P (PLP)

The plaintiff Risaldar Major Muhammad Hasham Khan has filed this petition in revision against the order dated 7th December 194.8, of Arbab Taj Muhammad Khan, District judge Peshawar, who on appeal affirmed the order dated 19th May 1948, of K. S. Mirza Fazal Rahman Khan, Senior Sub‑Judge Peshawar, whereby the plaintiff s suit, seeking a declaration that the order of the Provincial Government dated 1st June 1946, for the demolition of his water‑mill was illegal, had been dismissed with costs. The plaintiff's case was that his father had two water‑mills, which had been closed during the settlement operations of 1929‑30 and on his application to the Collector in April 1944, he was permitted to construct a new water‑mill on the Masma‑Timbarpura channel. The order of the Collector granting the permission is dated 27th October 1945, and in consequence of that it is alleged that the new mill was actually constructed at a cost of Rs. 15,

000. Some residents of Masma village raised an objection to the cons truction of the new drill by filing an appeal to the Revenue and Divisional Commissioner against the order of the Collector, and the case having been forwarded to the then Revenue Minister, the permission granted by the Collector was revoked. Challenging the legality of the order of revocation, the plain tiff sued for a declaration that he was not bound by the said order, and also sought a perpetual injunction to be issued to restrain the Provincial Government from demolishing the mill. In the alter native he prayed that a sum of Rs. 15,000 be awarded to him as compensation, if the order for the demolition of the mill was allowed to stand. The Provincial Government, who is the sole defendant in the case, raised certain preliminary objections, and also pleaded that the permission granted by the Collector for .the construction of the mill in question was absolutely against law, and in fact the Collector was not at all competent to accord such a permission. It was further asserted that the plaintiff‑petitioner had no legal right to construct the mill unless he obtained the per mission of the Provincial Government itself. The outlay to the tune of Rs. 15,000 as alleged by the plaintiff‑petitioner, was also not admitted by the Provincial Government. Justification for the revocation of the order of the Collector by the Provincial Government was put forth and finally all liability to compensate the plaintiff‑petitioner for the loss, which he might incur if the demolition was carried out, was denied. The parties proceeded to trial on the following issues :‑ (1) Whether the suit has been properly valued and the plaint adequately stamped ? (2) Whether the plaintiff has no cause of action against the defendant ? (3) Whether the plaintiff‑built the water‑mill in dispute in Khasra No. 66 with the legal permission of the proper authority for this purpose ? (4) Whether the demolition of the water‑mill was against the legal permission of the proper authority and was not justified in law ? (5) At what cost the water‑mill was constructed? (6) Whether the plaintiff is entitled to the restoration of the water‑will ? (7) Whether the plaintiff is entitled to its costs ? (8) Whether Civil Courts have no jurisdiction ? It may here be observed that the suit was instituted on 21st January 1947, and as many as seven issues were framed on 11th April 1947, by K. S. Sheikh Abdul Hamid, the then Senior Sub judge Evidence was then recorded on several dates, arid it was on 8th May 1948;'that K. S. Mirza Fazal Rahman Khan, who had by that time come to occupy the Chair framed the eighth issue, on the ground that the written statement filed by the defendant‑res pondent showed that the right of a Civil Court to take cognizance of the case was also questioned. Presumably the new point being a legal one, no further evidence was recorded, and the Court pro nounced its final orders on 19th May 1948, as already noted above. It dealt only with the first, second and the. eighth issues, because they were legal and were quite sufficient to dispose of the case tonally. The plaintiff relinquished the alternative claim for com pensation for the demolition of the water‑mill, and thus the learned trial Court held that the first issue had become redundant. The second and the eighth issues being interconnected were disposed of together by the learned Senior Sub‑Judge, who after dealing with tile whole history of the case and the relevant law on the subject came to the conclusion that in granting the permission for the construction of the mill in question, the Collector had acted within his powers. He then addressed himself to investigate as to whether the Collector's order was final, or could be revoked by the Provin cial Government. After entering into some discussion in the light of the provisions of the Punjab' Minor Canals Act, 1905, and the instructions issued thereunder, the learned Senior Sub‑Judge held that the Provincial Government had the authority to cancel the permission granted by the Collector, and thus the order of revoca tion was not ultra wires. The final aspects of this problem was stated by the learned trial judge in these words "whether the plaintiff can challenge the propriety or the‑correctness of the order passed by the Provincial Government in a Civil Court," and here he