P L D 1969 Karachi 369 (PLP)

Sind Revenue Jurisdiction Act, 1876, S. II and Sind Land Revenue Code, 1879, S. 203‑--Words "any decision or order" in S. 203 of Sind Land Revenue Code‑--Word "order" wider in meaning than "decision"‑Word "order" used in general sense and intended to provide relief against vast varieties of directions, mandates or commands issued by Revenue Officers‑Mukhtiarkar imposing Remokal fine‑Order appealable before Revenue Court Section 11, Sind Revenue Jurisdiction Act, 1876, bar to suit in civil Court seeking declaration that demand of fine illegal. A remokal fine was imposed on a person by the Mukhtiarkar. Against his order a civil suit was filed seeking declaration that the demand of fine was illegal. The suit was dismissed by the Court as barred by section 11 of the Sind Revenue Jurisdiction Act, 1876. In second appeal it was urged before the High Court that an order imposing fine was not a judicial or quasi judicial order and therefore it was not appealable in terms of section 203 of the Sind Land Revenue Code, 1879: Held, the important words in the above section, are `decision or order'. In its general sense, the word `order' has a wider meaning than `decision' because a decision is that order by which a dispute or a point is determined, but an order may not decide any point and may be even preliminary or inter locutory. The essential elements of an order, in its general sense, appear to be exercise of authority and issuance of direction. The word has different connotations in the context of different systems or sub‑systems of law. In section 203 of the Sind Land Revenue Code, it has been used in its general sense, and is intended to provide relief to the public against the vast variety of directions, mandates or commands that are or may be made or issued by Revenue Authorities. For instance, it has been held that refusal by the Collector to issue a sanad to the purchaser of a piece of land was an appealable order under this section; that the right to appeal under this section is not restricted to the parties to the proceedings because any person aggrieved by an order, irrespective of his being a party to the enquiry or not, has a right to appeal. The conclusion, therefore, is that the order by which fine was imposed in this case on the plaintiff'/appellant, was appealable and that the lower Courts have rightly field that section 11 of the Sind Revenue Jurisdiction Act, 1876, was a bar to the suit. Nathuram Hiraram Thakor v. The Secretary of State for India 24 B L R 402; Anant Krishnaji Nulkar and others v. Secretary, of State A I R 1931 Born. 238 and Sh. Ghulam Mohiuddin v. The Commissioner, Lahore Division and others P L D 1957 Lah. 826 held not applicable. Tumdu Dhansing v. Province of Bombay A I R 1947 Bom. 403 distinguished. Province of West Pakistata v. H,aji Muhammad Jaman P L D 1960 Kar. 908; Patel 4mbaram Kuberdas v. The Secretary of State for India A I R 1923 Bom. 416 and Rajagopalchar v. Sundaram Chetty and others 45 1 C 333 ref. "That from the robkaris it is proved that remokal fine is fraudulent and in excess of jurisdiction." In paragraph 10 of the plaint he has stated: "That the plaintiff (present appellant) preferred appeals against the imposition of the remokal fine, but no intimation about the result of it as yet."

2. The suit was resisted by the defendants who were the Government of West Pakistan and the Deputy Commissioner, Hyderabad and the following 9 issues were framed on the pleadings of the parties: (1) Whether the plaintiff is not liable for the Remokal -ine? (2) Whether the plaintiff has preferred any appeal against the imposition of Remokal Fine? If not, what is the effect? (3) Whether the statutory notice is, valid? (4) Whether no cause of action has arisen to the plaintiff? (5) Whether the suit is not in proper form? (6) Whether the suit is not maintainable according to law? (7) Whether the jurisdiction of the Court is barred under Sind Revenue Jurisdiction Act? (8) Whether the grant of permanent injunction, as prayed for, is barred under section 56 (d) of Specific Relief Act? (9) What should the decree be? The trial Court came to the conclusion that the suit was barred by section 11 of the Sind Revenue Jurisdiction Act, 1876 and section 56 (d) of the Specific Relief Act. While discussing the effect of section 11 of the Sind Revenue Jurisdiction Act, 1876 the learned Judge observed as follows: "Mr. Zafar counsel for the plaintiff has argued very much by reference to the evidence brought on record, that his client has been fined without being in possession of the land but for all these contentions raised and pleaded, the answer is provided by the latest decision reported in P L D 1962 Kar. 215, wherein Mr. Justice Wahiduddin has decided that the real question for consideration in these matters is whether the Civil Courts have jurisdiction to entertain suits against the orders of the Revenue Authorities on the ground that they were passed on mis-appreciation of evidence or on an erroneous view of the law."

