P L D 1965 (W (PLP)

FARUQUI, J.‑

This writ petition seeks to challenge the validity of the order of the Revenue Commissioner dated 28‑5‑1948 passed in appeal under section 203 of the Land Revenue Code whereby he allowed the appeal of the respondents 2 and 3, which order was further upheld by the Chief Commissioner, Karachi by his order dated 6‑1‑1958. This order was passed by the Chief Commissioner on an appeal by the petitioner against the said order of the Revenue Commissioner.

2. The facts relevant for the consideration of the points urged before us in this writ petition and which have been admitted or have otherwise been established are as follows: On 14‑6‑47 and 1‑10‑47 the Collector of Karachi, in exercise of his powers under section 62 of the Land Revenue Code, ordered the grant to the petitioner of 218.30 and 48.20 acres of land respectively in deh Kharkharo, taluka Karachi on permanent tenure on payment of malkano at the rate of Rs. 50 per acre. The petitioner paid the Malkano and two Ijazatnamas dated 6‑6‑47 and 17‑11‑47 were issued and the petitioner executed two Qabuliats in respect of these lands in form F" in accordance with rules 37, 43 and 52 framed under the Bombay Land Revenue Code. Against these orders of the Collector the respondents 2 and 3 appealed to the Revenue Commissioner for Sind. These appeals were restricted in respect of survey No. 198 and 25 acres from N. C: No. 214, which the appellant claimed should have been granted to them as they lay within their Mohag right. Mr. S. Ridley, the then Revenue Commissioner for Sind, upheld this appeal on the ground that these lands lay in the Mohag of the appellants and should have been granted to them and that it was necessary for the granting authority to have enquired from them before granting the land to the respondent (petitioner in this writ petition). Against this order of the Revenue Commissioner the petitioner Noor Muhammad filed a petition by way of II Appeal or revision and addressed it to the Administrator of Karachi. This petition after hearing was dismissed by the Chief Commissioner of Karachi on 6‑1‑58 as in the meantime Karachi had been given the status of the Chief Commissioner's province.

3. In the original petition the order of the Chief Commissioner was challenged on the ground that he was not the Provincial Government and had therefore no jurisdiction to hear and decide the petitioner's appeal. It was also urged that the land being on permanent tenure with the petitioner, the petitioner could not be summarily evicted from the said land. It was also contended that the land did not in fact lay in the Mohag of the respondents 2 and 3 and the petitioner had invested considerable capital in improving the land and the order of the Chief Commissioner would cause huge loss to him. These allegations were vigorously denied by the respondents 2 and 3.

4. When the matter came up before us the petitioner added two more grounds of attack. Firstly, that it was only a Tribunal constituted under section 296 of the Government of India Act which could decide the petitioner's appeal against the order of the Revenue Commissioner and secondly, that the transfer being a completed contract could not be set aside, cancelled or interfered with under the appellate or revisional powers by the Revenue Commissioner or the Provincial Government. It is these points which were mainly urged before us.

5. Mr. Sadiq, the learned Advocate for the petitioner, did not press before us the ground based upon the assertion that the Chief Commissioner was not the Provincial Government in view of the judgment of the Supreme Court in Chief Commissioner, Karachi v. Jamil Ahmed and another (P L D 1961 S C 145). He however, reserved his right to argue this point if the matter went to the Supreme Court.

