QALANDAR BUX Versus BOARD OF REVENUE GOVERNMENT OF WEST PAKISTAN LAHORE
JAMALUDDIN H. AHMAD, J. -The petitioner claiming to be a landless hari recorded his offer for permanent grant of 12 acres of land from an unsurveyed No. 41 which comprised of a total area of 70 acres. This land was situated in Deh Menghan Wari, Taluka Rohri at that time i.e. the year 1956-57. In the like manner other persons also got their offers recorded with the A. R. O., Barrage for grant of 12 acres and amongst them was the respondent No. 2 Gul Muhammad son of Lal Bux Metlo, who in this petition is represented by his 5 L. Rs.
But as the orders of grant and subsequent appellate orders show, the offers were considered in separate groups. As against the petitioner's offer the contestants were, Messrs Habibullah Ansari and Muhammad Bux while as against respondent No. 2 Gul Muhammad, the other contesting offerers were Messrs Abdul Ghani Ansari, Dur Muhammad and Rasool Bux.
The A. R. O. accepted the offer of Habibullah Ansari in the one group and that of Abdul Ghani in the other. The petitioner alone filed an appeal before the Revenue Officer, Barrage against Habibullah Ansari alleging that the latter was not an agriculturist at all. The other unsuccessful contestant Mohammad Bux, did not challenge the grant.
In the other group respondent Gul Muhammad, and Dur Muhammad both challenged the grant in favour of Abdul Ghani. By a single order dated 25th June, 1958. The Revenue Officer/Colonization Officer, Sukkur after hearing both these appeals, cancelled the grant made in favour of Habibullah Ansari and granted 12 acres to the petitioner holding that he was a landless hari, and in the other group he granted the land to Dur Muhammad, still rejecting the claim of the respondent No. 2, Gul Muhammad. About him he said that he was reported to be a zamindar owning 37 acres of land on leis khata and also doing some milk business and, was therefore, rightly excluded by the A. R. O.
Thereafter it is the case of the petitioner that an Ijazatnama dated 23-7-1958 was issued in his favour under section 60 of the Sind Land Revenue Code, which effectively was a permission to enter into possession of the 12 acres of land, which was demarcated and shown in the sketch attached to the said Ijazatnama.
Thus, after taking possession of the land the petitioner claimed to be and remained in continuous possession of the 12 acres of land so demarcated out of the unsurveyed No. 41.
2. The dispute over these grants did not end with the appellate order of the Colonization Officer, and Habibullah Ansari filed another appeal against the appellant before the Commissioner but that was also dismissed on 4th May, 1959. He challenged that order before the Member Board of Revenue West Pakistan in Revision, but as the same was also dismissed on 5th June, 1959 he applied for a review by the Full Board. Being declared unsuccessful by the Full Board on 1-11-1960, he filed a Suit No. 25/60 in the Court of Civil Judge First Class, Sukkur, wherein he challenged the competency of the Revenue Authorities to grant the land to the petitioner. This also be lost. His appeal was also dismissed by the District Judge, Sukkur and he finally filed a revision application in the High Court of West Pakistan, Karachi Bench, which was dismissed by judgment dated 3-12-1962.
3. On the other hand, a similar course of litigation was followed by Dur Muhammad and the Respondent No. 2 Gul Muhammad against the successful grantee Abdul Ghani Ansari, but the Revenue Officer accepted the appeal of Dur Muhammad and granted him an area of 12 acres of land in the same survey No. 41 as against Abdul Ghani Ansari whose grant was cancelled. He challenged this before the Commissioner in appeal, but respondent No. 2 Gut Muhammad significantly kept quiet. Thereafter the contest continued before the Member, Board of Revenue, and the Full Board of Revenue, between Dur Muhammad and Abdul Ghani Ansari alone. Having failed before the Full Board of Revenue Abdul Ghani Ansari resorted to proceedings in the Civil Court, and filed a suit. which ultimately came to be considered in revision before the High Court of West Pakistan, Karachi Bench. This revision application was also heard alongwith revision application of Habibullah Ansari filed against the petitioner and were both disposed of by the same judgment dated 3rd December, 1962 as referred to above.
