' MUHAMMAD QASIM LASHARI, MEMBER (JUDICIAL)---This application for revision filed on 21-1-2002 as of right under section 164, of the Sindh Land Revenue Act, 1967 impugns the legality of order dated 28-10-2002 passed by the learned Executive District Officer (Revenue), Jacobabad whereby he has set aside the mutations effected on 4-5-2002 on the basis of sale-deeds registered 18 years back.
2.- The facts material for the purpose of this application briefly stated are that Haji Moula Bux Soomro owned City Survey Nos.365, 365-A, 367 of Ward-6, Jacobabad in the following manner:-- City Survey No,(Area in sq.
Yards)Ruled Card No. Description 365(994-8) 05495 This C.S. No, was purchased by. K.B. Haji Moula Bux from Rahim Bux and others for Rs,33,000.00 vide registered deed No,225, Vol.169, dated 9-6-1947. It was mutated/entered in the Ruled Card No,05495 vide entry dated 29-5- 1948.
365-A (199-4) 05496 This C.S. No, was purchased by K.B. Haji Moula 13ux from Rahim Bux and others for Rs .33000.00 vide registered deed No,255, Vol. 169, dated 9-6-1947. It was mutated/entered in the Ruled Card No,05496 vide entry dated 29-5- 1948.
366 (68-1) 05497 This C.S. No, was purchased by K.B. Haji Moula Bux from Rahim Bux by transfer from Settlement Department vide PTD No, 546, dated 21-12-1963. It was mutated/ entered in the Ruled Card No,05497 vide entry dated 3-1-1977.
367 (31-1) 05498 This C.S. No, was purchased by K.B. Haji Moula Bux from Rahim Bux by transfer from Settlement Department vide PTD No, 546, dated 21-12-1963. It was mutated/entered in the Ruled Card No: 05498 vide entry dated 3-1-1977.
3.On 5-6-1982, Haji Moula Bux Soomro, recorded his gift statement in Sindhi language before the Mukhtiarkar (Revenue)/City Survey Officer, Jacobabad wherein he stated that C.S. Nos.365, 365-A, 366, 367 and 348, Ward-6, Jacobabad in his personal property which he has gifted to his three sons namely Ahmed Mian Soomro, Illahi Bux Soomro and Iftikhar Ahmed Soomro in equal shares viz 33-1/3 Paisas each and has handed over the possession to his three sons. He further, stated that he has gifted the C.S. Nos.348, 365, 365-A, 366 and 367 admeasuring 1520-2 sq. Yards on which a bungalow is constructed with the condition that he can revoke the gift at any time for which the donees will not raise any objection. The donees accepted the gift.
4. The gift statement dated 5-6-1982 written in Sindhi language and the relevant Ruled Cards have been perused minutely.
5. Insofar as C.S. Nos.365, 365-A, 366 and 367, they undisputedly were owned by K.B. Haji Moula Bux.
But so far C.S. No,348, Ward-6 admeasuring 280-5 sq. Yards (2524-5 sq. Feet) is concerned, it appears that an area of 2040 sq. Feet (226.66 sq. Yards) out of total area of 2524.5 sq. Feet was purchased by Ahmed Mian Soomro by transfer from the Settlement Department vide P.T.D. No,548, dated 21-12-1963 and such mutation dated 3-1-1977 in the Ruled Card No,05477 was effected under City Survey Officer's order dated 3-1-1977 which he passed on the application dated 17-12-1976 of Ahmed Mian Soomro presented through his Manager Mr. Dad Muhammad Mangi. The balance area of 485 sq. Feet of C.S. No,348 remained entered in the name of Pribhdas which subsequently, being unallotted/balance urban evacuee (State land), stood transferred to the Provincial Government by virtue of section 3(1) of the Evacuee Property and Displaced Persons Laws (Repeal)
Act, 1975. The transfer of this area of C.S. No,348 by K.B. Haji Moula Bux through oral gift (statement dated 5-6-1982) to Ahmed Mian Soomro, Illahi Bux Soomro and Iftikhar Ahmed Soomro appears to be doubtful because of the simple reason that this area of 2040 sq. Feet of C.S. No,348 was owned by Ahmed Mian Soomro and as reported by the City Survey Officer/Mukhtiarkar (Revenue), Jacobabad vide his letter No,CS/206, dated 7-6-2005, no documentary evidence is available on the record to show that this area owned by Ahmed Mian Soomro had ever been transferred to Haji Moula Bux. In.View of the report of City Surveyor and City Survey. Officer, Jacobabad duly endorsed by the District Officer (Revenue), Jacobabad vide his letter No,227, dated 7-6-2005, the following entry dated 6-6-1982 in Ruled Card No,05477, appears to be this is however, subject to further verification by the Executive District Officer (Revenue), Jacobabad to whom the matter seems to have been referred by the District Officer (Revenue) vide his Endorsement No,227, dated 7-6-2000:- - 6-6-1982 By oral gift from K.B. Haji Moula Bux Khan as per statement and City Survey Officer's order dated 5-6-1982.
