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Petitioner: Masud Akhtar VS Respondent: Mst. NOOR SAIN AND Other
Court Name: Supreme Court of Pakistan Judge(s): Malik Muhammad Akram, Muhammad Yaqub Ali Khan, Durab Patel Title: Masud Akhtar vs Mst. NOOR SAIN AND Other Case No.:Civil Appeals Nos. 150 and 166 of 1970 Civil Appeal No. 150 of 1970 Civil
JUDGMENT
Reported As: PLD 1982 Supreme Court 234 Result: Appeals allowed Judgment JUDGMENT MUHAMMAD AKRAM, J.-This will dispose of two Civil Appeals by special leave No. 150 of 1970 by Jalaluddin and others against Mst. Noor Sain and others and .No. 166 of 1970 by Jalaluddin and others against Shamas--uddin and others, both arising out of a consolidated judgment dated 5- 7-1967 passed by a Division Bench of the then High Court of West Pakistan at Lahore. Briefly the relevant facts are: these. One Nur Ahmad son of Lakhwera, the predecessor of the appellants. In these two appeals, migrated to Pakistan as a refugee from District Ferozepur. He origin ally registered his claim forms for the lands abandoned in India for village Shall, Tehsil Pakpattan, District Sahiwal, where some land was allotted to him in part satisfaction of his verified claims. He then got his remaining unsatisfied units transferred to village Hela Kalaranwala in the same Tehsil allegedly on 1-2-1957. Mst. Noor Sain and others respondents Nos. 1 to 5 (in Civil Appeal No. 150 of 1970) are the successors-in-title of one Toga Khan who was also a displaced. Person from India. His verified claim was partly satisfied in village Wasau, Tehsil Pakpattan, District Sahiwal. His remaining un-- satisfied units were at first transferred to Hela Kalaranwala allegedly on 21-12-1956. However, so it is stated that his claim was returned to village Wasau on 18-2-1957 and was again brought back to village Hela Kalaranwala wala on 6-9-1957. On 8-9-1957, the land in dispute bearing Killas Nos. 4 to 7, 14 to 16 of Square No. 16 and Killas Nos. 1 to 25 of Square No. 17 was proposed and the preliminary allotment was made in his name by the Assistant Rehabilitation Commissioner on 15-10-1957 at Khata RL-11 No. 41 for this village.
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Similarly, Ali Muhammad father of Shamasuddin and other respondents Nos. I to 3 (in Civil Appeal No. 166 of 1970) was a displaced person from India. After his death the respondents filed their claim forms which were received after verification in Chak No: 39/EB, Tehsil Pakpattan, District Sahiwal. Their claim appears to have been sent to village Hela Kalaranwala Tehsil Pakpattan for satisfaction on 21-12-1956. However, afterwards on 28-2-1957 it is stated to have been returned to village Wasau and then again brought back to village Hela Kalaranwala on 6-9-1957. In these circumstances, on 8-9-1957 the land in dispute bearing Killas Nos. 1, 2, 9 to 13, 18 to 23 of Square No. 33, Killas Nos. 1 to '12 of Square No. 32 and Killa No. 1 of Square No. 34 was proposed and the preliminary allotment was made in their names by the Assistant Rehabilitation Commissioner on 15-10-1957 at Khata RL-11 No. 40. But on 29-4-1958, the Assistant Rehabilitation Commissioner cancelled allotments on these two Khatas of the respective respondents and at the same time he proposed both the lands 'thus released in favour of the appellants on their Khata RL-11 No. 60/55. The proposal was confirmed in their favour on 31-5-1958. The two sets- of the contesting respondents filed their respective appeal against this confirmation of the land to the appellants. But their two appeals were dismissed by the Deputy Rehabilitation Commissioner (L), Pakpattan on 4-10-1958. This led to the two separate revisions filed by the aggrieved respondents. On 2-2-1960 Sardar Ata Muhammad Khan, P. C. S., Rehabilitation Commissioner, Multan Division, Multan dis--missed the two revisions before him by a single order with the observation that .- " ... But a closer examination reveals that the petitioners claim forms were transferred to Chak Wasau on 14-3-1957. They were brought back on 6-9-1957. In the meantime the area in dispute was confirmed to the respondents on 31-5-1957. This leads to an inference that in the absence of the petitioners claim forms the area in dispute was confirmed to the respondents. Under the circumstances I feel that at the time of confirmation the petitioners claim forms did not exist in this estate." To set the record right, it may be mentioned here that in this order reproduced above, ')the date of confirmation of the land to the appellants herein was wrongly mentioned as "31-5-1957" instead of 31-5-1958 and the order is based on this fallacy apparent on the face of the record.' Be that as it may, the respondents then filed two separate petitions under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 