P L D 1962 (W (PLP)

"It seems to me, therefore, that both a priori and on a strict interpretation of the words of the Statute as they stood before the recent amendments, the Legislature did not contemplate that there should be any appeal or revision from the sanction given by the Deputy Commissioner to a contemplated or completed alienation. What the effect of section 2 (8) may be on future transactions and what light is thrown by the fact that the Legis lature had made special provisions for appeal under sub sections (2) and (3) of section 4 and under sections 13‑A and 13‑B is also a matter that need not now be discussed. So far as these recent amendments go, it would at least show that the Legislature did not think that section 2 (8) was sufficient by itself to give a right of appeal against the orders of the Deputy Com missioner under any of the provisions of the Land Alienation Act. If they had thought that all these orders by virtue of the provisions of section 2(8) fell within the right of appeal given by sections 14 and 16 of the Land Revenue Act, then if they intended to cut down those rights of appeal and revision in any way, they would have used words like `notwithstanding anything contained in the Land Revenue Act', or in specific sections of the Land Revenue Act. What ever, therefore, might have been the meaning of the Legislature in enacting these specific rights of appeal, I do not think that it necessarily follows that because of the provisions of section 2(8), for the future all orders of a Deputy Commissioner even under section 3 of the Land Alienation Act are subject to appeal and revision ; but as I stated in the beginning it is unnecessary to decide this point. The provisions, it may, however, be pointed out, of section 19 do not make the provisions of the Land Revenue Act apply without qualification. They are only to be applied `so far as they are applicable', and it might well be that certain orders of the Deputy Commissioner under the Land Alienation Act may become appealable by virtue of the provisions of the Land Revenue Act and certain other orders might for inherent reasons make the application of the Land Revenue Act provisions inapplicable to such orders. It is unnecessary, however, to discuss this question further." It appears to me that the remarks relied upon by learned counsel for the petitioner cannot be of any assistance to his client. The point for consideration by the Full Bench was whether sub section (8) of section 2 of the Punjab Alienation of Land Act, which subsection, as already mentioned, had been inserted by means of section 3 of Punjab Act X of 1938, was retrospective in character. It may be that there are remarks here and there in the passage reproduced above which lend some support to the conten tion of learned counsel for the petitioner, but those remarks were obiter dicta, because they related to a matter which did not arise before the Full Bench for the decision of the case for which the Bench had been constituted. It will be noticed that Dalip Singh, J. himself said in the above‑reproduced passage of his judgment that it was not necessary for the purposes of the case that was being dealt with to determine whether the effect of the insertion of sub section (8) in section 2 of the Punjab Alienation of Land Act, 1900, was that the orders of a Deputy Commissioner under that Act became subject to appeal and revision. The finding of the Full Bench was that subsection (8) of section 2 of the Punjab Alienation of Land Act, 1900, was not retrospective in its application and with all respect I venture to say that it was a correct inter pretation of the relevant law.

6. Learned counsel for the petitioner contended that even if the remarks of Dalip Singh J. in Malawa Mal v. The Punjab Provin cial Government and another on which he had placed reliance, may not amount to a decision to the effect that even after the inser tion in 1938 of subsection (8) of section 2 of the Punjab Alienation of Land Act, 1900, an appeal and revision would not lie against an order passed by a Deputy Commissioner under that Act, it was clear that the orders of the Deputy Commissioner under section 3 of the Act were final and could not be changed by any higher Revenue Authority. In support of this contention, learned counsel for the petitioner relied on the fact that section 13‑B of the Punjab Aliena tion of Land Act, which, like subsection (8) of section 2 of that Act, was inserted by the Punjab Alienation of Land (Second Amendment) Act, 1938 (Punjab Act X of 1938), along with section 13‑A, section 13‑C and section 13‑D, which dealt with benami transac tions, and subsections (2) and (3) of section 4, which provided for an inquiry regarding the caste of a person, gave a right of appeal, and argued that if subsection (8) of section 2 automatically gave a right of appeal, it was not necessary to confer a right of appeal by means of section 13‑B, if the matter is looked at care fully, it will become apparent that section 13‑B of the Punjab Alienation of Land Act changes the course of appeals laid down by the Punjab Land‑Revenue Act, 1887. Section 13 of the Punjab timed Land Revenue Act deals with appeals, while section 16 of that Act deals with powers of revision. On the date on which Punjab Act X of 1938 came into force these sections read as follows: ‑ "

