' MIAN ALLAH NAWAZ, J.---This judgment will govern three Constitution petitions bearing Nos. 391, 709 and 1524 of 1976. All of these petitions call in question the validity of the order passed by the Chairman, Federal Land Commission dated 20-6-1975. These are, therefore, being decided through a single judgment.
2. The facts, briefly stated, giving rise to these petitions are: that Nawabzada Muhammad Shahabuddin Khan/known as 'Khan of Jandool' /was the owner of agricultural land in various revenue estates of Dir and Mardan Districts. With the promulgation of M.L.R. 115, he filed a declaration under para. 7 of the Regulation and incorporated therein fourteen transactions of transfer made by him in favour of his legal heirs and other persons. The transactions, so mentioned, were as follows: {{TABLE}} S.No, Name of transferee Area Documentary Reference Jamroz Khan, Staff Officer, Jandool. 404 Nimakai. Hibanama dated 5-4-1956.
Mst. Timer Bibi, wife. 460 Minakat. Tamleeknama dated 14-7-1951.
M. Qutubuddin Khan, son. 966 Satta 193 Tamleeknama Nimakai. Dated 4-11-1959 Mar Bibi (mother). 460 Nimakai. Malkiatnama dated 1-4-1950.
Mst. Lahore Bibi (wife). 350 Nimakai. Tamleeknama 350 Satta. Dated 6-9-1952 Mst. Khar Bibi (wife) 345--1/2 Nimakai. Tamleeknama dated 14-3-1955.
Mst. Swat Bibi 365 Nimakai. Tamleeknama (step-mother) dated 1-4-1950.
Bibi Amina (daughter) 429 Nimakai. Tamleeknama dated 17-6-1961.
Mst. Amratsar Bibi 357 Nimakai. Tamleeknama (wife). Dated 2-10-1966 Sadar-ud-Din (son). 166-1/2 Nimakai Tamleeknama 997 Satta. Dated 10-2-1966.
Firdaus Khan etc. 89 Acres 6 Kanals 10 Marlas vide Mutation No, 4490 dated 8-9-1970 Muhammad Khan etc. 22 Acres vide Mutation No, 2460 dated 24-11-1971. {{TABLE}}
3. Deputy Land Commissioner did not complete scrutiny for some time and ultimately sent his recommendations to the Land Commissioner for their validation. The Land Commissioner vide order dated 20-4-1973 remanded the matter to the Deputy Land Commissioner with following directions:
(i) Completion of record giving also the details of calculation of P.I. Units of the self-owned property and the State lands and the property transferred by the declarant.
(ii) Preliminary enquiry under Para. 7 of the MLR.
115."
4. Pursuant to above order, the Deputy Land Commissioner undertook necessary exercise and found that the aforementioned transactions were valid. On this report, the Land Commissioner, Malakand Division, vide order dated 29-5-1973, upheld their legal efficaciousness.
5. This was not the end of the matter. The Federal Land Commission, in exercise of its suo mcitu powers under Para. 29 of Regulatir initiated proceedings against the petitioners. After hearing the learned counsel for declarant and the Deputy Land Commission's Advisor, the Chairman, Federal Land Commission found that the aforenoted transactions were not valid. On this conclusion he passed following order: "10. For the foregoing reasons I set aside all the orders passed by the Deputy Land Commissioner and Land Commissioner and remand the case for fresh determination of the entitlement of the declarant taking into 'account the entire land measuring 2144 acres equivalent to 12334 P.I.Us. In Mardan District as the ownership of the respondent. However, the two alienations made in Mardan District for an area of 111 Acres, 6 Kanals 10 Marlas equivalent to ...P.I.Us. Already validated, shall remain intact. The respondententitled to only 12000 P.I.Us. After taking the choice....Tespondent under the law the rest of the land shall....And disposed of in accordance with the provisions..
' Feeling aggrieved Nawabzada Muhammad Shahabuddin filed Writ Petition No, 391/76 which was followed by Writ Petitions Nos. 709 and 1524 of 1976.
6. Dr.. Abdul Basit, Advocate the learned counsel for the petitioners raised the following points: ' Firstly; that the learned Chairman, Federal Land Commission had passed the impugned order without hearing the transferees/donees. On this basis it was suggested that the impugned order was void ab initio/being in violation of the principle of natural justice that "nobody should be condemned unheard".
' Secondly; that the alienations were made by the declarant in favour of his sons, wives, daughters and transfers so made in favour of legal heirs were immune from scrutiny under proviso (iii) to para. 7 of the Regulation.
' Thirdly; that the learned Chairman Federal Land Commission had rendered the order passed by the Land Commissioner dated 24-5-1973 invalid without examining any jurisdictional illegality in it.
