P L D 1960 (W (PLP)

4. Haji Muhammad Juman, respondent No. 1, then instituted a civil suit on the 9th of May 1966, but withdrew it on the 25th of August 1956 with permission to institute another suit, because notice in terms of section 80, C. P. C. had not been given by him to the Government. In the meantime he had given the neces sary notice. It is Exh.

73. He, therefore, instituted the present suit on the same day on which the former suit was withdrawn, against Sanwan and the Government of West Pakistan for a decla ration that the order of the Revenue Officer was invalid and for injunction to restrain the defendants from interfering with his possession. The suit was tried by Mr. Rasool Bux B. Laghari, First Class Sub‑Judge, Nawabshab, and was dismissed. On the 26th of September 1957, Haji Muhammad Juman went in appeal against the order of the Sub‑Judge. The appeal was accepted by Mr. F. E. Ansari, Assistant Judge, Nawabshah on the 28th of August 1958. The Province of West Pakistan has come to this Court in second appeal.

5. The learned Sub‑Judge had dismissed the suit mainly on the ground that Haji Muhammad Juman, respondent No. 1, had managed by fraudulent means to obtain a report (Exh. 61) in his favour on the basis of which the grant was made by the Assistant Revenue Officer to him. The correct facts were disclosed in the second report (Exh. 58) which could be taken into consideration by the Revenue Officer, who accepted the appeal. The learned Sub‑Judge, therefore, came to the conclusion that the Revenue Officer had the jurisdiction to entertain and decide the appeal rescinding or revoking the grant and making a fresh grant in favour of Sanwan, respondent No.

2. The learned Assistant Judge took the view in appeal that the Revenue Officer had given no reasons for accepting the appeal from the order of the Assistant Revenue Officer. The allegation of fraud or misrepresentation made by Sanwan, respondent No. 2, was not proved so as to invalidate the contract made with the Government, which was, therefore, binding on the parties.

6. Mr. Abbasi had, in his first address before me, attacked the appellate order of the learned Assistant Judge on two grounds firstly, that there was an order and no contract ; secondly, that in view of condition No. 10 of the offer, Exh. 60 (reproduced above), Haji Muhammad Juman could not question the jurisdiction of the Revenue Officer to revoke or rescind the transaction even if there was a contract. Both arguments, as advanced by learned counsel, were erroneous. He did not seriously question the validity of the contract, nor did he emphasise any aspect of the transaction to show that the Contract Act was not applicable to it, but appeared to question its existence. It bodily exists and bears the signatures of both parties or their representatives. It was futile to urge that there was no contract. I may mention here that counsel probably tried to suggest that the contract did not fulfil the cons titutional requirements of a binding contract ; but it is to be remembered that it was made in exercise of statutory provisions and powers and was to be executed according to the relevant provisions of the Revenue Law. It was not made in exercise of the executive authority of the Province. As to the second argument, it is true that there was a term in the contract which indicated that the transaction could be 'changed' in appeal ; but a term of a contract cannot confer jurisdiction on any Court or Officer.

7. The reason why I issued notices to the parties to hear them again was that I felt that there was an 'order' or 'decision' in pursuance of which the contract was made, and that the order or decision was apparently appealable under section 203 of the Sind Land Revenue Code, 1879. If it was appealable and an appeal was preferred in accordance with the provisions of law, within the time prescribed for it, then it could not cease to be appealable merely by the reason that it had been acted upon. At the time of re‑hearing the appeal, Mr. Chandnani has addressed elaborate arguments to indirectly disprove this view by establishing that (a) no decision or order appealable under section 203 of the Act had been made, and that (b) if there was an order or decision in pur suance of which a contract was made then on completion the contract acquired an independent status, which was to be respected and enforced under the Contract Act. His contentions go a long way to support his object but do not meet the argument that an order does not cease to be appealable merely because it was execut ed. The provisions applicable to appeals determine the appeal ability of an `order' or `decision' and not its execution. I think the proposition is self‑evident but I may, in this connection, refer to Dattatraya Jayaram Parbhu Desai v. Secretary of State and others (A I R 1930 Bom. 95) in which revisional powers under the Land Revenue Code are partly discussed from this angle.

8. I gave learned counsel as much time as he wanted to prepare himself and to establish his point of view in order to take advantage of his experience in this branch of the law, as well as in view of the statement of counsel for the parties that the questions of law involved in this appeal were of wide application and importance.

