P L D 1965 Supreme Court 399 (PLP)

S. A. RAHMAN, J.‑This order will dispose of Civil Appeals Nos. K‑21 and K‑22 of 1964, which arise out of a judgment of the High Court of West Pakistan, Karachi Bench, passed in writ jurisdiction on two petitions the facts of which were inter connected and the same questions of law were raised in them. The appellants and the 4th respondent, Gul Muhammad, offered to buy certain areas of land from the Government at the rate of Rs. 120 or Rs. 125 per acre. A Collector under section 62 of the Sind Land Revenue Code, 1879 (hereinafter referred to as the Act), can make grants of unoccupied land subject to rules made by the Provincial Government. These applications were dealt with by the Assistant Revenue Officer, Sukkur Barrage, who, on the recommendation of the Mukhtiarkar, in exercise of his powers as a Collector under the Act, held that there ought to be a restricted auction of the lands in question, at which the appellants and the 4th respondent would be allowed to bid. The auction was held on 2‑3‑59. The 4th respondent did not participate in it and the land was therefore purchased by the appellants. Before the auction was held, however, the 4th respondent had sent an application to the Revenue Officer of the Barrage, complaining that he was being treated on a par with the appellants whereas he was a landless Hari and as such was entitled to the grant of the land in preference to the appellants. After the auction was over and the appellants had executed kabalas of the lands in question in favour of the Barrage authorities, the application of the respondent was treated as an appeal by the Revenue officer and that officer, it was alleged, without giving notice to the appellants, revoked the auction of the lands in question and directed that the lands be granted to the respondent, without auction. The appellants went up in appeal against these orders to the Additional Commissioner, Hyderabad. It was held in second appeal that the parties occupied the same status and the decision was, therefore, recorded that the land in dispute should be auctioned afresh between the parties. Revision petitions were filed against this decision by both parties, to the Board of Revenue, West Pakistan. The appellants challenged the directions for a fresh auction and the 4th respondent felt aggrieved by the finding that he occupied the same status as the appellants. A learned Member of the Board of Revenue accepted the revision petitions of the 4th respondent and rejected those of the appellants. He held that the 4th respondent was entitled to the transfer of the land without auction, in preference to the appellants. The appellants then filed the two writ petitions in the High Court and sought to have the orders passed in appeal and revision by the Revenue Authorities, quashed. The petitions were dismissed. Special leave to appeal was granted in these cases to consider the following questions:‑ (1) Whether the Colonization Officer had jurisdiction to entertain the application which was converted into an appeal, A and (2) Whether the status of the parties is equal. The main contention raised by Mr. A. S. Pirzada on behalf of the appellants is that the order purporting to have been passed in first appeal by the Revenue Officer of the Barrage was without jurisdiction Originally, it seems that the Revenue Officer enjoyed the powers of a Commissioner under a Government notification, but by notification dated 10‑4‑57 and bearing No. L&F‑16/4‑56 published in the Gazette of West Pakistan, dated the 19th of April 1957, the powers of a Commissioner were taken away from this officer, and he was invested with the powers of a Collector only, in respect of the area within his jurisdiction. The notification mentions section 8‑A of the Sind Land Revenue Code, 1879, as the legal sanction behind the notification. This section empowers the Provincial Government to appoint an Additional Collector in any district or for any part of a district and if such appointment is made, he would then "exercise all or any of the powers and discharge all or any of the duties conferred and imposed upon the Collector by the Act or any other law for the time being in force as the Provincial Government may direct." The notification, in terms, does not appoint the Revenue Officer as an Additional Collector. In the preamble to the notification, however, it is recited that the notification in question was being issued by the Governor, in exercise of all powers enabling him in this behalf. It seems to us that it would have been more apt to mention section 19 of the Act as the source of power for this notification. This section reads as follows:‑ "19., It shall be lawful for the Provincial Government to appoint one and the same person, being otherwise competent according to law, to any two or more of the offices provided for in this chapter or to confer upon an officer of one denomination, all or any of the powers or duties of any other officer or officers, within certain local limits or otherwise, as may seem expedient." The second part of the above section obviously covers the case of the Revenue Officer on the present facts. In view of the notification referred to above, there appears to be some force in the contention raised that the Revenue Officer who purported to exercise the Commissioner's powers in appeal, had ceased to enjoy those powers. Reference was also invited by Mr. Pirzada to Standing Order 10 of the Revenue Department, at page 12 whereof, the procedure is prescribed for land grants in the barrage area. It is recited in section B of that Standing Order that the Revenue Officer exercises the power of a Revenue Commissioner and the Assistant Revenue Officer of the Collector, under the Land Revenue Code, in respect of land grant matters in the barrage area. It should follow from the notification set out above that this recital is no longer accurate and indeed, in the absence of a notification divesting the Assistant Revenue Officer of the Collector's powers which he presumably enjoyed under a similar notification, it would appear that the Revenue Officer and the Assistant Revenue Officer both now enjoy co‑equal powers in respect