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Constitutional Petition No.S-15 of 1984, decided on 3rd May, 1987.

---Ss.2 & 4--Constitution of Pakistan (1973), Art. 199--Government of Sind Notifications No.SC-K/74-2048, dated 24-12-1974, No.SCK/77/1126, dated 4-9-1977 and No.SCK/80-Admn-774, dated 14-6-1980- Appointment and jurisdiction of Notified Officers Provincial Government under Notification No.SCK/74-2048, dated 24-12-1974 notifying various officers to exercise jurisdiction in respect of pending cases as contemplated by S.2(2) of Act and one of such officers i.e. Settlement Commissioner, Sind was further authorised to transfer cases to other officers--Government under another Notification dated 14-6-1980, in purported exercise of powers under S.2(2) of Act, notifying Deputy Settlement Commissioner, Karachi as authorised Officer only for purpose of disposal of cases which might be transferred to him by Board of Revenue or Settlement Commissioner, Sind for disposal--Notification dated 14-6-1980 seemed to have been issued without any regard to relevant provisions of the Act which clearly indicated that Board of Revenue had not been authorised to exercise power in respect of cases which might be remanded from Supreme Court or a High Court and consequently it could not transfer such cases to Deputy Settlement Commissioner, Karachi--Impugned order, however, indicating that after remand by High Court, case was entrusted to Deputy Settlement Commissioner, Karachi by Settlement Commissioner, Sind-- Notification dated 14-6-1980, although making reference to Notification dated 24-12-1974 whereby Settlement Commissioner, Sind had been empowered by name to transfer cases to some other officers mentioned therein but even if it was assumed that he could delegate his functions or transfer cases to other officers under the provisions of the Act, such powers could only be exercised by him and by no other officer even if designated as Settlement Commissioner, Sind--Notification dated 14-6-1980, held, could not, therefore, legally authorise Deputy Settlement Commissioner, Karachi to perform functions as notified officer under S.2(2) of the Act and the proceedings before him resulting in impugned order were, therefore, coram non judice and without lawful authority Contentions of respondent that even if order passed by Deputy Settlement Commissioner was without lawful authority, the petitioner was estopped from raising question of jurisdiction since he had submitted himself before the jurisdiction of Deputy Settlement Commissioner without raising any objection thereto and that the petitioner had not approached High Court with clean hands as through manipulation he had tried to get false entries made in his P. T . D . found to be without substance- Proceedings having been held to be coram non judice, petitioner could take objection to jurisdiction of Deputy Settlement Commissioner before High Court even if no such objection had been taken during pendency of proceedings before him--Mere fact that some entries in the P.T.D. were found to be unauthorised, would not ipso facto raise a presumption .of dishonesty against petitioner--Impugned order therefore was liable to be struck down for abovementioned reasons- Petition was allowed, order passed by Deputy Settlement Commissioner, Karachi was declared to be without lawful authority and case remanded to another officer duly authorised to exercise jurisdiction under S.2(2) of the Act in terms of judgment of High Court, dated 11-10-1983.

Rashid Ahmed v. The State P L D 1972 S C 271; Chittaranjan Cotton Mills Ltd. v. Staff Union P L D 1971 S C 197 and Mansab Ali v. Ameer and others P L D 1971 S C 124 ref.

Muhammad Ali Shaikh for Petitioner.

A.A. Muhammadally A.A. -G. and Maroof Ali Khan for Respondent No. 3.

Dates of hearing: 4th and 9th March, 1987.

This petition is directed against the order, dated 29-12-1983 passed by Mr. Mukhtar Ahmed Khan who while purporting to act as notified officer in the case of the petitioner by virtue of section 2(2) of Act XIV of 1975, found that the property claimed by the petitioner could not be transferred to him by the Settlement Department as the same comprises of a well.

The facts of the case are, that the house bearing Custodian No.II-D-187 was purchased by the petitioner in an auction held .by the Settlement Department for a sum of fts.6,300. Thereafter, P. T. D., dated 31-1-1967 was issued in favour of the petitioner but as it later transpired that the corresponding City Survey numbers of the property were not mentioned therein. Thereafter, it appears, that the petitioner after waiting for more than two years filed an application before the Settlement Department foe insertion of seven City Survey numbers in his P.T.D. on the ground that the same corresponded to Custodian No. II-D-187, such City Survey numbers being 1693, 1694, 1695, 1699, 1702, 1703 and 1704. These City Survey numbers were then inserted in the P.T.D. of the petitioner some time in August, 1969. Admittedly there was no evidence available as to who inserted these City Survey numbers in the P.T.D. of the petitioner, but there is no contest on the point that the same were not inserted in pursuance of any order passed by the Settlement Department.

