P L D 1980 SUPREME COURT 189 (PLP)

Respondents Nos. 1 to 12 were allotted some land on 27th of August 1959, in 12 separate lots of 121 acres each under the Grow More Food Scheme in Chak No. 504/G. B., Tehsil Samundri, District Lyallpur. Their allotments were subsequently cancelled on 19th of November 1960, without being put into possession of the land so allotted. However, they took forcible possession of the land and, thereafter, preferred an appeal before the Collector which was rejected. .They then filed a Revision which was dismissed on 27th of January, 1962, by the Additional Commissioner, Sargodha. They next, filed a Second Revision before the Board of Revenue but did not succeed as it was dismissed by order dated 23rd of January. 1963, as they failed to establish that they were tenants under section 10(4) of the Colonization of Government Lands (Punjab) Act. However, they were permitted to cultivate the land on "equitable" ground upto the end of Rabi 1964 by the same order. Thereafter, respondent No. 1 filed a suit to challenge the resumption of his 121 acres of land on 22nd of April, 1971, in which he impleaded Pehelwan Lambardar son of Muhammad, as a defendant, to whom this land was allotted. As he failed to establish that he was a tenant his suit was dismissed on 22nd of April 1973. An 'appeal was taken to the District Judge which was decided by an Additional District Judge against him. He then filed an R. S. A. in the High Court which was withdrawn on 18th of February, 197::. Again, in terms of the Policy Letter No. 8086-69/1683-CL-III dated 1st of June, 1960, the respondents agitated before the Collector that they may be allotted alternate land as they were the lessees of the State land under the Grow More Food Scheme. They, however, did not bring to the notice of the Collector, the orders rejecting their entitlement by the Revenue Authorities and the order of status quo dated 22nd of October 1973, passed by the Additional District Judge, Lyallpur, in an appeal filed by the appellants and managed to obtain the allotment of the land in dispute as alternate land under the Grow More Food Scheme, as per order of the Collector dated 20th of December 1973. It was at this juncture that the appellants approached the Board of Revenue (Colonies) with the prayer to permit Muhammad Hussain to transfer his rights in the land to the appellants which was allowed by order dated 28th of June 1974, on payment of Rs. 100 as penalty. The. respondents challenged this order in Writ Petition No. 648 of 1974, and succeeded with the result that the order dated 28th of June 1974, was held to be without lawful authority as it was passed at the behest of a Minister. Accordingly, it was the order of the Collector dated 20th of December 1973, which remained in the field. It was then that Mr. S. M. Nasim, a Member of the Board of Revenue suo motu exercised revisional powers and by order dated 30th of September 1975, set aside the order dated 20th of December 1973, and directed that as the land was available for disposal, the appellants should approach the Government for its transfer or sale to them under the Tube-well Sinking Scheme. Accordingly, the appellants requested for the grant of the proprietary rights which was acceded to by the Board of Revenue by order dated 4th of November, 1975, and finally after payment of the sale price a sale deed was executed in favour - of the appellants and registered on 1st of December, 1975. The respondents, in the meantime, challenged the order of Mr. S. M. Nasim dated 30th of September, 1975, in Writ Petition No. 388 of 1975, and succeeded principally on the ground that the Notification of the Punjab Government dated 18th of October 1973, issued under subsection (2) of section 3 of the West Pakistan Board of Revenue Act; 1957, did not appoint him as a Member of the Board of Revenue but only entrusted. him with certain judicial functions of the Board of Revenue and, therefore, he was incompetent to exercise the powers of a Member of the Board of Revenue. In holding so, the learned Single Judge approved his earlier view in Ejaz v. The Board of Revenue (1), in which case, while construing the same Notification held: firstly, that the purported exercise of the powers of the Member for the disposal of colony judicial cases was clearly against the express language of the statute that is, the West Pakistan Board of Revenue Act, 1957, secondly, that such Notification did not fall within the language of section 3(2) which expressly refers to the appointment or removal of a Member of the Board of Revenue and not to the conferment of the powers on a person as Member, Board of Revenue, for the disposal of the colony judicial -cases; and thirdly, that there was disregard of rule 4 of the Board of Revenue (Conduct of Appeals and Revisions) Rules, 1959, framed on the strength of section 6(t) of the Act inasmuch as it was the Member alone who could pass an order on an appeal or a revision application and not Mw S. M. Nasim who was not notified as a Member of the Board of Revenue. The learned Single Judge in the High Court did not agree with the dissenting view of Shameem Hussain Kadri, J. in a Review Application No. 24 of` 1976, wherein he expressed the view that Mr. S. M. Nasim was validly notified as a Member of the Board of Revenue for the disposal of colony judicial cases under section 3 (2) of the Act on his interpretation of the language of that provision and himself dissented from the view expressed in Ejaz v. Board of Rerenue. We may here also mention that Nasim Hassan Shah, J. (as he then was) followed the view of Shamim Hussain Kadri, J., in Writ Petition No. 805 of 1976. Leave to appeal was granted to resolve the conflict . of judicial opinion in the same High Court