ABDUL QAYYUM Versus A.M. SAID

JUDGMHNT

1. Khasra No. 515 measuring 10 marlar and No. 516 measuring 36 kaatals, and 3 marlas in village of Kalu Khara, Tehsil Kasur, were reported on ?? 3-3-1954 to have 82 fruit trees standing on it. It was, therefore, a garden extending ? over an area of more than 3 acres and could be allotted only by ? the Garden Allotment Committee. On 1-5-1960, the Additional Rehabilita?tion Commissioner inquired from the A. R. C. vide Memo. No. 162/A. 12-2044-8 (L), dated 15-4-60 (referred to in Annexure I) as to how it bad? ??????????????? been allotted on 6-4-1960 to one Muhammad Ali Shah as land by the ?????? Assistant Rehabilitation Commissioner, Kasur. By the same memorandum he directed that the proposal be cancelled. The Additional Deputy Commissioner (R) cancelled the proposal and informed the Secretary (Admin.) to R, C. vide A. D. C. (R) 43/G, dated 12-5-60.

2. Meanwhile on 5-5-1960, the Garden Committee allotted the aforesaid garden to Abdul Qayyum Khan petitioner and a letter to that effect was issued by the Secretary, Garden Allotment Committee, to the Deputy Commissioner/D. R. C , Lahore who was directed to hand over possession of the garden to the petitioner and report to the Committee (Annexure A). On? 12-5-60, possession was delivered to the petitioner (Annexure B) and a sketch showing that 82 fruit bearing trees existed on the plot (Annexure C) was made by Taj Din Patwari when possession was delivered.

3. The petitioner was a claimant and his units were at that time in the Shei.khupura District Annexure A/1 which is a copy of the R. L. 11 in respect of the allotment of the garden to the petitioner which shows that he was entitled to 1245 units in all out of which 453 had been allotted to him and 792 remained to be allotted. It shows further that the units had been received from the Punjab Garden Committee.

4. On 28-12-1960 Martial Law Regulation No. 84 was issued which was? reconstituted as M. L. R. 89 on 28-8-1961 and M. L. R. 91 on 25-9-1961. The claim of the petitioner was reduced in consequence of these Martial Law Regulations and on 17-10-61 in consequence of the reduction in M. R. V., be retained the land allotted to him in Sheikhapura but surrendered the garden under paragraph 8 on 20-10-1961, i.e. 11 days before the last date for this purpose. Paragraph 9 of M. L. R. 89 provides that;

5. "The land surrendered under paragraph 8 shall not revert to the ????????? compensation pool constituted under section 5 of the Displaced Persons ????????? (Land Settlement) Act, 1958 (XLVII of 1958) but shall vest, and shall be deemed always to have vested free of encumbrances in the Govern?ment of West Pakistan ; and may be disposed of in such manner as the Government thinks fit."

6. On 20-10-1961, therefore, the land ceased to be a part of the compensation pool and could not be allotted under the Displaced Persons (Land Settlement) Act.

7. Paragraph 7 (1) of M. L. R. 89 also provides that all certificates in forms -Q, P, R, V and any allotment of land made on the basis of any such certificate shall stand cancelled and shall be deemed never to have been issued or made. The allotment of this garden in favour of the petitioner, therefore, stood cancelled by operation of clause 7 (1) of M. L. R. 89.

8. A scheme for the disposal of land under paragraph 8 of M. L. R. 89 as amended by M. L. R. 91 was published in the Gazette of West Pakistan, Extraordinary on 28-12-1961 and is reproduced at page 343 of the 1970' Edition of Latif's Book. Para. 4 of this Scheme provides that;

9. "The first option for the purchase of excess land shall be given to the person who has surrendered the land and this option to purchase shall be exercised and shall be conveyed in writing to the Deputy Commis?sioner of the District concerned within one month from the date on which this scheme is promulgated. If such a person exercises the option to purchase the land within the period mentioned above, the land may be sold to him at the rate prescribed in the scheme."

