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Revision No. 914 of 1962‑63, decided on 25th October 1963, District Peshawar.

Ss. 68, 24 & 27 Order of warabandi‑Not open to question before Additional Commissioner.

Mst. Maryam Sultana v. Nur Muhammad P L D 1963 W. P. (Rev.) 48 ref.

S. 2(S) Board of Revenue competent to declare that order passed by Additional Commissioner under Canal and Drainage Act is ultra vires.

Muhammad Shah Badshah for Petitioner.

Muhammad Younis Shah for Respondent.

The somewhat confusing facts relating to this petition arc briefly as follows :‑

The petitioner applied for warabandi on a water course of the Lower Swat Canal. Under the provisions of section 68 of the Canal and Drainage Act which obviously governs this case of warabandi is to be carried out by the Divisional Canal Officer unless he transfers to proceedings to the Collector. At the same time there was also a dispute between the parties regarding the location of this water course and the respondent who felt aggrieved with the proposals of the Divisional Canal Officer on this point filed objections before the Collector under section 24 of the Act. The Collector accepted the proposals of the Divisional Canal Officer and rejected the objections so that no remedy now seems to lie as both the Canal Officer and the Collector have agreed and section 27 of the Act states that in such cases their decision is final. The respondent nevertheless went in appeal to the learned Additional Commissioner as he felt aggrieved with the decision of the Collector on the objections. Under the Canal and Drainage Act the Additional Commissioner was not com petent to deal with the matter, but he remanded the proceedings for an inquiry into the objections. The petitioner has come up to me against this order.

It is quite obvious that neither the Additional Commissioner nor I have powers under the Canal and Drainage Act to inter fere in the matter, and the order passed by the learned Additional t Commissioner is bad in law. The question which has been raised before me is whether in these circumstances I can set aside this order. The contention of the learned counsel for the respondent is that I cannot do so though he himself has referred to a ruling of mine Mst. Maryam Sultana v. Nur Muhammad (P L D 1963 W. P. (Rev.) 48), in which I had made certain remarks which are relevant. I had observed that the powers exercised by the Board of Revenue are controlling and supervisory in character as is evident from the scheme of the Board of Revenue Act, rather almost the entire land revenue laws, In this connection a reference is also made to subsection (2) of section 5 of the Act which runs as follows :‑

"The Board of Revenue shall be the highest Court of appeal and revision in revenue cases in the Province."

It would thus be open to the Board of Revenue to hold that an officer subordinate to it acted illegally in assuming jurisdiction which he did not have under the law. As already observed the Additional Commissioner had no jurisdiction in the matter and the order passed by him is not sustainable under the law. With these observations I would direct that the Additional Commis sioner should withdraw his order so that the order passed by the Collector remains in force.

K. M. A.

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