' In this petition and the connected petitions i.e. W.P. No.30-R of 1998, W.P. No.36-R of 1998, W.P.
No.38-R of 1998, W.P. No.47-R of 1998, W.P. No.48-R of 1998, W.P. No.49-R of 1998, W.P. No.50-R of 1998, W . P. No .55 -R of 1998, W .P .No . 61-R of 1998, W . P. No . 62-R of 1998, W.P. No.69-R of 1998, W.P.
No.70-R of 1998, W.P. No.75-R of 1998, W.P. No. 161-R of 1998, W.P. No. 162-R of 1998, W.P. No.164-R of 1998, W.P. No.41-R of 1999 and W.P. No.42-R of 1999, one and the same impugned order dated 16-1- 1998 passed by the Additional Commissioner (Revenue), Gujranwala/Settlement Commissioner (Land)/Notified Officer has been assailed. One of the grounds of challenge is that before the date of passing of the impugned order, the Notified Officer had been transferred on 12-1-1998 and thus, could not have decided the matter. In view of such a common question of law involved in all the petitions, the same will stand disposed of accordingly.
2. The learned counsel for the petitioners make reference to Regional Commissioner of Income Tax, Corporate Region, Karachi and others v. Shafi Muhammad Baloch (1998 SCMR 246) and Ghee Corporation of Pakistan and another v. Sh. Abdul Haq and another (1990 SCMR 1581) that such an order was nullity in law as the Officer had become functus officio in the matter. On the other hand, the learned counsel for the respondents contended that since the Officer had not relinquished the charge till 19-1-1998, he could decide the matter and the impugned order was validly passed by hint. Reference has been made to Daya Ram and others v. Must Jatti (AIR 1916 Lahore 78(1) and Qazi Mehar Din (Deceased), Represented by Muhammad Rafiq and others v. Mst. Murad Begum and others (PLD 1964 SC 446) in this context.
3. The original file of the proceedings has been produced and respective contentions have been considered.
4. The matter had been remanded to the Notified Officer vide judgment of this Court dated 30-7- 1991. Ch. Muhammad Latif, Additional Commissioner (Revenue)/Settlement Commissioner (Land/Chief Settlement Commissioner/Notified Officer Gujranwala Division, Gujranwala was seized of the matter who on 30-12-1997 adjourned the case to 13-1-1998. On 13-1-1998, as per the order- sheet and proceedings, the case was heard by him and it was adjourned to 16-1-1998 for perusal of the record and order. Before that vide notification dated 12-1-1998 Ch. Muhammad Latif had been transferred and Mr. Khalid Bashir Tarar was posated in his place with immediate effect. Challenge to the impugned order dated 16-1-1998 has been made inter alia for the averments made in paragraph No.6 of the petition (W.P.No.163-R of 1998) and clause (ii) of the grounds thereof that is: "6. That in the post-remand proceedings, the case was taken up by the respondent No.1 for fresh decision, in terms of judgment passed by this Hon'ble Court on 30-7-1991 where respondent No.1 haphazardly proceeded to decide the case, without affording opportunity to the petitioner to substantiate their case by evidence and did not care to examine the entitlement of the predecessor-in-interest of respondents 5 to 24 to have allotment of the and in Mouza in question in spite of the fact that he was not competent to decide the case as he had already been transferred and after relinquishing of the charge, he was not equipped with any authority to embark upon the case in hand but he did it, with ulterior motives the judgment/order passed by respondent No.1 on 16-1-1989 is not only violative of the directions made by this Hon'ble Court while remanding the case but is also against law and facts and the same being illegal, unlawful, arbitrary nullity at law the same and order dated 5-2-1978, 24-4-1978 and 17-5-1978 passed by respondents Nos.2 to 4 respectively, are ab initio void, in-operative and of no legal consequence hence the same are sought to be so declared, inter alia, on the following.
(ii) That respondent No.1 undeniably, had since been transferred and was no more holding charge of Additional Commissioner (Rev.)/Settlement Commissioner (Lands) Gujranwala Division Gujranwala hence was not competent to decide the case in hand but for the reasons best known to him, he opted to decide it obviously for ulterior motives hence the order passed by him is unlawful and without jurisdiction and thus is not sustainable on this short ground."
' The question, thus, arises whether after the transfer of Ch. Muhammad Latif had been ordered, he should have heard the case on13-1-1998 and decided it. There had been some misconception as if the case had been heard by Ch. Muhammad Latif prior to the order of transfer dated 12-1-1998 and, therefore, he could have decided the matter, but the case file and proceedings show to the contrary inasmuch as the case was heard by him on 13-1-1998 when he had already been ordered to be transferred on 12-1-1998.
5. In order to comprehend the true import and impact of a statutory A instrument or order, its tenor and contents assumes vital importance. Their perusal of the relevant notification dated 12-1-1998 by which Ch. Muhammad Latif, Additional Commissioner (Revenue), Gujranwala who was the Notified Officer was transferred would show in unequivocal terms that the transfer inter se the officers was made "with immediate effect". Statedly he continued till 19-1-1998 when he left the charge and was posted as Additional Commissioner (Revenue), Bahawalpur Division Bahawalpur.
