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S. 4‑Constitution of Pakistan (19)3), Art. 199‑Reference of dispute to ..Tribunal‑Parties before Tribunal appointing sole arbitrator‑‑Arbitrator's award with recommendations of Tribunal referred to Authority for approval-Authority agreeing with recommendation of Tribunal‑Authority subsequently reviewing its own decision, referring dispute to another Tribunal Such order of Authority. having been passed without notice to 'petitioner, held, could not be sustained.

Khuda Bakhsh v. Khushi Muhammad and 3 others P L D 1976 S C 208 ref.

S. 10(3)‑Power to review‑Authority, held, has no power to review his own decision‑Case once disposed of rightly or wrongly by such Authority, proper remedy would be filing of appeal or other legal proceedings‑Final order could not be modified by Authority on its oven.

Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others P L D 1970 S C 1 ref.

‑‑ S. 21‑West Pakistan General Clauses Act (VI of 1956), S. 20 Power to review‑Power to amend, vary or rescind notifications, orders, rules, or bye‑laws exerciseable under General Clauses Act, held, could not be stretched and placed at par with order of Authority reviewing his own decision, having no such authority conferred .by statute‑Order of Authority being judicial order within compass of Ordinance I of 1968 the resultant consequence would be passing of decree in accordance with such findings.

Sandback Charity Trustees v. North Staffordshire Railway Co. (1877) 2 Q B D I and Shameer v. Board of Revenue etc. 1981 S C M R 604 ref.

‑‑ S. 10(3)‑Subsequent order of Authority reviewing earlier decision‑Effect Such subsequent order, held, would give fresh cause of action to petitioner to impugn same without assailing first order of Authority, especially when latter order had been obtained by misrepresentation of facts and without notice to petitioner Constitution of Pakistan (1973), Art. 199.

‑‑ S. 10(3)‑Constitution of Pakistan (1973), Art. 199‑Earlier disposal of case by Authority‑‑Respondents misrepresenting facts, not seeking review of order passed against them‑Authority reviewing order without referring to such order‑Relief, held, must be confined to prayer made in petition and same could not be granted suo motu.

Akhtar Abbas and others v. Nayyar Hussain 1982 S C M R 549 ref.

‑‑ S. 10(3)‑Order passed by Authority on recommendation of Tribunal ‑ Such recommendations and order passed thereon, containing reasons, held, could not be deemed to be non‑speaking order.

‑‑ Art. 9‑Civil Procedure (Special Provisions) Ordinance (I of 1968), S. 6‑Reference of dispute to second Tribunal‑Such dispute having already been disposed of by Authority, reference of same to second Tribunal, held, was without lawful authority and of no legal consequence‑High Court in exercise of constitutional jurisdic tion set aside such order of reference to second Tribunal.

Muhammad Zafar for Petitioner.

Sultan Muhammad for Respondents.

Date of hearing : 23rd September, 1985.

‑This petition is directed against the order dated 13th March, 1983 passed by the respondent No. 4 (i.e. Assistant Commissioner, Pishin). The brief facts leading to the filing of the above petition are that the respondents Nos. 1 to 3 filed a suit for declaration before the Assistant Commissioner, Pishin under Ordinance I of 1968 in respect of the suit land. Upon filing of the above suit, a Tribunal was constituted by the Assistant Commissioner and the dispute was referred to it. It seems that before the Tribunal with the consent of the parties, the matter was referred to a sole Arbitrator, namely, Haji Abdul Salam Tareen. The sole Arbitrator submitted his decision to the Tribunal, which on 1st January, 1983 made the following recommendation to the Assistant Commissioner, who agreed to it, which is evident from the record. The above recommendation and the order passed thereon reads as follows :‑

2. It appears that the respondents Nos. 1 to 3 without making any reference to the above order dated 1st January, 1983 made an application on 19th January, 1983 before the Assistant Commissioner, alleging therein, that the sole Arbitrator in spite of expiry of 8‑9 months, had not given his decision. They also made another application on 31 st March, 1983 again without referring to the above order dated 1st January. 1983. It may be advantageous to reproduce hereinbelow the first application which reads as follows :‑

3. It appears that the Assistant Commissioner without issuing any notice to the petitioner purported to review his above order dated 1st January, 1983 whereby he had agreed with the recommendation of the Tribunal. The above order reads as follows :‑‑

4. In pursuance of the above order, the petitioner was issued notice for 5th March, 1983. After that on 13th March, 1983 the Assistant Commissioner purported to nominate the Members of the Tribunal and referred the points mentioned therein to the Tribunal without any objection from the parties. "the petitioner being aggrieved, by the. above order of making the above second reference on 13th March, 1983 filed an appeal, which was dismissed by the Additional Commissioner, Quetta Division by his order dated 14th December, 1983. It may be observed that while dismissing the above appeal, the Additional Commissioner had also directed the Collector Pishin to correct the revenue entries in favour of the respondents Nos. 1 to 3 even without the trial of the case. The petitioner went in revision, which was also dismissed by a Member of .the Board of Revenue Baluchistan by b is order dated 11th June, 1985. The petitioner being aggrieved by the above orders has filed the present petition.