10. The last date for the purchase was thus 28-1-1962 while the petitioner opted on 28-1-1962 to purchase the garden surrendered by him as would be clear from Annexure 1, the Judgment of Mr. Hassan Zaheer, Additional Settlement and Rehabilitation Commissioner which mentions that;

11. "Intimation, by the appellant, to purchase this land, was received in the office of the Additional Deputy Commissioner (R) on 27-1-62 and entered at serial No. 73 of the relevant register. Thereafter it was forwarded to the Tehsildar, Kasur on 5-3-62 and entered in the Kasur Tehsil office at Sr. No. 30 of the Register. The Tehsil register also shows that the appellant is regularly paying the price of the garden by instalments."

12. He paid the entire amount by the year 1965. One Siraj continued to be in occupation as the tenant. The surrender of the garden by the petitioner, its acceptance by the authorities, the option to purchase it, the acceptance of the price and the ultimate transfer of the garden to tie petitioner were under that M. L. R. The orders pasted by the Settlement authorities under MI. L. R6. F,9 and 91 cannot be questioned before this Court, or at least it has been so held in Syed Muhammad Muslim and others v. Officer on Special Ditty, Centro Record Office, Lahore (Law Notes Kar. 3 (sic)) :-

13. "Mr. Wasim Rizvi, the learned counsel appearing for the Department, has raised a preliminary objection that the jurisdiction of this Court is barred by Martial Law Regulation No. 89. He has further contended? that the jurisdiction of this Court is further barred under Martial Law Regulations 88 and 93. In support of his contention the learned counsel has referred us to an unreported decision of the Supreme Court in Civil Appeals Nos K-10 and K-11 of 1962. decided on 11th March 1964, by the Supreme Court of Pakistan. In fiat case, which also arose under Martial Law Regulation No. 89, their Lordships declined to interfere with the order of the competent authority on the ground that under the above-mentioned Regulation the jurisdiction of the Courts is completely ousted. In this connection their Lordship observed as under :----

14. `It appears to us that the Martial Law Regulation 88, as amended by Martial Law Regulation 93 altogether ousts the jurisdiction of the ? Court in respect of acts done or purported to be done in exercise of the power under any Martial Law Regulation. The impugned order having been passed by Mr. A. Rauf Chaudhry in exercise of the power granted to him by Martial Law Regulation No. 89 is thus immune from attack or challenge in a Court of Law."

15. Similarly in Syed Abdul Rehman v. Settlement Rehabilitation and Claims Commissioner, Karachi (P L D 1966 S C 362) :----

16. "It appears to us that the Martial Law Regulation No. 88, as amended by Martial Law Regulation 93 altogether ousts the jurisdiction of the Court in respect of acts done or purported to be done in exercise of the powers under any Martial Law Regulation. The impugned order having been passed by Mr. A. Rauf Chaudhry in exercise of the power granted to him by Martial Law Regulation No. 89 is thus immune from attack or challenge in a Court of Law'."

17. Although as has already been seen above, the property had ceased to form part of the compensation pool in the year 1961. The Deputy Rehabilita?tion and Settlement Commissioner, Kasur, acting as the Chairman of the Allotment Committee by some ocult process allotted Khasra No. 516/1 measuring 33 kanals to Chhote Khan claimant at Khata No. 370/366 of Register P. L. II. Similarly, Khasra No. 516/2 and 515 measuring 3 kanals and 10 marlas respectively were confirmed in the name of Saroop Singh at Khata Nos. 371 and 336 by him. In both cases the property was shown as 'Nehri Land.

18. It may be mentioned at this stage that these Khatas were prepared by Taj Din Patwari of the Circle who entered the areas as Nehri and did not show that there was a garden although at the time of the original allotment in favour of the petitioner he himself recorded the delivery of the possession (Copy Annexure B) and bad prepared the plan (Annexure C) showing the number and category of trees standing on the plot.

19. The property in dispute which had since ceased to be a part of the compensation pool was allotted to Chhote Khan and Saroop Singh although as would be clear from Annexure F. their claim was not in respect of a garden but in respect of ordinary agricultural land. It is worth mentioning that the allotment was obtained through one Muhammad Yusuf who is admit?tedly the Clerk of Mr. Khadim Hussain Advocate, Kasur, respondent No. 5 against whom serious allegations were made before me at the Bar.