13. Save as otherwise provided by this Act, an appeal shall lie from an original or appellate order of a Revenue Officer as follows, namely: ‑ (a) to the Collector, when the order is made by an Assistant Collector of either grade ; (b) to the Commissioner, when the order is made by a Collector ; (c) to the financial Commissioner when the order is made by a Commissioner Provided that‑ (i) When an original order is confirmed on first appeal, a further appeal shall not lie ; (ii) When any such order is modified or reversed on appeal by the Collector, the order made by the Commissioner on further appeal, if any, to him shall be final." "16. (1) The Financial Commissioner may at any time call for the record of any case pending before, or disposed of by, any Revenue Officer subordinate to him. (2) A Commissioner or Collector may call for the record of any case pending before, or disposed of by, any Revenue Officer under his control. (3) If in any case in which a Commissioner or Collector has called for a record he is of opinion that the proceedings taken or order made should be modified or reversed, he shall report the case with his opinion thereon for the orders of the Financial Commissioner. (4) The Financial Commissioner may, in any case called for under subsection (1), and a Commissioner may, in any case called for under subsection (2) or reported under subsection (3), pass such order as it or he thinks fit Provided that no order shall be passed under this section reversing or modifying any proceedings or order of a subordinate Revenue Officer and affecting any question of right between private persons without giving those persons an opportunity of being heard." The above‑reproduced section 13 of the Punjab Land Revenue Act would make it clear that if an order of the Collector bad been confirmed by the Commissioner, no second appeal would lie to the Financial Commissioner against the order of the Commissioner, in that case the order of the Commissioner could be changed only by exercise of powers of revision under section 16 of that Act. Section 13‑B and section 13‑C of the Punjab Alienation of Land Act, 1900, are in the following terms: ‑ "13‑B. An appeal shall lie from any order passed, whether in original or on review by a Deputy Commissioner under section 4 or section 13‑A, as follows, namely: ‑ (a) to the Commissioner when the order is passed by the Deputy Commissioner; (b) to the Financial Commissioner when the order is passed by the Commissioner." "13‑C. The Financial Commissioner may at any time call for the record of any proceedings pending before or disposed of by the Deputy Commissioner under section 4 or section 13‑A and shall pass such orders as he thinks fit Provided that he shall not under this section pass any order reversing or modifying any such order without giving the persons concerned an opportunity of being heard." It will be noticed that these sections apply only to orders passed under sections 4 and 13‑A and that a right of appeal from the order of the Commissioner is given by means of section 13‑B even though the order of the Commissioner may have been one by which an order of the Deputy Commissioner had been con firmed. It will further be noticed that section 13‑C does not authorise the Financial Commissioner (now the Board of Revenue) to send for the record of any proceedings pending before or disposed of by a Commissioner, which could be done under section 16 of the Punjab Land Revenue Act, 1887. It is for the reason that sections 13‑B and 13‑C of the Punjab Alienation of Land Act did not have precisely the same provisions as sections 13 and 16 of the Punjab Land Revenue Act that the enactment of sections 13‑B and 13‑C of the Punjab Alienation of Land Act had not the significance which the learned counsel for the petitioner relying on some remarks of Dalip Singh, J. in Malawa Mal v. The Punjab Provincial Government and another, asserted that they had.

7. The decision of the Full Bench of the High Court of Judicature at Lahore in Malawa Mal v. The Punjab Provincial Government and another to the effect that subsection (8) of section 2 of the Punjab Alienation of Land Act, 1900, which was inserted by means of the Punjab Alienation of Land (Second Amendment) Act, 1938, was not retrospective in operation is of no avail to the petitioner, because in the present case the order of the Deputy Commissioner was passed on the 25th of November 1939, while Punjab Act X of 1938, to which the Governor‑General of British India gave his assent on the 23rd of February 1939, was published in the Provincial Official Gazette on the 28th of n February 1939, with the result that the order of the Deputy Com missioner, Montgomery, whereby he directed that the sale effected by Bawa Singh fn favour of respondents Nos. 2 to 4 was to have effect as a usufructuary mortgage for twenty years and not as 9 sale was the order of a Revenue Officer for the purposes of section 16 of the Punjab Land Revenue Act. The order passed op the 25th of November 1939 by the Deputy Commissioner being one passed by a Revenue Officer, it was open to revision by the Board of Revenue under section 16 of the Punjab Land Revenue Act. 1887, and, therefore, Mr. Naseer Ahmad, who is a Member of that Board, cannot be said to have exercised a jurisdiction which he did not possess. It may be that some people in the place of Mr. Naseer Ahmad would have thought that the order of the Deputy Commissioner dated the 25th of November 1939, should not be modified in exercise of revisional jurisdiction to be exercise about twenty‑one years after the order was passed, but as no period of limitation is prescribed for exercise of revisional jurisdiction under section 16 of the Punjab Land Revenue Act, and indeed the section is to the effect that power may be exercised at any time, the order of Mr. Naseer Ahmad cannot be deprived of its binding force on the ground that though it could have been passed, it should not have been. What I have said with regard to the exercise of revisional jurisdiction by Mr. Naseer Ahmad in respect of the order of the Deputy Commissioner dated the 25th of November 1939, whereby the sale effected by Bawa Singh had been directed to be treated as a usufructuary mortgage for twenty years, applies with equal if not greater, force to the exercise of revisional jurisdiction by Mr. Naseer Ahmad with regard to the order passed on the 10th of July 1959, whereby redemption of the land was ordered by a Revenue Officer. The result of the valid order of Mr. Naseer Ahmad was that respondents Nos. 2, 3 and 4 were to be treated owners of the property from the date on which the sale deed was executed in their favour by Bawa Singh, who at that time was the owner of the property In dispute.

8. In view of what I have said above, I would hold that no ground exists for issuing the writ prayed for by the petitioner. Consequently, I would dismiss the petition, but in the circum stances of the case would leave the parties to bear their own costs. SHAKIRULLAH JAN, J.‑I agree. A. H. Petition dismissed.