MUHAMMAD SAFDAR ALI IQBAL vs SHER MUHAMMAD AND 2 OTHERS

' Land in Lot No, 20/27, Chak No, 6/M. L. Tehsil and District Mianwali was allotted to one Nazir. Ahmad son of Eid Muhammad under a scheme, for which proprietary rights could be given after fulfillment of the conditions of the grant. It is stated by the learned counsel that one of the conditions of the grant was that the allottee shall cultivate the land himself. Nazir Ahmad was granted proprietary rights on 15th of July, 1976.

2. He sold the land in question to respondents 1 and 2 on the same day. The petitioner filed a suit for possession by way of pre-emption on 12th of July, 1976. In the written statement, they took up a plea that they have a better right as tenants under para. 25 of the Land Reforms Regulation, 1972.

They also applied to the revenue authority, for correction of the khasra girdawaris so that they could be shown as tenants in occupation at the time of sale. The petitioner also made an application to the same authority praying that the application of the respondents, be dismissed as the same had been filed mala fide.

3. The Collector without issuing any notice to the petitioner and without allowing him an opportunity of being heard allowed correction of the khasra girdawari vide his order dated 12th of October, 1977. The petitioner successfully appealed against that order. The Additional Commissioner in his order dated 27th March, 1978 observed, that the impugned order, attempting to change the existing entries in the 'record of rights' for the purpose of creating evidence in favour of the respondents, to the disadvantage of the petitioner was unlawful.

4. The respondents took a revision petition before the learned Member, Board of Revenue. He relied on the canal khatunis, report of Settlement Tehsildar and concession of Mukhtar-e-Aam of Nazir Ahmad vendor to uphold the order of the Collector dated 12th of October, 1977. He had held that the respondents were tenants of Khasra No, 50/1-10 and 51/6-10 before and at the time of sale. The petitioner challenges that order through the present writ petition.

5. It is contended by the learned counsel, that the Member, Board of Revenue, passed the impugned order without calling for the record and without going into the relevance, validity or effect of the canal khatunis and the report of the Tehsildar. The counsel, however, is not in a position to prove from the documents before me that the record had not been called for. He then relied on Annexures R/I to R/4 to say that had the Member, Board of Revenue seen the record relied on by him, he could not have upheld the joint cultivation of the respondents in all the Khasra numbers.

6. The learned counsel for the respondents 1 and 2 defended the impugned order mainly on the ground that as the Member, Board of Revenue did have exclusive power under section 172(2)(vi) of the Land Revenue Act, his order is not subject to interference by this Court. He also relied on a judgment of this Court in W. P. No, 3230/76 holding that the Member, Board of Revenue did have the power to correct entries of the revenue record.

7. There can be no dispute with the broad proposition as advanced by the learned counsel for the respondents. However, all such orders are subject to judicial review of this Court under its constitutional jurisdiction. After hearing the learned counsel and going through the documents on the record, 1 find that the impugned order cannot be maintained. It is an admitted fact that the litigation out of which the present petition arose was meant to affect the result of the pre-emption suit of the petitioner. The suit could be dismissed if the respondents were proved to be tenants of the demised land in view of the preferential right conferred on them under para. 254) of the Land Reforms Regulation, 1972. It is also clear that the Collector did pass his order without allowing the petitioner an opportunity of being heard. He did so after the petitioner informed him of his interest in the cause. Further, he relied on a concession from Nazir Ahmad vendor who got his proprietary rights on the representation that he himself cultivated the land and did not sublet it. The Collector ought to have checked up the 'terms and conditions' of the grant and ought not to have falsified his own record and the order granting the proprietary rights.

8. In any case the record produced by the respondents themselves does not support the orders passed by the Collector and the Member, Board of Revenue. The position as appears from .These documents is as under :- {{TABLE}} Annex Crop Cultivator Khasra Nos.

R/I R/2 R/3 R/4 Kharif, 1974 Rabi, 1974-75 Kharif, 1975. Rabi, 1975-76 Sher Muhammad 50/1 to 5, 9.& 10 51/7 to 10.

50/3, 5 to 10 51/6 to 10 50/1, 3 to 10.

51/6 & 7.

50/2 to 10.

51/7 to 10.

Sher Muhammad Muhammad Siddique.

Sher Muhammad.

Sher Muhammad. {{TABLE}} ' The above table makes it absolutely clear that there was no joint cultivation. Both the respondents had their independent occupation of various Khasras in different crops. Neither the Collector nor did the Member, Board of Revenue apply his mind to this aspect of the case. Consequently, the orders passed by the Collector and the Board of Revenue, holding the respondents 1 and 2 to be the tenants of the entire disputed land are without lawful authority.

9. It is to be noted further that in view of the provisions of para. 25(4) of the Land Reforms Regulation, the revenue authorities have to be careful in entertaining such applications, particularly after proceedings of pre-emption have started. Section 53 of the Land Revenue Act does give power to the civil Courts to decide disputes in respect of entries in the record of rights or the periodical record i. e. Khasra girdawari. Thus it is only a waste of time and money to permit such an exercise in the revenue Courts. According to the law, as it stands now, the pre-emption cases are triable by the Collector. He himself is responsible for the maintenance of the revenue record. He, therefore, could ask the parties to adduce whatever evidence they like to, in respect of entries in the khasra girdawaris and decide the issue in those proceedings. He should not encourage ex parte proceedings at the instance of only one of them. It is to be further noted that whereas the proceedings under the pre-emption suit are of a judicial nature, the correction of Khasra girdawari is an administrative act, meant only to correct the fiscal record. Consequently, any exercise on the administrative side will amount to interference with the course of justice.

' In view of the above, this petition succeeds, the impugned order of the Member, Board of Revenue is declared to be without lawful authority and of no legal effect. The result is that the order of the Additional Commissioner shall be maintained. There will be no order as to costs.