1999 PLP 990 (CLC)

One Paujdar son of Bahar Ali died issue less and mutation of inheritance bearing No.787 was attested by the Revenue Officer, Bhakkar on 2‑3‑1998 in favour of his paternal cousin Nazar Muhammad petitioner. Claiming to be the son of Faujdar deceased, Akhtar Ali respondent No.3 preferred the appeal before the Assistant Commissioner/Collector, Bhakkar against the aforesaid order, dated 2‑3‑1998 which is still pending.

2. However, Akhtar Ali respondent No.3 also submitted an application before the Deputy Commissioner, Bhakkar/respondent No. l on 2‑4‑1998 for the cancellation of aforesaid Mutation No.787 attested on 2‑3‑1998 on the ground that Nazar Muhammad had no relationship with Faujdar and that he (Akhtar Ali) was his son. On 2‑4‑1998 Akhtar Ali alongwith his 32 witnesses, out of whom one is named as Muhammad Rafique, appeared. The Deputy Commissioner/ District Collector, Bhakkar expressed the opinion that the witnesses produced before him were the persons of advanced age. After recording the version of Akhtar Ali the Deputy Commissioner, Bhakkar declared Mutation No.787 attested on 2‑3‑1998 as inoperative and passed the order that the same shall not be entered in the record of rights. He also directed the Assistant Commissioner/ Collector, Bhakkar to pass the detailed judgment after hearing the parties.

3. Feeling aggrieved Nazar Muhammad petitioner filed this Writ Petition No.7067 of 1998 to get declared the aforesaid impugned order, dated 2‑4‑1988 as null, void, without lawful authority and inoperative on the grounds that he was not summoned and heard by the Deputy Commissioner, Bhakkar and that the appeal against the attestation of Mutation No.787 sanctioned on 2‑3‑1998 was pending before the Assistant Commissioner/Collector, Bhakkar. In the writ petition he incorporated the material of his reliance whereby he claimed to be the paternal cousin of Faujdar deceased and denied the relationship of Akhtar Ali respondent No.3 with the deceased.

4. The comments were called form the Deputy Commissioner, Bhakkar who admitted about the filing of an application by respondent No.3 for cancellation of disputed mutation before him. He admitted the passing of the impugned order and took up the stand that he was competent to pass such an order as he had the jurisdiction to review the mutation under Notification No.1590‑89/1071‑LR/IV, dated 18‑6‑1989 issued by the Board of Revenue Punjab, Lahore. He maintained that the impugned order, dated 2‑4‑1998 passed by him was not contrary to law. He expressed that the present writ petition was premature, as no final order regarding disputed mutation has since been passed. He also expressed about the relationship of Akhtar Ali respondent No.3 with Faujdar deceased and also intimated this Court about the pendency of a civil suit before the learned Senior Civil Judge, Bhakkar. He added that Mutation No.787, dated 2‑3‑1998 was sanctioned by the revenue field staff incorrectly which was rightly declared as ineffective by him on 2‑4‑1998 and his order restraining the revenue field staff to implement the same was perfectly valid. He added that the final order has still to be passed by the Assistant Commissioner/Collector, Bhakkar in the appeal pending before him. The writ petition has also been resisted by Akhtar Ali respondent No.3. 5.. The matter was under process. Vide order, dated 1‑12‑1998; I passed the order for the personal appearance of Malik Mazhar Farid, Deputy Commissioner, Bhakkar before this Court on 16‑12‑1998 with the observation that in this case an important matter is to be considered as to whether the order of the sanction of mutation by the Revenue Officer has to be considered in appeal by the Assistant Commissioner/Collector, Bhakkar or any remedy is available before the Deputy Commissioner/District Collector, Bhakkar which revolves around the important dispute with respect to the substantive jurisdiction of the District Collector in the revenue hierarchy as the Deputy Commissioner, Bhakkar is asserting his jurisdiction in the matter in the comments. However, on 16‑12‑1998 a copy of the order, dated 10‑12‑1998 passed by the Deputy Commissioner, Bhakkar was placed before this Court which was added to this file. Through the said order, dated 10‑12‑1998 the Deputy Commissioner, Bhakkar reviewed the impugned order, dated 2‑4‑1998 and himself set aside the same. Due to the aforesaid order, dated 10‑12‑1998 Malik Ijaz Hussain Ghorcha, Advocate for Nazar Hussain writ petitioner withdrew this petition when it was recorded that obviously the parties are at array at the appellate stage because the appeal is pending before the Assistant Commissioner/Collector, Bliakkar and the same shall be disposed of in accordance with law.