4. Respondent No. 2, Gut Muhammad who had stepped out, in proceedings in appeal filed against Abdul Ghani by Dur Muhammad, challenged that very order of the Revenue Officer dated the 25th June, 1958 at this stage by filing an appeal for the first time on 29th of October, 1962 before the Commissioner, Khairpur Division. This appeal was thus filed after 4J years and the Commissioner disposed of this petition by his order dated the 29th duly, 1966. The petitioner was not a party to these proceedings, but in recital of the facts, while describing the case of the respondent Gul Muhammad , the Commissioner in his above-said order referred to the grant of 12 acres of land out of the unserveyed Survey No. 41 to the petitioner also and said:
"Similarly there was also another dispute over grant of 12 acres from the same unauthorised Aro. 41 between the appellant and Messrs Habibullah and Qalender Bux. Messrs Habibullah and Qalender Bux went upto the Board of Revenue and they also filed civil suits between themselves which were dismissed and the matter was closed thereafter. The appellant also preferred an appeal before the Colonization Officer and hence this appeal."
In his findings he said,
1. "I agree with the impugned order of the Colonization Officer wherein he grants 12 acres of land to landless hari Qalender Bux and 12 acres to deceased Dur Muhammad and his heirs." About the respondent No. 2 he stated that "he is reported to be a zamindar owning about 37 acres and he has got a well in Survey No. 518. He is a Maldar also and is reported to be dealing in milk. Anyway the status of Gut Muhammad is definitely better than other landless haris like Qalender Bux and deceased Dur Muhammad.
Although the petitioner Qalendar Bux was not a party to the proceedings before the Commissioner and reference to his case was made only in the context of the facts relating to disposal of areas of lands of U. A. 41 the respondent Gut Muhammad challenged the order of the Commissioner before the Board of Revenue, West Pakistan, Lahore in revision and for the first time impleaded the petitioner as respondent No. 3 in the same. Significantly in the Memo of his revision the respondent Gut Muhammad himself referred to the two grants of 12 acres from U. A. 41, as separate grants, each, one to the respondent No. 3 Qalender Bux the petitioner in his case, and second, to the heirs of deceased Dur Muhammad. A notice of this revision was, therefore, issued to the petitioner who, as pleaded by him, received it on 6-3-1968, and made an application on 7-3-1968 which was the date of hearing, to enable him to bring his counsel. Surprisingly no adjournment was granted to him as prayed, and the Member, Board of Revenue passed an order on the same date accepting the Revision of the respondent No. 2 Gut Muhammad. Although he stated that they were two lots of 12 acres of land from U. A. 41 in Deh Menghanwari, and although the Revision Petition against the order dated 29-7-66 was passed by the Additional Commissioner, Khairpur Division on that basis, he set aside the grant made in favour of the petitioner and cancelled the same as unjustified and further granted the same land to the respondent No. 2 Gut Muhammad. Thus the grant of 12 acres made in favour of the petitioner as far back as 25-6-58 was cancelled by the Member, Board of Revenue by his order dated 7-3-68 which is the impugned order in the petition.
5. The learned counsel for the petitioner Mr. G. H. Abbasi has attacked this order, initially, on the ground of being hopelessly time-barred. According to him the grant of 12 acres made to him on 25-6-58 had not been challenged by the respondent No. 2 at any time and he had also not made any offer for the same. The petitioner had been given an Ijazatnama under section 60 of the Land Revenue Code which authorised him to take legal possession. The Ijazatnama clearly shows the piece of land separately demarcated in the sketch attached. The dispute with regard to this portion of the land was between different parties and had become final; it was even so held by the Commissioner, in his order. The contesting parties against the petitioner had exhausted their remedies on the Revenue side as well as on the civil Court side. The final order had the authority of the High Court, as held in the Judgment in Revision referred to above. The impugned order of the Member, Board of Revenue was according to the learned counsel obviously without any lawful authority. The contention of the learned counsel for the respondent Mr. Talpur was, however, that the Member. Board of Revenue was competent in exercising his jurisdiction to give findings on facts by which he found the petitioner Qalender Bux to be not a hari at all, and therefore not entitled to the grant. He referred in this context to the observations, made in the order, "Qalender Bux respondent does not look a hari. He admits to be a resident of Khairpur, quite a few miles from Deh in which the land is situated. He does not know the survey numbers which he is allegedly cultivating. He cannot point out the land in Deh map and could not mention the land he is supposed to be irrigating as hart or which land has been granted to him now. His dress and conversation is that of a town's man. Having spent sometime in trying to establish himself as a hari, he suddenly changed his position and said that he was never a hart of Deh Menghanwai'i and that he was working on an orchard of date-palm in Khairpur town. No proof has been produced that he was a hari".