20. On 28-10-1964, a mutation was made by Chhote Khan through Muhammad Yusuf in respect of the land in dispute in favour of Mr. Khadim Hussain, respondent No. 5, and on this occasion also Taj Din Patwari again described the land as Nehri and not as garden. These proceedings were taken in the absence of and without any notice to the petitioner. How this allotment could be made at that time, is something which I fail to understand.

21. On coming to know about this allotment on 1-3-1965, the petitioner took steps to file an appeal which he did on 13-3-1965. It came up before the Deputy Commissioner and Mr. Hassan Zaheer who exercised the powers of the Additional Settlement and Rehabilitation Commissioner, Lahore, by an elaborate order dated 24-3-65 (Copy Annexure 1) which deals with every aspect of the case accepted the appeal, set aside the order of allotment in .favour of the respondents as well as any subsequent sale in favour of Mr. Khadim Hussain respondent and directed that the appellant should continue in possession of the garden on the terms and conditions of the sale under M. L. R. 89/91. The learned Additional Settlement Commissioner had the occasion to make observations about the conduct of Taj Din Patwari also which are to the following effect :-

22. "The conduct of Taj Din Patwari of the Circle was highly suspicious in this case as discussed above and I direct that he should be charge?sheeted and a regular inquiry should be held against him. He should also be transferred immediately to Tehsil Chunian to a Circle at about 20 miles from his house"

23. A revision petition was filed before the Settlement Commissioner (Land) on 31-3-1965. In this revision petition, it was alleged that the allotment of the land as garden in favour of the petitioner had been cancelled from his Khata on 13-12-1961 on the ground that the Khata of the respondent stood cancelled according to M. L. R. 89.

24. The surrender of land having been made by the petitioner in October 1961 and the land having thus gone out of the compensation pool, it passes my comprehension, how any Settlement authority could have passed an order of cancellation of the allotment because in all cases covered by Q P R cancellation was automatic, as has been shown already above, but that cancellation always resulted in the reversion of the land to the Government of West Pakistan and its going completely out of the compensation pool. To this cancellation was attached the right of purchasing the land in excess of one's entitlement. The Settlement Department had, therefore, no right to allot such land to anybody because it had no dominion over it. This was, therefore, a palpable mis-statement on the part of Mr. Kbadim Hussain, Advocate and his predecessor-in-interest and was made ostensibly with a view to confuse the issue and mislead the Settlement Commissioner.

25. Unfortunately, the learned Settlement Commissioner fell into this trap and upheld the allotment dated 7-7-1964 in favour of the petitioner. He found it incredible that the present petitioner remained unaware of the cancellation of allotment made in 1961. Had the learned Settlement Com?missioner taken the least possible trouble to apply his mind to the facts of the case as recorded by him in para. 3 of the order, he would have found that there was no occasion for the present petitioner to have even thought in terms of the cancellation of allotment of land by a Settlement authority when the land itself ceased to be in the compensation pool and in respect of which his option to purchase had been received and accepted by the relevant authorities which were accepting the payment from him for the price of it and which admittedly continued in his possession all through. The boot is. there?fore, on the other leg for it is extremely surprising that the learned Settlement Commissioner should have come to the conclusion mentioned above. Be that as it may, since the order of cancellation of the allotment in favour of the petitioner was in any case passed without notice to him the same was a~ nullity in the eye of law and the petitioner had the right to ignore it absolutely and the question of limitation would thus not arise at all. It was held in Muhammad Saleh and others v. Messrs United Grain & Fodder Agen?cies (P L D 1964 S C 97) :-

26. "It should be remembered that if an order be a nullity when every Court before whom it is brought is not only entitled but bound to ignore it."

