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Writ Petition No. 945 of 1960, decided on 19th December 1961.

--Powers conferred on Deputy Commissioner, already exercised by that officer‑Higher Revenue Officers not competent to exercise same powers again.

Limitation‑Revision petition entertained by Board after 21 years of order sought to be revised‑Board's order not interfered with by High Court in writ proceedings‑[Mst. Bibi and another v. Mst. Hasham Bibi and others P L D 1961 W. P. (Rev.) 103 and Muhammad Hussain v. Abdul Ghani P L D 1961 W. P. (Rev.) 104 considered].

[as inserted by Punjab Alienation of Land (Second Amendment) Act (X of 1938)]‑Not retrospective‑[ Malawa Mal v. Punjab Provincial Government and another I L R 1942 Lahore 758 ref.]

[as amended by Punjab Alienation of Land (Second Amendment) Act (X of 1938)], S. 19 read with S. 2 (8) and S. 13‑C, and further, with S. 16, Punjab Land Revenue Act (XVII of 1887)‑Board of Revenue competent to deal with Revision Petition seeking revision of order of Deputy Commissioner passed under Punjab Alienation of Land Act, 1900‑Deputy Commissioner's order deemed to be order of "Revenue Officer".

Rana Nazir Ahmad for Petitioner.

Shamim Hussain Qadri for Respondents 2 to 4.

Date of hearing : 28th November 1961.

‑The dispute in this case relates to a piece of land which used to belong to Bawa Singh, a Mazhabi Sikh, who resided in the District of Montgomery. Bawa Singh sold the land in dispute to Keeba son of Pehlwan, Beg son of Waryam, and Mutali son of Khan, who, like him, were residents of Montgomery District. A mutation pertaining to the sale of the land was not sanctioned by the Revenue Authorities on the ground that Bawa Singh being a Mazhabi Sikh belonged to a tribe mentioned in group 'B' of the tribes notified as agricultural tribes under section 4 of the Punjab Alienation of Land Act (XIII of 1900), while the vendees who were Rajputs by caste belonged to a tribe included in group 'A' of agricultural tribes mentioned in the relevant notification issued under section 4 of the Punjab Alienation of Land Act, 1900, and, therefore, by reason of section 3 of that Act the sale required the sanction of the Deputy Commissioner. The sale was reported to the Deputy Commissioner, Montgomery, under subsection (2) of section 3 of the Punjab Alienation of Land Act, 1900, for sanction. The Deputy Commissioner refused to give sanction and, acting under section 14 of the Punjab Alienation of Land Act, converted the sale into a usufructuary mortgage for twenty years by his order dated the 25th of November 1939. In consequence of this order, a mutation regarding the land being under a usufructuary mortgage with Keeba, Beg and Mutali was entered in the revenue records and was sanctioned on the 19th of January 1940. On the Partition of British India into the Dominions of Pakistan and India, the land, which, under the orders of the Deputy Commissioner, Montgomery, was subject to a usufructuary mortgage in favour of the three persons who had been its vendees, was treated as evacuee property and out of it some part was allotted to Mst. Habiban Bibi under the permanent‑provisional scheme of the Rehabilitation of refugees in the entire or partial satisfaction of her claim for property left in India. Keeba and his co‑vendees put in an application under section 22 of the Pakistan (Administration of Evacuee Property) Act, 1957, with a view to having it declared that Bawa Singh evacuee had no interest in the property in dispute which was, therefore, not evacuee property, but this application was dismissed on the 19th of February 1960. Keeba and his two co‑vendees presented an appeal to the Additional Custodian of Evacuee Property against the order of the Deputy Custodian, but the appeal was dismissed on the 5th of May 1960 by the Additional Custodian. Against the order of the Additional Custodian a petition for revision was lodged before the Custodian of Evacuee Property, West Pakistan, which petition as well as the application under section 22 of the Pakistan (Administration of Evacuee Property) Act, 1957 were withdrawn. Mr. Justice Masud Ahmad, acting as the Custodian of Evacuee Property, West Pakistan and Karachi, passed an order on the 16th of May 1960 to the effect that because the proceedings were withdrawn, the proceedings before him as well as the application under section 22 shall stand dismissed as having been withdrawn. After the above‑mentioned decision of the Custodian of Evacuee Property, Keeba and his co‑vendees presented a petition in the Board of Revenue, West Pakistan for revision of the above‑mentioned order of the Deputy Commissioner, Montgomery dated the 25th November 1939. This petition was heard by Mr. Naseer Ahmad, one of the Members of the Board of Revenue, who, accepting it by his order dated the 8th of November 1960, set aside the order of the Deputy Commissioner, Montgomery, dated the 25th of November 1939, as well as the order passed on the 10th of July 1959 by a Revenue Authority, whereby the redemption of the usufructuary mortgage had been affected. Mst. Habiban Bibi has presented this writ petition with a view to having the order of Mr. Naseer Ahmad declared void, invalid and ineffectual so that she may not be deprived of the land allotted to her. She impleaded four respondents in this petition, Mr. Naseer Ahmad, Member, Board of Revenue, being the first of them, and the other three being Keeba, Beg and Mutali. The petition was resisted on behalf of Keeba and his two co‑vendees. The position taken on their behalf is that the order of Mr. Naseer Ahmad, respondent No. 1, was perfectly valid and, therefore, the pro perty in dispute was not evacuee property and could not have been allotted to Mst. Habiban Bibi, the petitioner, as evacuee property .