3. The appellant has now come in second appeal to this Court against the order of the First Appellate Court. My Lord the Chief Justice heard counsel for the parties at one stage and adjourned the hearing with the following observations made on 22nd of January 1969 "In this case one of the questions for consideration is whether the fine which was imposed on the appellant was based on some order or not ..I would, therefore, direct the respondents to produce the order in pursuance of which the notice of demand was issued to the appellant home documents which are relevant for the decision of this appeal are in Sindhi language. The appellant has not got them translated which he is directed to do now within a fortnight." The observation that one of the questions for decision was whether the fine which was demanded was based on some order or not is obviously related to paragraph 3 of the grounds of this appeal in which the appellant has inter alia stated as follows: "In the absence of an order or a decision as contemp lated in the aforesaid provisions of law, there arises no question of filing an appeal (in terms of section 11 of the Sind Revenue Jurisdiction Act, 1876) against an act or omis sion of the Revenue Officer."

4. Today when counsel appeared in this case, Mr. Usman Ghani appearing for the respondents stated that the relevant records could not be traced. Counsel for the appellant, how ever, said that he had in his possession the Sindhi document is to which reference has been made in the order of my Lord, the Chief Justice.

5. The attention of my Lord, the Chief Justice was apparently not drawn to the fact that before this appeal, the appellant's case was not that an order imposing fine was never made. Some of the above quotations from the plaint and the order of the trial Court would show that the plea simply was that the order of fine was illegal. The First Appellate Court has observed in paragraph 9 of its judgment as follows: "There is no dispute that the Mukhtiarkar had the power to impose the Remokal Fine and therefore the order for the recovery of the Remokal Fine from the appellant was within his jurisdiction." In fact, the case of the plaintiff/appellant has been that he had preferred appeals in order to satisfy the requirements of section 11 of the Sind Revenue Jurisdiction Act, 1876 but the officers did not take notice of those appeals; therefore, he was compelled to file a civil suit. In these circumstances, no question would arise about the non‑existence of the order by which fine was imposed on the plaintiff/appellant. No issue was framed on this question, and no evidence was led in respect of it.

6. I enquired from counsel for the appellant as to how he could justify the attempt to raise this new question of fact in this appeal to which he replied that the admissions of the plaintiff/appellant extended only to the point that a demand for the recovery of fine was made but did not extend to the existence or non‑existence of an order imposing fine; there fore, the question was still open for consideration in respect of the alleged bar of section 11 of the Sind Revenue Juris diction Act, 1876. This reply is, factually incorrect because the admissions of the plaintiff/appellant extended to the existence of an order of fine. Moreover the attempt is legally incorrect because irrespective of whether there is an admission of the plaintiff/ appellant in this respect or not, it is a question of fact and cannot be raised at the stage of second appeal. It is ordered accordingly. Counsel for the appellant next tried to argue that the said section 11 is not a bar because even if there was an order imposing fine, it was not a judicial or quasi‑judicial order; therefore, it was not appealable. In support of this contention, he has relied on the language of section 203 of the Sind Land Revenue Code, 1879, Nathuram Hiraram Thakor v. The Secretary of State for India (24 B L R 402), Anant Krishnaji Nulkar and others v. Secretary of State (A I R 1947 Bom. 403), Tumdu Dhansing v. Province of Bombay (A I R 1947 Bom. 403), Sh. Ghulam Mohiuddin v. The Commis sioner Lahore Division and others (P L D 1957 Lah. 826) and Province of West Pakistan v. Haji Muhammad Jaman (P L D 1960 Kar. 908). The said section 20; runs as under:‑ "In the absence of any express provision of this Act or of any Law for the time being in force to the contrary, an appeal shall lie from any decision or order passed by a revenue officer under this Act, or any other law for the time being in force, to that officer's immediate superior, whether such decision or order may itself have been passed on appeal from a subordinate officer's decision or order or not." The important words in the above section are `decision or order'. In its general sense, the word `order' has a wider meaning than `decision' because a decision is that order by which a dispute or a point is determined, but an order may not decide any point and may be even preliminary or inter locutory. The essential elements of an order, in its genera sense, appear to be exercise of authority and issuance of direction. (See in this connection Sh. Ghulam Mohiuddin v. The Commissioner Lahore Division and others and Province of West Pakistan v. Haji Mohd. Jaman). The word has different connota tions in the context of different systems or sub‑systems of law. (See for instance Mercantile Law or Parliamentary Law or the Code of Civil Procedure).

8. But we are not here concerned with the implications that are attached to the word in different contexts. In section 203 of the Sind Land Revenue Code, it has been used in its general sense, and is intended to provide relief to the public against the vast variety of directions, mandates or commands that are or may be made or issued by Revenue Authorities. For instance, it was decided in (Patel) Ambaram Kuberdas v. The Secretary of State for India (A I R 1923 Bom. 416) that refusal by the Collector to issue a sanad to the purchaser of a piece of land was an appeable order under this section. In Rajagopalchar v. Susndaram Chetty and others (45 I C 333) it was held that the right to appeal under this section is not restricted to the parties to the proceedings because any person aggrieved by an order irrespective of his being a party to the enquiry or not, has a right to appeal.

