P L D 1967 Supreme Court 314 (PLP)

CORNELIUS, C. J.‑The simple facts in this appeal by special leave are as follows. Acting under section 91 (iii) of the Sind Irrigation Act, a Collector rejected certain objections raised by one Muhammad Ali to the shifting of a module on a Canal distributor, at the instance of the appellant Muhammad Afzal. A revision was dismissed by the Commissioner of the Division. Under section 91 (iii) the revision lay to the Revenue Commis sioner in Sind, but by virtue of West Pakistan Act I of 1956, the Commissioner has been substituted for the Revenue Commissioner. Muhammad Ali moved a further revision before the Board of Revenue, which was accepted by a Member, who made an order modifying the proposal of the Canal Authorities. Muhammad Afzal moved the High Court for a writ to quash the order of the Member. It was refused, although the point was raised that the order of the Member was wholly without jurisdiction, as section 91 (iii) expressly provided that the order of a Collector thereunder would be "final and conclusive", subject to any order that may be passed by the (Revenue) Commissioner. The learned Judges were of the view that this point should have been raised before the Board of Revenue, and not having been raised there, they would not permit it to be raised for the first time in a petition under Article 98 of the Constitution. Mr. Jamaluddin Ahmad has had no difficulty in showing that the Member had no authority to interfere with an order under section 91 (iii) of the Sind Irrigation Act. No such power is given by that Act. The West Pakistan Board of Revenue Act] 1957, by which the Board was set up, invests the Board with large powers of superintendence and control over Revenue Officers, but that is confined to administration of land, collection of land revenue, preparation of land records and "other matters relating thereto". Canal administration, although it operates on and in connection with land, is nevertheless a distinct subject and field of activity from the land administration. Mr. Fakhruddin G. Ebrahim admitted inability to raise an argument to the contrary. The ultra vires nature of the order of the Member appears plainly from a perusal of the relevant statutes, which provide the source of the authority in law that is exercisable. There was no jurisdictional fact to be determined, as preliminary to the application of the statutes. The case for relief presented before the High Court was within the plain language of Article 98 of the Constitution. There had been an act performed without lawful authority, to the substantial prejudice of the respondent before the Board. The High Court refused to accept a statement by a counsel appearing before them that he had raised the question of jurisdiction before the Member. They refused to grant the obvious relief on a finding that the question had not been so raised. If that were to be accepted as a good ground for denying to the subject the benefit of Article 98 actions in excess or perversion of public powers would gain enormous access of immunity. Like the law‑and‑order administration, the revenue administration, in B its impact on the cultivator has all‑pervading authority which the individual cannot be expected to confront, on allegations of illegality on his own strength. The usual and the wise course, that he takes is to submit for the time being, and seek his redress through the more powerful agency of the Superior Courts. These Courts have now been specially empowered to provide such relief. They cannot be permitted to diminish that authority by the imposition of such a condition as that which the learned Judges have applied in this case. It would have been otherwise had there been necessity for determination of some point of fact, on which the existence or otherwise of the lawful power requisite in the case, was found to turn. Matters of fact are to be resolved by the authorities charged with the duty of action. A Superior Court, acting under Article 98 will not ordinarily assume the role of a Court of evidence, for deciding matters of fact. But here there was no jurisdictional fact involved, on which the existence of lawful authority depended. By mere submission, in the capacity of a respondent, to the authority of the Member, the appellant could not be thought to have conferred a jurisdiction on the Member which he did not possess, of to have waived his right to challenge the Member' power to interfere with the order of the Commissioner. Relief was wrongly refused to the appellant by the High Court, and we accordingly allow this appeal. We set aside the High Court order and direct the issue of a writ to quash the order of the Member. In the circumstances of the case we make no order as to costs. K. B A. Appeal allowed.