27. Even, however, if it were to be held that the order should have been set aside and an appeal was necessary for that purpose, the limitation would start only from the day on which the petitioner came to know about the order since it had been passed behind his back and even he had not been heard and it was held in Mahmood Alam v. Mehdi Hassan (P L D 1967 Lah. 6) :-

28. "Therefore, if in a given case a person is able to establish that he had the right of hearing ; and in spite of that the order was passed or action was taken against him without his knowledge, he will be entitled to plead while filing an appeal which, prima facie, is time-barred, that the time will start running against him only from the date of his knowledge about the order."

29. It was held in the same case further that;

30. "Keeping in view these observations, it can be safely assumed- that the proceedings without giving an opportunity of being heard are coram non judice and the order passed as a result thereof is a nullity, and if the party affected by such an order had no knowledge of the loans, the plea in limitation that, start from the date of the order cannot be pressed against such an affected party. The party would be clearly entitled to challenge the order within the prescribed time beginning the period from the date of his knowledge."

31. There is, of course, no doubt in this case that the appeal was filed within the period of limitation beginning from the date when the present petitioner came to know of the order impugned by him.

32. The learned Settlement Commissioner further found that it was not within the jurisdiction of the Additional Settlement Commissioner to have heard the appeal and, therefore, his order was a nullity. I have not been able to understand the ratio of this finding either. An appeal lies against an order of a Deputy Settlement Commissioner to an Additional Settlement Commis?sioner and the Additional Settlement Commissioner, was, therefore, certainly competent to hear the appeal and the finding of the learned Settlement Commissioner even on this ground is absolutely devoid of any authority.

33. The third point mentioned by the learned Settlement Commissioner is that since the land was not a garden as was clear from the jamabandis of 1946 and 1947, the classification of the soil could not be changed against the entries in the special jamabandi. I am surprised how the learned Settlement Commis?sioner got the authority to sit in judgment upon an order of the Chief Settlement Commissioner which he passed as Chairman of the Garden Allotment Committee. The learned Settlement and Rehabilitation Commis?sioner had no jurisdiction whatsoever under the law to revise, review or otherwise upset the order of a Settlement and Rehabilitation authority and in doing so he treaded on dangerous ground.

34. In Raunaq Ali v. Chief Settlement Commissioner (P L D 1973 S C 236), it was held that :-

35. "On principle too it would be an unusual proposition that in spite of the fact that the law gave exclusive jurisdiction to another act of officers or authorities to decide a question finally, yet the finality attached by law to such a decision could be taken away by another officer or autho?rity of a subordinate or even of equal status indirectly in the guise of implementing the orders which had already received finality."

36. Their Lordships quoted Lord Esher, Master of the Rolls, and remarked as follows :-

37. "When an inferior Court or tribunal or body, which has to exercise the power of deciding facts, if first established by Act of Parliament, the Legislature has to consider whit powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, at should have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The Legislature may entrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. When the Legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the Legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends, and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdic?tion."

38. And further at pave 261 their Lordships observed ;-

39. "It is no doubt true that there is a clear distinction between an act wholly without jurisdiction and an act done in the improper exercise of that jurisdiction. Where there is jurisdiction to decide, then as it has often been said there is jurisdiction to deal either rightly or wrongly, and merely a wrong decision does not render the decision without jurisdiction. To amount to a nullity, an act must be non?existent in the eye of law ; that is to say ; it must be wholly without jurisdiction or performed in such a way that the law regards it as a mere colourable exercise of jurisdiction or unlawful usurpation of jurisdiction. In the present case, the Verification Orders cannot be said to be without jurisdiction and a nullity, in this sense merely because of the circulars of the Claims Commissioner, Pakistan, directing the Claims Officers to treat claims for Zamindaris and tenancy interests in claims filed under Schedule V-A as claims under Schedule V, leaving out Jagirs and Muafis. If the Claims Officers bad misinterpreted these instructions or misapplied them and treated even Jagirs and Muafis or claims in respect of properties under Schedule V, then they had no doubt decided wrongly but not without jurisdiction. I am therefore, unable to agree that on this ground the Verification Orders could be treated as a nullity."

