' The petitioners in this constitutional petition have called into question the vires of the order dated 22-3-1995 passed by Assistant Commissioner Khipro District Sanghar respondent No,3 whereby he cancelled entries in the record of rights dated 3-3-1988 in favour of the petitioners in the exercise of his powers under section 161, Land Revenue Act. Petitioner has also prayed for a declaration that all subsequent actions taken by the respondents resulting in their dispossession from the lands be declared as illegal and of no legal effect.
2. Briefly stated the case of the petitioners is that on 3-3-1988 they purchased 101-04 acres of land situated in Deh Khai, Taluka Ithipro from respondents Nos.6 to 23 by way of an oral statement before Mukhtiarkar Khipro who attested the mutation in favour of the petitioners who were accordingly put in possession of the entire land. According to the petitioners they obtained a loan of Rs,36,000 from Allied Bank Ltd: Khipro on 2-5-1989 on the strength of Agricultural Pass Book issued to them by Mukhtiarkar Khipro after due verification that the lands were free from all disputes and encumbrances. Petitioners were however, dispossessed from the lands on 31-8-1995 by private respondents in collusion with respondent No,4 i,e, Mukhtiarkar Khipro with police force.
Besides standing cotton, chillies and pulses crop on 25 acres was wrongfully taken away by the respondents. Main thrust of the petitioners is that Assistant Commissioner, Khipro acted illegally, in violation of principles of natural justice and equity and without jurisdiction thus the order is void ab initio and of no legal effect.
3. On behalf of private respondents Nos.7 and 13 have filed counter-affidavits to the petition controverting the sale in favour of the petitioners, delivery of possession and the payment of consideration. They have supported the impugned order on a number of grounds.
4. Although no relief was sought against respondent No,5 i,e, Agricultural Development Bank of Pakistan but since a pre-admission notice was issued an officer of the bank has also filed a counter-affidavit to show that the lands were mortgaged with the bank to the tune of Rs,10,00,000.
5. As pre-admission notice was also issued to other respondents we have heard learned counsel appearing for the parties at length and by consent proceeded to dispose of the petition on merits.
6. Learned counsel for the private respondents have vehemently urged that the purported sale in favour of the petitioners being fraudulent and forged, Assistant Commissioner was legally justified and entitled to order the cancellation of entry in the record of rights in the exercise of authority vested in him under the provisions of section 161 Land Revenue Act. Learned counsel have emphasised the circumstance that according to the Assistant Commissioner the lands were mortgaged with Agricultural Development Bank of Pakistan as well as Qaim Agricultural Cooperative Society as reported by Tappedar, therefore, there could be no sale of the encumbered lands. It is further contended that as the Assistant Commissioner had jurisdiction to entertain the appeal his order is immune from judicial scrutiny in the exercise of Constitutional jurisdiction of this Court and the proper remedy available to the petitioners is by way of a suit under the provisions of Specific Relief Act as laid down in section 53 Land Revenue Act. Lastly it was urged that since the petitioners did not avail of the alternate and adequate remedy by way of appeal before the Collector under the provisions of Land Revenue Act, their petition cannot be maintained which apart from other circumstances also involves a deeper investigation into disputed questions of fact including the factum of possession.
7. On the other hand learned counsel for the petitioners mainly contended that the petitioners were condemned unheard without affording an opportunity of hearing and Assistant Commissioner acted completely without jurisdiction in relying upon the report of the Tappedar that the petitioners whereabouts were not known when they were physically available on the lands as well as in their village which circumstance is corroborated by their dispossession after the impugned order.
Besides the learned counsel pointed out that an appeal before the Assistant Commissioner from the order of the Mukhtiarkar attesting a mutation could be filed within thirty days of the order whereas respondent No,7 had invoked the appellate jurisdiction after a lapse of seven years and the Assistant Commissioner proceeded to condone the delay without assigning any reason muchless cogent and convincing explanation for each day's delay beyond the period prescribed for preferring an appeal. Lastly learned counsel submitted that the impugned order being void ab initio and passed without lawful authority, it would be a futile exercise to assail the order in appeal before the Collector which became barred by law as the petitioner came to know about this order only after their unlawful dispossession and removal of the standing crop on 31-8-1995.
8. Adverting to the first contention advanced by the petitioners that the alleged sale in favour of the petitioners was fraudulent and forged, we are unable to note any finding to this effect in the impugned order passed by the Assistant Commissioner. At any event, this is a disputed question of fact which can neither be gone into by this Court nor determined by the High Court in the exercise of extraordinary Constitutional jurisdiction. In support of his argument that the order on the face of it being just and proper even if found to be without jurisdiction need not be interfered in the exercise of Constitutional jurisdiction learned counsel heavily relied upon Muhammad Baran v.
Member (Settlement and Rehabilitation), Board of Revenue PLD 1991 SC 691. The view expressed by the Supreme Court in this case was that where the allotments relied upon by the Settlement Authorities were illegal and without jurisdiction and were also based on fraud and forgery, in that eventuality even if the Board of Revenue which exposed fraud and forgery and set aside the illegal transfer of property by its own order, High Court, would not in exercise of its discretionary jurisdiction annul the order of the Board of Revenue even though it was clearly without jurisdiction.
There can be hardly any cavil with the proposition of law laid down by the appeal Court which is even otherwise binding on this Court, the judgment is hardly attracted in the circumstances of the case as the impugned order has not exposed any fraud and forgery committed by the petitioners on the vendors or the revenue authorities. In. The circumstances it cannot be held that the. Order is just, fair and proper or that it advances the ends of justice and that it need not be set aside by the High Court.
