P L D 1975 Lahore 954 (PLP)

The appellant filed a suit for permanent injunction restraining the respondent from realizing sum of Rs. 11,244 as land revenue on account of penalty for alleged illegal extraction of bajri, imposed on him by the Collector, Attock District, by his order dated 2‑3‑1954. The case of the appellant as set out in his plaint is that he supplied bajri to the Public Works Department in 1951‑52 and out of the same 40,000 Cft. was extracted by him under two permits, issued in his name by the authority concerned and the rest of it was purchased by him from different persons, who either held permits or extracted bajri from the areas which were otherwise exempted. According to the appellant the Collector held an inquiry in 1952 as to whether the entire bajri had been extracted against valid permit or not. The Collector ultimately decided the matter against the appellant and ordered him to pay Rs. 11,244, three times the royalty amounting to Rs. 3,

748. This order was passed by him under the Punjab Minor Mineral Rules promulgated vide notification dated 23‑12‑1933 by the Financial Commissioner, Revenue, with the previous approval of the Governor‑in‑Council.

2. The appellant challenged the order of the Collector on the Revenue side before the higher authorities, but failed to obtain any redress. He thereafter instituted the above‑mentioned civil suit. He challenged the vires of the order, as referred to above, on the following grounds: (a) The Minor Mineral Rules, 1933 being penal provisions, the Financial Commissioner of the former Punjab had no power to frame the same. (b) The said Rules are in excess of the powers vested in the Financial Commissioner by section 60 (c) and section 155 subsection (1), clauses (c) and (g) of the Punjab Land Revenue Act. (c) The amount of penalty as imposed by the Collector cannot be legally recovered as an arrear of land revenue. . (d) The procedure adopted by the Collector was unwarranted by law. This suit was resisted by the respondent, inter alia, on the ground than the civil Court had no jurisdiction to entertain the same and no injunction could be issued, as prayed for in the suit, under section 56 of the Specific Relief Act. The learned trial Court framed the following issues on the basis of the pleadings of the parties: (1) Whether the civil Court's jurisdiction has been barred to entertain this suit? (O. D.) (2) Whether section 56 of the Specific Relief Act is a bar to the suit? (3) Is the order of the Collector, dated 3‑2‑1954, illegal and ultra vires? (4) Whether the suit is within time? (5) Whether the suit is properly instituted? (6) Whether the Financial Commissioner had no power to frame the Minor Mineral Rules which are penal provisions? (7) Whether the penalty imposed on the plaintiff cannot be recovered as arrears of Land Revenue. (8) Whether the procedure to fix the penalty, adopted by the Collector was against law? (9) Relief.

3. Issues Nos. 1 and 2 were found in favour of the respondent while issue No. 3 was found against the appellant. Issues Nos. 4 and 5 were also decided in favour of the appellant while issue No. 6 was found against him. Issue No. 7 was also found against the appellant as, it was held that the amount of penalty could be recovered as arrears of land revenue. Issue No. 8 was also found against the appellant and the suit was consequently dismissed with costs. The appeal of the appellant before the learned District Judge also failed. The appellant has now assailed the findings of both the Courts below in the present appeal.

4. The decision of Issues Nos. 1 and 2 is dependent on the decision of issue No. 3; as to whether the order dated 3‑2‑1954, passed by the Collector is illegal and ultra vires or‑not. If it is found that the said order is in excess of the jurisdiction conferred upon the Collector, then civil Court would have jurisdiction to deal with the matter and the suit would be competent. The learned counsel for the respondent has relied upon the provision as contained in section 158 of the Punjab Land Revenue Act, providing that the civil Courts would not have any jurisdiction in relation to the matters such as the amount of, or the liability of any person to pay any fee, fine, costs or other charges imposed under the Act. It has also been contended that since the order of the Collector was within jurisdiction, therefore, the same cannot be held to be in excess thereof and, therefore, the suit will not be covered by section 9 of the C. P. C.

5. It is now well settled law that jurisdiction of the Court is not ousted, in any manner unless there is express enactment to that effect by the Legislature or the result follows as a necessary intendment of the law. An order passed by a tribunal would only be sacrosanct if it is passed with jurisdiction. In that case only the correctness of the order cannot be impeached in the civil Courts. It has been held in Ch Barkat Ali v. West Punjab Province P L D 1952 Lah. 200 that there is no doubt that clause (xiv) of subsection (2) of section 158 of the Punjab Land Revenue Act bars the jurisdiction of the civil Court with respect to any claim connected with or arising out of the calculation by Govern ment, or the enforcement by the Government of any process for the recovery e of land revenue, or any sum recoverable as an arrear of land revenue, however, if the person concerned sets up a case that the sum in question is neither land revenue nor a sum recoverable as an arrear of land revenue, then the suit will be within the competence of the ordinary civil Courts. In that case the Revenue Officers or Courts would have no jurisdiction and ordinary civil Courts can declare accordingly. It has further been held that in that case the decision of the civil Court would not amount to an encroach ment on the special rights of the Revenue Officers or Courts. It may be noticed that in the present case the main contention‑ of the appellant is that the alleged amount of penalty has been illegally imposed upon him and the same cannot be recovered as arrears of land revenue.

