2012 S C M R 664

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Muhammad Athar Saeed, JJ

PROVINCE OF PUNJAB through Collector Sargodha—Appellant

Versus

MUHAMMAD BAKHSH and another—Respondents

Civil Appeal No.1383 of 2006, decided on 23rd February, 2012.

(On appeal from the judgment dated 10-5-2006 passed by Lahore High Court, Lahore in Civil Revision No.120 of 2006).

Jurisdiction—

—-Court or Tribunal making an error of law in its decision would go outside of its jurisdiction—Principles.

The very condition for the conferment of a jurisdiction on a court of law is that it should decide every lis before it fairly, justly and in accordance with law. Where a court or a Tribunal makes an error of law on which the decision of the case depends, it goes outside its jurisdiction.

Muhammad Nazir Khan v. Ahmad and 2 others 2008 SCMR 521; Province of the Punjab through Collector District Khushab, Jauharabad and others 2007 SCMR 554; Muhammad Ishaq v. Abdul Ghani and 3 others 2000 SCMR 1083; Anisminic Ltd. v. Foreign Compensation Commission; Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447; Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa and 5 others 2001 SCMR 338; Rahim Shah v. Chief Election Commissioner PLD 1973 SC 24 and Assistant Collector v. Al-Razak Synthetic (Pvt.) Ltd. 1988 SCMR 2514 rel.

Mudasar Khalid Abbasi, A.A.-G. Punjab, Maqbool Ahmed, Secretary Colonies and Abdul Rauf, General Assistant, Revenue Sargodha for Appellant.

Zulfiqar Khalid Maluka, Advocate Supreme Court, Nazir Ahmed Bhutta, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondents.

Date of hearing: 23rd February, 2012.

ORDER

EJAZ AFZAL KHAN, J.—This appeal with the leave of the Court has arisen out of the judgment dated 10-5-2006 of the Lahore High Court, Lahore, whereby the learned Judge of the Court in his Chambers dismissed the revision petition filed by the appellant and maintained the judgment and decree granted by the learned Courts below.

2. Brief facts of the case as described in para 2 of the impugned judgment read as under:–

“The case of the respondent was that he was an allottee of the suit land and was in cultivating possession of the same since 1973-74. He applied for conferment of proprietary rights in the suit land on the basis of the Notification No.3215-79/3973-C II dated 3-9-1979 wherein the policy of the government has been setout for conferring proprietary rights in respect of State land. The defence setup by the petitioner Province was that under para 2(iv)(b) of the aforesaid notification, the suit land fell within the belt in respect of which proprietary rights could not be conferred”.

3. Learned Assistant Advocate-General, Punjab appearing on behalf of the appellant contended that where in view of section 4 of the Colonization of Government Land (Pb.) Act, 1912, jurisdiction of the civil Court is ousted, it could not entertain, hear and adjudicate upon a dispute emerging out of an order passed under the Act. The learned A.A.-G. to support his contention placed reliance on the cases of “Muhammad Nazir Khan v. Ahmad and 2 others (2008 SCMR 521), Province of the Punjab through Collector District Khushab, Jauharabad and others (2007 SCMR 554) and Muhammad Ishaq v. Abdul Ghani and 3 others (2000 SCMR 1083)”. The civil Court, the learned A.A.-G. added, has jurisdiction to step in where the order passed is void or without jurisdiction which is not the case here, therefore, its finding being coram non judice cannot stand. The learned A.A.G by referring to a latest map indicating the position of the suit land contended that when it falls within the radius of 5 miles, the decision taken by the fora functioning in the relevant hierarchy cannot be said to have been passed without jurisdiction and lawful authority so as to vest jurisdiction in the Civil Court.

4. Learned counsel appearing on behalf of the respondents contended that the crow line drawn on the map Exh-D.7 to indicate the position of the suit land, would show that it ends where the boundaries of the suit land begin. If this aspect, he added, is considered then the suit land falls outside the radius of five miles, therefore, the decision given by the fora functioning in the hierarchy of the Act appears to be void as they declined grant of proprietary rights to the respondents on the grounds which are whimsical by every attribute.

5. We have gone through the entire record carefully and considered the submissions of the learned counsel for the parties.

6. To appreciate the arguments of the learned A.A.-G., a reference to the relevant part of pares 2 of the notification is necessary which is reproduced as under:–

“2. Exception and Reservations —

Unless it is otherwise specifically provided, the following lands shall be deemed to have been expressly excluded from every grant under these conditions:–

(i) …………………………..

(ii) …………………………..

(iii) …………………………..

(iv) lands lying within a belt of.

(a) …………………………..