It is in such context that the validity of the proceedings and order passed by him on 16-1-1998 is to be judged.
6. It is well known and well-settled principle that the precedents cited and invoked in support of respective contentions are to be considered and applied keeping in view the facts of the particular case. It may be observed that there may be, variant circumstances and eventualities in which a judgment was rendered or order passed by a Court or an Officer. Some situations are visualized in the Code of Civil Procedure, 1908 itself. Rule 2 of Order XX enable a successor Judge to pronounce judgment, which had been written by his predecessor. A Judge who has heard the case but was transferred later on could complete the judgment, which could have been announced by his successor. There may be instances where after hearing the matter the Judge might have reserved the order or simply announced the order without writing a judgment or passed a short order for reasons to be supplied later on. Thus various situations may attract different treatment and application of principles. Reference in this context may be made to Ghee Corporation of Pakistan and another v. Sh. Abdul Haq and another (1990 SCMR 1581). The State v. Asif Adil and others (1997 SCMR 209), Qazi Mehar Din (Deceased), Represented by Muhammad Rafiq and others v. Mst.
Murad Begum and others (PLD 1964 SC 446), Pakistan Tobacco Company Ltd. v. Pakistan Chest Foundation (PLD 1998 Lahore 100), Mirza Abdul Hameed and others v. Member Board of Revenue-II (1986 SCMR 257), Regional Commissioner of Income Tax, Corporation Region, Karachi and others v.
Shafi Muhammad Baloch (1998 SCMR 246), Office Reference dated 28-4-1981 (PLD 1982 Karachi 250) and Nazar Abbas Khan and others v. Government of Pakistan and others (PLD 1981 Lahore 237). There can be no cavil that if the case has been heard by the Court or a Presiding Officer, he could pronounce the I D judgment/order even after he had been transferred or promoted. The perusal of Daya Ram and others (supra) would show that in that case Mr. Harsukh Rai, Senior Subordinate Judge of Amritsar had heard the case before his transfer order had been made and it was held in that context that he could have written the judgment.The deep distinction to be kept in mind is that where a Presiding Officer had concluded the hearing of a matter before his transfer he could, decide the matter before relinquishing the charge. However, in case the proceeds to hear the matter despite his transfer and decides the matter, the order would not be legally sustainable.
In Regional Commissioner of Income Tax, Corporate Region, Karachi and others (supra), the judgment had been written and signed on a date after the learned Judge had been "laid of", (in view of the judgment in Al-Jehad Tust through Raeesul Mujahidden Habib-ulWahabb-ul-Khairi and others v. Federation of Pakistan and others (PLD 1996 SC 324), which was set aside by the Hon'ble Supreme Court and the matter was deemed to be pending in the High Court. There can be possibly no cavil that the power and authority of the Court/the Presiding Officer to hear and decide a matter has a direct nexus with his power to act in that capacity it is also oft repeated principle of natural justice that justice should not only be done but should manifestly and undoubtedly seen to be done. The rationale behind is that it is not important as to what actually was done but what might appear to be done and nothing should be done which may create a suspicion or may give a party an opportunity for cause of legitimate apprehension that there had been improper disposition of the matter resulting in interference with the course of justice. It is of utmost importance that stream, of justice should continue to flow unpolluted and unsoiled. The hallmark of the adjudicatory process is the trust, confidence and satisfaction of the litigating parties that the Court was acting justly and fairly and kept the scales of justice evenly balanced. In the present case as has been noted above, the Officer who was performing as Notified Officer and had to adjudicate the matter as such was transferred on 12-1-1998, but he still heard the case on 13-1-1998 and decided it on 16-1-1998. In such situation he should not have heard it because of his transfer having been ordered "with immediate effect" on 12-1-1998. It may be observed that according to the tenor of the Notification dated 12-1-1998 its legal efficacy was not dependent upon it publication in the Gazette, as it took effect immediately. The disposition made by him was, thus, nothing but an act without lawful authority.
7. Insofar as the contention as to estoppel or waiver is concerned suffice it to observe that doctrine of estoppel cannot be invoked so as to give an authority power, which it does not in law possess.
No estoppel can legitimate an action which is ultra vires. In the same realm falls the principle of waiver which is akin to estoppel. It needs no reiteration and begs no precedent that no amount of waiver or consent can extend a public authority's powers or validate an action which is ultra vires.
This being the legal position, the petitioners are not estopped to raise the issue of validity of the impugned order before this Court, as even the Court could take notice of this aspect by ,itself in view of the undisputed position of the record.
As a result of the above, the order impugned is not sustainable in law which has got to be declared as of no legal effect. The petition is accepted to this extent accordingly. Consequently the incumbent Notified Officer will have to hear and decide the matter in accordance with law pursuant to the remand order dated 30-7-1991 mentioned above. Let the parties cause their representation before the Notified Officer on 30-6-2004 who will expedite the hearing of the matter and decide accordingly. No order as to costs.