6. It was held in the Province of West Pakistan v. Ha/1 Muhammad Jumma and another P L D 1960 Kar. 908 that the civil Courts cannot sit in judgment over the decisions of the Revenue Officers, if they have acted in jurisdiction. There is however sharp distinction between jurisdiction and exercise of jurisdiction. Jurisdiction is the authority to hear and decide a question. It is sometimes exceeded in its exercise, but so long as a question is decided within the limits of a jurisdiction, it is immaterial, from the jurisdiction point of view, whether the decision is right or wrong. It has further been held that the civil Courts can check the errors of usurpation of power made by Revenue Courts or Officers but not the errors of their judgment. Similar view was taken in a Full Bench authority reported as Lachhman Singh v. Natha Singh and others A I R 1940 Lah.

401. The provision as contained in section 21 of the Punjab Relief of Indebtedness Act, 1934, was under consideration. The said section debars the civil Courts from entertaining suits to question the validity of any procedure or the legality of any agreement made under this Act or to recover any debt in respect of which an agreement has been recorded in section 17 or to recover any debt which has been deemed to have been duly discharged under subsection (2) of section 13 of the said Act. Relying upon the judgments in Shivdin v. Rarnratan 170 I C 905, Kanhaiya Lal v. Govind Tukaram A I R 1938 Nag. 203, Motiram v. S. S. Bhuramalsao 169 1 C 268 and Ram Lal v. Sheo Lal 169 I C 323 where the similar provisions of the C. P. Debt Conciliation Act were held not to bar consideration by Courts of matters decided by Debt Conciliation Boards in excess or in contravention of the powers conferred on them by the Act, the decision of the relevant authority under the Punjab Relief of Indebtedness Act was found to be in excess of jurisdiction and as such it was held that the civil Court had jurisdiction under section 9, C. P. C. to entertain the suit.

7. In order to find out as to whether the order of the Collector was in excess of his jurisdiction or not and whether the relevant provision of the Punjab Minor Mineral Rules conferred any such power upon him to impose penalty upon the appellant in the circumstances of the case and then realise the same as arrears of land revenue, the examination of the relevant provisions of the said Rules would be necessary. Rule 3 (2) provides that a person, not being a permit‑holder, who is found in possession of any recently quarried mineral, shall be deemed to have quarried such mineral without a permit unless he furnishes proof to the satisfaction of the Collector that the said mineral was quarried by a permit‑holder. The next rule relevant for the decision of the case is rule 17 (iv), which provides that any person who quarries any mineral without a permit or who quarries a different mineral from that specified in the permit or a larger amount than what is so specified or alienates by sale or otherwise any mineral in contravention of the conditions prescribed in the Rules or in his permit shall at the discretion of the Collector be liable to pay royalty up to 10 times the amount of royalty payable under rule 8 and such royalty, if not paid within one month of demand, may be realized as an arrear of land revenue. The interpretation of rule 3 (2) of the Minor Mineral Rules was the subject‑matter of a case decided by Mr. Nasir Ahmad, Financial Commissioner, reported as Messrs Redpath Brown & Company v. The Crown P L D 1955 Pb. (Rev.)

11. The contention as raised before the learned Financial Commissioner on behalf of the petitioner was that at the time when the Garrison Engineer made his report to the Collector, the mineral was not in the possession of the petitioner and had already been used in buildings which were in the custody of the Garrison Engineer himself. It was further contended that all fiscal laws were to be construed strictly and in the case of doubt advantage was to be given to the subject. It was further contended that according to the correct interpretation of the rule since the petitioner‑Company was not found in possession of any recently quarried mineral, though they had been in possession of it at some time having purchased it from certain suppliers, therefore, it was not liable to be penalized under the said Rules. Agreeing wish these contentions it was found that since the petitioner‑Company had not been found in possession of a recently quarried mineral, therefore, it was not liable to be penalized.