On 9-5-1973 Muhammad Yasin, the third respondent in this case, filed N . C . H . form for transfer of what he claimed to be the house bearing City Survey Numbers B/1693 and B/1694. Thereafter, an enquiry was conducted by the Deputy Settlement Commissioner, Nawabshah and after it was duly established that the third respondent was in possession of the aforesaid City Survey numbers the property bearing such survey numbers was ordered to be transferred in his favour on 13-3-1974. Similarly property bearing Nos.B/1702 and B/1703 was transferred in favour of Khushi Muhammad, respondent No.4 and one Chand Khan. Both of them were then directed to file N.C.H. forms for transfer of the property in their favour. As regards City Survey numbers B/1704 and B/1695, it was held by the Deputy Settlement Commissioner that the same remained transferred to the petitioner and necessary correction was ordered to be made in the P.T.D. issued in his favour. The petitioner was aggrieved by such order and consequently he filed a revision petition which was allowed by the Additional Settlement and Rehabilitation Commissioner Khairpur Division by his order dated 6-6-1974. The Additional Settlement and Rehabilitation Commissioner held that there was no ground for interference with the P.T.D. issued in favour of the petitioner and the allotment of the property in favour of Chand Khan and Khushi Muhammad was erroneous. The order of the Additional Settlement Commissioner was then challenge 1 in a constitutional petition before this Court being No.1230 of 1974 which was disposed of by judgment, dated 11-10-1983, in the following terms:---

"The dispute between the parties; however, does not stand finally resolved by this judgment, as the question as to what city survey numbers correspond to Custodian No.II-D-187, is not yet decided. The parties can approach the Civil Court for this purpose but both the learned counsel state that if they adopt this course, the matter will not be finally determined for a number of years. With the consent of the learned counsel for the petitioner and respondent No.2, the case is remanded to the Notified Officer under the Evacuee Property and Displaced persons Laws (Repeal) Act, 1975, for deciding as to what city survey numbers correspond to the Custodian No.II-D-187 recorded in the P.T.D., dated 31-1-1967 of respondent No.2. The Notified Officer will issue notices to the concerned parties before deciding this question and if he considers necessary, he may also visit the site. If it is found by the Notified Officer that any of the aforesaid city survey numbers are not included in the property transferred to respondent No.2, the same will be transferred to the person or, persons in possession of the said city survey numbers."

Thereafter, the case went before Mr. Mukhtar Ahmed Khan on remand who gave his finding in the matter as follows:----

"From the perusal of the City Survey map on record, well is located on City Survey No. B-1703 and according to the Custo dian record, well is located on Custodian No.II-B-187, hence it leaves very little doubt in mind that Custodian No.II-D-187 corresponds to City Survey No.B-1703. This finding is further supported by the report of the Settlement Inspector, letter dated 13-3-1969 of the Deputy Commissioner, Sanghar and the site inspection made by the Deputy Settlement Commissioner.

The consequence of this finding would be that the transfer of the property in favour of the petitioner would be restricted to Custodian No.II-D-187 corresponding to C.S.No.B-1703 only but this property could not have been auctioned being a charitable well. The other properties like B-1704 would be available for disposal in accordance with law."

The petitioner is now aggrieved by the above findings of Mr. Mukhtar Ahmed Khan and this constitutional petition is directed against the same.

I have heard Mr. Muhammad Ali Shaikh, learned counsel for the petitioner and Mr. Maroof Ali Khan, learned counsel for the respondent.

Mr. Muhammad Ali Shaikh has raised a two-fold contention before this Court. Firstly it has been argued by him that Mr. Mukhtar Ahmed who acted as Notified Officer under section 2(2) of Act XIV of 1975 had no jurisdiction to act in the matter. He has also taken exception to the observations made by the aforesaid Notified Officer in his order dated 29-12-1983 that the property in question could not have been auctioned to the petitioner being a charitable well. Mr. Maroof Ali Khan, learned counsel for the respondents Nos.3 and 4 and Mr. A.A. Muhammedally, learned A.A.-G. have however, resisted both the contentions.