' Fourthly; that if it was found that the order passed by the Chairman, Federal Land Commission was illegal, it was not proper to remand the case in view of rule laid down iri Muhammad Yousuf Ali Shah v. Federal Land Commission (1995 CLC 369).
7. Sheikh Maqbool Ahmed, the learned Deputy Attorney-General, while appearing on behalf of the Federal Land Commission, took up strong preliminary objection to the maintainability of these petitions/contending that the petitioners were residents of District Dir and the Districts Mardan; that the property in dispute was also situated in those Districts and so this Court had no jurisdiction to entertain and decide these petitions. On merits, he submitted that the declarant, himself, had been claiming the properties, transferred to alienees, as his personal properties. Mr. M. Suleman Awan, the learned counsel appearing on behalf of A.-G. For respondent No,3 in W.Ps. Nos. 709 and 1524 of 1976, adopted the above line of argument.
8. Having heard learned counsel for the parties, at some length, now we turn to their rival contentions. As regards preliminary objection, suffice it to say, it is fully answered by Article 199 of the Constitution which reads as follows:-- "
199. Jurisdiction of High Court.--(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,---
(a) on the application of any aggrieved party, make an order---
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, or a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or
(ii) declaring that any act done or proceedings taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or (b)
(i)
(ii)..
(c)
(2).
(3).
(4).
(a)..
(b)..
(i)
(ii)..
(4-A)..
(4-B)
(5)
(a)..
(b).
' A bare look at the above provisions would show that it prescribes two limitations; firstly, that this Court cannot issue writ beyond its territories and secondly, that the person whose order is impugned shall be amenable to its jurisdiction. This question came up for consideration before Supreme Court in Asghar Hussain v. Election Commission Pakistan (PLD 1968 SC 387). In this case bye-election to an East Pakistan Provincial Assembly from Constituency No, PE-126 KomiIla VII, was held under President's Order No,4 of 1962 on 20-10-1963. Three contestants namely Asghar Hussain/appellant, Abdul Awal Bhuiyan/respondent No,3 and one Nazir Ali took part in the Election..
Respondent No,3, in result, was declared duly elected. This result was challenged by filing an election petition before a Tribunal under Settlement of Disputes (First Elections) Order, 1962. That petition was accepted by the Tribunal vide order dated 16-11-1964 with a finding that respondent No,3 had committed corrupt and illegal practices. Respondents Nos.2 and 3 (in that case) separately moved the High Court of East Pakistan for quashment of the order of Tribunal, but in vain. Thereupon, the appellant moved the Election Commission to disqualify respondent No,3 from being elected as member of Assembly. The Election Commission, though moved on 8-3-1965, did not take any action with the result that the appellant on 6-5-1965 filed a Constitution petition in the High Court of East Pakistan. During hearing of this petition, the Deputy Attorney-General took up a preliminary objection regarding maintainability of petition on the ground that the office of Election Commission was situated in Islamabad and, therefore, the High Court of East Pakistan did not have the jurisdiction to issue any writ to that authority. The High Court upheld the preliminary objection and so dismissed the petition. The learned High Court, however, granted a certificate to appellant for filing leave to appeal. The appeal was accepted by the Supreme Court on 7-6-1968 and it was held therein that as the Election Commission was a Federal Institution; that it operated in whole of Pakistan and was so amenable to the jurisdiction of East Pakistan High Court. Speaking for the Bench his Lordship Mr. Justice Yaqoob Ali Khan (as he then was) said: "The decision given by the High Court of East Pakistan that it has no jurisdiction to issue a writ or a direction to the Election Commission of Pakistan is thus unsustainable in law from every point of view. The Election Commission is a 'person' or ' authority' which exercises in the Province of East Pakistan functions in connection with the affair of the Centre, namely, elections to the office of the President, National Assembly and the Provincial Assembly and for holding a referendum as provided for in the Constitution. In that the Commission is subject to the jurisdiction of the High Court under Article 98 (2)(a)(i) notwithstanding that its main office and secretariat are located in the Province of West Pakistan."
' The view taken in Asghar Hussain's case, (supra) was followed in Collector of Central Excise & Land Custom v. Imdad ali (1960 SCMR 708), Al-Iblagh Limited v. Copyright Board (1985 SCMR 578), Muhammad Aslam v. Federal Land Commission (PLD 1976 Pesh. 66) and Ghulam Haider Badini v.
PTV, Corporation, Islamabad (1995 CLC 1027).