(b) five miles running along and on the cuter side of the outer limits of a Municipality”

7. To prove that the suit land, falls within the radius of five miles of the outer side of the outer limit of the Municipal Committee a crow line was drawn in the map which is Exh.D-7 on the record. A look at the map would reveal that the crow line indicating the radius of 5 miles ends where the boundaries of the suit land begin. When so the contention of the learned A.A.-G. does not appear to be correct. The other argument as to the jurisdiction of the Civil Court also falls with the fall of the argument stressing that the suit land lies within the radius of 5 miles. A decision given by the fora functioning in the hierarchy, therefore, cannot be said to have been given within the parameters of law and jurisdiction. For the very condition for the conferment of a jurisdiction on a Court of law is that it should decide every lis before it fairly, justly and in accordance with law. Where a Court or a Tribunal makes an error of law on which the decision of the case depends, it goes outside its jurisdiction.

8. In the case of Anisminic Ltd. v. Foreign Compensation Commission Lord Denning who was the pioneer of this principle held as under:–

“I would suggest that this distinction should now be discarded. The High Court has, and should have, jurisdiction to control the proceedings of inferior courts and tribunals by way of judicial review. When they go wrong in law, the High Court should have power to put them right. Not only in the instant case to do justice to the complainant. But also so as to secure that all courts and tribunals, when faced with the same point of law, should decide it in the same way. It is intolerable that a citizen’s rights in point of law should depend on which judge tries his case, or in what court it is heard. The way to get things right is to hold thus: No court or tribunal has any jurisdiction to make an error of law on which the decision of the case depends. If it makes such an error, it goes outside its jurisdiction and certiorari will lie to correct it.”

9. In the case of Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others (PLD 1987 SC 447), the Hon’ble Supreme Court held as under:–

“It is not right to say that the Tribunal, which is invested with the jurisdiction to decide a particular matter, has the jurisdiction to decide it “rightly or wrongly” because the condition of the grant of jurisdiction is that it should decide the matter in accordance with the law. When the Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it because the Tribunal has the jurisdiction to decide rightly but not the jurisdiction to decide wrongly. Accordingly, when the tribunal makes an error of law in deciding the matter before it, it goes outside its jurisdiction and, therefore, a determination of the Tribunal which is shown to be erroneous on a point of law can be quashed under the writ jurisdiction on the ground that it is in excess of its jurisdiction.”

10. In the case of Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa and 5 others (2001 SCMR 338), the Hon’ble Supreme Court after considering a string of its judgments held as under:–

“There is no cavil with the proposition that ordinarily the High Court in its Constitutional jurisdiction would not undertake to reappraise the evidence in rent matters to disturb the finding of facts but it would certainly interfere if such findings are found to be based on non-reading or misreading of evidence, erroneous assumptions of facts, misapplication of law, excess or abuse of jurisdiction and arbitrary exercise of powers. In appropriate cases of special jurisdiction, where the District Court is the final Appellate Court, if it reverse the finding of the trial Court on the grounds not supported by material on record, the High Court can interfere with it by issuing writ of certiorari to correct the wrong committed by the Appellate Authority.”

11. In the case of Rahim Shah v. Chief Election Commissioner PLD 1973 SC 24, the honourable Supreme Court while dealing with a similar aspect of the case held as under:-

“The scope of interference in the High Court is, therefore, limited to the inquiry whether the Tribunal has in doing the act or undertaking the proceedings acted in accordance with law. If the answer be in the affirmative the High Court will stay its hands and will not substitute its own findings for the findings recorded by the Tribunal. Cases of no evidence, bad faith, misdirection or failure to follow judicial Procedure, etc. are treated as acts done without lawful authority and vitiate the act done or proceedings undertaken by the Tribunal on this ground. Where the High Court is of opinion that there is no evidence proper to be considered by the inferior Tribunal in support of some point material to the conviction or order, certiorari will be granted.”

12. In the case of Assistant Collector v. Al-Razak Synthetic (Pvt.) Ltd. (1988 SCMR 2514), the honourable Supreme Court re¬¨affirmed this view in the following words:–

“In our view, it was not proper on the part of the learned Judges of the Division Bench of the High Court to have decided the above technical questions without getting first the decision of the Central Board of revenue on the basis of the material which the parties might have produced before it in support of their claims. The High Court generally does not investigate disputed questions of fact in exercise of its Constitutional jurisdiction. However, it can interfere with a finding of fact, if it is founded on no evidence or is contrary to the evidence on record or the inferences drawn therefrom are not in accordance with law.”

13. A decision given on wrong premises and erroneous assumptions was rightly set aside by the learned trial and appellate courts. The impugned judgment of the High Court maintaining such decisions being unexceptionable is not open to any interference.

14. For the foregoing reasons, this appeal being without merit is dismissed.

S.A.K./P-2/SC Appeal dismissed.

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