2. The main question that requires determination in this case is whether Mr. Naseer Ahmad was competent to pass his impugned order dated the 8th of November 1960, whereby he upset the order of the Deputy Commissioner, Montgomery, dated the 25th of November 1939, which had directed that the sale in favour of respondents Nos. 2 to 4 was to be treated as a usufructuary mortgage for twenty years and not as a sale, and also upset the direction of a subordinate Revenue Officer that the property shall stand redeemed. Raja Nazeer Ahmad, Advocate, who appeared for the petitioner, contended that the order of the Deputy Commissioner passed in 1939 could not be revised by a Member of the Board of Revenue for two reasons, the first being that an order of a Deputy Commissioner under the Punjab Alienation of Land Act, 1900, was not open to appeal or revision and the second that the powers of revision could not be exercised years after the original order was passed and, therefore, the order passed in revision was of no effect. To the above‑mentioned contention of learned counsel for the petitioner, the reply of Mr. Shamim Husain Qadri, who appeared for respondents Nos. 2 to 4, was that a Member of the Board of Revenue, West Pakistan, could exercise the same powers as a Deputy Commissioner by reason of the provision contained in section 23 of the Punjab Alienation of Land Act and, therefore, the order of Mr. Naseer Ahmad was valid. Section 23 of the Punjab Alienation of Land Act, 1900, is in the following terms: ‑

"23. The powers conferred by this Act upon a Deputy Commissioner may be exercised by a Revenue Officer of higher rank, or by any officer authorized by the Provincial Govern ment in this behalf."

I am clear in my mind that respondents Nos. 2 to 4 cannot succeed by virtue of the provisions contained in section 23 of the Punjab Alienation of Land Act. This section only means that the powers of a Deputy Commissioner under the Punjab Alienation of Land Act could, in the absence of such exercise by the Deputy Commissioner himself, be exercised by a Revenue Officer superior in rank to the Deputy Commissioner, 1 have no doubt in my mind that the section does not mean that if an order had been passed by a Deputy Commissioner, Revenue Officer superior in rank to him could change that order as if he was competent to hear an appeal or exercise revisional powers with regard to the order of the Deputy Com. missioner.