(1) Ahmed Mian son of K.B. Moula Bux. (2) Illahi Bux son of K.B. Moula Bux. (3) Iftikhar Ahmed son of K.B. Moula Bux. (in equal shares).
6. The rest of the entries each dated 6-6-1982 in the Ruled Cards Nos.05495, 05496, 05497, 05498 in respect of oral gift of property bearing C.S. Nos. 6/365, 6/365-A, 6366, 6/367 respectively by K.B. Haji Moula Bux Soomro in favour of his three sons Ahmed Mian Soomro, Illahi Bux Soomro and Iftikhar Ahmed Soomro, are correct.
7. It is evident that the entire C.S. No,348 was evacuee land and its total area was 280.5 sq. Yards (2524.5 sq. Feet). Out.Of this area an area of 2040 sq. Feet (226.66 sq. Yards) was .Purchased by late Ahmed Mian Soomro from the Settlement Department whereas the balance area of 484.5 sq.
Feet (53.84 sq. Yards) continued to remain as balance evacuee urban land.
8. On 3-5-2002, Mr. Dad Mangi, Manager Soomro House, Jacobabad came to the office of Mukhtiarkar (Revenue)/City Survey Officer, Jacobabad and submitted application dated 3-5-2002 along with a registered sale-deed bearing Registration No,270 registered at Jacobabad on 30-10- 1984 which was regarding the sale of 1/3rd share of Mr Ahmed Mian Soomro in bungalow and private office bearing City Survey C.S. Nos. 365, 365-A, 366 and 367 total area 1574-1 sq. Yards in favour of Illahi Bux Soomro and Iftikhar Ahmed Soomro. The C.S. No,348 with its entire area of 280-5 sq. Yards (Which included 485 sq. Feet Evacuee State Land) was also mentioned in the registered Sale-deed No,270.
9. The Mukhtiarkar (Revenue) City Survey Officer, Jacobabad forwarded the document viz Registered Sale-deed to his the then City Surveyor, Jacobabad (Mr. Manzoor Hussain Kubar) for its verification. The then City Surveyor did not consider the fact that area of C.S. No,348 entered in the sale-deed was 280.5 sq. Yards (2524.5 sq. Feet) and this area was not tallying with the area owned by Ahmed Mian Soomro and subsequently gifted by Haji Moula Bux (Viz 2040 sq. Feet). He also did not consider that an area of 484.5 sq. Feet of C.S. No,348 which was evacuee State land was also included in the sale-deed which was wrong. The City Surveyor reported vide his note dated 4-5- 2002 written in Sindhi on , the back side (page 2) of the application dated 3-5-2002 that he has verified the document and Mutsarfi (title) is tallying and there is no objection to the effecting of mutation. It appears that the Mukhtiarkar (Revenue)/City himself, and without adopting the legal procedure mutated the property in the Property/Ruled Card on 4-5-2002 in the names of Messrs Illahi Bux Soomro and Iftikhar Ahmed Soomro.
10. It is a fact that a Revenue Officer cannot declare a registered document as 'void' but at the same time in mutation cases, the purpose of issuing notices (even in the case of registered document), inviting A objections on the document and deciding the objections (if any) in open Katchery by the Mutation Officer, is to enquire into the correctness of the document. In this context I would like to quote the following decision of the Board of Revenue (Punjab) relating to the subject:- - "Entries in registered deed--Scope of enquiry by Revenue Officer had not merely to follow registered deed but had also to enquire into the correctness thereof--No possession of property in question having been transferred, Revenue Officer had acted within law by rejecting mutations."
