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Writ Petition No. 978 of 1968, decided on 4^th July 1969.

Art. 98(2)(a)(ii)‑--Juris diction of High Court under Art. 98--‑Scope--‑Member, Board of Revenue, entertaining time‑barred appeal against order of Regional Transport Authority and after overruling objection on score of limitation, proceeding to dispose of such appeal‑Held, order thus passed, howsoever wrong, cannot be said to be without lawful autho rity so as to attract jurisdiction under Art. 98.

Article 98(2)(a)(ii) of the Constitution confers jurisdiction upon the High Court to declare that any act, done in the Province by a person performing function in connection, inter alia, with the affairs of the Province, has been done or taken without lawful authority and is of no legal effect. If, therefore, it is found that the act has been done by a person who had the authority to do it, the High Court would not have the jurisdiction to interfere with it in the exercise of its jurisdiction under Article 98 howsoever profoundly it differs with the conclusions arrived at by such person.

In the instant case, the respondent filed an appeal before the Board of Revenue against the order of the Regional Transport Authority rejecting his claim to the grant of a permit. The period of limitation prescribed for filing such appeals under section 66 of the Motor Vehicles Ordinance is thirty days. Section 5 of the Limitation Act is not applicable. Although the appeal was allegedly barred by time and although an objection was raised on this score, the appeal of respondent was accepted and the objection on the score of limitation was overruled. The result was that the route‑permit granted to the petitioner was cancelled and the same was granted to respondent. In writ petition it was urged that since the appeal was barred by time, the Member, Board of Revenue, had no authority under the law to accept it and to deprive the petitioner of his permit

Held: there is, no lack of authority against the proposition The Member Board of Revenue, who had jurisdiction to entertain an appeal from an order of the Regional Transport Authority did not only entertain it but proceeded to dispose it of after repelling the objection on the score of limitation. His order, howsoever wrong it might be could not be said to be without lawful authority so as to attract the jurisdiction of the High Court under Article 98 of the Constitution.

Mian Jamal Shah v. The Member, Election Commission, Government of Pakistan, Lahore and others P L D 1966 S C‑1; Mehtab Rai and another v. Nanak Chand 1878 P R 59; H. H. Raja of Faridkot v. Sardar Gurdyal Singh 1898 P R 34; Nathu Ram and others v. Kalian Das and others I L R 26 All. 522; Babu Ram and another v. Munna Lal and others A I R 1927 All. 358 and Gobardhan Das v. Dau Dayal A I R 1932 All. 273 rel.

,Malik Khizar Hayat Khan Tiwana and another v. Mst. Zainab Begum and others P L D 1967 S C 403 distinguished. .

Art. 98‑--Jurisdiction, question of---‑Defect of limitation---‑Not a defect of jurisdiction--Erroneous view of law taken on such a point‑--Cannot be scrutinized under Art. 98.

Malik Khizar Hayat khan Tiwana and another v. Mst. Zainab Begum and others P L D 1967 S C 403 distinguished.

M. Saleem Chaudhry for Petitioner.

Dr. Javid Iqbal for Respondent No. 3.

Dates of hearing: 16th, 21st May, 16th June and 4th July 1969.

The Regional Transport Authority, Lahore, invited applications for the grant of twelve Stage Carriage Permits on Lyallpur‑Sahiwal via Chichawatni route. The Layallpur‑Sahiwal Bus Service (Registered) applied for the grant of three permits. Although a meeting of the Regional Transport Authority was held on the 7th and 8th of May 1967 for the consideration of the applications praying for grant of permits on the aforesaid route, the matter was adjourned and a fresh advertisement was published inviting the applications all over again on 10th August 1967. On this occasion Messrs The Lyallpur‑Sahiwal Transport Company, Layallpur, also presented an application on the 15th of September 1967. The matter was considered by the Regional Transport Authority in its meeting held on 17th, 18th and 27th January 1968. One Stage Carriage Permit was allegedly granted to the petitioner, the remaining permits were granted to ten other applicants but the application of respondent No. 3 is alleged to have been rejected. The decision was announced by respondent No 2 on 27th January 1968. Respondent No. 3 applied for copy of the order on 4th March 1968 and a copy is alleged to have been issued to him on the same date. He filed an appeal before the Board of Revenue against the order of the Regional Transport Authority rejecting his claim to the grant of a permit. The period of limitation prescribed for filing such appeals under section 66 of the Motor Vehicles Ordinance is thirty days. Section 5 of the Limitation Act is not applicable. Although the appeal was allegedly barred by time and although an objection was raised on this score, the appeal of respondent No. 3 was accepted on 7th and 8th June 1968 and the objection on the score of limitation was overruled. The result was that the route‑permit granted to the petitioner was cancelled and the same was granted to respondent No. 3. Hence this petition.

