ALI MUHAMMAD Versus MUHAMMAD BACHAL
MUHAMMAD ASLAM ARAIN, J: ‑‑ In this Constitution petition the petitioners have challenged the order, dated 8‑5‑1988 passed by the Additional Commissioner, Hyderabad (respondent No.7) and dated 18‑8‑1989, passed by the Member, Board of Revenue Sindh (respondent No.8) and seek to declare said orders as having been passed without lawful authority and being of no legal effect.
2. The brief facts of the case are that the petitioners are residents of Makan and Deh Murad Lashari, Taluka Diplo, District Tharparkar and are Makani Abadgars. According to the Policy Circular of the year 1930, the Makani Abadgars were authorised to cultivate the barani land, without permission and petitioners cultivated the land continuously for 5 years without any objection or claim. According to the para. 9 of the Policy Circular, the land so continuously cultivated for more than 5 years, without any adverse claim, was to be confirmed permanently in the names of Makani Abadgars and entered in Revenue Record known as Hameshgi Yadashat. On 12‑8‑1982, Deputy Commissioner/Collector, Tharparker (respondent No.6) sanctioned 34 pieces including some pieces to respondents in Hameshgi Yadashat for the year 1980‑81. Similar 63 more pieces were also sanctioned, some in the names of the petitioners and others in the names of respondents for the year 1979‑80. The petitioners paid full price for the land included in their grants and Ijazatnamas were issued in their favour.
3. On 2‑6‑1986 the respondents Nos.1 to 5 through their Advocate requested respondent No.6, to move the Commissioner to take suo motu action for cancellation of Hameshgi sanctioned in favour of the petitioners. In their application moved before respondent No.6, it was stated by respondents that the land involved in the grant of the petitioners could not be disposed of permanently, but was to be disposed of on yearly basis and that the petitioners were not Makani Abadgars of the said land. The respondent No.6 made reference to the Commissioner, Hyderabad, requesting to cancel entries of Hameshgi standing in the names of the petitioners. The matter was dealt with by respondent No.7, who allowed the reference by his order, dated 8‑5‑1988 and directed cancellation of entries in the names of petitioners as the same were against policy.
4. The petitioners being aggrieved by the order of respondent No.7 filed an appeal under section 161 of Land Revenue Act before the respondent No.8, where a preliminary objection was taken by .the respondents Nos.1 to 5 regarding the maintainability of the appeal on the ground that the appeal could not be filed under second proviso to amended section 164 of Sindh Land Revenue Act. On 8‑8‑1989 the respondent No.8 dismissed the appeal of petitioners, holding that the order of respondent No.7 having been passed under his suo motu revisional jurisdiction, could not be called in question under section 161 of Land Revenue Act.
4. Mr. Yar Muhammad Memon, the learned Advocate for the petitioners, has contended that under para. 11 of the Policy Circular of 1930, no dispute could be entertained for any field on expiry of 5 years period of continuous cultivation, except on the ground that the field under dispute was not cultivated at all in any of the 5 years. It is next contended that since the respondents Nos.1 to 5 had challenged the entitlement ‑ of the petitioners beyond a period of 5 years, no action could have been taken on such representation by respondent No.7, under subsection (2) of section 164, Land Revenue Act, while exercising suo motu jurisdiction. It is next contended that the order, dated 8‑5‑1988 was the original order passed by. respondent No.7, appeal under section 161, Land Revenue Act was competent.
5. In order to appreciate the contentions: of the learned Advocate, we would ‑ like to reproduce condition No. 11 of the policy circular which is as under:‑
"11. No dispute should be entertained for any field on expiry of 5 years' period of continuous cultivation except on the plea that the field under dispute was not cultivated at all in any of the 5 years of continuous cultivation."
6. Various pieces of land were sanctioned in the name of the petitioners in Hameshgi Yadashat in the year 1980‑81 and no objection was raised by anyone till 2‑6‑1986, when for the first time, respondents Nos.1 to 5 through their Advocate moved application before the D.C. Tharparker (respondent No.6) requesting therein to move Commissioner Hyderabad, for taking suo motu action. This request was obviously beyond the period of 5 years and suo motu action on such application could neither have been recommended by respondent No.6, nor taken by respondent No.7, in his revisional jurisdiction. Section 164 of Land Revenue Act reads as follows:‑‑‑
"164. Revision .‑‑(1) The Board of Revenue may, at any time, on its own motion, or on an application made to it within ninety days of the passing of any order, call for the record of any case pending before, or disposed of by, any Revenue Officer subordinate to it.
(2) A Commissioner or Collector may, at any time, of his own motion or on an application made to him within ninety days of the passing of any order, call for the record of any case pending before, or disposed of by, any Revenue Officer under his control.
(3) If any case in which a Collector has called for a record he is of opinion that proceedings taken or order made should be modified or reversed, he shall report the case with his opinion thereon for the orders of the Commissioner.
