1980 PLP (C (PLC(CS))

(iii) As is evident from the provisions of section 42 of the Land Revenue Act the attestation of mutations is done after the statutory report recorded by the Patwari and verification by the Kanungo and the crucial date for alienation of rights etc. is always the date of actual transaction of the acquisition of rights. In the case under discussion not only the actual transaction took place much earlier but the mutations were entered by the Patwari in November, 1970. There was, therefore, no necessity for a mala fide change in dates with regard to the attestation by the Naib- Tehsildar even if he was in league with the parties concerned. The corrections were made only in a bona fide manner to correct the record. As a matter of fact no date had been fixed at that time with regard to the Land Reforms. It is admitted in the charge sheet itself that the crucial date for alienation for Land Reforms purposes had later been fixed as 20th December, 1971. (iv) No harm or benefits had accrued to anybody on account of the correction in dates. It was already known at the time of framing of the charge‑sheet that the crucial date was 20th December 1971 and the impugned correction in the dates had no relevance whatsoever. The Enquiry Officer committed a gross error by relying on oral statement of Mr. M. A. Laliani (who had con ducted the preliminary enquiry to the effect that the appellant bad made the alterations in dates fraudulently as against his earlier written report wherein Mr. M. A. Laliani had exonerated the appellant of any ulterior motive. This was a clear violation of principles of evidence that oral evidence cannot go against written contents of a document which, in this case, was a written report of the witness. (v) Ex parte proceedings against the appellant by the Enquiry Officer were not justified as the; appellant had not been permitted by his superior to join the proceedings and an intimation through a telegram was given to the Enquiry Officer which is on record. (vi) Both the Commissioner and the Senior Member, Board of Revenue, relied heavily on the report of the Enquiry Officer and did not apply their own minds to consider the explanation of the appellant objectively. The Enquiry Officer relied on the oral evidence of Mr. M. A. Laliani which was recorded in the absence of the appellant and was contradictory to the earlier written report of Mr. M. A. Laliani. (vii) The appellant had maintained throughout that the correction in dates had been made in pursuance of section 166 of Land Revenue Act but both the Commissioner and the Senior Member, Board of Revenge had misconstrued this explanation as "admission of guilt". The respondents raised the preliminary objection that the final order was passed by the Senior Member, Board of Revenue on 28th April 1976, while the present appeal was filed on 29th January 1978, and was thus time barred. The appellant argued that a representation for revision was filed with the next higher authority i.e., Chief Minister who had called for the Department's comments, but remained undecided till the date of submission of this appeal. The Government Pleader did not press this objection further. The respondents have argued that the appellant had not been exonerated in the preliminary enquiry and Mr. M. A. Laliani had only held that it could not be "proved" that the tampering with the dates was done on different occasions and with ulterior motives. That this position was not accepted by the competent authority and the appellant was proceeded against. That since the report of Mr. M. A. Laliani was not on the enquiry file the Enquiry Officer could not confront Mr. M. A. Laliani with the same during his oral evidence. That the appellant had been avoiding the enquiry proceedings on one pretext or the other and as such ex parte proceedings were justified. The learned Government Pleader further argued that there was no need at all for changing the dates unless the appellant wanted to favour the parties as at that particular time nobody was sure what date would be fixed for the purpose of the Land Reforms and it was generally presumed that the date of elections, i.e. 20th December 1970, would be crucial date this point the appellant explained that it was necessary to correct the record as otherwise the sequ ence of attestation on record would not be in order and would be subject to question. We have heard the detailed arguments of both the parties. We have seen the record and find that Mr. M. A. Laliani in his preliminary enquiry report had held as under :‑‑ "It is a fact that the Naib‑Tehsilder made cutting in the date of attestation but it cannot be said certainly that the original date of attestation was written on different occasion and a cutting in the same date was made afterwards other concession. Actually this aspect of enquiry is material and if proved would be sufficient to charge the defaulting officer with intentional falsification of mutation record. There cannot be any oral evidence to the effect that the tampering of date was done at a different occasion. This fact can, however, be looked into by the forensic sciences Laboratory. From the naked eye, however, it appears that the tampering has been done with the same pen and ink which factor goes in favour of the defaulting officer. The possibility