6. With regard to the contention relating to the Revenue Tribunal, Mr. Sadiq pointed out that in pursuance of section 296(2) of the Government of India Act, 1935 the Government of Sind had constituted a Revenue Tribunal consisting of the Chief Secretary and another Secretary by notification dated 10‑4‑37 and by subsequent notification this had been amended so that instead of the Chief Secretary and a Secretary two Secretaries were to constitute the Tribunal; that this Tribunal, according to Mr. Sadiq continued to function until Karachi was separated from the rest of Sind by the Pakistan (Establishment of the Federal Capital) Order 1948 (G. G. O. No. 15). Under section 5 of this Order the executive authority of Karachi was to be exercised by the Governor‑General either directly or to such extent as he thought fit through an Administrator to be appointed by him and that authority was to extend to all matters included in list 2 of the VII Schedule to the Government of India Act. An Administrator was in fact appointed in pursuance of this provision. Mr. Sadiq's argument as far as we were able to comprehend was two‑fold. In the first place, he urged that the powers of the Provincial Government after 23rd July 1948 devolved upon the Administrator and by virtue of S. 6 of G. G. O. No. 15, which gives a continuity to all enactments, laws and notifications, etc., two Secretaries of the Administrator and thereafter of the Chief Commissioner, should be deemed to have constituted the Tribunal as contemplated by section 296 of the Government of India Act and it is only that Tribunal which could have heard the petitioner's appeal against the order of the Revenue Commissioner. In the alternative he argued that if there was no such Tribunal then there was no authority which could deal with the petitioner's appeal and so in either case the order of the Chief Commissioner is ultra vires and his appeal should be considered to be still pending. We have reproduced the arguments because of the tenacity with which they were put forward before us otherwise we are clear that they are completely devoid of any force. In the first place, section 296 (2) applies only to a Governor's Province and in the second place after the separation of Karachi there being no such Tribunal in existence the petitioner's appeal, which was addressed to the Administrator, would have to be heard by him or after him by the Chief Commissioner who was his successor as it happened in this case. We would also like to add that the petitioner himself having chosen his forum and having pressed his petition before the A Chief Commissioner cannot now ask for a writ of certiorari against the order passed on his petition by the Chief Commissioner.

7. Mr. Sadiq then contended that the order of the Collector followed by the payment of Malkano by the petitioner and the execution of Qabuliats by him amounted to a completed contract transferring the land to the petitioner and that it could not be cancelled or interfered with under the appellate or revisional powers of the higher Revenue Authorities. He relied upon certain decisions of the Bombay High Court, in which it was held that section 211 of the Land Revenue Code did not entitle the Provincial Government or the Commissioner to set aside and vary the grant which had taken the form of an agreement. His main reliance was upon the judgment reported in Sambhaji Baloji v. The Mamlatdar of Baramati and others (A I R 1953 Bom. 300), where most of the cases for and against were noted. That was a case where a grant was cancelled under section 211 of the Land Revenue Code by the Provincial Government on the ground that it had been obtained by misrepresentation. It was held that this could not be done and the remedy of the Government lay in the filing of a civil suit. However, the Bombay High Court itself reconsidered the case reported in State of Bombay v. Chhaganlal Gangaram Lavar (A I R 1955 Bom. 1), and having considered all the decisions of that Court and two pronouncements of the Privy Council they answered the following questions in the affirmative: "Where a grant has been made under section 62, Land Revenue Code and a kabulayat has been taken in pursuance of the said grant under section 37, Land Revenue Rules, can the order making the grant and the kabulayat be modified or cancelled under section 211, Land Revenue Code?" A perusal of this judgment shows that a distinction was sought to be maintained between cases of a grant followed by a Qabuliat and cases in which the grant had been followed by a Sanad, which the Collector executed on behalf of the Governor or the Secretary of State. Whether that distinction really exists or not it is not necessary for us to examine and pronounce upon in this case firstly because this is a case of a Qabuliat and secondly because Qadeeruddin, J. sitting singly in Second Appeal No. 13/59 reported in Province of West Pakistan v. Haji Muhammad Juman and another (P L D 1960 Kar. 908), has decided that the `Sanad' is a contract but the order, under which it was executed, was appeal able and the appeal having been preferred the order could be set aside and after the order was set aside the `Sanad' fell like a structure without foundation; and this judgment of our learned brother is the subject‑matter of a Letters Patent Appeal.

8. We would, however, note two judgments of the Privy Council which are in point. The first was in the case of Secretary of State v. Anant Nulkar (AIR1934 PC9). That judgment was pronounced in a case which went to the Privy Council from Bombay. In that case their Lordships of the Privy Council took the view that the grant made by the Collector was bad because no sanction of the Commissioner had been obtained, and as the title of the plaintiff was based upon the order of the Collector, the title of the plaintiff disappeared when it was found that the order itself was invalid. Their Lordships also expressed a clear opinion on the question which related to the jurisdiction of the Commissioner to modify, annul, or reverse the order passed by the Collector, and in this connection observed: "The amplitude of the powers conferred on the Commissioner by that section is striking. Now, the order of the Commissioner purported to modify the order of the Collector. In their Lordships' opinion, it effectively did so."