5. In support of the above petition, Mr. Muhammad Zafar, learned counsel for the petitioner has vehemently urged that once the recommenda tion of the Tribunal consigning the case to record on account of the acceptance of the decision of the Arbitrator, was accepted by the Assistant Commissioner, he had no power to again refer the dispute to another Tribunal.

On the other hand, Malik Sultan Mahmood, learned counsel for the private respondents has urged as follows :‑‑

(i) That the review order dated 23rd February, 1983 had not been impugned by the petitioner before the appellate authority or revisional authority and not even before this Court and, therefore, the consequential order dated 13th March, 1983 constituting the new Tribunal and making reference to it is of no consequence and the same cannot be assailed ;

(ii) that since the petitioner has not prayed for declaration in respect of the above order dated 23rd February, 1983 this Court cannot suo Motu grant the relief ;

(iii) that since the order dated 1st January, 1983 was void order, it could have been recalled by the Assistant Commissioner, inter alia, by virtue of section 21 of the General Clauses Act ; and

(iv) that the above order dated 1st January, 1983 not a speaking order and, therefore, the same was correctly recalled."

6. It is true that the petitioner had not impugned the above order dated 23rd February, 1983 before the appellate and revisional authorities, nor it has been expressly impugned before us in this petition. However, it is an admitted position that the above order dated 23rd February, 1983 reproduced hereinabove in para. 3, was passed without any notice to the petitioner. It has been submitted by Mr. Zafar that factually the petitioner had no knowledge about it till the filing of a copy thereof by the respondents Nos. 1 to 3 to this petition alongwith. the counter affidavit. His further submission was that the petitioner is aggrieved by the order dated 13th March, 1983 constituting a new Tribunal and referring the dispute to it, though the matter stood concluded by the above order dated 1st January, 1983. He has referred to the case of Khuda Bakhsh v. Khushi Muhammad and 3 others (PLD1976SC208), in which, it has been held that an order void ab initio is a nullity in law and it does not require to be set aside in appeal or any other proceeding. On the basis of the above judgment of the Honourable Supreme Court, Mr. Z afar has vehemently urged that since the above order dated 23rd February, 1983 was passed without notice to the petitioner and without having the power to review the order, the same was nullity in law. The above contention is not devoid of force. It is an admitted position that the Assistant Commissioner had not issued any notice to the petitioner prior to the passing of the above order dated 23rd February, 1983. It is also an admitted position that the Assistant Commissioner under Ordinance I of 1968 has B not power to review his own order. In this regard. it may be pertinent to refer to the judgment in the case of Hussain Bokhsh v. Settlement Commissioner, Rawalpindi and others (PLD1970SC 1), in which, it has been held by the Hon'ble Supreme Court that the right to claim review of any decision of a Court of law, like the right to appeal, is a substantive right and not a mere matter of procedure and that it is not available unless it has been conferred by law. It may be advantageous to reproduce hereinbelow, the relevant observation of the Honourable Supreme Court in the above case, which reads as follows

"The case being one involving a point of law of great public importance, the Advocate‑General of West Pakistan and Mr. Ghulam Mujaddid Mirza on behalf of the Lahore High Court Bar Association assisted the Court.

The right to claim review of any decision of a Court of law, like the right to appeal, is a substantive right and not a mere matter of procedure. An appeal, as observed by Branwell, L. J. in the case of Sandback Charity Trustees v. North Staffordshire Railway Co. (1877) 2 Q B D I:

Does not exist in the nature of things; a right to appeal from any decision of any Tribunal must be given by express enactment.

This is equally true in the case of review, because both appeal and review, though they differ in scope, are substantive rights. As such, neither of them is available unless it has been conferred by law."

7. This lead us to the submission of Mr. Sultan‑ Mehmood that since the order dated 1st January, 1983 was a void order, the Assistant Commissioner was competent to recall it. In furtherance of his above submission, he has referred to the case of Shameer v. Board of Revenue etc. (1981 S C M R 604), in which, it has been held by the Honourable Supreme Court while dismissing a petition for leave against the judgment of the Lahore High Court passed in a writ petition, that the statutory and executive authori ties have locus poenitentiae to recall an order, if no effective step has been taken in implementation thereof. The learned Single Judge of the Lahore High Court in his judgment had placed reliance on section 21 of the West Pakistan General Clauses Act to justify the recalling of the Commissioner's order of according approval to the highest bid for State agricultural land.