against the order. But Mr. M. H. Soofi, C. S. P., Chief Settlement and Rehabilitation Commissioner, Pakistan on 18-12-1962 summarily dismissed them as not tenable. He was of the opinion that the orders impugned before him were passed by the Assistant Rehabilitation Commissioner, the Deputy Rehabilitation Commissioner and the Rehabilitation Commis--sioner under the provisions of the Pakistan Rehabilitation Act, 1956 and that, therefore, the petitions moved before him under sections 10 and I I of the Displaced Persons (Land Settlement) Act, 1958 were not tenable in law. Somehow the respective respondents filed their two separate revisions under section 21 of the Displaced Persons (Land Settlement) Act, 1958, in the High Court against the order passed by Mr. M. H. Soofi, Chief Settlement & Rehabilitation Commissioner, Pakistan and the confirma--tion of the lands in dispute to appellants. In the High Court, both the revision petitions were admitted to full hearing and disposed of together. It appears that during the course of the hearing, on 27th April, 1967, a Division Bench of the High Court passed an order treating the two revisions before it as writ petitions filed by the respective respondents and they were disposed of as such by the Court by a single judgment dated 5-7-1967 impugned in the above two appeals before us. The High Court on going through the record unequivocally observed :- "Here it was admitted that the learned Rehabilitation Commissioner in his order dated the 2nd of February, 1960 had shown the area in dispute to have been confirmed to the contesting
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respondents on the 31st of May, 1957, while in fact, according to the copy of RL-11 (Annex: II) the date is 5th of October, 1958. Thus there was a clear misreading of the date. It was also clear, as held by the learned Rehabilitation Commissioner in the aforesaid order that the D. C. R. Was wrong in holding that the area in dispute had been confirmed to the respondents at the time when the petitioners had preferred appeals before him (D. R. C.). In fact on that date the land was not confirmed to the respondents and, therefore, the petitioners whose units were received back in the village on 6-Y-1957 had a right for the allotment of the land." On these findings the High Court concluded that the orders passed by the Rehabilitation Commissioner on the 2nd of February, 1960 and by the Deputy Rehabilitation Commissioner (L) on the 4th October, 1958, were based on wrong assumptions of facts and were liable to be set aside. Accordingly the Court allowed the two writ petitions before it, set aside both the orders, and remitted the" dispute concerning the allotment of the area to the Deputy Rehabilitation Commissioner for a fresh decision in accordance with law. Before the High Court, the appellants herein opposed the two writ petitions on the main ground that they were liable to be rejected for laches for about seven .Years in pursuing their remedy. But the High Court repelled the contention with the finding that the petitioners during all the seven years were pursuing their' remedies before the Rehabilitation and Settlement Office and were not guilty of any undue laches of delay in moving the High Court. In the opinion of the High Court sections 10 and I1 of 'the Displaced Persons (Land Settlement) Act had no application to the facts of this case. At any rate, the Chief Settlement Commissioner did not at all adjudicate upon the rights of parties in his order dated 18-12-1962, which in the final analysis was of no consequence at all. In these circumstances the appellants filed the two petitions in this Court for special leave to appeal from the judgment of the High Court. In granting leave to appeal in both the cases this Court observed :- "A number of grounds of objection to the judgment of the High Court are raised. One which stands out raises the question whether the jurisdiction conferred on the High Courts by Article 98 can be used for the benefit of a party which had a clear remedy under the relevant law, but has forfeited that remedy through its own default. The law seems to intend that absolute finality shall attach to the last order in Settlement unless a revision is sought in the High Court within the prescribed period of limitation, which is by no means short, viz. 60 days. If resort is allowed to the writ jurisdiction, it can only be in defeat of that law, and there are no words in Article 98 which can justify its use to such an end." In this connection we have heard the learned counsel for the parties appearing before us and also gone through, the record. Generally speaking, under the common law proceedings of the nature by resort the extraordinary legal remedies will not lie where there is another adequate remedy available. Indeed