The learned counsel for the respondents submitted that these were findings which the Member Board of Revenue was himself competent to make and which could not be interfered with by any Court. According to him the land was granted to a wrong person which the Member was competent to cancel and grant to any other person who was entitled to it. He referred to the case of Pir Muhammad Farid Jan v. Colonization Officer, Sukkur Barrage and others (P L D 1965 S C 399) particularly to the observation made at page No. 402:-
"Even if the two appellate orders suffered from an infirmity, the order passed in revision by the learned Member, Board of Revenue was not open to any such exception on the legal plane by section 211 of the Act. The Board of Revenue possesses power to revise an order passed by any subordinate officer and questions of legality and propriety of such a decision would be open in revision before the Board.
The order of the Board was passed after full hearing of both the parties on the merits of the case. Even if therefore the Intermediate Appellate links were weak, the final order in revision, referable as it was to section 211 of the Act, could not be successfully assailed as illegal."
In this the matter under consideration of their Lordships of the Supreme Court was one in which the appellate jurisdiction had been exercised by an Officer who was not superior to the officer who had passed the original order but was in fact of an equal rank. The final order however had come to be considered in the revisional exercise of powers by the Board of Revenue whose order was upheld by the Supreme Court and the infirmity in the exercise of appellate jurisdiction was considered by their Lordships to be insufficient for holding the revision as incompetent So far as the propriety of the merits is concerned, the same could competently be considered by the revisional Court, on the interpretation of section 211 of the Land Revenue Code.
In the instant case, the position was totally different in that not only the piece of land claimed by respondent Gul Muhammad was different than the one granted to the petitioner but the petitioner was also not a party to the dispute with the respondent Gut Muhammad before the Revenue Authorities whose order was challenged before the learned Member, Board of Revenue.
6. Be that as it may, the impugned order of the Member, Board of Revenue is obviously silent as the finality attached to the grant made in favour of the petitioner, by the fact that the grant bad been the subject matter of the litigation on the Revenue side up to the highest level of the Full Board of Revenue and on the Civil side it was adjudicated by the High Court in its revisional jurisdiction.
The Member, Board of Revenue was not also conscious of the lapse of period in-between the grant, and his order of cancellation which is patently hopelessly time-barred. In the case of Ahsan Ali and others v. District Judge and others (PLD1969SC167) as it was observed "it is clear, therefore, that where the plea of limitation was raised or not it was the duty of the Settlement Court to note the point of limitation. The waiver of the question of Limitation is not permissible even where the period of Limitation is prescribed by a special or a local law. Mere disposal of the appeal on merits is not sufficient to lead to the inference that the delay must have been condoned. There must be something in the order of judgment itself to show that the Court concerned was conscious of the fact that the proceeding was out of time and had applied its mind to the question of Limitation before dealing with the proceeding on merits".
The observations fully apply to the present case and are complete answer to the contention of the counsel for the respondent. There is nothing in the order of the Board of Revenue to show that he was conscious of the Limitation in this case or even of the fact that the petitioner's case was relating to a different area than the one for which the respondent No. 2 Gul Muhammad aspired. On a mere consideration of the petitioner's statements made before him, without any reference to the previous proceedings, it was not even proper for the revisional authority to come to the conclusions adverse to the Petitioner, particularly after a lapse of nearly about 10 years during which period the petitioner enjoyed possession of the land.