2. The only point urged before us is that since the appeal was barred by time, the Member, Board of Revenue, had no authority under the law to accept it and to deprive the petitioner of his permit. We are afraid we cannot see eye to eye with the learned counsel for the petitioner on this point. Article 98 (2)(a) (ii) of the Constitution confers jurisdiction upon this Court to declare that any act, done in the Province by a person performing function in connection, inter alia, with the affairs of the Province has been done or taken without lawful authority and is of no legal effect. If, therefore, it is found that the act has been done by a person who had the authority to do it, this Court would not have the jurisdiction to interfere with it in the exercise of its jurisdiction under Article 98 howsoever profoundly it differs with the conclusions arrived at by such person. In Mian Jamal Shah v. The Member Election Commission; Government of Pakistan, Lahore and others (P L D 1966 S C 1), Cornelius, C. J. (as he then was) observed‑-

"The learned Judges went on to say that the expression 'lawful authority' under Article 98 has a wider significance than the word Jurisdiction," on the basis that it embraces authori ties other than Courts, and to that extent their view is probably correct, although it is not germane to, the decision of the question before them. Yet, is necessary to record a caution with respect to the interpretation of the expression without lawful authority, namely, that the authority conferred by the relevant law is not to be compressed or confined, for the purpose of the exercise of power under Article 98, but it is only after the terms used in the relevant law have been given their full effect for ascertaining the authority thereby conferred, that anything done beyond or in excess of that authority may be brought within the power of avoidance vested in the High Court. The learned Judges referred to the observations of Kaikaus, J., in the case of Badrul Haq (cited above) for the purpose of supporting their interference on the ground that, in this case,‑-

'it cannot be said that there was merely wrong interpretation of the law since it also resulted in the refusal to exercise jurisdiction vested by law.'

"For the reasons already given, I am unable to support this view."

3. The question is whether an order passed in an application beyond the period of limitation is without jurisdiction. The question has been considered by the various High Court from time to time. Reference may in this connection be made to Mehtab Rai and another v. Nanak Chand (1878 P R 59), where it was held that‑

"This application is made under section 622, Act X of 1877, on the ground that the suit was barred by limitation, and that, therefore, the Judge had no jurisdiction to try it. But the case of Payne v. Constable I B L R Or. Jur. 49 shows that lapse of time does not oust the jurisdiction of the Court, and that the defence of limitation is not a question of jurisdiction. Application refused."

In still another case, H. H. Raja of Faridkot v. Sardar Gurdyal Singh (1898 P R 34), it was held‑-

"We have considered these authorities, we agree with what is said in 6 W R 184, that any neglect or laches of the plaintiff in either stating his case or prosecuting his suit is not a defect of jurisdiction or other cause of alike nature. The inability of the Court to entertain the suit must arise from either some unavoidable circumstance over which no one has any control, or something incidental to the Court itself and‑ unconnected with the Acts of the parties.