3. Coming now to the contentions raised by learned counsel for the petitioner, I have no hesitation in holding to be without force his contention to the effect that the order of Mr. Naseer Ahmad was invalid for the reason that it was passed about twenty‑one years after the order of the Deputy Commissioner. If the order was open to revision, this contention could succeed only If the law, which authorises the exercise of revisional powers, or any other law which is applicable fixed the period within which the powers of revision could be exercised and that period was less than the one that had elapsed between the passing of the order by the Deputy Commissioner and the passing of the order by Mr. Naseer Ahmad, Member, Board of Revenue. Learned counsel for the petitioner could point to no provision either in the Limitation Act or any other Law which fixed a period of limitation for exercise of powers of revision by a Member, Board of Revenue, in cases in which the Board of Revenue or one of its Members could exercise the powers of revision with regard to an order passed by a Revenue Authority subordinate to the Board of Revenue, but cited the decisions of Mr. Nasir Ahmad, Member of the Board of Revenue, West Pakistan, in Mst. Bibi and another v. Mst. Hasham Bibi and others (P L D 1961 W P (Rev.) 103) and Muhammad Hussain v. Abdul Ghani (P L D 1961 W P (Rev.) 104), in both of which exercise of powers of revision an application presented after the expiry of ninety days from the date of the orders of which revision was sought was declined. I have no hesitation in holding that these decisions which were given by the same officer who passed the impugned order can be of but little assis tance to the petitioner. It is only where period of limitation for taking some proceedings is fixed by law that the bar of limitation can be pleaded, otherwise the proceedings would be valid even if they were instituted after any length of time had elapsed from the date on which the necessity to take the pro ceedings arose. If a person has a right or some one can exercise a power, the right can be claimed and the power exercised at any time unless the law enjoins that it cannot be done after a specified period. Consequently, I have no hesitation in holding that if Mr. Naseer Ahmad as Member of Board of Revenue possessed powers of revision with regard to the order passed by the Deputy Commissioner, Montgomery, on the 25th of November 1939 under the Punjab Alienation of Land Act, that order cannot be considered to be invalid on the ground that it was passed after about twenty‑one years of the passing of the order sought to be revised.

4. The question whether or not an order of the Deputy Commissioner passed under the Punjab Alienation of Land Act was open to revision may now be considered. To decide this question one may turn to the Punjab Alienation of Land Act, which, as is well known, underwent considerable change in the late thirties and the early forties of this century. Section 19 of the Punjab Alienation of Land Act made the order passed by a Revenue Officer under that Act to be subject to the provisions of Chapter II of the Punjab Land Revenue Act (XVII of 1887), which Chapter deals with classes and powers of Revenue Officers. Section 13 of the Punjab Land Revenue Act, which occurs in Chapter II of that Act, fixes the course of an appeal again3t an order passed by a Revenue Officer, while section 16 deals with powers of revision. Subsections (1) and (4) of section 16, as they stand after the amendment made therein by means of the West Pakistan Act XVI of 1957, are material for the present purposes. They read as follows: ‑

"16 (1) The Board of Revenue may at any time call for the record of any case pending before, or disposed of by, any Revenue Officer subordinate to him."

"(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 under subsection (3), pass such order 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 sub ordinate Revenue Officer and affecting any question of right between private persons without giving those persons an opportunity of being heard."

It is not necessary for the purposes of this petition to determine whether Mst. Habiban Bibi was a private person whose rights had been affected by the impugned order dated the 8th of November 1960 and was, therefore, a necessary party before respondent No. 1, because the impugned order was not attacked on the ground that Mst. Habiban Bibi was not heard before the impugned order was passed, and only the other question that can arise need be dealt with.

5. Section 19 of the Punjab Alienation of Land Act made Chapter II of the Punjab Land Revenue Act applicable to orders passed by a Revenue Officer, but the orders passed by a Deputy Commissioner under the Punjab Alienation of Land Act were not open to appeal or revision, because he was not acting as a Revenue Officer, i.e., that he was not acting as a Collector but as a Deputy Commissioner. This position continued from 1900 to 1938 when by means of section 3 of the Punjab Alienation of Land (Second Amendment) Act, 1938 (Punjab Act X of 1938) subsections (7) and (8) were added after subsection (6) of section 2. Of these two subsections, the one germane to the present discussion is subsection (8) which reads as follows: ‑

"(8) Deputy Commissioner' shall be deemed to be a Revenue Officer within the meaning of sections 19, 20 and 21 of this Act and shall include any officer specially appointed by the Provincial Government to perform the duties of a Deputy Commissioner for the purposes of subsections (2) and (3) of section 4, section 13‑A, section 13‑B and section 13‑C of this Act:

Provided that the Provincial Government shall not appoint for this purpose an officer below the rank of an Assistant Collector first grade."