Turning to Mr. Muhammad Ali Shaikh's first contention, the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was repealed with effect from 1-7-1974 by the Evacuee Property and Displaced Persons Laws (Repeal) (Act XIV of 1975). (See section 2(1) of the Act). Subsections(2), (3) and (4) of section 2, thereof provide that:-

"(2) Upon the repeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid.

(3) Any proceedings transferred or remanded to an officer in pursuance of subsection (2) shall be disposed of by him in accordance with the provisions of the Act or Regulation hereby repealed to which the proceedings relate.

(4) The final orders passed under subsection (3) shall be executed by the Board of Revenue of the Province in accordance with the provisions of the Act or Regulation hereby repealed to which the proceedings related."

Section 4 of the Act further provides:----

" 4.Disposal of residual work.--All the work regarding documentation, both or urban and rural properties, recovery, of outstanding transfer price, rent or mortgage money of such property already disposed of and discharge of miscellaneous liabilities out of these recoveries, which may remain pending immediately before the repeal of the aforesaid Acts and Regulations shall stand transferred to the Board of Revenue of the province."

A perusal of subsections (2), (3) and (4) and section 4 of the aforesaid Act would indicate that after repeal of the laws enumerated in subsection (1) of section 2.-of the Act, the Provincial Government was authorised to notify an officer for disposal of cases which were pending before the authorities appointed under the repealed enactments immediately before 1-7-1974 or which were received on remand from the Supreme Court or a High Court after such date. Subsection (4) of section 2 and section 4 of the Act respectively. authorised the Board of Revenue of the Province to execute final orders which might be passed in such cases and to dispose of residual work connected with documentation, recovery of outstanding transfer price, rent, mortgage money, etc.

On 24-12-1974 the Government of Sind issued Notification CK/74-2048 authorising various officers to exercise powers under on 2(2) of the Act. The said Notification read as follows:-

"No.SCK/74-2048.--In exercise of the powers conferred by subsection (2) of section 2 of the Evacuee Property and Dis placed Persons Laws (Repeal) Ordinance, 1974 (XV of 1974) the Government of Sind is pleased to transfer proceedings under (1) the Registration of Claims (Displaced Persons) Act 1956 (III of 1956), (2) the Pakistan Rehabilitation Act. 1956 (XLII of 1956),(3) the Displaced Persons (Compensation & Rehabilitation) Act, 1958, (XIII of 1958) (4) the Displaced Persons (Land Settlement) Act, 1958, (XLVII of 1958), (5) the Scrutiny of Claims (Evacuee Property) Regulation 1961 (MLR 89 of 1961), and (6) the Recovery of Price of the Evacuee Property and Public Dues Regulation, 1971 (MLR 87 of 1971) which may be pending before the authorities appointed there under, immediately before the repeal of these Acts and Regula tions by virtue of the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974 (XV .of 1974) and all cases received by the Supreme Court or a High Court after such repeal which may be remanded to any such authority for disposal in accordance with the provision of the repealed Acts or Regulations and Instructions, Schemes and Rules made thereunder, to the officers named below in respect of cases noted against each-.-

Provided that the Additional Member, Board of Revenue (Incharge Settlement Cell) will be authorised to transfer cases mentioned at Serial No.- 8 from any of the Divisional Commis sioner to any other Commissioner, and cases mentioned at Serial No. 9 to any A from any Deputy Commissioner in the interest of justice and/or administration:

Provided that Mr. S. Wasim Hamid Rizvi, Settlement Commissioner Sind will be authorised to transfer cases to the officers mentioned at Serial Nos. 2 to 7 or recall the same to his own file for disposal or transfer to other officers mentioned at Serial Nos. 2 to 7 having relevant ex-officio powers under the relevant repealed Act, in the interest of justice and/or administration:

Provided further that the concerned Commissioner will be authorised to transfer a case from any officer mentioned at Serial No.10 to any other Additional Deputy Commissioner/ Assistant Commissioner in the interest of justice and/or administration.

Sd/

(O.M. QARNI)

Addl: Member, Board of Revenue/

Secretary Rehabilitation

Department, Government of Sind."