11. Admittedly in the instant case, the area of C.S. No,348 Ward-6 mentioned in the Ruled Card No,05477 was not tallying with the area . Mentioned in the sale-deed and furthermore, an area of 485 sq. Feet evacuee State land of C.S. No,348 was also included in the sale-deed. In an identical case reported in. PLD 1975 Rev. 53 (Punjab), it was held as Under:-- "The plea taken by the respondents before the lower Courts that the alienation made through a registered deed was bound to be acted upon by the Revenue Officers was also not tenable in this case because the description of the land in the registered deed did not tally with the Revenue Record. The total area of Khata No,22, Khatoni No,214 was 689 Kanals, 4 Marlas and 9/40th share came to 155 Kanals, 2 Marlas while the registered deed mentioned the total area of this Khewat to be 519 Kanals, 8 Marlas and 9/40th share of this land was allegedly transferred to respondents Nos.1 and 2. As the total area of Khewat mentioned in registered deed did not tally with the actual Revenue Record, the implementation of the entries in the registered deed was impossible. If 9/40th share of the total area was taken it was more than the area mentioned in the registered deed and if the area allegedly transferred to respondents Nos.1 and 2 was taken it was less than 9/40th share of the land. As the description of property mentioned in the sale-deed was wrong and could not be implemented in the Revenue Record the remedy of the respondents Nos. 1 and 2, if any lay somewhere else and not before the Revenue Authorities. That was presumably the reason why Mutation No,268 relating to this transaction which was entered on 4-2-1963, was not sanctioned because the Revenue Officers could act upon a registered document if the description of facts given in that document did not appear to be in consonance with the position in the Revenue Record or the position on the ground."
12. The Honourable Supreme Court of Pakistan, in a reported case 1999 SCMR 1245, has held as under:- "The learned counsel further argued that the registered sale-deed, mutation and Revenue Record are admissible in evidence and as the plea of the appellant finds support from, all these documents, therefore, the High Court was not correct in discarding them. He referred to several cases to support his view.
Point. This is a sweeping and very wide argument and it is not so that every thing which finds mention in the registered deed or Revenue Record must invariably be accepted without proof of their execution genuineness and authenticity. It is axiomatic principle of law that a registered deed by itself, without proof of the execution and the genuineness of the transaction covered by it, would not confer any right."
13. In this context I would also quote the following decision:-- "Registration of a document in case of dispute about its execution is neither decisive on identity of executant nor precludes inquiry by Court on this point and this fact in issue has got to be proved like any other fact in dispute."
Execution of document in a case of dispute would require independent proof despite presumption of correctness as regards. Certificate.
14. is a plethora of rulings on the point under discussion. It is therefore, obvious that Revenue Officers even in the case of registered document, are competent, to a certain limit, to examine the previous title of the land, area mentioned in the sale-deed which must be tallying with the area mentioned in the record, etc.
15. The upshot of above discussion is that a Revenue Officer/Revenue Court is not competent to declare any registered document as void. But at the same time he/it is not precluded or prevented from refusing, the mutation of "Mutsarfi", which as per definition given by Dr. Nabi Bux Baloch in "Sindhi Lughat" (Dictionary), means title, possession, ownership is not clear. If these are not tallying or there is any discrepancy in between the area mentioned in the registered document and the area mentioned in the Revenue/City Survey Record, etc. On such an eventuality a Revenue Officer/City Survey Officer would be justified in refusing the mutation till such time the documents are rectified through ratification deed or any other mode admissible under the law. It to remind here that an objection has been recorded that the signatures put on the special as well as general power of attorney are not genuine and are forged. This Objection has been recorded by none else but Mst. Maliha who is the daughter of late Ahmed Mian Soomro and she must be acquainted with the signatures/handwriting of her father late Ahmed Mian Soomro that is why she has raised the voice that the signatures on the power of attorney were forged. Wherever such allegations are levelled, the burden of proof that the power of attorney is genuine, is ordinarily shifted to the person who is benefited from such document.
16. Since there was, a discrepenary in the area of C.S. No,348 and title of Haji Moula Bux was also not clear, the Mukhtiarkar (Revenue)/City Survey Officer, Jacobabad, should have conducted proper inquiry and if found correct should have returned the document because no mutation could be made if the area and title of the land is not tallying with the area and title entered in the Record-of- Rights. D However, after such mutation, the final position of the Property/Ruled Cards stood as under:-- C.S. No,6/348 (Area 280-5 sq. Yards) Ruled Card No,05477 Date of entry Mode of acquiring right in the propertyWho acquired right 3-1-1977 By transfer from Settlement Survey vide PTD No,548, dated 21-12-1963 and order dated 3-1-1997.Ahmed Mian son of Haji Moula. Bux Soomro.