held that he was debarred from adjudicating on the correctness or fairness of the Provincial Government's order. Having adopted this view, he found that the present suit did not lie, nor had the Court jurisdiction to try it. This finding led the Senior Sub‑Judge to dismiss the suit with costs as remarked above. On appeal, the learned District judge agreed with the trial Court, in holding that the Collector had undoubtedly an authority to grant permission for the construction of a new mill. According to him the position that the Provincial Government had the authority to revise The order of the Collector was also undisputed. The agreement of the learned District judge with the learned trial Court resulted in the failure of the appeal. It has been contended for the plaintiff‑petitioner that the Provincial Government had no authority to revoke the permission granted by the Collector for the construction of the mill in dispute and that at any rate law did not invest it with the power to order actual demolition. On behalf of the Provincial Government it was urged that the Revenue and Divisional Commissioner as well as the Provincial Government had been invested by law. with the general supervision of all the orders made or proceedings held by the Collector under the Punjab Minor Canals Act. The order revoking the permission and directing demolition of the mill was, the learned counsel for the defendant‑respondent went on to say, well covered by the statute, and the instructions issued under it. He however, failed to quote any law authorizing an appeal to the Revenue and Divi sional Commissioner in cases like this, nor could he refer to an authority empowering the Revenue and Divisional Commissioner to send appeals in cages like these to the Provincial Government for orders. The concurrent view of the learned Courts below, that the Collector had ample authority to accord permission for the cons truction of a mill like the present one, makes the position a bit easy, because I have only to see as to whether the Provincial Government had the authority to revoke the permission so accorded and whether any competent authority had on behalf of the Provin cial Government passed a valid order of revocation. The learned Senior Sub‑Judge has relied upon section 67 (2) of the Punjab Minor Canals Act, which says that except as laid down in subsection (1), of that very section, no suit shall lie against the Government in respect of anything done by the Collector, or by any person src6ng under the orders of the Provincial Government in the exercise of any power conferred by the Act on the Collector or the Government. He has further quoted section 60 of the Act, according to which no Civil Court has jurisdiction in any matter, which a Revenue Officer or a Revenue Court is em powered by the Act to dispose of, to take cognizance of the manner in which the Provincial Government or any Revenue Officer or Revenue Court exercise any powers vested in it or him by or under the Act. Reading these two provisions of the Act together, the learned Senior Sub‑Judge held that the present suit was not competent in so far as it was directed against the action of the Collector in demolishing the mill in pursuance of the Provincial Government's order. None of the learned Courts below has actually tried to find out as to whether the Provincial Government has in fact issued any order revoking the permission given by the Collector for the cons truction of the mill in dispute. Even admitting for the sake of argument that the order of the Collector could be cancelled by the Provincial Government, it was contended on behalf of the plaintiff‑petitioner that as a twitter of fact no .order existed, which could be called, within the meaning of the Government of India Act 1935, an order of the Provincial Government. Here I was referred to the proceedings in appeal filed by certain aggrieved persons against the order of the Collector in the Court of the Revenue and Divisional Commissioner (Ex. P. 12). Already noted above the learned counsel for the defendant‑respondent court not justify under any law the competency of the appeal in the course of which the order of the Collector is alleged to have been revoked. On 29th May, 1946, the Revenue and Divisional Commissioner wrote down on the file of the appeal that "the order under appeal was passed at the time when the Divisional Commissioner was competent to pass it. How ever, as the matter has come up in appeal H. M. R. may like to pass the orders". Strangely enough the Revenue and Divisional Commissioner instead of exercising his own functions as an appellate Court sent on the matter for disposal to H. M. R. (Hon ble Minister, Revenue). No appellate Court, if it is legally seized of a case, can shirk its responsibility, and shelve it on to any other authority, no matter how high it may be. Here for the first time creeps in an illegality, which the learned counsel for the defendant respondent could up overcome. Any way the case went up to the H. M. R., who wrote on the file a note dated 1st June, 1946, expressing an opinion that the Collector had no jurisdiction to grant the permission without the requisite approval of the Provin cial Government. He further remarked in the course of the same 'note, that it would be unfair to the irrigators "if the