9. Counsel has cited many precedents, some of which were obviously inapplicable to this appeal. It is, therefore necessary to refer to them. In support of the first contention counsel cited Boulter v. The Justices of Kent and others ((1897) A C 556) ; Sakharam Krishna and another v. The Collector of Ratnagiri (I L R 28 Bom. 332) ; Mulchand Tilok chand ((1917) 11 S L R 124) ; Nathuram Hiraram Thakor and others v. Secretary of State for India and another (A I R 1922 Bom, 274). In the first judgment a refusal to grant licence was held to be neither a `conviction' nor `order' in relation to summary jurisdiction. The considerations were of a specially technical nature. Moreover, Lord Herschell pointed out that no order was made when an application for a licence was not granted. In the second case a Full Bench held that the cause of action of the case did not involve a decision or order appealable under the Land Revenue Code. The third judgment, to which counsel referred again and again, runs counter to the contention of counsel, for a Division Bench has held in it that "The words `any order' (in section 203) are very wide and include orders that are either executive or judicial or quasi judicial." The learned Judges further observed that the orders in question before them being an executive order that was made without enquiry or proceeding, the right of appeal vested only in the person aggrieved by the order. They pointed out that there was no injustice in taking this view because anybody against whom the order was not made but whose right was violated by a physical act done in pursuance of such an order had a cause of action which was not obstructed by the necessity of an appeal contemplated by section 11 of the Revenue Jurisdiction Act. The first part of the judgment recognises the large scope of appeal and the second part is irrele vant. The fourth precedent is not much in point because according to it a notice merely demanding payment of assessment could not be treated as a decision or an order. In the present case, accept ance of the offer of Haji Muhammad Juman in preference to the offers made by Sanwan and two others was both a decision and an order. It was, therefore, appealable.

10. As to the second contention of counsel I have already held that the `Sanad' was a contract. This view is fully supported by a Division Bench judgment in Sambhaji Baloji Solankar v. The Mamlatdar of Baramati and others (A I R 1953 Bom. 300) but the judgment was dis tinguished by a Full Bench in State of Bombay v. Chhaganlal Gangaram Lavar (A I R 1955 Bom. 1) by pointing out that it was given in exercise of writ jurisdiction and that the main consideration was that " . . the petitioner had been badly treated in a contract being set aside on the ground of misrepresentation without being heard." . Influenced by this consideration the Division Bench had held that "It seems to us that in a case like this, where Government want to set aside or avoid a contract entered on the ground of misrepresentation, the proper procedure to follow is not to take action under section 211 but to file a suit for avoiding the contract, so that the question whether the contract was entered into by misrepresentation or not should be judicially determined."

11. The Full Bench took a different view. The learned Judges have held that a `Kabuliyut', which is a unilateral docu ment executed by a lessee, is‑ " . nothing more than a part of the proceedings provided for by the Land Revenue Code and the Rules for the grant of Government land to a person who applies for it. It is equally clear to us that the title of the plaintiff to the land depends upon the order passed under section 62 and not upon the `Kabuliyat' which is executed in pursuance of the order. The Kabuliyat is nothing more than a mere formality which the law requires in order to give effect to the order passed by the authority under section

62. Therefore, when a citizen asserts occupancy rights in relation to any land in the State, the rights which he asserts are statutory rights, and not contractual rights ; and the obligations of Government towards the citizen in respect of an occupancy tenure are not contractual obligations, but statutory obligations. Every step taken, in the proceedings which ultimately led up to the execution of the `Kabuliyat' was the result of statutory pro visions and the various acts done by the revenue officers were also done pursuant to the powers conferred upon them by statute. It is, therefore, not proper to divorce the `Kabuliyat' from the rest of the proceedings and to attach to it a solemnity which the statute never intended." A `Kabuliyat' is as much a contract as a document signed by both parties. I would, therefore; not draw a distinction emphasised by Mr. Chandnani between a `Kabuliyat' and a `Sanad'. What I would respectfully venture to state is that a contract made in pursuance of statutory provisions and procedure is still a contract though it is essentially subject to the provisions of the statute. Anything contained in such a contract and not controlled by the operation of the statute has a contractual sanctity. The orders under which such contracts are executed are usually bare orders of sanction but relevant terms that are contained in the forms are embodied in the contracts. If new forms are introduced enlarg ing or restricting the rights of the grantees, the contracts made on the old forms are not be affected merely for that reason. The 'Sanad' before me (Exh. 64) is a closely printed document which covers two pages and contains 16 terms. It is signed by the Barrage Mukhtiarkar and Haji Muhammad Juman. The very fact that it is apart from the statute and the rules made under it, creates an entity and gives its holder a status that carries with it rights and obligations enforcible inter partes as well as protected against other claimants or disputants. It particularises the generality of law and fixes certain rights and obligations with reference to the transferee named in it. It could not come into existence in the manner and by the procedure that was followed if the law did not sanction it, but having sanctioned it the law has itself created the rights and obligations that are the consequence of the document.

