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Civil Appeal No. 110 of 1969, decided on 31st October 1973.

(On appeal from the judgment and order of the former High Court of West Pakistan, Lahore, dated the 18th March 1965, in Letters Patent Appeal No. 377 of 1963).

‑‑ Party submitting to jurisdiction of tribunal and not raising any objection as to its jurisdiction‑Cannot be allowed to raise such objection in writ proceeding‑Constitution of Pakistan (1962), Art. 98.

Ghulam Mohi‑ud‑Din v. Chief Settlement Commissioner and others P L D 1964 S C 829 ref:

Ch. Muhammad Saidar Khan, Advocate‑on‑Record for Appellant.

Respondents : .ex parte.

Date of hearing : 31st October 1973.

This appeal by special leave is directed against the judgment of the former High Court of West Pakistan, Lahore, in Letters Patent Appeal No. 377 of 1963, dated the 18th March 1965. By this judgment, the appeal was dismissed in limine.

The dispute between the parties is in respect of Property No. 15/ABM., consisting of one shop, two store rooms at the back and a chaubara and No. 15/KL, a residential portion, situated at Clyde Road, Lal Kurti, Rawalpindi. The appellant was in possession of a shop and two store rooms. He is a claimant and submitted C. S. form for the transfer of one shop, two store‑rooms and chaubara. Mst. Saeeda Khartum, who was in occupation of the residential portion of the property in dispute, filed t C. H. form for its transfer. On the 29th November 1959, the Deputy Settlement Commissioner, Rawalpindi, transferred the shop and chqubara to the appellant. The house was transferred to Mst. Saeeda Khanum. Mst. Saeeda Khanurn filed a review petition before the Deputy Settlement Commissioner in which she claimed t Ho store‑rooms. This was dismissed on the 21st March, 1960. She filed an appeal before the Additional Settlement Commissioner and the case was remanded to the Deputy Settlement Commissioner on the 28th March 1960. On this occasion, the Deputy Settlement Commissioner, after remand, divided the shop into two portions. He gave one shop to the appellant and the other shop was put in auction pool. The chaubara was declared as a house and was put in the auction list. Both the appellant and Mst. Saeeda Khanum filed appeals before the Additional Settlement Commissioner. These appeals were disposed of on the 11th August 1960. Both the appeals were accepted. Alst. Saeeda Khanum, was given two store‑rooms and the appellant was given the whole shop and chaubara. The appellant filed further revision before the Settlement Commissioner, Rawalpindi, which was accepted on the 23rd September 1960. He transferred the whole shop, two store‑rooms and chaubara to the appellant. Mst. Saeeda Khanum filed second revision petition which was heard by Ch. Sultan Muhammad Khan respondent No. 1. He rejected the claim of Mst. Saeeda Khanum in respect of the store‑rooms. He modified the order of the Settlement Commissioner and took away the chaubara from the appellant and put it in auction pool.

The appellant challenged the order of Ch. Sultan Muhammad Khan in Writ Petition No. 2233/R of 1962, on the ground that Ch. Sultan Muhammad Khan bad no jurisdiction to hear the second revision petition as the record had, tot been summoned by him on the date when he Issued notice to the appellant. It was further contended that the order of the Deputy Settlement Commissioner, Rawalpindi; was not subject to appeal or revision by the Settlement authorities. These contentions were rejected by Mr. Justice Masood Ahmad, J., by order dated the 19th December 162. The appellant challenged this order in Letters Patent Appeal which was dismissed in limine on the 18th March 1965.

Special leave was granted to consider the question whether Ch. Sultan Muhammad Khan had jurisdiction to entertain the second revision and whether the order passed by the Deputy Settlement Commissioner was final and not susceptible of interference in appeal or revision.