6. As such I passed the order for the disposal of the writ petition as withdrawn.

7. Even though actually I have passed the order for the disposal of the writ petition as withdrawn due to the passing of the order, dated 10‑12‑1998 by the Deputy Commissioner, Bhakkar; I have chosen to dispose of the controversy involved in this writ petition on merits as the same is that of public interest litigation and will be a source of convenience to the landowners in the Province wherein the substantive jurisdiction of the Deputy Commissioner/District Collector has been challenged and questioned in the aforesaid circumstance.

8. Section 42 of the Land Revenue Act, 1967 deals with the procedure for making of that part of periodical records which relates to the land‑owners. Under subsection (6) of this section 42 of the Act the mutation of inheritance, purchase, mortgage gift or acquisition of any right otherwise is sanctioned by the Revenue Officer after the entries made by the Patwari in the Register of Mutations are placed before the Revenue Officer. It is a matter of common knowledge that a Revenue Officer is either a Tehsildar or a Naib‑Tehsildar who can sanction a mutation of the instant nature. Against the order of the Revenue Officer an appeal is competent before the Collector when the order is made by A an Assistant Collector of either grade; the appeal is competent before the Commissioner when the order is made by a Collector and the appeal is preferred before the Board of Revenue only on a point of law when the order is made by the Commissioner. R perusal of section 161 of the Land Revenue Act, 1967 has made out that the District Collector/Deputy Commissioner stands eclipsed therefrom and, thus, the vires of the sanction of Mutation No.787 on 2‑3‑1998 B by the Revenue Officer could not be analysed, dissected and considered by the District Collector. This being the position he could not cancel the Mutation No.787, dated 2‑3‑1998.

9. At this stage I deem it proper to reproduce as under Notification, dated 18‑6‑1989 referred to and relied upon by the Deputy Commissioner, Bhakkar so that the true picture emerges:‑ "Government of the Punjab, Revenue Department Notification Lahore, dated the 18th June. 1989 No.1590‑89/1071‑LR.IV. In supersession of Government of the Punjab, Revenue Department's Notification No.454‑B/87/818‑LR.IV, dated the 10th May, 1987, the Governor of the Punjab, in exercise of the powers under subsection (1) of section 16 of the Punjab Land Revenue Act, 1967, is pleased to confer all the powers of Collector under the said Act upon the Assistant Commissioners, to be exercised within the area of their respective jurisdiction, subject to the control and supervision of the District Collectors concerned. The following cases will, however, continue to be taken congnizance by District Collector directly:‑‑ (i) Appeal against the orders of Assistant Collector 1st Grade in cases of partition; (ii) Correction in revenue records; (iii) Sanction for review of mutations; (iv) Suspension and remission of Land Revenue; (v) Creation of demand of Land Revenue; and (vi) Appointment or removal of Headmen (Lambardars) By Order of The Government of Punjab (Sd.) Additional Secretary, Government of the Punjab, Revenue Department No.1590‑89. 1073‑LR.IV. A copy is forwarded for the information and necessary action to :‑‑

1. All the Commissioners of Divisions in the Punjab

2. All the Additional Commissioners (Rev) in the Punjab 3 Secretary (Settlements), Board of Revenue, Punjab

4. Director Land Records, Punjab, Lahore

5. Director Punjab Revenue Academy 161‑C, Peco Road, Township, Lahore 6 All the Deputy Commissioners in the Punjab

7. Settlement Officers, D.G. Khan and Rajanpur 8 The Managing Director, Cholistan Development Authority, Bahawalpur 9 All the Assistant Commissioners in the Punjab

10. The Political Assistants, D.G. Khan Rajanpur

11. The Additional Deputy Commissioner (General), Lahore City and Lahore Cantt..

12. Registrar, Board of Revenue, Punjab

13. Librarian, Board of Revenue, Punjab, Lahore

14. Private Secretary to the Minister for Revenue, Punjab, Lahore. (Sd.) Additional Secretary, Government of the Punjab, Revenue Department.