The result of the insertion of the above‑reproduced sub section (8) was that, unless there was anything to show the contrary intention, orders of a Deputy Commissioner passed under the Punjab Alienation of Land Act became open to appeal and revision as if they had been passed by him in his capacity of a Collector in which case the appeal would lie to the Com missioner of the Division and powers of revision would vest in the Financial Commissioner Punjab. The office of the Financial Commissioner was abolished and under the West Pakistan Board of Revenue Act, 1957 (West Pakistan Act XI of 1957) the Board of Revenue, West Pakistan, was brought into being and besides some other powers, the powers of the Financial Commissioner were reposed in the Board, with the result that the Board, like the Financial Commissioner, could exercise powers of revision with regard to orders passed by a Deputy Commissioner under the provisions of the Punjab Alienation of Land Act, 1900 after its amendment in 1938. Learned counsel for the petitioner urged that as it had not been said in so many words that the orders of a Deputy Commissioner passed under the Punjab Alienation of Land Act, 1900, would be open to appeal or revision, the mere fact that the orders were given the status of orders of a Revenue Officer could not be construed as making the orders subject to appeal or revision and in support of this contention he relied on some remarks made by Dalip Singh, J., a learned Judge of the High Court of Judicature at Lahore, in the decision of a Full Bench of three Judges in the case reported as Malawa Mal v. Punjab Provincial Government and another (I L R 1942 Lah. 758). These remarks, which occur in the last but two paragraph of the judgment given by Dalip Singh, J., and are to be found at pages 773 and 775 of the Law Report, read as under: ‑

"It seems to me, therefore, that both a priori and on a strict interpretation of the words of the Statute as they stood before the recent amendments, the Legislature did not contemplate that there should be any appeal or revision from the sanction given by the Deputy Commissioner to a contemplated or completed alienation. What the effect of section 2 (8) may be on future transactions and what light is thrown by the fact that the Legis lature had made special provisions for appeal under sub sections (2) and (3) of section 4 and under sections 13‑A and 13‑B is also a matter that need not now be discussed. So far as these recent amendments go, it would at least show that the Legislature did not think that section 2 (8) was sufficient by itself to give a right of appeal against the orders of the Deputy Com missioner under any of the provisions of the Land Alienation Act. If they had thought that all these orders by virtue of the provisions of section 2(8) fell within the right of appeal given by sections 14 and 16 of the Land Revenue Act, then if they intended to cut down those rights of appeal and revision in any way, they would have used words like notwithstanding anything contained in the Land Revenue Act', or in specific sections of the Land Revenue Act. What ever, therefore, might have been the meaning of the Legislature in enacting these specific rights of appeal, I do not think that it necessarily follows that because of the provisions of section 2(8), for the future all orders of a Deputy Commissioner even under section 3 of the Land Alienation Act are subject to appeal and revision ; but as I stated in the beginning it is unnecessary to decide this point. The provisions, it may, however, be pointed out, of section 19 do not make the provisions of the Land Revenue Act apply without qualification. They are only to be applied so far as they are applicable', and it might well be that certain orders of the Deputy Commissioner under the Land Alienation Act may become appealable by virtue of the provisions of the Land Revenue Act and certain other orders might for inherent reasons make the application of the Land Revenue Act provisions inapplicable to such orders. It is unnecessary, however, to discuss this question further."

