' In this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, orders of respondent No,2 dated 10-12-1997 and revisional order of respondent No,1 dated 1-4-1998 have been challenged by the petitioner.
' Respondent No,3 filed a petition before respondent No,2 for the grant of maintenance from the petitioner in pursuance whereof an Arbitration Council was constituted in terms of section 9 of the Muslim Family Laws Ordinance, 1961. In the application she claimed maintenance allowance of Rs,25,000 per month. Both the parties were represented by their respective representatives.
Proceedings took place before the Council and some evidence was also recorded. However, proceedings of the Arbitration Council show that due to adjournments the case lingered on for quite some time and finally on 26-11-1997 the matter was adjourned to 10-12-1997 for decision of the case on which date the order was passed by the Chairman, respondent No,2 fixing the maintenance allowance at the rate of Rs,5,000 per month payable for the period commencing from 24-7-1995 to 31-6-1997, thus, an amount of Rs,1,62,630 was ordered to be paid by the petitioner to respondent No,3. The petitioner challenged the said order in revision before the Collector, Lahore, which revision has been dismissed vide order dated 1-4-1998 being time-barred.
These orders of the respondents Nos.1 and 2 are the subject-matter of this petition.
2. Learned counsel for the petitioner contends that the order dated 10-12-1997 has been passed and signed only by respondent No,2, whereas the law contemplates the proceedings and order to be taken and passed by the Arbitration Council. It is further contended that the order does not show the concurrence of the Members of the Council or the dissent by any of them. It is contended that in any case the order does not show the application of mind to the material placed on record before the Council and has been passed without taking into consideration the relevant factors to be considered and weighed in such like cases. He has referred to the provisions of section 9 of the Muslim Family Laws Ordinance, 1961 and rule 5 of the Rules, flamed thereunder, that the order is without jurisdiction being violative of the said provisions of law. Reliance has been also placed on Tariq Mahmood v. Collector, District Gujranwala and 2 others (1991 CLC 793), Syed Riaz Ali Shah v.
Mst. Kausar Bibi and others (1991 CLC 1395) and Amjad Ali v. Mst. Hafeezan Begum and others (1994 M LD 1912) in support of his contentions.
3. The learned counsel for the respondent No,3 on the other hand contends that the proceedings have been conducted by the Council and never any such objection was raised before filing of this petition. He has made reference to the proceedings of 26-11-1997 to show that the representatives of both the parties were present on the said date and that the same were signed by the respective representatives. It is contended that no such objection was raised in the revision petition before the Collector which itself was time-barred, and therefore, the objection as to the competency of the Chairman alone regarding the passing of the impugned order should not be allowed to be raised in the writ petition.
4. Under section 9 of the Ordinance when an application is field before the Chairman, he is obliged to constitute an Arbitration Council to determine the matter of maintenance which Arbitration Council is then to issue a certificate specifying the amount to be paid by the husband as maintenance. The Arbitration Council envisaged by section 9 is to comprise of the Chairman and a representative of each of the parties as per 5-2(a) of the Ordinance. This requirement of law is couched in a mandatory form as the language employed shows the Chairman, shall constitute an Arbitration Council. In the present case the Arbitration Council was constituted which took proceedings in the matter and there are signatures on the order sheet by the representatives of the parties but the order impugned dated 10-12-1997 is signed by the respondent No,2 alone. It does not even make mention or show that the same has been made with the concurrence of the Members of the Council or there was disagreement or dissent by any of them. To the contrary it reads as follows:- {{URDU TEXT}}
5. This is not in consonance with Rule 5(6) of the Rules, which lays down that decision of the Arbitration Council shall be taken by Majority. It clearly aims at to include the Members in taking the decision, their concurrence or dissent. The order shows that it has been passed by respondent No,2 without even any reference to the Members of the Arbitration Council. Where a Court or Tribunal takes a decision or makes an order when it is not constituted in accordance with law (creating the same) it acts without jurisdiction. Rather it lacks the lawful authority to exercise such a power of taking the decision. A decision or order by such an authority or Tribunal is an act coram non judice, that is, an act done by the authority or a body exercising judicial or quasi-judicial powers which was not properly constituted even under the law under which it was set up and its decision is not a decision of the competent Authority. See page 26 of Jurisdiction and Judicial Review by Justice Fazal Karim (Second revised and enlarged Edition). In Tariq Mahmood's case where the order was signed by the Chairman alone was held to be not proper and legal and liable to be set aside on that ground alone.
6. The objection of the learned counsel for respondent. No,3 that the question cannot be allowed to be raised in writ jurisdiction is not tenable for the reason that the objection regarding the jurisdiction of a Tribunal in assuming the jurisdiction or passing the order can be raised at any stage of the proceedings. An order of this type which is by a Tribunal not properly constituted is an order coram non judice and is liable to be declared as without lawful authority as held in Chittaranjan Cotton Mills Ltd. v. Staff Union (PLD 1971 SC 197). Reference may also be made to Haji Abdul Sattar v. Additional District Judge, Rawalpindi (1984 SCMR 925) that objection to the jurisdiction can be raised and taken before the High Court in the writ jurisdiction. There is no manner of doubt that order under challenge in this petition is violative of the provisions of section 9 of the Ordinance and Rule 5 of the Rules, which goes to the very root of the jurisdiction and authority to pass an order. Thus order dated 10-12-1997 by the Chairman of the Council alone is without jurisdiction and to be declared so.
7. The contention of the learned counsel for respondent No,3 that the revision filed by the petitioner was time-barred does not make any material difference for the reason that in that writ petition both the orders i.e, order dated 10-12-1997 by respondent No,2 and revisional order dated 1-4-1998 by respondent No,1 have been challenged. Since the order of respondent No,2 dated 10-12-1997 itself is an order without jurisdiction, therefore, its affirmance by the revisional order of respondent No,1 does not validate the same. A nullity remains so and cannot assume validity, merely for the reason that it was not set aside by the revisional authority.
8. The grievance of the learned counsel about the order of respondent - No,2, that it does not show application of mind to the material brought on record, need not be gone into for the view I have taken is that the same is coram non judice and is of no legal effect.
9. Now the question is whether the entire proceedings are to be treated as illegal or only the final order of respondent No,2 impugned in the petition. The record of the proceedings show that the Arbitration Council was duly constituted as required by section 9 of the Ordinance. All the proceedings were conducted by the said Council and there is no flaw or illegality pointed out in the same. The only objection is as to the final order impugned in the petition that the same has not been signed by the Members of the Council and is signed Only by the Chairman, respondent No,2.
Since the same is violative of law i.e, section 9 of the Ordinance and Rule 5(6) of the Rule only the order can be described as without jurisdiction and of no legal effect.
10. In this view of the matter order dated 10-12-1997 of respondent No,2 is declared to be without lawful authority for the reasons stated above and is set aside. The application for maintenance of respondent No,3 shall be deemed to be pending and shall be decided afresh by the Arbitration Council and respondent No,2 as Chairman in accordance with law. Since the proceedings have been conducted and concluded till 26-11-1997 by the Council there will be no need to undertake de novo trial/proceedings and only the final order shall be passed afresh. The parties shall appear before the Arbitration Council on 30-7-1998. Since the matter relates to the maintenance, the decision shall be taken by the Council as contemplated by section 9 of the Ordinance read with Rule 5 of the Rules within a period of one month. The petition is accepted in the above terms. No order as to costs.