FEDERAL LAND COMMISSION Through Its Secretary vs Mst. BIBI MEHR UN NISA
The Federal Land Commission sought leave to appeal against a High Court judgment that declared its order under the Land Reforms Regulation to be without lawful authority. The dispute concerned whether certain land alienations occurred before or after the crucial date of 1-3-1967. The Commission had disregarded secondary evidence (certified copies of a statement made on 25-2-1967) because the original record was untraceable, relying instead on suspicion regarding the timing of mutation entries. The Supreme Court dismissed the petition for leave to appeal, holding that the High Court correctly exercised its constitutional jurisdiction. The Court affirmed that an administrative authority's finding on a jurisdictional fact does not enjoy immunity from judicial review. It established that where an administrative officer is empowered to act only upon the existence of certain circumstances, the objective existence of those circumstances is a condition precedent for the order's validity. Furthermore, the Court emphasized that suspicion cannot substitute for proof, and secondary evidence must be considered when primary records are unavailable, particularly regarding the genuineness of alienations.
- Does a finding on a jurisdictional fact by an administrative authority enjoy immunity from constitutional jurisdiction?
- Can an administrative officer's determination of the existence of circumstances required for an order bind the courts?
- Is suspicion a valid substitute for proof in determining the date of land alienation?
- Should secondary evidence be utilized when the original record of a declaration is untraceable?
- Paragraph 29, Land Reforms Regulation
SHAFIUR RAHMAN, J.---The Federal Land Commission seeks leave to appeal against the judgment of High Court of Sindh dated 19-10-1983 whereby following the law laid down by that Court in Mst.
Bibi Mehrun Nisa and 2 others v. Land Commissioner, Sindh and 2 others (PLD 1975 Karachi 291) the Order of the Federal Land Commission dated 18-11-1976 under Para 29 of the Land Reforms Regulation, was declared to be without lawful authority and of no legal effect.
2. The declarant appeared before the Mukhtiarkar on 25-2-1967 and made a declaration with respect to certain alienations of land which was recorded in the book of statements dated 25-2- 1967 and authenticated by the Muhktiarkar. On the basis of and by reference to this attested and recorded statement transactions were entered in the mutation register and approved on 19th of March, 1971. The question before the Land Commission authorities arose whether the alienations were made prior to the crucial date i.e. 1-3-1967 or after that. The final adjudication was by the Member, exercising the powers under Paragraph 29 of the Land Reforms Regulation and he held as hereunder:- "The certified copies of the statement of the declarant, contended to be made before the Mukhtiarkar in the book of statements dated 25-2-1967, wherein the declarants had made statements of sale in favour of alienees; and
(c) the attestation of these transactions on the revenue record on the respective Mutation Register of the Deh concerned--all of them dated 19-3-1971.
But for the certified copies of the statement, contended to have been made on 25-2-1967, the evidence as now exists would establish that the transactions took place after 1-3-1967.The point for consideration is as to whether the certified copies of the statement is a sufficient evidence to rebut the self admission of the declarant that they were in possession and ownership of the land on 1-3- 1967, particularly when the attestation of these transactions were made long after 1-3-1967.
Relevant to this issue is also the fact, that the original Book of Statements of which the copies are being produced is untraceable since 1970."
This decision was successfully challenged.
3. Mr. Akhtar Ali, Advocate-on-Record, the learned counsel for the petitioner contended that the Federal Land Commission had the exclusive authority to determine that question and its decision was not liable to interference in the constitutional jurisdiction. It is not possible to subscribe to the view put forward by the learned Advocate-on-Record for the petitioner that a finding on the jurisdictional fact enjoys such a sanctity and immunity against constitutional jurisdiction. The contention has been fully dealt with by this Court in the case of Mr. Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi. PLD 1965 SC 698 at page 704 in the following words:-- "A purely administrative officer who is empowered to pass an order if certain circumstances exist has no jurisdiction to determine those circumstances and the objective existence of those circumstances is an essential condition of the validity of his order. In respect of every order passed by him the Court can make an enquiry and if it finds that all the circumstances needed for passing the order were not present, it will declare the order to be void. Of course, although the officer has been granted no jurisdiction to determine any facts he will have to ascertain whether the requisite circumstances exist for otherwise he cannot pass the order, but his conclusion as to the existence of those circumstances binds nobody and it is open to any person affected to challenge his act on the ground that those circumstances do not in fact exist. An administrative officer or authority may be given jurisdiction to determine some facts on proof of which he can pass an order and in that case he will act in a quasi-judicial manner for the determination of those facts and his determination validly reached will support his order in relation to those facts."
4. In the case in hand the declarant had the attested copy of declaration made by him on 25-2- 1967. If the original record was not available, then this or such secondary evidence should have been made use of for coming to a conclusion. Similarly, if the mutation itself has been entered by reference to the declaration made on 25-2-1967 it should have been verified from` other material.
Suspicion, howsoever strong is no substitute for proof. If the alienations had been completed before 25-2-1967, then it was immune from scrutiny by the Land Commission. The want of registration of the transaction was a matter which was not determinative of the genuineness of the alienation as such.
5. In the circumstances, we find that no case is made pot for leave to appeal, which is hereby refused.