10. The Deputy Commissioner, Bhakkar is under the impression that he has the over all supervisory jurisdiction upon his subordinates in the District and can analyse and look into any order passed by them. With all the regards I would express that he is mistaken and his view is simply based on conjectural hypothesis which cannot be approved by giving the weight to the same. No doubt the Deputy Commissioner of a District is the representative of the State. However, he cannot project his power beyond the substantive and procedural law of the Province. Section 161 of the Land Revenue Act, 1967 has to steal the eminence. The power and authority to set the law in motion is linked with the substantive jurisdiction without which the proceedings cannot be initiated by the Deputy Commissioner and consequently processed with. No doubt he has the supervisory jurisdiction over his subordinates yet he cannot trespass into the jurisdiction of any other officer. There are water tight compartments of jurisdiction as contained in section 161 of the Land Revenue Act, 1967 for the preference and hearing of the appeals in the revenue hierarchy. The Notification, dated 18‑6‑1989 does not empower the Deputy Commissioner to entertain the application and to pass the impugned order, dated 2‑4‑1989 and his constant assertion about his jurisdiction in the matter. I am tempted to express that even the pecuniary jurisdiction or the territorial jurisdiction of the Presiding Officer has to play the legal role. Keeping in view the mandatory provisions of section 161 of the Land Revenue Act, 1967 the jurisdiction of the Deputy Commissioner, Bhakkar to entertain and decide the application on 2‑4‑1998 made by Akhtar Ali respondent No.3 has not been incorporated/finds mention in the Land Revenue Act, 1967. It is simply surprising that the Mutation No.787 was sanctioned on 2‑3‑1998 in favour of Nazar Muhammad writ petitioner, while on 2‑4‑1998 the miscellaneous application was filed by Akhtar Ali respondent No.3 before the Deputy Commissioner, Bhakkar who without issuance of any notice to the adverse party i.e. Nazar Muhammad and without hearing him condemned him unheard and passed the order declaring the aforesaid Mutation No.787, dated 2‑3‑1998 as inoperative and restrained its entry in the record of rights. The law of land does not provide any dichotomy of the aforesaid nature i.e. pendency of the said appeal before the Court of competent jurisdiction i.e. Assistant Commissioner‑cum‑Collector Bhakkar and entertainment of the miscellaneous application by the Deputy Commissioner, Bhakkar and its disposal on merits. In case the summary order, dated 2‑4‑1998 is approved there would be administrative chaos in the society leading towards judicial anarchy in the revenue hierarchy. I would express that such a working must be avoided by the Deputy Commissioner, Bhakkar who has also to keep in mind the shape of scale of justice. Under section 163 of the Land Revenue Act the Deputy Commissioner was himself competent to review his own order, dated 2‑4‑1998 which has been reviewed by him vide order, dated 10‑12‑1998 and has been set aside. The stand taken by the Deputy Commissioner/District Collector, Bhakkar, in the comments that he could "review" the order, dated 2‑3‑1998 about the attestation of Mutation No.787 by the Revenue C Officer is devoid of legal force as he can review his own order or that of his predecessor in accordance with law and not that of any subordinate including the Revenue Officer(s). He has no supervisory jurisdiction of the aforesaid asserted nature in view of section 163 of the Land Revenue Act, 1967 dealing with the provisions of "Review". Further, his stand is also against the policy of the Government as the powers have been divided and decentralized through the issuance of the aforesaid Notification, dated 18‑6‑1989 read with section 161 df the Land Revenue Act, 1967 for the convenience of the landowners. I would express that this interpretation should not be taken in bad taste especially when the Deputy Commissioner/District Collector, Bhakkar has himself corrected his own order, dated 2‑4‑1998 through the passing of order, dated 10‑12‑1998 as he could review his own order. He has proceeded in the matter at his own end to redress the grievance of the writ petitioner and I would express that "all is well that ends is well".

11. In consequence it is declared that against the sanction of a mutation under section 42 of the Land Revenue Act, 1967 the appeal has to be preferred before and heard by the Assistant Commissioner/Collector, Bhakkar and the Deputy Commissioner/District Collector, Bhakkar has no jurisdiction to E entertain any application and to pass the impugned order, dated 2‑4‑1998 which was simply coram non judice from the date of its announcement.

12. No order as to costs. Q.M.H./N‑130/L Petition allowed