of land grants. The order purporting to be passed in appeal by the Revenue Officer, therefore, had no legal basis and consequently the order passed in second appeal by the Additional Commissioner would appear to be a futile proceeding. An appeal is the creature of a statute and must be confined. within the limits imposed by the relevant statute. Under section 203 of the Act, an appeal from an order passed by a "Revenue Officer" under the Act, would lie to his immediate superior but the Revenue Officer who heard it, was clearly not in that position above the Assistant Revenue Officer, since both of them were invested with powers of a Collector. The order of the Revenue Officer being itself a nullity, it was inapt to make it the subject of an appeal, without canvassing the point of jurisdiction of the officer hearing the first appeal. This, however, does not conclude the matter. Even if the two appellate orders suffered from an infirmity, the order passed in revision by the learned Member, Board of Revenue, was not open to any such exception on the legal plane. By section 211 of the Act, the Board of Revenue possesses power to revise an order passed by any subordinate officer and questions of legality as well as propriety of such a decision would be open in revision before the Board. The order of the Board was passed after full hearing of both parties on the merits of the case. Even if therefore the intermediate appellate links were weak, the final order in revision, referable as it was to section 211 of the Act, could not be successfully assailed as illegal. Mr. Pirzada attempted to suggest that the order passed by the learned Member, Board of Revenue, was influenced by that of the Revenue Officer who bad held the parties to be unequal in status and that the order in question was open to challenge on the ground that the learned Member had not exercised his independent judgment in this matter. We are unable to accede to this contention as correct. The learned Member has given his own reasons why the respondent should be preferred to the appellants in respect of grant of the lands in question without auction. He noted that the respondent represented himself to be a Hart who possessed only 10 acres of "C" class land which he could not develop, while Pir Muhammad Hassan Jan Sarhandi, the father of the appellants who were minors and who were represented in the High Court by their father, as next friend, held at least 166 acres in Taluka Shahadadpur with another holding of 75 acres of barrage land in Deli Said Khan. Moreover, he was a rich transporter plying buses on more than one route. The learned Member went on to say that it was alleged before him that Pir Sahib had two flour grinding mills, one at Shahdadpur and the other in village Said Khan, was running a huge motor garage and was till recently Chairman of the Taluka Co‑operative Bank. One of his sons was studying in England and another son had just returned from that country after studying there. These facts, it was observed, which were specified in an affidavit of the respondent, were contested before him on behalf of the Pir Sahib but though given an opportunity to submit a counter‑affidavit, he had failed to do so. In these circumstances, it cannot be said that the learned Member just accepted the illegal finding of the Revenue Officer and did not apply his own mind to the facts of the case. Mr. Pirzada contended that his client was not supplied with a copy of the affidavit of the opposite‑party and therefore was not m a position to submit a counter‑affidavit before the Member, Board of Revenue. This point does not appear to have been agitated before the learned Member of the Board. But even if it represents a fact, the point seems to be merely of an academic character, in the face of the concession made by learned counsel that if an opportunity had been duly afforded to the Pir Sahib, he would not have been able to controvert the allegations made against him. All" that learned counsel contends is that the status of the appellants who owned no property in their own names, should not have been judged in the light of the Pir Sahib's status. The relevant provision in Standing Order No. 10 on this point is expressed in these terms:‑ "When there are more offers than one, of the same land, it may be auctioned, provided the parties are rich and influential or of equal status. In case of inequality of status, e.g., when a small khatedar or hari and a man of good means apply for a particular piece of land and if that piece is situate near about the village in which such small khatedar or hari resides or such small khatedar or hari has no other land except the land applied for, it should be given to the small khatedar or hari at the prescribed rates of malkano without resorting to auction. In cases where there is dispute between two haries, the hari near whose village the land is situate, should be given preference." The reasons given by the learned Member, Board of Revenue, in support of his order in revision, appear to fall fully within this extract from the Standing Order. If the argument raised that the appellants' personal status, should have been distinguished from that of their father who was acting as their next friend during their minority, be given effect to, it would virtually mean that the Pir Sahib, their father, could get lands in the names of his minor sons, whereas he would not have been entitled to do so, in competition with a hari such as the respondent was, in view of his own affluent condition. The impugned order, therefore, appears to us to be in accord with the equities of the case and no ground has been made out which would justify interference by this Court. It is true that under Standing Order No. 10, a minor, as such, is not disqualified from applying for land, even where no Court Guardian has been appointed for him, but that does not mean that a rich father can utilize his minor sons' names, for enriching himself further. This is precisely what the impugned order safeguarded against and it was therefore not open to attack in writ jurisdiction of the Court. Both the appeals fail and are hereby dismissed with costs. A. H. Appeals dismissed.