8. There cannot be any cavil to the proposition that under section 21 of the General Clauses Act, 1897 and section 20 of the West Pakistan, General Clauses Act, 1956 a power to issue notifications, orders, rules or bye‑laws is conferred by any Act or Regulation, then this power includes a power exerciseable in the like manner and subject to the like sanction and conditions (if any); to add to, amend; vary or rescind any notification, orders, rules or bye‑laws so issued. However, we are not inclined to agree with the submission of the learned counsel for the private respondents that the above order dated Ist January; 1983 passed by the, Assistant Commissioner can be placed at par with an order referred to in the above two sections of the General Clauses Acts. In our view, the above order dated 1st January, 1983 was a judicial order within the compass of Ordinance I of 1968. The unanimous recommendation of the Tribunal was that in view of the acceptance by the parties of the decision given by the sole Arbitrator and which was explained by the Members of the Tribunal to the parties, the case was to be consigned to record. The above recommendation was agreed to by the Assistant Commissioner in terms of subsection (3) of section 10 of the above Ordinance 1 of 1968, which provides that if the finding of the Tribunal on the matter or issue referred to it, is unanimous or by a majority of its members and the Deputy Commissioner does not proceed under, subsection (2), he shall decide the dispute and pass a decree in accordance with such finding.

9. As regards Mr. Sultan Mehmood's contention that since no relief had been claimed against the order of review dated 23rd February, 1983 this Court cannot grant the same suo motu relief, it may be observed that he has referred to the case of Akhtar Abbas and others v. Nayyar Hussain (1982 S C M R 549), in which the respondent had challenged the competency of the revision filed in the Court of Additional Commissioner, Revenue against the order dated 27th :February; 1965.. passed by the Additional Rehabilitation Commissioner ;but the latter order was not impugned. The learned Single Judge while allowing the. writ petition quashed the above order dated 27th February, 1965. The Honourable Supreme Court while allowing the appeal held that the relief must be confined to the prayer made in the writ petition and the High Court cannot issue a writ suo motu.

In the, present case, as observed hereinabove, the case of the petitioner is that he was unaware of the above order of review dated 23^rd February, 1983 till the filing of the counter-affidavit in the present petition. Be that as it may. The question is, whether the‑ Assistant Commissioner after having disposed of the case by his order dated is January, 1983 could have reconstituted a new Tribunal and could have; referred the‑ dispute to it There is no such power vested in the Assistant Commissioner under Ordinance I of 1968. Once a case is finally disposed of rightly or wrongly by an Assistant Commissioner, exercising the powers of Deputy Commissioner under Ordinance I of 1968, the proper remedy of an aggrieved party is to file an appeal under the said Ordinance or other competent legal proceedings against the final order, but such an order cannot be nullified by him. We are also inclined to hold that the impugned order dated ,13th March 1983, gave a fresh cause of action to, the petitioner,: which could have, been impugned without assailing. The above first order dated 23rd February, 1983 , particularly, when the latter order was obtained by misrepresentation of facts, of which, the petitioner had no knowledge as he was not served with any notice.

We may again observe that the private respondents in their above appli cations dated 19th January, 1983 and 31st January, 1983 had suppressed the; fact that factually the case stood disposed of. They had not even sought the review of the above order dated 1st January, 1983 but in spite of that, the Assistant Commissioner by his above order dated 23rd February; 1983 purported to review .his above order dated 1st January, 1983 without. even referring to it. The ratio decidendi of'‑the ‑ above Supreme Court case cited. By the learned counsel for the private respondent, would be equally applicable to the respondents above two applications, in which, they had not prayed for the review of the above order.

10. Reverting to Mr. Sultan Mehmood's contention that since' the order dated 1st January, 1983 was, not. A speaking order, the same could have been ‑recalled, it may be observed that the recommendation of theta Tribunal and the order passed thereon by the Assistant Commissioner ITEFAK HAI Cannot be said to be a non‑speaking order. The recommendation of the Tribunal contentions the reasons as to why the case was to be consigned to record, which was agreed to by the Assistant Commissioner.

11. We are, therefore, inclined to hold that ' the constituting of a second Tribunal .by the ‑above order dated 13th March, 1983 and making'. reference to it in respect of .the dispute which stood disposed' of by the above order dated Ist January, 1983 is without, lawful authority and of no legal effect.

We, accordingly, allow the petition with no orders as to cost and declare the above order dated 13^th March, 19 83 as being without lawful authority and of no legal effect The respondents are restrained from enforcing or acting thereupon.

A. A. Petition allowed.

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