P L D 1989 Peshawar 73 (PLP)

‑‑‑Ss. 102, 103 a 104‑‑Arrears of land revenue‑‑Sale of defaulter's agricultural land‑‑Collector failing to report factum of such sale to Commissioner‑‑‑ Commissioner not confirming the sale‑‑Cancellation of such sale by Board of Revenue‑‑Validity of‑‑Auction of land being in violation of legal provisions was rightly recommended for cancellation by Commissioner to Board of Revenue‑‑Where no proceedings under statutory provisions were taken respecting sale of land, Board of exception‑‑Order being in accordance with requirement of law, could not be interfered with in Constitutional jurisdiction. Muhammad Aman Khan for Petitioner. Abdul Latif Afridi and Bashirullah Khan, Addl. A.‑G. for Respondents. Date of hearing: 12th September, 1988. INAYAT ELAHI KHAN, J.‑‑Agricultural land measuring 37 Kanals and 7 Marlas belonging to Rashtool Khan of village Katti Garhi, Tehsil and District Mardan, who was defaulter of Government dues (arrears of land revenue) to the tune of Rs.1,69,565.69, was put to auction by the Collector, Mardan on 18‑6‑1984 with prior approval of the Board of Revenue. Haji Sewa Gul (petitioner) was the highest bidder. His bid of Rs.1,05,000 was accepted and the land was auctioned in his favour. Rashtool Khan then filed a civil suit in the Court of Senior Civil Judge, Mardan challenging the auction and also obtained a temporary injunction restraining the auction‑purchaser from raising construction on the land. The temporary injunction was, however, set aside by the learned District Judge, Mardan on 8‑4‑1985 on appeal filed by the petitioner. The revision filed by the legal heirs of Rashtool Khan in the High Court was later on withdrawn perhaps for the reason that they were successful in obtaining an order of cancellation of the auction on 14‑1‑1986 from the Board of Revenue. The petitioner having come to know of the order of cancellation of the auction filed a review petition before the Board of Revenue N.‑W.F.P. which was dismissed on 5‑6‑1986. The petitioner has, therefore, by this Constitutional Petition challenged the aforesaid orders of respondent No. 1 dated 14‑1‑1986 and 5‑6‑1986 to be without lawful authority and of no legal effect.

2. In support of the writ petition it is contended that during the pendency of the civil suit the impugned order of cancellation of sale should not have been made by respondent No. 1; that respondent No. 1 had no jurisdiction to pass the impugned order since the relief could be sought only from the Commissioner, Peshawar Division who was the competent authority. It is contended that under section 104 of the West Pakistan Land Revenue Act, 1967 the Commissioner is authorised either to confirm or set aside the sale and since Rashtool Khan or his legal heirs did not approach the Commissioner for the necessary relief, their application to the Chief Secretary to Government of N.‑W.F.P. which ultimately resulted in the order of cancellation of auction by the Board of Revenue was incompetent and thus the impugned order was without jurisdiction. There is no force in either of the contentions. The record shows that after accepting the highest' bid of Rs.1,05,000 of Rashtool Khan the Collector Mardan did not report the matter to the Commissioner, Peshawar Division as required by section 102 of the West Pakistan Land Revenue Act, 1967 nor the sale was confirmed by the Commissioner under section 104 of the: Act. Thus the auction of the land being in violation of the legal provisions was rightly recommended by the Commissioner to the Board of Revenue for its cancellation. Since no application under section 103 of the Act for setting aside the sale had been submitted to the Commissioner within 30 days of the date of sale nor the matter of sale was reported to the Commissioner under section 102 of the Act, there was no occasion for the Commissioner either to confirm or set aside the sale as envisaged by section 104 of the West Pakistan Land Revenue Act. Obviously no proceedings under the statutory provisions were taken respecting the sale of the land and thus the Board of Revenue was competent in law to set aside the sale when the illegality was brought to its notice by the Commissioner, Peshawar Division and in the absence of any stay order from the civil Court the impugned order is not open to any exception. It may also be mentioned that after a sale is confirmed under section 104 of the Act the Collector is required to put the person declared to be the purchaser into possession of the property and also to grant him a certificate of sale. No such certificate was issued to the petitioner.

3. Taking this view of the matter, the impugned orders of respondent No. 1 dated 14‑1‑1986 and 5‑6‑1986 are not open to any exception. The writ petition having no merit is accordingly dismissed with no order as to costs. A. A./691/P Petition dismissed.