40. Be that as it may, the reference by the learned Settlement Commissioner to clause 29 of the Rehabilitation Settlement Scheme is entirely out of place. Clause 29 deals with the classification of soil and provides that variations in the classification of soil made subsequent to the preparation of the special Jamabandis shall be ignored. Whether there is a garden on the land or the land is being used for agricultural purposes the use to which it is put has nothing to do with the classification of soil. There can be a garden on a Nehri land and cultivable land may also be Nehri.

41. By para. 6 which deals with the allotment of gardens, a form has been prescribed and there are two columns dealing with the class of soil, one as according to the Jamabandi of 1946-47 and the second "as taken for the purpose of calculating produce index units and the units so calculated." It is, therefore, incorrect to say that the classification of soil has anything to do with a certain property being a garden or a cultivable land. The reference to classification of soil in para. 29 hay nothing to do with the matter, in fact, para. 6 referred to above provides for a situation where the area recorded as garden is not actually a garden on the spot, but there is no entry of it in the record, and requires that in such a case a report should be made to the Deputy Rehabilitation Commissioner who after satisfying himself, will get the units for the garden calculated according to the actual planted area and for the rest as ordinary land and that is the reason why the word "should" in the following sentence :-

42. "For the purpose of calculating the produce index units, the area recorded as garden in the Jamabandi of 1946-47 should be taken as garden."

43. The word "shall" could have as well been used here but instead the word "should" has been used because the possibility of there being no garden on the spot when the Jamabandi described it as a garden or vice versa could not be ruled out. In this case, Taj Din Patwari who later on manipulated the allotment in favour of Chhote Khan and Saroop Singh had himself certified and drawn a sketch showing that no less than 84 fruit trees existed at the site. In any case the finding of the learned Settlement Commissioner that the Chief Settlement Commissioner had no power to correct the classification is devoid of all force.

44. On top of all that one cannot forget that paragraph 29 deals with "special Jamabandis received from the prescribed areas of India". There is no doubt that the petitioner was entitled to allotment of a garden and therefore, paragraph 29 is not applicable. The question whether the garden sought to be allotted did really exist on the plot of land in dispute does not have to be determined in accordance with the Jamabandi received from India.

45. Finally, the learned Settlement Commissioner found that when an order has become final, any order which quashes it is certainly inconsistent with the act. I wonder what relevancy this had to the problem before the learned Settlement Commissioner. The order allotting the property in dispute to Saroop Singh and Chhote Khan was entirely void and without any jurisdic?tion, Inter alia, because----

(1) The property had ceased to be in the compensation pool ;

(2) The property vested in the West Pakistan Government ;

(3) On the date of allotment to these two persons it had already been transferred under the M. L. R. to the petitioner ; and

(4) In any case, the order of allotment of the property in favour of the present petitioner having been made by the Chief Settlement Commis?sioner in the Garden Committee, no officer subordinate to him had the authority to pass an inconsistent order without first having the order quashed by the Chief Settlement Commissioner which was never done in this case.

46. The further fact remains that the order in favour of Chhote Khan and Saroop Singh was made without notice to the petitioner and was, therefore, wholly void ab initio.

47. Annexure R/1 is an uncertified copy produced by the private respondent which is an order purporting to have been passed by the Additional Deputy Commissioner (R) on 26-5-1960 which reads as follows :- .---

48. A D C (R), Lahore.

49. Apart from the fact that this piece of paper has no sanctity because it is not a certified copy of any document whatsoever, the fact remains that it is ?incongruous and inconsistent in itself. It is supported to be a communication from the Revenue Officer to the A. D. C. (R), Lahore, but instead of being signed by a Revenue Officer it is signed by the A. D. C. (R), i.e. the addressee. This is apparently a forged document.

50. The same is true of Annexure R/2 which is supposed to be a copy of QPR-V and has been presented to show that the petitioner had not abandoned any garden in India. There is no column in it which pertains to gardens and, therefore, no entry regarding garden could have been made in it. Be that as it may, it is a supplementary (Q P R) as is clear from the title and the remarks column clearly says;-----

51. [Sabiqa Certificate Badastur Majud hai.]

52. Which means it is in addition to the entitlement certificate already issued on account of which a garden was allotted and which does mention the garden abandoned by the petitioner in India.