9. The survey of the case-law will not be complete without examining the rule laid down in Lt.-Col. Khajoor Singh v. Union of India (AIR 1961 SC 532). In this case Article 226 of the Indian Constitution, came up for examination. Speaking for the Bench his Lordship Sinha, C.J., (as he then was) said: "13. This brings us to the first question, namely, whether the Government of India as such can be said to be located at one place, namely, New Delhi. The main argument in this connection is that the Government of India is all-pervasive and is functioning throughout the territory of India and, therefore, every High Court has power to issue a writ against it, as it must be presumed to be located within the territorial jurisdiction of all State High Courts. This argument in our opinion confuses the concept of location of a Government with the concept of its functioning. A Government may be functioning all over a State or all over the India, but it certainly is not located all over the State or all over India. It is true that the Constitution has not provided that the seat of the Government of India will be at New Delhi. That, however, does not mean that the Government of India as such has no seat where it is located. It is common knowledge that the seat of the Government of India is in New Delhi and the Government as such is located in New Delhi. The absence of a provision in the Constitution can make no difference to this fact. What we have to see, therefore, is whether the words of Article 226 mean, that the person or authority to whom a writ is to be issued has to be resident in or located within the territories of the High Court issuing the writ?
The relevant words of Article 226 are these:--- 'Every High Court shall have power.. to issue to any person or authority.... Within those territories....'"
' So far as a natural person is concerned, there can be no doubt that he can be within those territories only if he resides therein either permanently or temporarily. So far as an authority is concerned, there can be no doubt that if its office is located, therein it must be within the territory.
But do these words mean with respect to an authority that even though its office is not located within those, territories it will be within those territories because its order may affect persons living in those territories? Now it is clear that the jurisdiction conferred on the High Court by Article 226 does not depend upon the residence or location of the person applying to it for relief; it depends only on the person or authority against whom a writ is sought being within those territories. It seems to us, therefore, that it is not permissible to read in Article 226 the residence or location of the person affected by the order passed in order to determine the jurisdiction of the High Court.
That jurisdiction depends on the person or authority passing, the order being within those territories and the residence or location of the person affected can have no relevance on the question of the High Court's jurisdiction. Thus, if a person residing or located in Bombay, for example, is aggrieved by an order passed by an authority located, say in Calcutta, the forum in which he has to seek relief is not the Bombay High Court though the order may affect him in Bombay but the Calcutta High Court where the authority passing the order is located. It would, therefore, in our opinion be wrong to introduce in Article 226 the concept of the place where the order passed has effect in order to determine the jurisdiction of the High Court which can give relief under Article 226. The introduction of such a concept may give rise to confusion and conflict of jurisdictions. Take, for example the case of an order passed by an authority in Calcutta, which affects six brothers living, say in Bombay, Madras, Allahabad, Jabalpur, Jodhpur and Chandigarh. The order passed by the authority in Calcutta has thus affected persons in six States. Can it be said that Article 226 contemplates that all the Six High Courts have jurisdiction in the matter of giving relief under it? The answer must obviously be 'No'. If one is to avoid confusion and conflict of jurisdiction. As we read the relevant words of Article 226 (quoted above) there can be no doubt that the jurisdiction conferred by that Article on a High Court is with respect to the location or residence of the person or authority passing the order and there can be no question of introducing the concept of the place where the order is to have effect in order to determine which High Court can give relief under it. It is true that this Court will give such meaning to the words used in the Constitution as would help towards its working smoothly. If we were to introduce in Article 226 the concept of the place where the order is to have effect we would not be advancing the purpose for which Article 226 has been enacted. On the other hand, we would be producing conflict of jurisdiction between various High Courts as already shown by the illustration given above. Therefore, the effect of an order by whomsoever it is passed can have no relevant in determining the jurisdiction of the High Court which can taken action under Article 226. Now, functioning of a Government is really nothing other than giving effect to the orders passed by it. Therefore, it would not be right to introduce in Article 226 the concept of the functioning of Government when determining the meaning of the words "any person or authority within those territories". By introducing the concept of functioning in these words we shall be creating the same conflict which would arise if the concept of the place where the order is to have effect is introduced in Article 226. There can, therefore, be no escape from the conclusion that these words in Article 226 refer not to the place where the Government may be functioning but only to the place where the person or authority is either resident or is located. So far therefore as a natural person is concerned, he is within those territories if he resides there permanently or temporarily. So far as an authority (other than a Government) is concerned, it is within the territories if its office is located there. So far as a Government is concerned it is within the territories only if its seat is within those territories."