the object with which a writ is issued by a superior Court is only to curb the exercise of excessive jurisdiction and to keep the inferior Courts and Tribunals within the limit of their bounds. Its purpose is to bring for review before a superior Court the proceedings and judg-- ment of inferior Court and tribunal clothed with the authority to act judicially, where no appeal or other adequate remedy is available. Accord--ing to the Law of Extraordinary Legal Remedies by Ferris, the common purpose of the common Law writ is not to take the place of writ of error or appeal, but to cause the entire record of the inferior Court and tribunal to be brought up for inspection in order that reviewing Court may determine from 'the face of the record whether the inferior Court has exceeded its jurisdiction or has not proceeded according to the essential requirements of law, in case where no direct appellate proceedings are provided by law. Under the English law this requirement was rigorously followed in the issuance of a writ of mandamus but this requirement was frequently relaxed in relation to certiorari. According to Corpus Juris, Vol. 38, pages 565 to 568, the general rule is that mandamus will not lie where there is an adequate
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remedy by appeal or writ of errors. It was generally held that one who fails to take advantage of his remedy by appeal is not entitled to remedy by mandamus. Ignorance of the applicant of the mandamus for right of appeal until after the expiry of time of appeal does not justify the issuance of the writ thereafter. Where a party entitled to appeal loses its right by failure to pursue that remedy within the time limit therefor, he is not entitled to mandamus on the ground that it has no other adequate remedy. But the fact that there is another remedy will not prevent the issuance of a writ of mandamus if other remedy is not adequate. In this country under Article 98 of 1962 Constitution jurisdiction was conferred on the High Court for the issuance of what is popularly referred to as the writs. In Article 98(2) it was laid down that a High Court may, if so satisfied that no other adequate remedy is provided by law: (i) direct a public functionary to refrain from doing that which he is not permitted bylaw to .Do or not to do that which he is required by law to do; or (ii) declare that any act done or proceedings taken by a public functionary has been done or taken without lawful authority and is of no legal effect. It has done away with the discrimination on the point ;" the issuance of mandamus and certiorari. The overriding consideration now is that in all cases a High Court has no jurisdiction to issue writs of the nature unless it is satisfied that no other adequate remedy is provided by law to the aggrieved party. What precisely is "another adequate remedy" available to an aggrieved person will depend on the facts and circumstances of each case. But as discussed in Mahboob Ali Malik v. The Province o West Pakistan and others (1), the other remedy in order to be adequate must necessarily be equally convenient, beneficial and effectual to the satis--faction of the High Court before deciding upon its own jurisdiction in the matter. In this connection Monir, C. J., in a case under Article 170 of 1956 Constitution In re: Tariq Transport Company Ltd. v. Sargodha Bhera'Bus Service (2), observed; "It is wrong on principle for the High Court to entertain petitions for writs except in very exceptional circumstances when the law provides a remedy by appeal to another Tribunal fully competent to award the requisite relief. Any indulgence to the contrary by the High Court is calculated to create distrust in statutory tribunals of competent jurisdiction and to cast an undeserved reflection on their honesty and competency and thus to defeat the legislative intent. And in a case of the present kind where the right which the petitioner for a writ claims to vest in him is entirely the creation of a statute, it is all the more imperative on him to exhaust the remedies provided by the statute before he comes to the High Court. He cannot be permitted to say that while he will have one or all the benefits of the statute, he will comply with none of its remedial processes." Similarly in S. A. Haroon and others v. Collector of Customs, Karachi (3), it was reiterated that "It is wrong on principle to entertain petitions for writs, except in very exceptional circumstances, when the law provides a remedy by appeal to another tribunal fully competent to award the requisite relief. As an exception, in cases of absence or excess of jurisdiction or where the impugned order suffered from illegality on the face of the record, a certiorari may be granted even though the right of statutory appeal had. Not been availed of. The general rule is much more stringent in the case of mandamus than in- that of certiorari. In the case of a prayer for a writ of certiorari, a certain amount of flexibility is allowed depending upon the nature of the case." In Pakistan and another v. Qazi Ziauddin (4), it was held that the failure to appeal against the order of the Collector was not necessarily a bar to the filing of a petition for certiorari for the objection as to there being an alternative remedy was not of such weight in the case of certiorari as it was in the case of mandamus, and if there was either absence or excess of jurisdiction or the impugned order suffered from illegality on