53. On the other hand, paragraph 58 which deals with preparation of the special Jamabandis for being sent to India takes note of the fact that:----

54. "There may be mistakes or omissions in the preparation of this Jamabandi. It should, therefore, be checked and mistakes, if any, should be corrected . . . . ."

55. The reason is not far to find. The entries in the special Jamabandi -prepared in this country could be checked and re-checked here because the land existed here as did the record. The entries in the Jamabandi received -from India could not be the subject of a check here without sending for the record from India. That was the reason why paragraph 29 provides that rights of incoming refugees will be determined in accordance with the Jamabandi. It may be noted that even paragraph 29 provides that ------

56. "If any hardship is caused by tile application of this rule in individual cases, a reference should be made to the Rehabilitation Commissioner, West Pakistan."

57. Whenever it was found necessary to check the correctness of a special Jamabandi received from India, a meeting of Indian and Pakistani Revenue Officials was convened at the Wagah Border where a physical comparison was made with the original record and corrections if any were duly made.

58. Mr. Muhammad Iqbal, Advocate for the respondent concede that such a reference could be made even in the case that is before me.

59. My conclusions, therefore, are :-

(1) That the land being a garden more than three acres in area could be allotted only by the Garden Committee arid no other Settlement Authority was entitled to allot it. The initial allotment in favour of Chhote Khan was, therefore, against the law on this ground also.

(2) That since the garden already stood allotted to the petitioner, no other authority could have without the cancellation of the allotment by the Garden Committee or a higher authority allotted it to anybody else, therefore, the allotment in favour of Chhote Khan was without authority.

(3) The A. S. C. in any case had no power to overrule the order of the Garden Committee which, inter alia, included the Chief Settlement Commissioner as its Chairman.

(4) That the garden allotted to the petitioner having been surrendered by him on 20-10-1961 under the provisions of a Martial Law Regulation the allotment in his favour stood cancelled.

(5) Consequent upon the surrender and by operation of law the land vested in the Provincial Government and thus stood excluded from the compensation pool.

(6) The land having once been excluded from the compensation pool, the Settlement authorities lost all control over it under the Displaced Persons (Land Settlement) Act, 1953 and it was not open to allotment to anybody else including Chhote Khan.

(7) The petitioner having given an option for the purchase of this land under the M. L. R. and he having been allowed to purchase it, no jurisdiction was in any case left with any Settlement authorities to deal with it.

(8) The petitioner having paid the instalments became the owner of the land without any encumbrance. In fact by the payment of the first instalement the ownership vested in him.

(9) The claim of Chhote Khan was not for a garden at all and he could be allotted only agricultural land.

(10) The so-called allotment in favour of Chhote Khan was made without notice to the petitioner and shall not in any case be binding upon him.

(11) Since surrender was made in October 1961, under an M. L. R., i.e., before the promulgation of the Constitution of 1962 that order could not be disturbed by Mian A. M. Saeed who was a Settlement Commissioner because it cannot be disturbed by any Court or authority.

(12) The allotment of the garden to the petitioner was accepted by the M. L. A. and on its basis it proceeded to take consequential action. That consequential action cannot be undone by any Court and, therefore, the act of the M. L. A., in accepting the facts necessary for action under the Martial Law cannot be controverted by anybody and cannot even be looked into. Since the allotment in favour of the petitioner was to be the condition precedent for action under Martial Law the mere fact that such action was taken gives to this allotment the sanctity of orders under the Martial Law provisions and makes it unquestionable.

(13) In any case Annexure R/1 or any other document does not show that there was at any time refusal to transfer the units.

(14) It is not correct that the petitioner had not abandoned garden in India.

60. As a result, the petition is accepted with costs throughout and the impugned order passed by the Deputy Rehabilitation Commissioner (Land), Kasur, and the Settlement & Rehabilitation Commissioner, Lahore Division, Lahore, are declared to be without lawful authority and of no legal effect and the order of the Additional Settlement Commissioner (Land) is restored.

61. K.B. A. ?????????????????????????????????????????????????????????????????????????????????????????????????? Petitions accepted.