8. I have not been able to find out any authority of this Court or any other Court, or even the Supreme Court in regard to the interpretation of rule 3 (2) of the said Rules. After carefully examin ing the said provision I am of the view that the word "recently" has been purposely used by the framers of the Rules. The intention as evident from the said Rules is that only that person who is not a permit holder and is found in possession of a recently quarried mineral would be held liable to penalty unless he furnishes proof to the satisfaction of the Collector that the said mineral was quarried by a permit‑holder. The effect of the word "recently" has not been considered by both the Courts below They have found that since the appellant was found in possession of the quarried mineral and since he could not prove that the entire quantity of the bajri had been extracted by him against valid permit, therefore, he was rightly punished by the Collector. I am afraid, the possession of any quarried mineral is qualified by the word "recently". If sufficient time had elapsed when such mineral was in possession of a person not being a permit‑I holder, then the provision as contained in the said rule will not be applicable against him. In the present case rule 17 (iv) (c) will be relevant, which provides that any person who alienates by sale or otherwise any mineral in contravention of the conditions prescribed in these Rules shall be liable to pay royalty determined by the Collector. The circumstances of the case, as discussed above, show that the mineral in question was purchased by the appellant from some other persons, who were produced by him in defence and who deposed, as admitted by the Courts below, that they had supplied the said mineral which had been extracted by them from the area which was otherwise exempted. Rule 17 (iv) (c) applies to alienors and not to the transferees or purchasers. If the Collector was not satisfied with theca explanation of the appellant then it was obligatory for him to hold detailed inquiry in order to find out as to whether the persons who supplied the mineral to him or from whom lie purchased the same were the permit. holders or not, or whether the land from where the mineral was extracted was otherwise exempted and no permit was needed for the extraction of the mineral therefrom. It is apparent on the record that no such inquiry was ever held and the order was passed by the Collector on the basis of the information received from the record of the Railway through its Divisional Superintendent at Rawalpindi. The relevant portion of the order of the Collector in this regard has been reproduced by the learned trial Judge in paragraph 7 of his judgment. It reads as follows: " . . . . the figures of the booking of bajri made by various contractors were collected from Railway record and Office Clerk. According to the Railway records S. Abdur Rehman Shah Contractor, had booked 18146 Cft and 1,691224 Cft. bajri from Railway Stations Lawrencepur and Burban, respectively . . . . , the Contractor was asked to produce his quarrying accounts showing the total quantity of bajri supplied by him to the P. W. D. . . ." After referring to the said portion of the order of the Collector, the trial Court has found in the same paragraph of its judgment that the appellant was not found in possession of recently quarried mineral though he had been in possession of the same in the past. It has also been found in this judgment that there was nothing in the order of the Collector to show as to when the appellant had been found in possession of bajri in excess of the quantity which he otherwise was allowed to possess. After having found like that both the Courts below have however erred in holding that since the order of the Collector was within jurisdiction, therefore, the civil suit was not competent. I am afraid, this finding cannot be sustained in law. As dis cussed above, if the appellant was not found in possession of `recently quarried mineral' then he could not be held liable to pay any penalty. The circumstances of the case as discussed above show that after the mineral had been supplied by the appellant to the P. W. D. the Collector started inquiry against him as to how much was extracted by him against his permit and wherefrom he received the remaining part of the bajri. In spite of the fact that it was brought to his notice by evidence of the appellant that the remaining part of the bajri was supplied by the D. Ws. he did not consider it advisable to hold inquiry as to whether the said bajri was extracted by the said witnesses from the area which was otherwise exempted, as claimed by them. The same plea was taken by the appellant before the learned trial Court and he produced P. Ws. 1 to 3 in this behalf in addition to himself. Since no inquiry was held by the Collector, as mentioned above, therefore, it could not be found that the bajri supplied by various persons to the appellant was received by him in contravention of the Rules.

9. The above discussion would show that the order of the Collector was in excess of his jurisdiction in the circumstances of the case. In this view of the matter issues Nos. 1, 2 and 3 are decided in favour of the appellant and the decision regarding them by both the Courts below is hereby set aside.

10. Since the order of the Collector in imposing the penalty has been found to be without jurisdiction, therefore, the question of recovery of the amount of penalty as arrear of land revenue does not arise. Issue No. 7 is, therefore, found in favour of the appellant.

11. The next contention of the appellant, as discussed above, is with regard to the powers of the Financial Commissioner to frame Minor Mineral Rules. Since the order of the Collector in imposing the penalty and in realizing the same as arrear of land revenue has been .held to be without jurisdiction even under the rules, there is no need to adjudicate upon this issue. The appellant has been given due relief even without the decision of this issue.

12. In view of the above discussion the appeal is accepted and the impugned judgments of both the Courts below are hereby set aside. Since an important question of law was involved, therefore, there will be no order as to costs. K. B. A. Appeal accepted.