AKHTAR ABBAS AND Others vs NAYYAR HUSSAIN

ORDER

1. NASIM HASAN SHAH, J.-This petition is directed against the judgment dated 5-11-1975 passed in Writ Petition No. 1001 of 1966.

2. The relevant facts are that a mutation of inheritance of the deceased Mst. Kazmi Begum, who abandoned some agricultural land in East Punjab (India) was sanctioned on 27-2-1955 by the Assistant Collector II with powers of the Additional Rehabilitation Commissioner.

3. An appeal was filed several years later on 2-1-1963 by Nayyar Hussain, respondent herein before the Collector, Multan. The Collector, Multan, dismissed the appeal on 27-7-1963 on the ground of limitation. Nayyar Hussain, respondent No. 1 then filed a revision petition before the Additional Rehabilitation Commissioner. This petition was also dismissed on 27-2-1965 on the ground that he had no jurisdiction to entertain the revision against the order of the Collector. Nayyar Hussain respondent, therefore, filed another revision against the order of the Collector dated 27-7-1963 in the Court of tike Additional Commissioner, Multan, who entertained the revision, started proceedings and summoned the Patwari Halqa with the record for said date.

4. The case of the petitioners is that the counsel for the petitioners had raised a preliminary objection that the question of inheritance of the deceased refugee right-holder having been decided by the Assistant Rehabilita--tion Commissioner under para. 67 of the Rehabilitation Settlement Scheme and the said Officer being the only competent authority to attest the mutation, the order of the Additional Rehabilitation Commissioner dated 27-2-1965 was, therefore, the final order under section 13 of the Pakistan Rehabilitation Act and the Additional Commissioner (Revenue) had no jurisdiction to hear the revision petition, however, the learned Additional Commissioner (Revenue) did not pass any order -on this objection and illegally assumed jurisdiction and started the proceedings in the matter and adjourned the case for further evidence for 23-6-1966. The contention was that as respondent No. 1 was not permitted by law to hear the revision petition and he had no jurisdiction to record the evidence or to pass any order in the above revision petition he should be restrained from proceeding therewith. The revision petition was dismissed as incompetent.

5. The learned Judge in the High Court appears to have accepted the submission that the Additional Commissioner (Revenue) had no jurisdiction to proceed with the case. However, he was of the view that the Additional Rehabilitation Commissioner had erred in refusing to decide the revision petition filed before him -on merits vide his order dated 27-2-1965. In this connection, it was observed that the respondent had challenged the order of the Assistant Rehabilitation Commissioner before a wrong forum, namely, the Collector, after the expiry of eight years.

6. Thereafter, he rightly approached the Additional Rehabilitation Commissioner for revision. But the said public functionary refused to exercise jurisdiction on a wrong premises. He, accordingly quashed the order of the Additional Rehabilita--tion Commissioner dated 27-2-1965 and sent the case back to the Settlement Commissioner directing him to decide the revision afresh taking into considera--tion all the objections of the parties in accordance with law by his judgment dated 5- 11-1975. Hence this petition for leave to appeal.

7. We have heard Malik Shaukat Ali on behalf of the petitioners and Mr. M. M. Saeed Baig, Advocate on - behalf of the respondent, who has appeared at the leave stage.

8. We find that the proceedings challenged before the High Court related to the revision petition filed in the Court of the Additional Commissioner (Revenue) by respondent Nayyar Hussain against the order of the Collector dated 27-7-1963. The learned Judge in the High Court as regards the objection regarding the competence of the proceedings before the Additional Commissioner (Revenue), observed :- "Admittedly the Additional Commissioner, Multan, was not competent to hear the revision in such matters."

9. However, he proceeded to quash the order of the Additional Rehabilitation Commissioner dated 27-2-1965 which was not challenged by the writ petition before him.

10. It is settled law that in writ proceedings, the relief must be confined to the prayer made in the writ petition and the High Court cannot issue a writ suo motu; see PLD 1958 SC 437. As there was no writ petition to challenge the order of the Additional Rehabilitation Commissioner dated 27-2-1965, the same could not, therefore, have been set aside. This position is conceded by Mr. M. M. Saeed Baig He has, however, submitted that as the order of the learned Additional Rehabilitation Commissioner was not sound, furthermore the learned Judge in the High Court having passed an equitable order should not be interfered with. But we do not think that even on this view the order of the High Court can be sustained.

11. The mutation sanctioned on 27-2-1955 was challenged by an appeal filed before the Collector after eight long years in 1963. The Collector had held that there was no satisfactory explanation for the delay of eight years. He rejected the appeal as time-barred observing that the appellant (before him-respondent No. 1 herein) can have recourse to the civil Court by seeking a declaratory decree. The revision petition before the Additional Rehabilitation Commissioner was filed not against the order of the Collector dated 27-7-1963 but against the order dated 27-2-1955 whereby the mutation was sanctioned in favour of the petitioners. This revision petition was rightly dismissed on the ground that it was "over-delayed". He further observed that the respondent had failed to mention the decision of the Collector dated 27-7-1963 in these proceedings. The Additional Rehabilita--tion Commissioner in this context observed that "if now it is taken as revision against the order of the Collector was dated 27-7-1963 Exh. P. P. 1, I am afraid, this Court has no jurisdiction to take up cases against the order of the Collector".

12. From the foregoing, it is clear that the revision before the Assistant Rehabilitation Commissioner was against the order of the Additional Rehabilitation Commissioner dated 27-7-1955 which was dismissed as time---barred. The reference to the order of the Collector only incidental. Therefore, the order of the Additional Rehabilitation Commissioner dated 27-2-1965 did not suffer from any defect.

13. The overall conclusion is that the order of the learned Judge in the High Court cannot be sustained.

14. This petition is, therefore, converted into an appeal and is allowed in terms that the proceedings before the Additional Commissioner Multan are declared to be without lawful authority and the order of the High Court setting aside the order of the Additional Rehabilitation Commissioner dated 27-2-1965 is also hereby set aside.

15. This appeal, therefore, succeeds but, in view of the very fair stand taken by the learned counsel for the -respondent there will be no order as to costs.