7. During the pendency of the present petition, respondent No. 2 Gul Muhammad died and by a consent order dated 12-12-1975 his L. Rs. were ordered to be brought on record and Mr. Talpur the learned Counsel for Gul Muhammad undertook to file his Vakalatnama for them. Mr. Niazi Advocate had appeared for the petitioners at that time and an amended Memo of the Petition was consequently filed on 20-12-68. On 6-5-75 Mr. A. G. Talpur as Advocate for the L. Rs. of the deceased Gul Muhammad raised a preliminary objection that the L. Rs. of the deceased Gul Muhammad having been joined beyond the period of limitation the petition was liable to be disposed of. The case was however adjourned for the purpose of Counter Affidavit to be filed by Mr. G. H. Abbasi who at that time appeared for the petitioner, but the complaint made by Mr. A. G. Talpur on account of the interim stay operating against his clients was noted.
The matter again came to be argued on 27-5-1975. The earlier consent order dated 6-5-1975 was not brought to the notice of the Court, as Mr. G. H. Abbasi was not aware of it. It was also argued that respondent Gul Muhammad had not been served with the notice of the interim stay but had received only the notice of the petition.
In these circumstances, this Court put the petitioner to terms i.e. he was made to give security for confirming the interim stay granted earlier and also ordered to pay costs of Rs. 250 to the counsel for the respondent as the petitioner had not filed any counter-affidavit to the application under Order XXII, C. P. C. In the order a reference was also made to the earlier order of the Court dated 6-5-1975 which described the hardships caused to the respondent No. 2 by grant of an adjournment on that date. Mr. G. H. Abbasi the learned counsel for the petitioner has, now sought review of that order and has referred to the consent order dated 12-12-1974 and also referred to the miscellaneous record which shows that the respondent Gul Muhammad had been duly served within 17 days of the order of admission of the Petition. As Mr. Niazi Advocate had appeared at the earlier stage these facts were not within the knowledge of Mr. Abbasi on 27- 5-75.
Mr. A. G. Talpur the learned counsel for the respondent No. 2 who was however a party to that order, could have mentioned these facts, but even he did not do so. Now that the said order was pointed out by the learned counsel for the petitioner, Mr. A. G. Talpur, at first took the stand that his admission on a point of law was not binding on his clients. He bad in fact not been engaged b) the L. Rs. of deceased Gul Muhammad on that date i.e. 12-12-74. After this engagement the L. Rs. of Gul Muhammad were not bound by any of his admission. They had thus filed this application under Order XXI, rule 4 of the C. P. C. supported by an affidavit, which was their case now; and he as their counsel was not debarred from arguing the same on their behalf in spite of his earlier concession.
On the following day to which the hearing of the case was postponed, Mr. A. G. Talpur very candidly admitted that his failure to mention the consent order of 12-12-74 was in fact due to oversight, and that he was prepared to pay back the amount received by him as costs of the date on 27-5-1975.
Had the correct facts been pointed out to the Court, the observations that "petitioner obtained an ad interim order and manoeuvred that notice should not go to the second respondent" would not have been made, for, the second respondent had, indeed, been served within 17 days of the passing of the ad interim order. The order directing the petitioner to furnish security would also not have been passed. However, now that the petition is being finally disposed of there seems to be no necessity of reviewing the above-said order as, with a final decision the order regarding security will also lapse. Mr. G. H. Abbasi may, in his option, recover the costs of Rs. 250 paid by him on that date and the petitioner also be satisfied that the observations made by this Court in the order dated 27-5-1,975 are now without any effect as the same were passed on account of correct facts not being stated.
For the reasons stated above the impugned order of the Member, Board of Revenue dated 7-3-1968 is set aside and it is declared that the grant of the disputed 12 acres of land in U. A. Survey No. 41 in Deb Menghanwari, Taluka Rohri, now Taluka and District Khairpur made in favour of the petitioner, finally confirmed by the Board of Revenue by its order dated 1-I1-1960 is conclusive and cannot be called in question.
This petition is thus allowed with costs.
S. Q. Petition allowed.