12. It is a minor consideration while examining a Full Bench judgment, but relevant to the present discussion, that there is a departure in the Full Bench judgment from the established judicial view that a `Kabuliyat' or a `Sanad' is a contract. In Province of Bombay v. Hormusji Manekji (AIR 1947 PC 200) the Privy Council upheld the can cellation by the Governor‑in‑Council of an "agreement" apparently made under section 65 of the Land Revenue Code on the ground that unauthorised alterations made by the promisee on the unit of assessment had rendered the agreement unenforceable and useless ; therefore its cancellation was a declaration of the true position of the agreement in law. In Government of Bombay v. Machurdas Laljibhai Gandhi (A I R 1942 Bom, 256) a single Judge expressed the view on the basis of a Division Bench decision, that "It is not therefore competent to the Government to modify the terms of a `Sanad' if it embodies certain terms and condi tions which are agreed to between the Government and the occupant." The leading judgment of the Full Bench was written by Chagla, C. J. who also wrote the Division Bench judgment which was distin guished in the Full Bench judgment. The Division Bench judgment discloses a hold on the minds of the learned Judges that 'Sanad' was a contract which is not explained by the considerations of rectifying injustice in exercise of writ jurisdiction.

13. One of the functions of Full Benches is to correct errors of previous views but the view taken in the Full Bench judgment, if I may say so with utmost respect, travels beyond the necessity of the situation, because without depriving 'Sanads' or `Kabuliyats' of the solemnity and sanctity of a contract, they could be taken as automatically alterable and rescindable to the degree to which the orders in pursuance of which they were executed were legally alterable and cancelable. The contractual sanctity of `Kabuliyats' or `Sanads' has a separate value. Chagla, C. J. has referred, with a sense of commendation, to a Division Bench judgment written by Beaumont, C. J. in Government of Bombay v. Ahmedabad Sarang pur Mills Co. Ltd. (A I R 1944 Bom. 244) in which the learned Judge drew a distinction between an order and an agreement executed in pursuance of the order. I should better state the gist of that case in the words of Chagla, C. J, who wrote in his Full Bench judgment:‑ "Then we have rather an instructive case in Government of Bombay v. Ahmedabad Sarangpur Mills Co. Ltd. Sir John Beau mont and Mr. Justice Rajadhyaksha were in that case considering an agreement made by a Collector as agent for the Secretary of State and the question arose whether the Commissioner could under section 211 cancel such an agreement; and Sir John Beaumont, in his judgment, points out that it was open to the Commissioner to set aside the order on which the agreement was founded, but that he could not cancel the agreement, and the learned Chief Justice is at pains to point out that he could not cancel the agreement because the agreement was enter ed into by the Collector, not as a subordinate officer of the Commissioner, but as agent of the Secretary of State and entered into by the Collector in that capacity with the parties. Therefore, a clear distinction is made by the learned Chief Justice in this case between agreements entered into by the Collector as a subordinate to the Commissioner and the Collector as the agent of the Secretary of State." In the present case the `Sanad' was executed by the Barrage Mukh tiarkar, and not by the Assistant Revenue Officer who sanctioned the grant. The document does not show in what capacity he executed it but counsel for the appellant conceded that he was not subordinate to the Revenue Officer who heard the appeal.

14. I am led by the foregoing considerations to the conclu sion that the "Sanad" is a contract but the order under which it was executed was appealable. The appeal having been preferred in accordance with the provisions of the law, the order could be set aside. After it was set aside it could neither be pursued further, nor the acts done in execution of it could survive. After the order was set aside by the Revenue Officer, the `Sanad' fell in like a structure without foundation.

15. Mr. Chandnani wanted to argue that the report Exh. 61 was not obtained by fraud and that therefore the appellate deci sion of the Revenue Officer was not correct. He had succeeded before the learned Sub‑Judge and Assistant Judge in inducing them to concentrate their attention on this question. His argument was, however, irrelevant because the Civil Courts cannot sit in judg ment over the decisions of the Revenue Officers if they have acted in exercise of their jurisdiction. There is a sharp; if sometimes fine distinction between jurisdiction and exercise of jurisdiction. Jurisdiction is the authority to hear and decide a question. It is sometimes exceeded in its exercise, but so long as a question is decided within the limits of a jurisdiction, it is immaterial, from jurisdictional point of view, whether the decision is right or wrong Unless jurisdiction is conferred by a provision of law the Civil Courts can check the errors of usurpation of power made by revenue Courts or officers, but not the errors of their judgment. Correction of the errors of their judgment is the obligation of the proper Courts or officers in the hierarchy of the Courts or officers appointed under the legal system on the revenue side.

10. Accordingly I accept the appeal, set aside the judgment of the first Appellate Civil Court and dismiss the suit with costs throughout. K. B. A. Appeal accepted.