2001 PLP 2284 (YLR)

WAHID BUX BROHI, J.

The petitioners have assailed the order, dated 29-3-2000, passed by Member (Provincial), Board of Revenue, Sindh whereby the order of Assistant Commissioner, Larkana Division was set aside and the matter was remanded to the Land Commissioner Larkana, to decide the case afresh under the provisions of Land Reform Laws after providing chance of hearing to both the parties.

2. It is the case of petitioners that in the year 1962 they were granted land under the "scheme for the sale of resumed land" by Deputy Land Commissioner, Larkana and the same was mutated in their names in 1973 after they made full payment. Subsequently, in 1990 one Muhammad Juman (respondent No.3) filed a miscellaneous application for cancellation of the land of petitioners Nos.4, 5, 6, 7 and 8 on the grounds that the resumed land was illegally granted to the said persons (petitioners aforementioned) as they were neither residents of same Deh nor Haris, but they were merchants by profession, and that after grant they had sold away some land and were still selling more of the land granted to them. The Deputy Land Commissioner, Larkana after holding enquiry passed the order, dated 4-12-1991 affirming the cancellation of land Survey Nos. 202 and 203 granted to Abdul Rasheed and Ghulam Sarwar (petitioners Nos.4 and 6) and further directed that half of Survey No. 187 granted to Nizamuddin petitioner No.5 shall also stand cancelled and the land shall revert to Land Commission. He ordered that no action for cancellation of remaining survey numbers be taken. Thereafter, the respondents Nos.2, 3 and 4 approached Additional Commissioner, Larkana under section 161 of the Sindh Land Revenue Act, 1967 for cancellation of the grant. The Additional Commissioner, Larkana held that the grantees had not taken pains to develop and cultivate the land and they did take any benefit from the land therefore, they should not be allowed to retain State land; and that their act amounts to usurping the rights of eligible and deserving Haris. Consequently, by his order, dated 19-11-1996 he cancelled the entire allotment/grant and directed that the land be resumed and allotted afresh to deserving Haris in open Katehahry giving chance, to previous allotees to try their luck in open Katchahry. This order was challenged by the petitioners before Board of Revenue, Sindh who passed the impugned order. The petitioners have questioned the order of Member, Board of Revenue by invoking the Constitutional jurisdiction of this Court seeking the following reliefs of declaration and injunctions:-- (i) Declare that the impugned order (Annexure 'E') to the extent of remanding the case to Land Commissioner, Larkana, being coram non judice in a nullity in law and of no effect. (ii) Declare that the order, dated 19-11-1996 of the learned Additional Commissioner, Larkana (Annexure 'B') having been passed without proper jurisdiction was also a coram non judice. (iii) Declare that the order, dated 4-12-1991 of the learned Deputy Land Commissioner, Larkana, has attained finality and cannot be challenged except in accordance with the law and rules laid down in NLR 64. (iv) Restrain the learned respondent No. 1 from remanding the case to the Land Commissioner, Larkana, as directed by him in the impugned order (Annexure 'E'); and if the case has already been remanded, to restrain the Land Commissioner, Larkana, from proceeding in the matter till the final disposal of this petition. (v) Grant any other relief to the petitioners deemed fit and appropriate in the circumstances of the case.

3. Learned counsel for petitioners contended that the scheme for the sale of resumed land did not fall within the ambit of Sindh Land Revenue Act, 1967, therefore, neither Additional Commissioner, Larkana who passed the order, dated 19-11-1996 nor the Member, Judicial, Board of Revenue, Sindh who passed the impugned order; dated 29-3-2000 possessed jurisdiction to decide the questions relating to grant made in pursuance of West Pakistan Land Reforms Regulation, Termed as Martial Law Regulation No.64, therefore, both the orders having been passed in proceedings coram non judice be declared as illegal, void ab-initio and of no legal effect. He emphasised that the Board of Revenue could remand a case only to the Revenue Officer as contemplated under subsection (3) of section 61 of the Sindh Land Revenue Act, 1967 (as amended) and not to Land Commissioner.

4. It was argued on behalf of respondents that the petitioners have not been aggrieved by the impugned order as the questioned order of Additional Commissioner, Larkana has been set aside and the matter has been sent to the appropriate forum where the rights of parties are yet to be determined and since no vested right of the petitioners has in substance been determined or taken' away through the impugned order; no prejudice has been caused to them as such Constitutional petition is not maintainable.