It appears to me that the remarks relied upon by learned counsel for the petitioner cannot be of any assistance to his client. The point for consideration by the Full Bench was whether sub section (8) of section 2 of the Punjab Alienation of Land Act, which subsection, as already mentioned, had been inserted by means of section 3 of Punjab Act X of 1938, was retrospective in character. It may be that there are remarks here and there in the passage reproduced above which lend some support to the conten tion of learned counsel for the petitioner, but those remarks were obiter dicta, because they related to a matter which did not arise before the Full Bench for the decision of the case for which the Bench had been constituted. It will be noticed that Dalip Singh, J. himself said in the above‑reproduced passage of his judgment that it was not necessary for the purposes of the case that was being dealt with to determine whether the effect of the insertion of sub section (8) in section 2 of the Punjab Alienation of Land Act, 1900, was that the orders of a Deputy Commissioner under that Act became subject to appeal and revision. The finding of the Full Bench was that subsection (8) of section 2 of the Punjab Alienation of Land Act, 1900, was not retrospective in its application and with all respect I venture to say that it was a correct inter pretation of the relevant law.

6. Learned counsel for the petitioner contended that even if the remarks of Dalip Singh J. in Malawa Mal v. The Punjab Provin cial Government and another on which he had placed reliance, may not amount to a decision to the effect that even after the inser tion in 1938 of subsection (8) of section 2 of the Punjab Alienation of Land Act, 1900, an appeal and revision would not lie against an order passed by a Deputy Commissioner under that Act, it was clear that the orders of the Deputy Commissioner under section 3 of the Act were final and could not be changed by any higher Revenue Authority. In support of this contention, learned counsel for the petitioner relied on the fact that section 13‑B of the Punjab Aliena tion of Land Act, which, like subsection (8) of section 2 of that Act, was inserted by the Punjab Alienation of Land (Second Amendment) Act, 1938 (Punjab Act X of 1938), along with section 13‑A, section 13‑C and section 13‑D, which dealt with benami transac tions, and subsections (2) and (3) of section 4, which provided for an inquiry regarding the caste of a person, gave a right of appeal, and argued that if subsection (8) of section 2 automatically gave a right of appeal, it was not necessary to confer a right of appeal by means of section 13‑B, if the matter is looked at care fully, it will become apparent that section 13‑B of the Punjab Alienation of Land Act changes the course of appeals laid down by the Punjab Land‑Revenue Act, 1887. Section 13 of the Punjab timed Land Revenue Act deals with appeals, while section 16 of that Act deals with powers of revision. On the date on which Punjab Act X of 1938 came into force these sections read as follows: ‑

"13. Save as otherwise provided by this Act, an appeal shall lie from an original or appellate order of a Revenue Officer as follows, namely: ‑

(a) to the Collector, when the order is made by an Assistant Collector of either grade ;

(b) to the Commissioner, when the order is made by a Collector ;

(c) to the financial Commissioner when the order is made by a Commissioner

Provided that‑

(i) When an original order is confirmed on first appeal, a further appeal shall not lie ;

(ii) When any such order is modified or reversed on appeal by the Collector, the order made by the Commissioner on further appeal, if any, to him shall be final."

"16. (1) The Financial Commissioner may at any time call for the record of any case pending before, or disposed of by, any Revenue Officer subordinate to him.

(2) A Commissioner or Collector may call for the record of any case pending before, or disposed of by, any Revenue Officer under his control.

(3) If in any case in which a Commissioner or Collector has called for a record he is of opinion that the proceedings taken or order made should be modified or reversed, he shall report the case with his opinion thereon for the orders of the Financial Commissioner.

(4) The Financial Commissioner may, in any case called for under subsection (1), and a Commissioner may, in any case called for under subsection (2) or reported under subsection (3), pass such order 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 and affecting any question of right between private persons without giving those persons an opportunity of being heard."

The above‑reproduced section 13 of the Punjab Land Revenue Act would make it clear that if an order of the Collector bad been confirmed by the Commissioner, no second appeal would lie to the Financial Commissioner against the order of the Commissioner, in that case the order of the Commissioner could be changed only by exercise of powers of revision under section 16 of that Act. Section 13‑B and section 13‑C of the Punjab Alienation of Land Act, 1900, are in the following terms: ‑

"13‑B. An appeal shall lie from any order passed, whether in original or on review by a Deputy Commissioner under section 4 or section 13‑A, as follows, namely: ‑

(a) to the Commissioner when the order is passed by the Deputy Commissioner;

(b) to the Financial Commissioner when the order is passed by the Commissioner."