in regard to the legality of the appointment of Mr. S. M. Nasim as Member Board of Revenue. The point of controversy has been sufficiently adumbrated in the aforementioned narration. In judging the . true purport of the Notification dated 18th of October 1973, by which Mr. S, M. Nasim was conferred the "powers of Member, Board of Revenue, Punjab, for the disposal of colony judicial cases in addition to his own duties till further, orders" it would be necessary to consider not only section 3(2) but also the other provisions of the West Pakistan Board of Revenue Act, 1957. While section 3(2) of the Act specifically confers powers on the Government, to appoint or remove a Member, section 4(2) empowers the Government to issue directions, as considered necessary or expedient, except those in which the Board exercises appellate or revisional jurisdiction. Section 5 deals with the functions of the Board of Revenue trot only as the controlling authority in all matters connected with the administration of land, collection of land revenue, preparation of land records and other matters relating thereto but also is (1) P L D 1976 Lah. 563 designated as the highest Court of appeal and revision in revenue cases in the province. Section 6 provides that subject to the approval of the Government, the Board may distribute its business amongst its Members and may, by rules, regulate procedure of all proceedings before it.. Section 7 gives finality to the orders passed by a Member either in appeal or in revision; and section 8 deals with the review of orders. It is obvious from section 4(2) that there is no control over the Board for exercising the appellate and revisional jurisdiction while section 6 empowers the Board to collectively decide a case or to pass it over to a Member for deciding it subject, however, to the Rules framed thereunder. The emphasis appears to he on the word "Member" or the Board collectively which s comprised of such Members. The words "subject to the approval 'of the Government" do not, by their connotation, confer on the Government any power to distribute the judicial business of the Board to any Member but to approve what is recommended to it by the Board in the matter of the distribution of its business amongst its Members. The implication of the word "Member" has a reference to the appointment of a person as Member under section 3(2) of the Act who collectively constitute the Board of Revenue under section 3(l) of the Act. There is no reference of any power in section 3 for notifying any person to exercise the powers of a Member for the disposal of judicial case for .that appropriately falls within the plenary jurisdiction of the Board itself to distribute its judicial business to its Members; and for that matter the words "subject to the approval of. the Government" in section 6(1) cannot also be pressed into service. Therefore, unless a person is notified as a Member under section 3(2) of the Act, he cannot exercise the judicial functions o the Board of Revenue for disposing of cases. The opinion of Shafi-ur Rehman, J. in Ejaz v. Board of Revenue, finds further support from a later judgment of the same High Court, Muhammad Sharif v. Allah Ditta and others (P L D 1977 Lab. 16), in which the same controversy arose for decision and it was held as under? Section 6 is very specific in this respect and makes the Board arbiter on the question as to how to distribute its business amongst its members although this power is exerciseable subject to the approval of the Government. This provision rules out the possibility of the Government's distributing the business amongst the members of the Board. A fortiori it cannot be permissible for the Government to confer only some of the powers on any person and treat him as a Member of the Board. This procedure is foreign to the scheme of the Act. There is only one exception under which an additional member for a particular purpose - can be appointed by the Government and that is clause (b) of subsection (3) of section 6 where members acting collectively in judicial capacity are equally divided in regard to the decision on any point arising in' the case before them and there is no other member of the Board. An additional member can then be appointed by the Government for the purpose of that case. Mr. S. M. Nasim had not been appointed as a member of the Board of Revenue. He was merely authorised to exercise only powers of the Member, Board of Revenue, for disposing of Colony Judicial Cases. Clearly, he could not exercise any other power which is conferred upon the Board of Revenue or its members by the Act, in keeping in view the provisions of the West Pakistan Board of Revenue Act, 1957, such conferment of only some powers or distribution of business of the Board by the Government is extraneous to the Act. It was rightly held in the case of Ejaz Ahmad that Mr. S. M. Nasim was not a member of the Board and had no jurisdiction to act as such, the proceedings before him are coram non judice." For the foregoing considerations, we approve the view taken in Ejaz v. Board of Revenue and Muhammad Sharif v. Allah Ditta and others. The contrary view expressed by Sham im Hussain Kadri, J., and Nasim Hassan Shah, J., has not stood the test of interpretation and is, therefore, disapproved. Concluding, thus, Mr. S. M. Nasim, not being a fulfledged member of the Board of Revenue, could not exercise its judicial functions in violatio of the statutory provisions of the Act and, therefore, as the High Court has held, his order dated 30th of September 1975, was illegal. Accordingly, the suo motu revisional proceedings shall be deemed to be pending for decision. The appeal fails and is hereby dismissed but with no order as to costs. s. A. H. Appeal dismissed.