'9. Reverting to the second contention urged at the Bar suffice to say Assistant Commissioner has not referred to any authentic record in support of the general observation that the lands were mortgaged with Agricultural Development Bank of Pakistan and Qaim Agricultural Cooperative Society and has founded his observation on a report of Tappedar which by itself is not sufficient and conclusive to record a finding that the lands were under encumbrance. This sort of finding could only be based on a detailed enquiry into the relevant facts and the record maintained by the authorities as well as the Bank and Cooperative Society. At any rate wie would refrain from recording any finding on this aspect of the case as we do not feel inclined to base such finding on a disputed question of fact.
10. No doubt, Assistant *Commissioner had the authority to hear an appeal from the order passed by Mukhtiarkar Khipro under the provisions of Land RevFnue Act, his order is not immune from judicial scrutiny when it suffers from inherent infirmities and want of jurisdiction. Contention that the Assistant Commissioner could pass any order whether legal or illegal is completely devoid of any force and cannot be accepted by any canon of reasoning and law. In law every public functionary and particularly a quasi-judicial authority is expected to act legally, fairly, reasonably and strictly within the sphere of law and its jurisdiction. If a public functionary transgresses the scope of authority vested in him the order cannot be upheld or said to be immune from judicial review. A complete answer to the contention advanced by Mr. Eijaz Ali Hakro is available in Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal PLD 1987 SC 447 which has been followed in subsequent judgments without any reservations. In the present case Assistant Commissioner not only acted in violation of the principles of natural justice by not affording an opportunity of hearing to the petitioners, he also exceeded his jurisdiction by condoning delay of seven years in entertaining the appeal without assigning any reason. The order, therefore, cannot be held to have been passed with lawful authority. We are fortified in this view also by another judgment in Ronaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236 which lays down the following dictum:-- "It is now well-established that where an inferior Tribunal or Court has acted wholly without jurisdiction or taken any action "beyond the sphere allotted to the Tribunal by law, and, therefore, outside the area within which the law recognises a privilege to error then such action amounts to a 'usurpation of power unwarranted by law' and such act is nullity; that is to say 'the result of a purported exercise of authority which has no legal effect whatsoever'. In such a case, it is well- established that a superior Court is not bound to give effect to it, particularly where the appeal is to the latter's discretionary jurisdiction. The Courts would refuse to perpetuate, in such circumstances, something which would be patently unjust or unlawful."
11. Evidently Assistant Commissioner acted in abrupt and haphazard manner by proceeding to decide the appeal without due service of notice of hearing on the petitioners in a much as he acted on the report of a Tappedar that the petitioners' whereabouts were not known. This approach on the part of respondent No,3 is patently improper and unwarranted. Obviously petitioners were not only owning huge agricultural property but also engaged in raising cultivation on it and undisputedly available in their village but they were not heard and thus condemned behind their back. In Anisa Rehman v. P.I.A. Corporation 1994 SCM R 2232 it was held that there is judicial consensus that the maxim 'audi alteram partem' is applicable to judicial as well as to non- judicial proceeding. The above maxim will be read into as a part of every statute if the right of hearing has not been expressly provided therein.
12. Adverting to the last contention advanced on behalf of the respondents that the petitioners ought to have preferred an appeal from the impugned order or filed civil suit to challenge the impugned order we see no substance in the argument as the impugned order has been found to be without lawful authority and passed in violation of law. Besides, appeal provided under the provisions of Land Revenue Act had become barred by time and cannot be considered to be adequate remedy. Likewise availability of remedy by suit for declaration may not operate as bar for assumption of writ jurisdiction this Court which is more effective and efficacious remedy in such cases. Conversely this argument may be advanced even against the respondents who had preferred to invoke the jurisdiction of Assistant Commissioner for ventilation of their grievances.
With regard to forgery in the matter of transfer of property rights on the basis of a statement it could also be said that remedy by way of a civil suit as provided in section 53, Land Revenue Act was also available to the respondents but it was not availed of and instead a short cut method was adopted to seek the remedy before the Assistant Commissioner. We are fortified in this view by the judgments reported as Hydri Ship, Breaking Industries Ltd. v. Sindh Government 1988 MLD 1863 and Kamran Industries v. Collector of Customs (Exports) PLD 1996 Kar.
68. In both the authorities' view expressed by two different Benches of this Court was that where the impugned action is completely without jurisdiction and patently illegal it is not essential to avail the alternate remedy. In Hydri Ship-Breaking case Division Bench consisting of Ajmal Mian and Nasir Aslam Zahid, JJ. (as their Lordships then were) referred to a large number of cases from the Supreme Court and High Courts in support of the view that the rule that High Court will not a writ petition while other appropriate remedy is yet available is not a rule of law barring jurisdiction of Courts but is a rule by which Court regulates exercise of its own discretion. It was further laid down that in case of total lack or absence of jurisdiction or authority or apparent excess of jurisdiction, Courts in general would not hesitate in entertaining a Constitutional petition. In our view ratio in both the cases is attracted to the facts of the case in hand and the petition cannot be dismissed on this ground alone.
13. For the aforesaid facts and reasons we allow this petition. The order impugned in this petition is declared to have been passed without lawful authority and of no legal effect. The parties would be at liberty to agitate their rights before proper forum, if so advised.