9. In the other case reported in Government of the Province of Bombay v. Hormusji Manekji (AIR 1947 PC 200), their Lordships of the Privy Council though upon the facts of the case, observed that the subject‑matter of the agreement had become useless and unenforce able, and in view of this finding it became unnecessary to consider whether the order passed by the Government in 1930 under section 211 was valid or not, yet having said this they went on to observe as follows:-- "Having formed this view, their Lordships are clearly of opinion that the order or resolution, of the Governor‑in‑ Council dated 11‑4‑1930, even if it impliedly treated the agreements as broken or cancelled, did no more than recognise the true position of the agreements in law, and was not ultra, vires of the Governor‑in‑Council, acting under section 211 of the Code." The case before us is one where the two orders of the Collector granting the land to the petitioner were followed by two Qabuliats which are in Form `F' in pursuance of the rules framed under the Bombay Land Revenue Code. It would be useful to reproduce this Form: "To the Mamlatdar (Mukhtiarkar) of .I, A. B. inhabitant of in the taluka hereby accept the right of the occupation of the land comprised in Survey No. (or of the building site herein below described, or otherwise as the case may be), in the village of in the taluka, and I pray that my name be entered in the Government records as the occupant of the said land. The said land has been granted to me subject to the provisions of the Bombay Land Revenue Code, 1879, and of rules in force thereunder, in perpetuity, from the day of 19; and I undertake to pay the land revenue from time to time lawfully due in respect of the said land (or I undertake, whenever Government shall see fit to discontinue the exemption of the said land from Payment of land revenue, to pay such revenue as may be lawfully imposed thereupon under the orders of Government or otherwise as the case may be). I (If I contravene any of the conditions of the grant, the Collector may, without prejudice to any other penalty to which I may be liable under the provisions of the said Code‑ (a) continue the said land in my occupation on payment of such fine and/or assessment as he may direct; and (b) direct the removal or alteration of any building or structure erected or used "contrary to the conditions of the grant within a time prescribed in that behalf by the Collector, and on such removal or alteration not being carried out within the prescribed period, cause the same to be carried out and recover the cost of carrying out the same from me as an arrear of land revenue.) Dated the day of 19 at Written by (Signed) A. B. We declare that A. B. who has signed this agreement, is to our personal knowledge the person he represents himself to be, and that he has affixed his signature hereto in our presence. (Signed) C. D. ( ) E. F. We declare that to the best of our knowledge and from the best information we have been able, after careful inquiry, to obtain the person who has passed this agreement is a fit person to be accepted by Government as responsible for the punctual payment of the land revenue from time to time due on the above. (Signed) G. H. Patel. ( ) I. J., Village Accountant.

1. N. B.‑This clause shall be inserted only in cases in which agreement is taken for grant of land for building sites." A plain reading of this form shows the nature of the grant which has been expressly made subject to the provisions of the Bombay Land Revenue Code. These Qabuliats are not even signed by the Collector. These are not in the nature of the contract executed by the Collector on behalf of the Governor‑General or the President and, far from excluding the provision for appeal and revision as contained in Chapter XIII of the Code such grants are made expressly subject to the provisions of the Code which naturally include the provisions for appeal and revision. We find no substance in the contention of the learned counsel for the petitioner that the grants to his client are not liable to be cancelled or interfered with by the higher Revenue Authorities in exercise of their powers in appeal or revision. The orders of the Collector granting these lands were admittedly subject to appeal to the Revenue Commissioner and the Revenue Commis sioner having modified those orders and granted certain portions of those lands to the respondents it is futile to urge that the grant cannot be interfered with on the ground that it has ripened into a contract.

10. Upon the merits the order of the Revenue Commissioner is unassailable and we are further of the opinion that the petitioner is not entitled to retain the lands granted to the respondents on account of any equities alleged to have subsequently arisen in his favour.

11. For the reasons given above we hold that the order of the Revenue Commissioner and also that of the Chief Commis sioner are not liable to be quashed, and we dismiss the writ petition with costs. K. B. A. Petition dismissed.