5. We have rendered our anxious consideration to the contentions raised pro and contra. It would be illustrative to reproduce the operational portion of the impugned order contained in paras. 5 and 6 thereof which run as under:

"

5. The respondents Muhammad Juman instead of filing appeal before the Land Commissioner, Larkana chose the forum of the learned Additional Commissioner, Larkana to assail the order of learned Deputy Commissioner, Larkana passed under the West Pakistan Land Reforms Rules, 1959. Thus in view of the provisions of said law/rules neither the appeal of the respondents was maintainable under the Land Revenue Act nor the Additional Commissioner I, Larkana. Division was competent to entertain and decide such appeal in his capacity as Additional Commissioner.

6. In view of the legal position discussed above, the impugned order of the learned Additional Commissioner, Larkana Division is without jurisdiction and is set aside. The case is remanded to the learned Land, Commissioner, Larkana Division to decide the. case afresh under the provisions of Land Reforms Laws, after, providing the chance of hearing to both the parties. "

6. The plea advanced by learned counsel for petitioners has, ex facie, been affirmed by the Member, Board of Revenue in the impugned order to the effect that in pursuance of rules framed under Martial Law Regulation No.64 or say West Pakistan Land Reforms Regulations, an appeal against the order of Deputy Land Commissioner would lie only to the Land Commissioner as such appeal to Additional Commissioner, Larkana was not competent, and in consequence thereof the order passed by Additional Commissioner Larkana being without jurisdiction was liable to be set aside; and it was accordingly set aside. On the premises of statutory provisions relied upon by the learned counsel for petitioners the impugned order affirms the legal position as to the non maintainability of appeal before Additional Commissioner as such to that extent there is no legal flaw in the impugned order.

7. The other contention that the Member of Board of Revenue was not competent to hear and decide the appeal in such a matter is on the face of it devoid of force. It cannot be denied that an order, passed by the Additional Commissioner, is appealable within the contemplation of section 161 of the Land Revenue Act to the Board of Revenue. Whether the order of Additional Commissioner was right or wrong or without jurisdiction are the questions to be scrutinized and determined by the Appellate Authority namely the Board of Revenue, and inconsequence the Member, Board of Revenue has duly performed his legal obligations in the instant case by passing the impugned order wherein he has resolved the point of jurisdiction correctly as highlighted in the foregoing para. of this order. There is, therefore, no reasonable basis to strike down' the impugned order on this score.

8. Learned counsel, however, urged that the Board of Revenue exercising the powers under the Land Revenue Act, 1967 was not competent to remand the matter to the Land Commissioner, Larkana. As far the word "Remand" is concerned, it implies return of the case en route to the same Court where the order assailed in appeal was passed or to a lower forum where the case could be heard and the substantial issues adjudicated on trial/hearing. To this level learned counsel for the petitioners is correct as the case could be remanded by the Board of Revenue only to the Revenue Officer, but in the instant matter the Revenue Officer had no jurisdiction to adjudicate upon the issues, therefore, in strict sense the remand could not be ordered by the Board of Revenue. It may be appreciated that the above concept is based on strict technical implications otherwise in the impugned order the Member, Board of Revenue has practically forwarded the case to Land Commissioner that is to say the forum competent to adjudicate upon the issue of grant of resumed land and cancellation thereof. Utmost care has been taken while wording the operative part of the order by stating therein that the case is to be decided afresh under the provisions of Land Reform Laws. All the same, abundant caution has been exercised by mentioning that such decision be rendered after providing chance of hearing to both the parties. In this manner, neither the question of limitation has been decided nor a remote observation has been made in that behalf. In this context we would clarify that the decision under the Land Reform Laws would imply adjudication of all legal and factual points strictly in accordance with law, be that the point of limitation or question of locus standi of the parties or any other allied controversy. The word "Remand" used in the impugned order in real sense means sending the case to the Land Commissioner for deciding the same in accordance with law, therefore, it does not suffer from any patent illegality.

9. On the point of remand, learned counsel however, relied on 1996 MLD 434 (Saeed Farooq v. State) wherein this Court remanded a criminal case back to the Additional Sessions Judge but observed that in the normal course of events the remand order is only to be passed under highly exceptional circumstances. Reliance was also placed on this authority keeping in view the observation that where a particular forum had exclusive jurisdiction to proceed with a case, any attempt by another forum to take cognizance of matter or institute the proceedings would render the proceedings void, ab initio and of no legal effect. There is no cavil/to these observations as the same are based on settled law: nevertheless we have already expressed in clear terms that stricto senso, the impugned order is not of regular remand by Appellate Court to its lower forum. An erroneous use of word 'remand instead' of sending or forwarding the case to the competent forum would not by itself be tantamount to an illegality.

10. On the whole, no vested right of the petitioners has been infringed through the impugned order and there is no such illegality therein warranting at this stage interference by this Court in its Constitutional jurisdiction. Accordingly the petition is, dismissed in limine, with no order as to costs. H.B.T./A-216/K Petition dismissed.