"13‑C. The Financial Commissioner may at any time call for the record of any proceedings pending before or disposed of by the Deputy Commissioner under section 4 or section 13‑A and shall pass such orders as he thinks fit

Provided that he shall not under this section pass any order reversing or modifying any such order without giving the persons concerned an opportunity of being heard."

It will be noticed that these sections apply only to orders passed under sections 4 and 13‑A and that a right of appeal from the order of the Commissioner is given by means of section 13‑B even though the order of the Commissioner may have been one by which an order of the Deputy Commissioner had been con firmed. It will further be noticed that section 13‑C does not authorise the Financial Commissioner (now the Board of Revenue) to send for the record of any proceedings pending before or disposed of by a Commissioner, which could be done under section 16 of the Punjab Land Revenue Act, 1887. It is for the reason that sections 13‑B and 13‑C of the Punjab Alienation of Land Act did not have precisely the same provisions as sections 13 and 16 of the Punjab Land Revenue Act that the enactment of sections 13‑B and 13‑C of the Punjab Alienation of Land Act had not the significance which the learned counsel for the petitioner relying on some remarks of Dalip Singh, J. in Malawa Mal v. The Punjab Provincial Government and another, asserted that they had.

7. The decision of the Full Bench of the High Court of Judicature at Lahore in Malawa Mal v. The Punjab Provincial Government and another to the effect that subsection (8) of section 2 of the Punjab Alienation of Land Act, 1900, which was inserted by means of the Punjab Alienation of Land (Second Amendment) Act, 1938, was not retrospective in operation is of no avail to the petitioner, because in the present case the order of the Deputy Commissioner was passed on the 25th of November 1939, while Punjab Act X of 1938, to which the Governor‑General of British India gave his assent on the 23rd of February 1939, was published in the Provincial Official Gazette on the 28th of n February 1939, with the result that the order of the Deputy Com missioner, Montgomery, whereby he directed that the sale effected by Bawa Singh fn favour of respondents Nos. 2 to 4 was to have effect as a usufructuary mortgage for twenty years and not as 9 sale was the order of a Revenue Officer for the purposes of section 16 of the Punjab Land Revenue Act. The order passed op the 25th of November 1939 by the Deputy Commissioner being one passed by a Revenue Officer, it was open to revision by the Board of Revenue under section 16 of the Punjab Land Revenue Act. 1887, and, therefore, Mr. Naseer Ahmad, who is a Member of that Board, cannot be said to have exercised a jurisdiction which he did not possess. It may be that some people in the place of Mr. Naseer Ahmad would have thought that the order of the Deputy Commissioner dated the 25th of November 1939, should not be modified in exercise of revisional jurisdiction to be exercise about twenty‑one years after the order was passed, but as no period of limitation is prescribed for exercise of revisional jurisdiction under section 16 of the Punjab Land Revenue Act, and indeed the section is to the effect that power may be exercised at any time, the order of Mr. Naseer Ahmad cannot be deprived of its binding force on the ground that though it could have been passed, it should not have been. What I have said with regard to the exercise of revisional jurisdiction by Mr. Naseer Ahmad in respect of the order of the Deputy Commissioner dated the 25th of November 1939, whereby the sale effected by Bawa Singh had been directed to be treated as a usufructuary mortgage for twenty years, applies with equal if not greater, force to the exercise of revisional jurisdiction by Mr. Naseer Ahmad with regard to the order passed on the 10th of July 1959, whereby redemption of the land was ordered by a Revenue Officer. The result of the valid order of Mr. Naseer Ahmad was that respondents Nos. 2, 3 and 4 were to be treated owners of the property from the date on which the sale deed was executed in their favour by Bawa Singh, who at that time was the owner of the property In dispute.

8. In view of what I have said above, I would hold that no ground exists for issuing the writ prayed for by the petitioner. Consequently, I would dismiss the petition, but in the circum stances of the case would leave the parties to bear their own costs.

‑I agree.

A. H.

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