In partial modification of the above Notification the Government of Sind issued another Notification No.SCK/77/1126, dated 4-9-1977 which read as under:-

In partial modification of Notification No.SCK/74/2048, dated 24-12-1974 issued in exercise of the powers conferred by Sub section (2) of Section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974 (XV of 1974), the Government of Sind is pleased to adopt the said notification as the one issued under subsection (2)' of section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. The Government of Sind, is further, pleased to direct that the Member, Board of Revenue Sind (Incharge Settlement Cell) 'may transfer a 'case or cases pending under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958, with a Deputy Commissioner or Additional Deputy Commissioner, to the Deputy Settlement Commissioner exercising powers of Additional Settlement Commissioner (Urban) at Sukkur or Deputy Settlement Commission' r exercising powers of Additional Settle ment Commissioner ("0ustries and Rural) at Karachi. .

Sd/-3-9-1977

(ABDULLAH D. BALUCH)

Member, Board of Revenue,

Sind, (Incharge Settlement Cell) at Karachi."

Thereafter, a third notification was issued authorising Mr. Mukhtar Ahmed Khan Deputy Settlement Commissioner (Grade 17), Karachi to act as "the authorised officer" for disposal of cases which might be transferred to him by the Member, Board of Revenue Sind (Incharge Settlement Cell) or Settlement Commissioner Sind. The said Notification is reproduced in extenso as follows:----

"No.SCK/80-Admn-774 Dated, the 14th June, 1980.

In partial modification of Notification No. SCK/74-2948, dated 24-12-1974 read with Notification No.SCK/77-1126, dated 4-9-1977, the Government of Sind, in exercise of the powers conferred by subsection (2) of section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, is pleased to notify Mr. Mukhtar Ahmed Khan, Deputy Settlement Commis sioner (Grade 17) Karachi as the authorised officer for the disposal of cases which may be transferred to him by the Member, Board of Revenue Sind (Incharge Settlement Cell) or Settlement Commissioner Sind for disposal, in accordance with the provisions of the repealed Act or Regulation namely (1) The Displaced Persons (Compensation and Rehabilitation) Act, 1958 (2) Registration of Claims (Displaced Persons) Act, 1956 (3) The Scrutiny of Claims (Evacuee Property) Regulation, Act, 1961 (4) Pakistan Rehabilitation Act, 1956 and (5) recovery of Price of Evacuee Property and Public Dues Regulation Act, 1971.

Sd/-

(ALI MUHAMMAD G. SHAIKH),

Secretary of Government of Sind,

Member, Board of Revenue (Incharge Settlement Cell)

at Karachi."

The first notification, dated 24-12-1974, indicates that certain' officers had been notified by the Government of Sind to exercise jurisdiction in respect of cases as contemplated by section 2(2) of Act XIV of 1975. This notification also shows that Mr. S. Wasim Hamid Rizvi, the then Settlement Commissioner Sind, whose name appears at serial No.1 in the notification, had been further authorised to transfer cases to the officers mentioned at serial Nos. 2 to 7. It appears that on the basis of this notification, another notification was issued on 14-6-1980 whereby the Government of Sind while purporting to exercise powers under subsection (2) of section 2,I notified Mr. Mukhtar Ahmed Khan, Deputy Settlement Commissioner, Karachi as the authorised officer but as the notification indicates the' appointment was only for the purpose of disposal of cases which might be transferred to him by the Member, Board of Revenue Sind A (Incharge Settlement Cell) or Settlement Commissioner Sind for disposal. This notification, in my opinion, seems to have been issued without any regard to the relevant provisions of Act XIV of 1975. First of all the notification authorised Mr. Mukhtar Ahmed Khan to dispose of on15, such cases which were transferred to him by the Member, Board of Revenue Sind. The relevant provisions of Act XIV of 1975 which have already been reproduced above clearly indicate that the Board of Revenue has not been authorised to exercise power in respect of cases which may be remanded from the Supreme Court' or a High Court. According to subsection (4) of section 2, the Board of Revenue has been authorised to execute a final order which may be passed under subsection (3) of section 2. Similarly according to section 4 of the Act, the residual work connected with documentation and other incidental matters has been assigned to the Board of Revenue of the Province. Consequently, without going into the question of further delegation of powers by the Board of Revenue Sind, the Board of Revenue was not competent to entertain matters which were received on remand from the High Court and consequently it could not transfer the same to Mr. Mukhtar Ahmed Khan. However, as the impugned order indicates, the case after its remand by this Court was entrusted to Mr. Mukhtar Ahmed Khan by the Settlement Commissioner Sind. Now, after the repeal of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 no officer with the designation of Settlement Commissioner would be deemed to be in existence. No doubt that the officers who were originally working under the repealed Act have retained their designations and they continue to perform functions under the provisions of the Act, but they can perform only such functions or exercise such powers which have been either given to them by the Act itself or assigned to them by the Government under the Act. Although reference has been made in the notification dated. 14-6-1980 to the notification, dated 24-12-1974 whereby Mr. S. Wasim Hamid Rizvi, Settlement Commissioner Sind had been empowered by his name to transfer cases to some other officers mentioned at serial Nos. 2 to 7 in the notification, but even if it is assumed that Mr. S.Wasim Hamid Rizvi could delegate his functions or transfer cases to other officers under the provisions of Act XIV of 1975, such powers could only be exercised by him and by no other officer even if he was designated as Settlement Commis sioner, Sind. Consequently I have no doubt in my mind that notifica tion, dated 14-6-1980, could not legally authorise Mr. Mukhtar Ahmed Khan, Deputy Settlement Commissioner to perform functions as notified officer under section 2(2) of Act XIV of 1975. The proceedings before him resulting in the impugned order, dated 29-12-1983 were therefore, coram non judice and without lawful authority.