In Nathu Ram and others v. Kalian Das and others (I L R 26 All. 522), it was observed that‑-

"This exposition of the law is in our opinion wholly wrong from beginning to end. It is a mere travesty of the law as declared by their Lordships of the Privy Council and by this Court. According to the learned Judge, if a Court competent to hear a suit instituted before it decides that suit wrongly on a question of limitation by giving a decree in favour of the plaintiff, instead of dismissing the claim as time barred, such decree (though unreversed and final) is a nullity', the Court which passed it not being competent' to pass such a decree. Apparently the learned Judge would distinguish between the competency of a Court to hear a suit and competency to pass a decree in that suit which the learned Judge might consider to be a wrong decree. The Court according to him has jurisdiction to decide rightly a question of (e.g.) limitation, but if it decides wrongly, the decree is a nullity, that is to say, a Court which decides such a question wrongly loses its jurisdiction. Carried to the legitimate consequences, the result of this proposition is that a Court which decides wrongly any question raised in a suit before it loses its jurisdiction. There is no reason why the proposition should be confined to a question of limitation only. We are unable to appreciate this distinction. If a Court is competent to hear and to decide a suit, it is competent to decide it wrongly as well as rightly, and as long as the decision stands unreversed by a higher tribunal on appeal it is a valid and binding decree."

Similarly, in Babu Ram and another v. Munna Lal and others (A I R 1927 All. 358), it was held‑

"In brief it was held that an erroneous decision on a point of law not connected with the exercise of jurisdiction would not give a right to apply in revision. It has been urged by the applicants' counsel that under the law of limitation the Court had no power to set aside an ex parte decree and in doing so it exceeded its jurisdiction. This appears to me to be a wrong use of the word jurisdiction'. I am not aware that it has ever been held that a Court wrongly allowed a time‑barred application can be said to be acting without jurisdiction. In the Privy Council case Balakrishna Udayar v. Vasudeva Aiyar A I R 1917 P C 71=40 Mad. 793=40 1 C 650=44 I A 261 (P C) it was stated that section 115 of the Civil Procedure Code is not directed against conclusions of law or fact in which the question of jurisdiction is not involved."

In Gobardhan Das v. Dau Dayal (A I R 1932 All. 273); a Full Bench held that‑

"The correct position appears to be that although the Court should not entertain an application for payment of the decretal money by instalment under Order XX, r. 11, if made after the expiry of six months from the date of the decree (Art. 175), the order if actually passed on such a time‑barred application is not a nullity. Just as a decree passed in a suit which was time barred is binding on the parties, and the question of limitation is by implication deemed to have been decided against the defendant, so as order for payment by instalment is binding on the judgment‑debtor. It must be assumed that the Court by oversight decided the question of limitation wrongly. But a wrong decision, whether express or implied on a question of limitation does not oust the jurisdiction. Limitation is a question of procedure and not one of jurisdiction: Nathu Ram v. Kallan Das (1904) 26 All. 522. The Court was seized of the case and was competent to pass orders on the application."

4. There is, therefore, no lack of authority against the proposition advocated by the learned counsel for the petitioner. The learned Member, Board of Revenue, who had jurisdiction W entertain an appeal from an order of the Regional Transport Authority did not only entertain it but proceeded to dispose it of after repelling the objection on the score of limitation. His order, howsoever wrong might it be cannot be said to be without lawful authority so as to attract the jurisdiction of this Court under Article 98 of the Constitution:

5. Learned counsel for the petitioner cited before us the case Malik Khizar Hayat Khan Tiwana and another v. Mst. Zainab Begum and others (P L D 1967 S C 403), wherein it has been observed‑

"The argument that this could not have furnished the High Court with the jurisdiction to interfere with the impugned orders under Article 98 of the Constitution is, in our view, clearly untenable, for, if by an erroneous view of the law or an erroneous assumption of facts upon which the jurisdiction of the Court itself depends the Court has either usurped a jurisdiction it does not possess or refused to exercise a jurisdiction vested in it, the High Court has every power under Article 98 to review such a decision."

This decision is not apposite to the case before us because, as has been seen above, the defect of limitation is not a defect of jurisdiction; wherefore, any erroneous view of law taken do such a point would not be covered by this ruling because, according to it, an erroneous view of law or an erroneous assumption of facts upon which the jurisdiction of the Court itself depends can be scrutinized under Article 98 of the constitu tion.

6. This petition is, therefore, dismissed but in the circum stances of the case the parties are left to bear their own costs.

S. Q. Petition dismissed.

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