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(1) PLD 1963 Lah. 575 (2) PLD 1958 SC (Pak.) 637 (3) PLD 1959 SC (Pak.) 177(4) PLD 1962 SC 440 the face of the record a certiorari could be granted even though the remedy by way of appeal had not been availed of. Also in The Presiding Officer v. Sadruddin Ansari and another (1), this Court observed that so far as these writs are concerned the principle is undoubtedly universally accepted that it would not be in the exercise of sound judicial discretion to interefere where there is another "adequate and specific legal remedy" competent to afford relief upon the same subject- matter. In Muhammad Sharif v. Chief Administrator, Augaf, Punjab, Lahore (2), the Chief Administrator, Auqaf had assumed administrative control and management of certain Waqf properties in accordance with a notification issued under section 6 of the West Pakistan (Waqf Properties) Ordinance, 1961. The petitioner denied the Waqf nature of the property and accordingly filed a writ petition under Article 98 of the 1962 Constitution questioning the validity of the said notification. The High Court dismissed the writ petition on the short ground that the petitioner had failed to avail of an adequate alternate remedy provided to him under section 7 of the Ordinance by moving a petition before the District Judge in that behalf and the order was affirmed by this Court. In Haman Din Chishty v. Chief Engineer, WAPDA (3), the petitioner had failed to prefer an appeal provided under the law against the order of the termination of his service and instead filed a petition under Article 98 of the late Constitution. The High Court refused to interfere on the ground that he had an alternate remedy available to him. The order was upheld by this Court. Similarly, in The Commissioner, Hyderabad Division, Hyderabad v. Muhammad and others (4), the respondent therein had failed to avail of the other alternate remedy open to him by way of revision under section 435, Cr. P. C. And had instead filed a petition under Article 98 of the 1962 Constitution against the impugned order passed by the Commissioner. The Supreme Court accepted the appeal against the order passed by the High Court on the ground that the writ petitioner had failed to avail of the alternate remedy by way of revision available to him against the impugned order. In Muhammad Sharif v. The Settlement Commissioner (Land), Lahore and others (5), the dispute related to the cancellation of excess land allotted to a claimant and the order of cancellation against him was upheld in appeal which had become final. The High Court rejected the petition filed by the petitioner under Article 98 and the Supreme Court refused to interfere on the ground that the petitioner bad other remedy open to him which he had failed to avail of. But on a careful consideration this objection raised on behalf of the appellants is misplaced and besides the point. In this case as already discussed above the Assistant Rehabilitation Commissioner (Land) confirmed the lands in dispute to the appellants on 31-5-1958. The respective appeals by the respondents against the orders were dismissed by the Deputy Rehabilitation Commissioner (Land) on 4-10-1958 and their revisions were likewise rejected by Sardar Ata Muhammad Khan, P. C. S., Rehabilitation Commissioner, Multan Division, Multan on 2-2-1960. The respondents then filed a petition under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 directed against the order passed by the Rehabilitation Commissioner. But on 18-12-1962 Mr. M. H. Sufi, Chief Settlement & Rehabilitation Commissioner, Pakistan, summarily rejected the petition as incompetent. He observed that this dispute was adjudicated upon by the (1)PLD 1967SC569 (2) 1971SCMR713 (3)1970SCMR58(4)PLD1969SC550 (5) 1968 SCMR 1164 the Assistant Rehabilitation Commissioner, the Deputy Rehabilitation Com--missioner and the Rehabilitation Commissioner under the provisions of the Pakistan Rehabilitation Act, 1956 and, therefore, in his opinion, the petition before him under sections 10 and 1l of the Displaced Persons (Land Settlement) Act, was not tenable.