9. The case of Nathurarn Hiraram Thakur v. Secretary of State for India, has no application to the facts of this case, because in this case it was found that no order was made. Anant Krishnaji Nulkar and others v. Secretary of State is not applicable, because in that case the order was found to be without jurisdiction and, therefore, ultra vies of the authority of the officer who made it. Sh. Ghulam Mohiuddin v. The Commissioner, Lahore Division is not relevant, because the basic distinction which was considered in that case was between "act" as distinguished from "order". Tumdu Dhansing v. Province of Bombay contains observations which have been interpreted by counsel to mean that a decision or order appealable under section 203 of the Sind Land Revenue Code, 1897 must be of a quasi judicial character and also one of which notice was given to the party concerned. But with great respect, I feel that for proper under standing of the observations, it is necessary to pay attention to the two sentences which follows them. They are as follows: "It would not be possible for a defaulter to appeal against an administrative decision of which he had no know ledge, and further the decision or order must be one to which the defaulter in fact objects. Mere administrative or departmental decisions or orders from one revenue officer to another, of which the defaulter has no knowledge or notice, cannot be the subject‑matter of any appeal."

10. Full significance of the above quotation is realised if we keep the facts of that case fit mind. A property of substantial value belonging to the plaintiff was put to auction by a Revenue Officer and was sold for one rupee only to another Government official who was a Revenue Patil, and was acting for and on behalf of the Government itself. The action was sought to be justified on the basis of certain resolutions of the Government which were passed in the Public Works Department. They were not treated as secret, but were not made public. They contained a scheme which was prepared to meet a situation where contractors avoided pay ment of Government dues, and when their property was put to auction, bidders did not come forward to buy. This aspect is revealed by the following order of the Collector "The Mamlatdar should try to secure bidders at the time of auction if he apprehends that there should be no bidders. He should send the copies of the proclamations of sales to the adjoining Talukas and request the Mamlatdars concerned to send bidders on the date of sale. Even if with all his efforts the Mamlatdar fails to secure bidders he should arrange to purchase the whole property of the defaulters for a nominal bid of one rupee only in each case through the Revenue Patil . . . . As regards the proposal of the Mamlatdar to send the defaulters to the Civil Jail, it appears that the defaulters have no self‑respect and they will therefore enjoy life in the Civil Jail at the expense of Government."

11. The above reason for adopting the method of dis posal which resulted in the sale of the plaintiff's property for one rupee could not, however, be upheld by the Court which considered the facts of the case by dividing them into seven parts, and came to the conclusion that the sale was a nullity. The learned Judge has observed as follows: "The word `nominal' shows that there was nothing of substance about the offer, and the endorsements and forma lities by which an attempt was made to give some semblance of regularity to what was done, cannot in my opinion, cloak in legal guise that which was nothing better than a device to vest the appellant's property in a revenue officer holding on behalf of Government. The Bombay Lana Revenue Code contains no power either to forfeit or to foreclose a defaulter's property. Yet the scheme formulated by the resolution referred to at the commencement of this judgment aims in effect at bringing about such a result, for, it effective it would achieve the extinguishment in favour of Government of all the appellant's rights and ownership in .his land. In my judgment what took place at the alleged auction sale was of no effect and did not give to the Revenue Patil or to Government any right, estate or interest in the appellant's property. But the Advocate‑General has submitted that it is not open to the appellant on his plaint to contend that what took place was a nullity. In my opinion this is not so."

12. The above background brings out the full significance of the reference to the administrative decision of which the plaintiff had no notice and that there was a departmental order from one Revenue Officer to another. In view of this elucidation of the situation, I am inclined to think that the observation that a decision or order in respect of which an appeal lies, must be a decision or order of a quasi‑judicial character, and one of which the defaulter is given notice, was intended to expose the spurious "character of that particular transaction, and not to restrict the meaning of the words "decision" or "order" which occur in section 203.

13. The conclusion, therefore, is that the order by which fine was imposed in this case on the plaintiff/appellant, was appealable and that the Lower Courts have rightly held that section 11 of the Sind Revenue Jurisdiction Act, 1876 was a bar to the suit.

14. Before parting with this case, I may, however, add that counsel for the appellant raised two more contentions which were, firstly that the imposition of fine was mala fide and secondly that the cancellation of the grant, a; a result of which the plaintiff/appellant was found to have cultivated the land unauthorisedly, was itself void. The first contention raises a question of fact on which there was no issue, and there is no decision by the lower‑ Courts, and the second contention seeks to raise a contention which in order to time relates to the earlier period than the imposition of fine. On this point also, there was no issue, and there has been no decision by the lower Courts. They cannot be allowed in these proceedings.

15. In final conclusion, the appeal is dismissed with costs. K. B. A. Appeal dismissed.