(4) The Board of Revenue may, in any case called for under subsection (1) and a Commissioner may in any case called for under subsection (2) or reported to him under subsection (3) pass such orders as it or he thinks fit:
Provided that no order shall be passed under this section reversing or modifying any proceedings or order of a subordinate Revenue Officer affecting any person without giving such person an opportunity of being heard:'
7. By virtue of section 14 of Sindh Ordinance 11 of 1980, section 164 of Land Revenue Act was amended to the following extent:‑
(i) In subsections (1) and (2), for the word "ninety", the word "thirty" shall be substituted;
(ii) In the proviso the full‑stop at the end shall be replaced by a colon and thereafter the following shall be added:‑
"Provided further that any order passed in revision under this section shall not be called in question on an application of the party affected by such order:
Provided also that no Revenue Officer other than the Board of Revenue shall have power to remand any case to a lower authority."
Respondent No.7 could exercise suo motu revisional jurisdiction under subsection (2) of section 164 without application by an aggrieved person and for that no period of limitation is prescribed. . But if such jurisdiction is proposed to be exercised on application by aggrieved party, the Commissioner can do so only if the application is moved within 30 days of the order sought to be revised. In the instant case, the respondent No.6, exercised suo mote jurisdiction on application of respondents 1 to 5, beyond the period prescribed under subsection (2) of section 164, Land Revenue Act. His action therefore, in cancelling the grant of petitioners is violative of the provisions of Land Revenue Act, and cannot be sustained. This point has elaborately been dealt with in the following judgments:‑‑‑
(i) In Sardar Ashiq Muhammad Khan Mazari and 3 others v. Chairman Federal Land Commission, Islamabad and others PLD 1977 Lah. 461, a similar point came under consideration before the Lahore High Court and it was held different periods of limitation being prescribes for purpose of suo motu action and action on presentation of application, person aggrieved presenting application under para. 29 after expiry of limitation could not ask authority to proceed with the matter "on its own motion". It was also held that "the period of limitation for calling record under para. 29 last proviso, (b) having expired on date of initiation of proceedings of application of a third person, the order passed on such application was patently without jurisdiction".
(ii) In Wazir Muhammad v. Durrani and another PLD 1985 Pesh. 17, similar view was taken and it was held that "the Board of Revenue could not exercise suo motu powers to help a petitioner who lost his remedy by latches".
(iii) In M/s. Caltex Oil (Pakistan) Ltd. v. Province of Sindh and 6 others PLD 1978 Kar. 958, a Division Bench of this Court dealt with the above point in details and at p.963 observed:
"If an unsuccessful or disgruntled party could be permitted to invoke the suo motu revisional powers of the competent authority, after the expiry of the period of limitation for filing of revision application, the very purpose of prescribing 'the limitation period for filing such applications and the distinction between exercise of suo motu revisional powers and initiation of proceedings upon revision applications, specially by aggrieved parties, would be obliterated."
(iv) In Muhammad Aslam Khan and 9 others v. Federal Land Commissioner through its Chairman, Central Secretariat, Islamabad and 3 others PLD 1976 Pesh. 66 a similar point was under consideration and it was held that the record of any proceedings could not be called for revision on application of any aggrieved party after 60 days of the date of order. It was also held that "the Commissioner could not exercise suo motu powers in this regard to help the petitioners whose remedy stood barred by limitation. It was also held that "when law provides particular a mode, action must be taken according to such mode and in no other way.
(v) In Nawabzada Muhammad Adam Khan etc. v. Settlement Commissioner (Lands) etc. 1983 CLC 2991 thus Court held:‑
"In the present case it is not disputed that the application of respondents Nos.2 to 33 before the Settlement Commissioner was filed beyond the 15 days limitation period prescribed under the amended provisions of section 19(2) of the Act and a preliminary objection was raised that no action can be taken at the instance of the said respondents for exercise of suo motu jurisdiction. However, the learned Settlement Commissioner overruled the objection and, therefore, clearly invoked his suo motu jurisdiction at the instance of the said respondents. In view the law cited before me in doing so the learned Settlement Commissioner acted illegally and beyond the scope of his authority. The result is that the impugned order was passed without jurisdiction and must therefore, be held to be ineffective in law."
9. It is obvious from the record that various pieces of land were sanctioned in favour of the petitioners on 12‑8‑1982 by respondent No.6, for the year 1980‑81. The application moved on 2‑6‑1986 by respondents Nos.1 to 5 through their Advocate was beyond time, and not only reference made by respondent No.6 to respondent No.7 on such application was barred by time, but the purported exercise of suo motu jurisdiction on such reference was illegal and void. The order dated 8‑8‑1989, of the respondent No.8 is also erroneous inasmuch as, the view taken by him that the appeal against order dated 8‑5‑1988 of the respondent No.7 was not maintainable, is unsustainable. Since the order passed by respondent No.7 in purported exercise of his suo motu jurisdiction was the original order, appeal under section 161(d) of Land Revenue Act was competent. The appeal filed by petitioners before respondent No.8 could not have been treated as second revision and the learned respondent No.8, misconceived the provisions of second proviso to amended section 164 of Land Revenue Act, which placed embargo only on applications which related to the revisions and not to appeals.
In view of the case‑law discussed above, we are of the clear view that the orders, dated 8‑5‑1988 of the respondent No.7 and dated 8‑8‑1989 of the respondent No.8 are illegal and void and are declared to have been passed without lawful authority. We, therefore, set aside the said two orders and further direct to restore the position as obtained prior to the passing of the said orders. In the circumstances, we leave the parties to bear their own costs. By a short order dated 20‑5‑1992, we had allowed this petition and these are the reasons for the same.
AA./A‑1255/K Petition accepted.