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It was in these circumstances that on or about 15-7-1963 the respondents filed their respective Revision Petitions 16/63 and 13/63 under sections 21 of the Displaced Persons (Land Settlement) Act, 1958 in the High Court against the order dated 18-12-62 passed by the Chief Settlement & Rehabilitation Commissioner. At the time of hearing before the High Court the appellants raised their objection to the effect that both these revisions were barred by time and should be dismissed on that shoot ground alone. On this during the course of the hearings the respondents herein applied to the High Court that their revision petitions under section 21 of the 'Displaced Persons (Land Settlement) Act be treated as a petition under Article 98 of the 1962 Constitution and disposed of on the merits as such. Accordingly the High Court on 27-4-1967 accepted the request and decided to treat the revision petitions as writ petition for their disposal in accordance with law. Eventually on 5-7-1967 the High Court accepted the writ petition on the merits, quashed the orders passed by the Rehabilitation Authorities and remitted the case to the Deputy Rehabilitation Commissioner for allotment of the area in dispute afresh in accordance with law. From the above it is evident that in this case the initial order of confirma--tion of the area in dispute to the appellants was passed by the Assistant Rehabilitation Commissioner (Land) on the original side on 31-5-1958 in exercise of the powers vested in him under the Pakistan Rehabilitation Act, 1956. This was even prior to the Displaced Persons (Land Settlement) Act, 1958 came into force on 23rd September, 1958. Therefore their respective appeals as well as the revisions from the order were disposed of by the Deputy Settlement Commissioner (Land) and the Rehabilitation Commissioner (Land), under the heirarchy in their capacity as rehabilitation authorities, in accordance with the provisions contained in section 11 of the Pakistan Rehabilitation Act, 1956 and not under any of the provisions of the Displaced Persons (Land Settlement) Act, 1958. It was precisely for this B reason that afterwards on 18-12-1962 Mr. M. H. Sufi, Chief Settlement & Rehabilitation Commissioner held that the two petitions filed by respective respondents under sections 10 and 11 of the Displaced Persons (Land Settle--ment) Act against the revisional order passed by the Rehabilitation Commis--sioner, was not tenable. This order appears to be unexceptionable and could not be assailed in Settlement Revision before the High Court under section 21 of the Displaced Persons (Land Settlement) Act, 1958. This section has no application to a final order passed by the Rehabilitation Commissioner in the exercise of his revisional jurisdiction vested under section l I of the Pakistan Rehabilitation Act and not in his capacity as the Settlement Commissioner (Land) under the Displaced Persons (Land Settlement) Act. In this view of the matter the two Settlement Revisions Nos. 13 and 1 of 1963 filed by the respective respondents under section .21 of the Displaced Persons (Land Settlement) Act, 1958 against he order dated 2-2-1960 passed C by the Rehabilitation Commissioner were not even competent. Therefore it cannot be held that they had thereby failed to avail of this retied provided by law within time and were consequently not entitled to the writ issued in their favour by the High Court under Article 98 of the late Constitution. The High Court in converting the Settlement Revisions before it, has merely quashed the orders dated 4-10-1953 and 2-3-1960 passed by the Deputy Rehabilitation Commissioner (L) and the Rehabilitation Commis--sioner (Land) in exercise of the jurisdiction vested in it under Article 98 of the late Constitution. In doing so the High Court has in the exercise D of the discretion vested in it allowed the amendment and also condoned the delay in favour of the respondents in the interest of justice. In the opinion of the Court during all these years they were zealously pursuin their remedies before the Rehabilitation & Settlement Authorities and were in no way guilty of any undue laches. On the merits it was admitted and the High Court was satisfied that the order dated 2-2-1960 passed by the Rehabilitation Commissioner was based on a misreading of date of confirmation of the land to the appellants by the Assistant Rehabilitation Commissioner (Land) as 31-5-1957.
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Therefore, in the interest of justice the Court accepted the writ petition, quashed the order and remitted the case to the Deputy Rehabilita--tion Commissioner for a fresh decision. This is an eminently just order which calls for no interference by this Court. We, therefore, dismiss these two appeals but make no order as to costs in the circumstances. DORAB PATEL, J.-I have had the advantage of reading the judgment to be pronounced by my learned brother Muhammad Akram, J., but I regret my inability to agree with it. As the facts have been set out in my learned brother's judgment, I would only observe here that the claim of the respondents was allowed after the Settlement revisions filed by them had been converted into writ petitions. These revisions were converted into writ petitions on 27-4-1967 almost four years after they had been filed, and as they were patently time-barred under section 21 of the Displaced Persons (Land Settlement) Act (hereinafter called the said Act), the first question which arises for determination in both these appeals is whether the High Court was justified in converting time-barred Settlement revisions into writ petitions. My learned brother has, in an exhaustive analysis of the case-law (I say so with respect) reached the con--clusion that the existence of a statutory remedy may not by itself be fatal to a writ petition. I agree with this…
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