2020 PLP 1453 (CLC)

SYED MUHAMMAD ATTIQUE SHAH, J.

Through this single judgment, I intend to dispose of the following writ petitions as common questions of law and facts are involved therein:-

1. W.P.No.89-D of 2015,

2. W.P.No.65-D of 2016,

3. W.P. No.112-D of 2016,

4. W.P.No.657-D of 2016,

5. W.P.No.361-D of 2017,

6. W.P.No.394-D of 2017,

7. W.P.No.497-D of 2017,

8. W.P. No.1032-D of 2017,

9. W.P. No.381-D of 2018,

10. W.P. No.561-D of 2018,

11. W.P. No.590-D of 2018,

12. W.P. No.591-D of 2018,

13. W.P. No.612-D of 2018,

14. W.P. No.717-D of 2018,

15. W.P. No.766-D of 2018,

16. W.P.No.167-D of 2019,

17. W.P. No.196-D of 2019,

18. W.P. No.198-D of 2019,

19. W.P. No.213-D of 2019,

20. W.P. No.272-D of 2019,

21. W.P. No.296-D of 2019,

22. W.P. No.415-D of 2019,

23. W.P. No.527-D of 2019,

24. W.P. No.557-D of 2019,

25. W.P. No.646-D of 2019,

26. W.P. No.664-D of 2019,

27. W.P.No.887-D of 2019 and

28. W.P.No.1147-D of 2019.

2. The above petitions stem from applications for partition of property which culminated in the judgments and orders of the Board of Revenue, the final forum in revenue hierarchy. In most of the above cases, Girdawar Circles were appointed as commission whereas in certain cases retired Tehsildar and Naib Tehsildars were so appointed, however, in one case, an Advocate was appointed as commission. Chapter XI of West Pakistan Land Revenue Act, 1967 (Act) (Sections 135 to 150) relates to partition proceedings. According to section 150 of the Act, the Revenue Officer by whom proceedings may be taken under this chapter shall be a Revenue Officer not below an Assistant Collector of the First Grade. The term Revenue Officer has been defined in sub-section (23) of Section 4 of the Land Revenue Act, 1967 which means a Revenue Officer having an authority under this Act to discharge the functions of a Revenue Officer. However, Section 7 of the ibid Act has provided various classes of Revenue Officers which are reproduced below:- "

7. Classes of Revenue Officers. (1) There shall be the following classes of Revenue Officers, namely:- (a) The Board of Revenue; (b) The Commissioner; (c) The Collector; (d) The Assistant Collector of the first grade; (e) The Assistant Collector of the second grade. (2) The Deputy Commissioner or the District Officer, or the officer performing for the time being functions as such shall be the Collector thereof; (3) The Assistant Commissioner shall be the Incharge of the sub-Division of the district; The bare reading of the ibid provisions clearly suggests that the powers to conduct the partition proceedings under Chapter XI of the Act have been conferred upon the Revenue Officer and thus, the same could only be exercised by him and not by any other subordinate revenue official of the department.

3. It was contended that under the provisions of subsection (3) of the Section 20 of the Land Revenue Act, 1967, the revenue officer is empowered to refer any case which under the law he is empowered to dispose of himself under the Act to any subordinate revenue official for its investigation and report. The ibid contention is without force, being misconceived, as subsection (3) of section 20 of the Land Revenue Act, 1967 has clearly provided that 'subject to the rules made under this section, a Revenue Officer may refer any case which he is empowered to dispose of under this Act to another Revenue Officer subordinate to him for investigation and report and may decide the case upon such report after giving the parties concerned an opportunity of being heard', meaning thereby that the revenue officer may refer any case to another Revenue officer subordinate to him for investigation and report but not to any other subordinate revenue official of the department i.e. Kanungo or Patwari. It is also important to note that Section 7 of the Act has provided various classes of the Revenue Officers, whereas, Land Record Manual (Manual) has provided categories of subordinate revenue officials i.e. Kanungo (Chapter 2) and Patwari (Chapter 3) of the Manual, however, the term Girdawar has not been provided anywhere by the Manual. The learned counsel representing the respondents vehemently argued to justify the proceedings conducted by Girdawar Circle and relied upon the provisions of Rule 7 of The (W.P.) Land Revenue Rules, 1968 and contended that under the ibid rule, the provisions of Sections 75 to 78 read with Order XXVI of the C.P.C. had been made applicable to the proceedings before the Revenue Officer and thus, the Revenue Officer is empowered under the ibid rule to issue Commission in the proceedings pending before him to such person as he deems appropriate to make such investigation and to report thereon. As earlier discussed, the provisions of subsection (3) of Section 20 of the Act clearly provided that (3) Subject to the rules made under this Section, a Revenue Officer may refer any case which he is empowered to dispose of under this Act to another Revenue Officer subordinate to him for investigation and report and may decide the case upon such report after giving the parties concerned an opportunity of being heard. When the ibid provisions of Rule 7 are read in juxtaposition with the above referred provisions of subsection (3) of Section 20 of the Act, this Court is of the opinion that the Revenue Officer is competent and empowered under the law to appoint a local commissioner to conduct commission proceedings, however, he must not be below the rank of a Revenue Officer.

4. Apart from the above, learned counsel, neither could refer to any provision of law, which could authorize the Girdawar Circle to conduct the said proceedings nor could satisfy the Court that the Revenue Officer could delegate his powers to any other subordinate Revenue Official of the department for the conduct of the ibid proceedings. Here a question arises that whether except the Revenue Officer, any other subordinate Revenue Official of the department is competent to conduct demarcation proceeding under the ibid Act? Perusal of the Act reveals that the entire scheme of partition revolves around the Revenue Officer and the ibid Act has nowhere provided that partition proceedings could be conducted by any person other than the Revenue Officer, nor it has been provided that the Revenue Officer could delegate his powers to any other person subordinate to him below the rank of Revenue Officer for the conduct of the said proceedings. Therefore the entire proceedings conducted by the Girdawar Circle/Retired Tehsildars and Naib Tehsildars and Advocate are illegal and thus, not sustainable in the eye of law. It is well settled that when the law requires a thing to be done in a particular manner, then it should have be done in that particular manner and not otherwise. It is also noteworthy that earlier an identical question came up for hearing before this Court in case titled Muhammad Rehman Zaib and 5 others v. Sardar Khan and 6 others (2016 YLR 35 Peshawar) where in it was held that only Revenue Officer is competent under the law to conduct the partition proceedings and no other subordinate Revenue Official. The above judgment was also subsequently followed by this Court in case titled Mst. Bachu Bibi v. Member Board of Revenue and others (W.P. No. 378-D of 2012) decided on 21.11.2017.

5. In view of above, since in W.P.Nos.65-D/2016, 112-D/2019, 296-D/2019, 415-D/2019, 646-D/2019, 664-D/2019, 887-D/2019 and 1147-D/2019, the matter has already been remanded for appointment of fresh local commission not belong the rank of Revenue Officer, therefore, these petitions having no substance are hereby dismissed whereas the remaining petitions are accepted, the impugned orders of the revenue hierarchy are set aside and the matters in question are remanded to the concerned learned lower revenue forums with the direction to appoint fresh local commissions in the light of observations made above and then to decide the partition applications afresh, strictly in accordance with law. However, it shall be highly appreciated if the ibid proceedings are concluded at the earliest keeping in view the long standing disputes between the parties. SA/33/P Order accordingly.