permission for a second mill was also given to the respondent.' Under the cir cumstances lie finally opined that the Divisional Commissioner's order dated 27th October, 1945 was without jurisdiction, and, thus he set it aside. The case came back with the above note to the Revenue and Divisional Commissioner, who disposed it of finally on 12th June, 1946, by saying that the Collector, Peshawar 'was not competent to section a new water‑mill on Khatta Masma and Timberpura, and, therefore the H. M. R. had set aside the Collec tor's order dated 27th October, 1945. He directed the parties to be informed accordingly through the Collector. Now, the Revenue and Divisional Commissioner is admittedly not the Provincial Government, and is the Head of the Revenue Department, who as such is authorized to dispose of such appeal as can, lie to him according to law. No law justified the appeal in question, and in fact, as already remarked, the Revenue and Divi sional Commissioner instead of dealing with the appeal passed it on to the H. M. R. The question would be whether H. M. R. was the Provincial Government as contemplated by the Government of India Act 1935. If he can be held to be "Provincial Government'", then there may be something‑which can be said in favour of the proposition that the order or cancellation having been passed by the Provincial Government could not be questioned in a Civil Court. On the other hand, if the H. M. R. was not the "Provincial Government" then certainly the order in question will be ultra vires, and a Civil Court will be perfectly justified to take cognizance of the matter. The learned counsel for the defendant‑respondent' was called upon to establish that H. M. R. by himself was the "Provincial Government", but he utterly failed to do so. As a matter .bf fact no such authority exists, and a reference to the Government of India Act, 1935, would show that "the executive authority of Province shall be exercised on behalf of His Majesty by the Gover nor either directly, or through officers subordinate to him" (section 49). This clearly means that the supervision of the acts of sub ordinate officers vested in the Provincial Government by Punjab Minor Canals Act, 1905, can only be exercised by the Governor by such subordinate officers as may have been appointed in this behalf.' The functions of the Ministers are prescribed by section 50 of the Act, which lays down that there shall be a Council o Ministers to aid and advise the Governor in the exercise of hi functions. It is, thus, quite clear that the functions of the H. M. R. in the present case were confined to aiding and advising the Gover nor, and he himself, viz., the H. M. R. could issue no order under his own authority of one is to assess the legal value of the not of the H. M. R. dated 1st June, 1946, it can amount to nothing more than an advice tendered to the Governor, who could accept and act upon it within the meaning of section 49, The case never went up to the Governor, and was again sent back to the Revenue and Divisional Commissioner who neither accepted the appeal nor rejected it, although it was pending before him, and simply directed that the parties be informed of the order of the H. M. R. through the Collector. If the matter was to be further investigated, one can derive great assistance the referring to the General Clauses Act. 1897 (sec tion 41 (a), which defines the Provincial Government as Governor acting or not acting in his discretion, exercising or not exercising his individual judgment and so on so forth. Re‑adapted after the Independence Act of 1947, the definition has been reduced to this, that the Provincial Government in Governor's Province means "Governor ". The change has beer necessitated, because after the Independence Act of 1947, the Governor can no longer exercise his functions in his discretion or by using his individual judgment. He is invariably to be advised by the Ministers, but the position that the Minister as such is not the " Provincial Government " is as good now as it was before. The so‑called order of the Provincial Government offends against the Government of India Act in another way also, inas much as all orders of the Provincial Government are to be express ed under section 59 of the Government of India Act in the name and on behalf of the Governor, and are to be issued duly authen ticated by the Secretary concerned. The present order is neither the order of the Governor, nor has it been expressed in his name and issued on his behalf by a competent Secretary. Thus, the order is no order and the Provincial Government does not come into the picture at all, The case is to be governed by section 9 Criminal Procedure Code which enables the Civil Courts to take cognizance of all disputes of Civil nature. For the afore‑mentioned reasons I disagree with the view of the learned Courts below, and reversing their findings on issues Nos. 2 and 8, hold that a Civil Court has jurisdiction according to law to take cognizance of the present suit, I, therefore, accept the petition, and, setting aside the orders of the learned Courts below, remand the case to the learned Senior Sub‑Judge for disposal according to law. The plaintiff petitioner shall have his costs in this Court, while other costs will abide the final result. A. H. Revision accepted.