as to why this tampering should have been thought out at the instance of declarant is a conjecture that the date of attestation was to be in connection with the date of result of General Elections of National Assembly because it was then rumoured that the operation of Martial Law Regula tion would be bracketed from the date of results of General Elections of National Assembly. There cannot be any direct or indirect evidence in support of this conjecture and mere denial or ignorance by the defaulting officer will be sufficient to take inference in his favour. * * * * * * In view of above reasoning I am of the opinion that whatever intention of the Revenue Officer may be it cannot be proved that the tampering in dates was done on different occasions and with ulterior motive. The circumstances explained by him are plausible arm the record viz. Roznamcha Waqiati and the mutation paper do not rebut his contention. However, the irregularity is there and should have been avoided by the officer at the time of recording alteration. In fact the date and place of attestation should have been mentioned at the time of the station and the omission of making such entries is against established practice and general instructions on the subject." In view of the above findings of Mr. M. A. Laliani the following part of the enquiry report of the regular enquiry did not appear to be justified: "Mr. Mohammad Aslam Laliani, M. I. C., Jhang stated the preliminary enquiry into the alleged tampering and cutting of dates of sanctioning the mutations in dispute was conducted by him and he after thorough examination expressed his views that the alteration in dates of sanctioning the mutations were made fraudulently." From the actual statement of Mr. M. A. Laliani on record it was found that Mr. Laliani had mentioned that he had conducted the prelimi nary enquiry and that he had given the oral evidence only from memory. It is our view that it was incumbent upon the Enquiry Officer to call for the written report of Mr. Laliani as oral evidence from memory cannot A supersede the written evidence. The argument of the learned counsel for the appellant that had the appellant any ulterior motive in his mind he would not have left the original date legible on the record, which we have seen, but could have adopted some measures to completely wipe it out appears to be sound. As a matter of fact, in view of the fact that the actual transaction for the acquisition of rights by the vendees had taken place much earlier and even the mutations had been entered by the Patwari in November 1970, there would appear to be no necessity for a mala fide correction in the dates of attestation by the Naib‑Tehsildar. Further we also feel that if he had any mala fide intention and the submis sion of the mutations to the higher authorities had also been admittedly delayed to some extent why would the appellant put a wrong date in the first instance. The elections had already been held before the 25th January, 1971, and the concerned parties would have contacted him by that time if at all there was apprehension of some effects of Land Reforms, which is the basis of the action against the appellant. Under the circumstances, we agree with the preliminary report of Mr. Laliani that ulterior motives for the correction in dates are not proved. However, as held by Mr. M. A. Laliani the appellant was indeed guilty of the irregularity of not having recorded the attestation of muta tions on the spot at the time of announcement. The appellant had explained that recording of the attestation of mutations in writing at the site was impracticable and it was the general practice to do the routine work subsequently in office. Even if it is considered for sake of argument that this was the general practice instead of the provisions of rules and regulations, the fact remains that ante‑dating the signatures at a subsequ ent date is an irregularity in itself. The appellant himself admits that he signed the attestations on a date nor earlier than 25th January, 1971 which should have been done on the 10th of December, 1970. With regard to the charge of delay in submission of the mutations to the higher authorities the appellant has stated that the delay was neither long nor intentional and furthermore it did not involve violation of any rules or instructions of time limit. He has further explained that he had handed over the mutations to the Naib-Daftar Kanungo after collecting a sizable lot. The signatures of the Naib‑Daftar Kanungo were obtained on the register but he omitted to date the same. The dates on the preced ing and succeeding lots indicated that the date of handing over of this lot was earlier than the alleged dated of 9th September, 1971. The respon dents have not contested this plea taken by the appellant. In view of the foregoing, we find that the appellant was guilty only of the irregularity of not recording the attestation of the mutations in writing on the spot and doing the same at a later date. This irregularity has, however, not caused any material harm or benefit to anybody. A minor penalty would, therefore, have been sufficient in this case. We therefore, set aside the penalty of retirement from service imposed upon the appellant and substitute it with the penalty of stoppage of one increment. Order accordingly.