Ch. Muhammad Sardar Khan, learned Advocate‑on‑Record for the appellant, bas conceded that the‑ second point on which leave was granted is not open for consideration as section 31(2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, has been amended by section 3 of the Displaced Persons Amendment Ordinance, 1965 and an order passed by the Settlement authorities is subject to the provisions of Chapter VI in the same manner and to the same extent as any other order passed by the Settlement authorities. We would, therefore, hold that the order of the D. S. C. was subject to appeal and revision of the higher authorities.;

Coming now to the question whether Ch. Sultan Muhammad Khan was competent to hear the second revision. Its decision depends on the question whether the record of the case was called for before the 13th January 192. The appellant has referred to the report submitted by the Deputy Settlement Commissioner (Policy), dated the 7th June 1960, in which it is stated as under:‑

"From the perusal of the relevant record, it is revealed that no order bad been passed by the Settlement Commissioner, with powers of Chief Settlement Commissioner to call for the lower Court record before the 13th January 1962 when he passed the impugned order dated the 24th April 196 2 in this case."

On the basis of this report, it is contended by Ch. Muhammad Sardar Khan, that the record was not before Ch. Sultan Muhammad Khan, Settlement Commissioner with powers of Chief Settlement Commissioner and his order dated the 24th April 1562 is without jurisdiction. The contention of the learned counsel has not impressed us. In the first place, the report by itself is no proof of the fact that the record of the cage was not summoned before the 13th January 1962. It is not based on the knowledge of the person who submitted the report. The appellant should have summoned the record of the revision to prove that the record was not summoned. From the certified copy filed by the appellant, it appears that on the 31st January 1962, the Chief Settlement Commissioner directed to issue notice to the parties to appear at Rawalpindi on the 15th February 1962. The date on which the notice was issued, was after 13th January 1962 and it appears to us that the record of the case must have been before him when he directed the issue of notice to the parties. There is a presumption that all official acts are done in accordance with law. We are, therefore, of the view that the record of the case must have been summoned before the notice was issued to the parties to appear at Rawalpindi.

In any case, the appellant has submitted to the jurisdiction of the Chief Settlement Commissioner and did not raise any objection before him that the record was not summoned and he was not competent to hear the revision. In the absence of any such plea, the High Court was perfectly justified in observing that it is not open to the appellant to raise any such plea to this proceeding. This view of the High Court is consistent with the observations made by this Court in Ghulam Mohi‑ud‑Din v. Chief Settlement Commissioner and others (PLD 1964SC829), which are as under ;

"Against one of the grounds upon which the Courts in England have consistently held a party seeking such a writ to have disentitled himself to this extraordinary remedy is his failure to object to such usurpation of jurisdiction before the Tribunal concerned or to raise the objection at the earliest opportunity before the Tribunal, whose illegal order he seeks to have quashed by the writ, if he was aware that the Tribunal lacked the jurisdiction it purported to exercise. The King v. Williams and others Ex parte Philips, L R (1914) 1 KB608.

In the present case there can be no doubt that the appellant knew that he had filed a second revision petition before the Chief Settlement Commissioner and that this was a circumstance which prevented the Settlement Commissioner in law from exercising his power of review. Notwithstanding this he not only did not raise any objection to the hearing of the review but actually participated in its hearing on merits. In the writ petition also the appellant did not assert that he was unaware that the filing of the second revision petition debarred the Settlement Commissioner in law from reviewing his previous order. The appellant, therefore, knowing the true legal position deliberately allowed the Settlement Commissioner to commit an illegality. In these circumstances, it cannot be said that he was a mere passive spectator having no power to prevent the commission of the illegality. If he had succeeded in the reviewing in getting the entire house transferred to himself he would, we feel certain, have made no grievance on account of that illegality. The principle upon which the writ is refused in such cases is not that jurisdiction has been conferred on the Tribunal concerned by waiver and acquiescence but that even though the impugned order is without jurisdiction the person seeking to have it quashed should not be granted that discretionary relief as he had stood by and allowed the Tribunal to usurp a jurisdiction which it did not possess knowing that the Tribunal concerned was committing such an illegality in consequence of some thing done by that person himself."

After hearing the learned counsel for the appellant, we are satisfied that this is not a fit case for interference in appeal. We would, therefore, dismiss the appeal with no order as to costs.;

Appeal dismissed.

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