It was however, argued by Mr. Maroof Ali Khan, learned counsel for the respondents Nos.3 and 4 that even if the order passed by Mr. Mukhtar Ahmed Khar was without lawful authority the petitioner was estopped from raising the question of jurisdiction since the petitioner had submitted himself before the jurisdiction of Mr. Mukhtar Ahmed Khan without raising any objection thereto. It was further argued, in the alternative, that in any case, the petitioner had not approached this Court with clean hands as through manipulation he had tried to get false entries made in his P . T . D . I find both the contentions to be without substance. First of all the petitioner could take objection to the jurisdiction of the learned Deputy Settlement Commissioner before this Court, even if no such objection had been taken during the pendency of proceedings before the learned' Deputy Settlement Commissioner. In Rashid Ahmed v. The State (P L D 1972 S C 271), it was held by the Supreme Court that objection to jurisdic tion of the Court could be taker, at any stage of the proceedings. Reference in that case was also made to the case of Chittaranjan Cotton Mills Ltd. v. Staff Union (PLD 1971 S C 197), wherein it was held by the Supreme Court that question relating to jurisdiction of the Court could be raised at any stage of the proceedings. In Mansab Ali v Ameer and others (P L D 1971 S C 124), it was held by the Supreme Court that if a mandatory condition for exercise of jurisdiction before a Court, Tribunal or authority is not fulfilled then the entire proceedings which follow become illegal and suffer from want of jurisdiction, It may be pointed out that since the proceedings before Mr. Mukhtar Ahmed have been held to be coram non judice on account of inherent lack of jurisdiction in him to entertain such proceedings, even if objection to jurisdiction of Mr. Mukhtar Ahmed Khan was not taker, by the petitioner before him, such objection can be raised by him before this Court.

So far as the next argument as to the conduct of the petitioner is concerned, the contention of Mr. Maroof Ali Khan is not well-founded as the mere fact that some entries in the P.T.D. were found to be unauthorised does not ipso facto raise a presumption of dishonesty against the petitioner. I am, therefore, unable to agree with Mr. Maroof Ali Khan that the impugned order is not liable to be struck down for the abovementioned reasons.

The next argument of Mr. Muhammad Ali Sheikh was that Mr. Mukhtar Ahmed Khan had erroneously observed in the impugned order that property hearing No.II-D-187 could not have been auctioned to the petitioner as the same was a charitable well. According to the counsel, since the case had been remanded to him for determination of a question of limited nature, viz., what City Survey number corresponded to property No.II-D-187, the learned Deputy Settlement Commissioner was not competent to enter into controversies extraneous to the point in issue. However, since I have already held that the proceedings before the learned Deputy Settlement Commissioner were coram non judice any, discussion on the point would be futile.

As a result, this petition is allowed and the order passed by Mr. Mukhtar Ahmed Khan, Deputy Settlement Commissioner, Karachi is declared to be without lawful authority and of no legal effect. The case is consequently remanded to another officer, duly empowered to exercise jurisdiction under section 2(2) of Act XIV of 1975 for a decision in terms of the judgment of this Court dated 11-10-1983.

S.Q/M-244/K Petition allowed.

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