelt out in the parent Act, while in case challenge is advanced to the very delegation itself, factors such as lack of prescribed guidelines shall be relevant. In this respect a very detailed and exhaustive opinion has been expressed by Zafar Hussain Mirza, J. Sitting as a Judge of the Supreme Court of Pakistan in Zaibtan Textiles v. Federation reported in PLD 1983 SC 358. Be that as it may, any dilation on this issue no matter how desirable from an academic view point would only be an exercise in futility as we have already observed that the parent statute/law where under the quoted circular has been issued has not been pointed out by the learned counsel appearing for respondent No,2. Furthermore, determination of issue No,(b) may well be sufficient to decide the petition without the need of further scrutinizing issue No, (a).
16. This brings us to issue No,(b) under the quoted circular even if an appeal was to be filed it had to be preferred before the Commissioner and Chairman, Shah Latifabad Administrative Committee instead of respondent No,1, inasmuch as that the fresh allotment in favour of the respondent No,2 was made by the Deputy Commissioner/Vice-Chairman, Shah Latifabad Administrative Committee. On a construction of the said circular the appeal, if any could not have been entertained by respondent No,1. It is trite law that power vested in an authority should only be exercised by that authority, in default whereof, the exercise of power and authority becomes without jurisdiction, illegal, void ab initio and of no legal effect. The term "without jurisdiction" has been judicially interpreted to include usurpation, of power unwarranted by law (The Chief Settlement Commissioner Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331 at p.339); an Act done which the person doing it has no jurisdiction at all to do or which was clearly outside the sphere of his activities (The State v. Zia-ur-Rahman PLD 1973 SC 49); and a judgment or order delivered by a Court or a judicial or quasi-judicial authority not competent to deliver it (Muhammad Saleh and another v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97). The Constitutional jurisdiction can thus be exercised when it is shown that the order is passed without jurisdiction or in excess of jurisdiction. As observed earlier the respondent No,1 has no jurisdiction to pass the impugned order. As such we declare the same to be of no legal effect. Accordingly, we allow this petition but leave the parties to bear their own costs. These are the reasons of our short order passed on 21-5-1995.
…and 9 more citing cases