10. The ratio deducible, from the foregoing discussion, is, that the jurisdiction of this Court under Article 199 of the Constitution of Pakistan (1973) is not contingent upon the residence of aggrieved person. Equally it is not relatable to places where the writ issued by it will have effect. What is required by this Article, is, that the person/authority/functionary of the State against whom the writ is sought to be issued shall be operating or be amenable to the jurisdiction of this Court. In other words it means that the writ issued by the Court cannot run beyond territory subject to its jurisdiction and secondly that the person or authority to whom the Court was to issue writ was amenable to its jurisdiction either by residence or by location within its territory. The elements embodied in section 20 of C.P.C. Cannot be introduced in Article 199 of the Constitution. Applying this principle to facts and circumstances of the cases in hand, it is quite clear to us that the impugned order was passed by Chairman. Federal Land Commission at Rawalpindi; that the Federal Land Commission was/is a Federal Institution and operates within the territories of whole of. Pakistan; that it functioned at relevant time at Rawalpindi and it was so clearly amenable to jurisdiction of the High Court of Lahore. We, on this view, have no reason to depart from the view taken by the Division Bench of this Court vide order dated 29-3-1976. In result, the preliminary objection raised by the learned Deputy Attorney-General is found to be misconceived and is accordingly repelled.
11. Having dealt with the preliminary objection, we, now, turn to the remaining contentions of the parties. As regards the second argument, it is to be noted that the alienees/affectees were not given any notice by the Commission. The learned Deputy Attorney-General, despite his best effort, was not able to show any material regarding issuance of notice to alienees/transferees. The perusal of the order clearly confirms that the effectees were not at all provided an opportunity of hearing. This being the position, we are in no manner of doubt that alienees/affectees were necessary parties and order passed by the Chairman, Federal Land Commission in their absence, was wholly without jurisdiction. The same cannot be, therefore, sustained and is declared to have been passed without any lawful authority and of no lawful consequences (See Munir Ahmed v.
Chairman, Federal Land Commission, Pakistan (1994 CLC 20). Another conspicuous feature of the case is that the transactions mentioned in paragraph No,2 entered at Serial Nos. 2 to 10, were in favour of legal heirs. These transfers were obviously immune from scrutiny under para. 7, proviso
(iii) of the Regulation. Furthermore, the learned Chairman, Federal Land Commission did not even take care to examine as to whether the order passed by the Land Commissioner suffered from any jurisdictional or any legal infirmity. The Chairman, Federal Land Commission did exercise his suo motu jurisdiction on whims and conjectural notions. He under the law was required to first examine the impugned order passed by the Land Commissioner on the yardsticks fully specified in Munir Ahmed's case (supra), Federal Land Commission v. Zarin Qaisha (1984 SCMR 666) and Mst. Tayyib Khanam v. Chairman, F.L.C. (1984 SCMR 1110). The order passed by the learned Chairman, Federal Land Commission clearly does not satisfy the test laid down by the aforenoted enunciations by the Supreme Court and by this Court. Having regard to these circumstances, we find no material whatsoever to support the legality of the order impugned in these petitions. As a result of above discussion, we have, therefore, no hesitation in coming to conclusion that the order passed by Chairman, Federal Land Commission, is clearly without jurisdiction and is declared as such.
12. The question, now left for consideration is, as to what relief petitioners are entitled. Paras. Nos. 3, 6, 7 and 8 of Land Reforms Regulation 115 were declared contrary to injunctions of Holy Qur'an and Sunnah by Shariat Appellate Bench of Supreme Court in its celebrated decision in Qazalbash Wakf's case reported in PLD 1990 SC 99. The review application filed by Federal Government was dismissed by Shariat Appellate Bench of Supreme Court in Government of Pakistan v. Qazalbash Wakf (1993 SCMR 1697). In result of above enunciations, the above-referred to provisions in Regulation 115 stand completely erased from Statute Book. It is true that when this Court finds that action taken/order passed by subordinate authorities are without jurisdiction, it usually returns such cases to concerned Court/Authority/Tribunal, after quashing the impugned orders, for fresh decision. This Court ordinarily does not substitute its own views. This rule, however, is not the rule of thumb. The main object of Constitutional jurisdiction is to foster substantial justice between the parties and is made to save the citizens of the State from arbitrary, and capricious actions of the State and save them from unlawful proceedings. Guided by this principle, we find that the relevant provisions have been obliterated from the Statute Book; that no land resumed from petitioners so far and so now, no proceedings can be taken against the petitioners under the obliterated provisions of Martial Law Regulation.
13. As a result of the foregoing discussion, these Constitution petitions are allowed with grant of requested reliefs. The order passed by the Chairman Federal Land Commission dated 20-6-1975 is hereby set aside as having been passed without any lawful authority. Since these petitions involved examination of complicated questions of law, we are not persuaded to burden the respondents with costs.