6-6-1982 By oral gift from K.B. Haji Moula Bux Khan as per statement and City Survey Officer's order dated 5-6-19824. -- Ahmed Mian son of K.B. Moula Bux
5. Illahi Bux son of K.B.
Moula Bux.
6. Iftikhar Ahmed son of K.B.
Moula Bux. (in equal shares)
4-5-2002 By purchase of share of Ahmed Mian Soomro for Rs,80,000.00 through his attorney K.B. Haji Moula Bux vide RD No, 10270, dated 30-10-1984. Illahi Bux Soomro.
2. Iftikhar Ahmed Soomro.
C.S.No,6/348 (Area 994=8 sq. Yards) Ruled Card No,05495 Dated of entry Mode of acquiring right in the property.Who acquired right 29-5-1948 By purchase for Rs,33,000.00 from Mr. Rahim Bux and others through Registered deed No,255 Vol.169, dated 9-6- 1947.K.B. Haji Maula Bux and K.S. Haji Muhammad Usman Khan Soomro.
6-6-1982 By oral gift from K.B. Haji Moula Rux Khan as per statement and City Survey Officer's order dated 5-6-1982.1. - Ahmed Mian son of K.B.
Moula Bux.
2. Illahi Bux son of K.B.
Moula Bux.
3. Iftikhar Ahmed son of Moula Bux. (in equal shares)
4-5-2002 By purchase of share of Ahmed Mian Soomro for Rs,80,000 vide RD No,1070, dated 30-10-1984.1. Illahi Bux Soomro.
2.Iftikhar Ahmed Soomro.
C.S. No,6/ ' 365-A(Area 994-4 sq. Yards) Ruled Card No,05496 Date of entry Mode of acquiring righty in the propertyWho acquired right 29-5-1948 By inheritance 1. Rahim Bux son of Allah Bux 2. Hyder Bux son of Allah Bux
3. Five daughters of Allah Bux.--
4. One widow 'of Allah Bux.
29-5-1948 By purchase for Rs,33000-- from Mr. Rahim Bux and others vide RD No,255, dated 9-6-1947K.B. Haji Moula Bux K.S. Haji Muhammad Umer Soomro, 6-6-1982 By oral gift. From K.B. Haji- Moula Bux Khan as per statement and City Survey Officer's order dated 5-6- 1982.1. Ahmed Mian son of K.B.
Moula Bux.
2. Illahi Bux son of K.B.
Moula Bux.
3. Iftikhar Ahmed son of K.B.
Moula Bux. (in equal shares)
4-5-2002 By purchase of share of Ahmed Mian Soomro for Rs,80,000.00 vide RD No,1070, dated 30-10-1984 City 1. Survey Officer's Order.1. Illahi Bux Soomro.
2. Iftikhar Ahmed Soomro.
C.S. No,6/366 (Area 68 sq. Yards) Ruled Card No,05497 Dated of entry Mode of acquiring right in the propertyWho acquired right 3-1-1977 By transfer vide PTD No,546, dated 21-12-1963 from settlement.Haji Moula Bux son of Muhammad Umer Soomro.
6-6-1982 By oral gift from K.B. Haji Moula Bux Khan as per statement and City Survey Officer's order dated 5-6-1982.1. Ahmed Mian son of K.B.
Moula Bux.
2. Illahi Bux son of K.B.
Moula Bux.
3. Iftikhar Ahmed son of K.B.
Moula Bux. (in equal shares)
4-5-2002 By purchase of share of Ahmed Mian Soomro for Rs,80,000.00 vide RD No, 270, dated 30-10-1984.1. Illahi Bux Soomro.
2 Iftikhar Ahmed Soomro.
C.S. No,6/367 (Area 31-1 sq. Yards) Ruled Card No, 05498 Date of entry Mode of acquiring right in the propertyWho acquired right 3-1-1977 By transfer PTD No,546, dated 21-12-1963 from settlement.Haji Moula Bux son of Muhammad Umer Soomro.
6-6-1982 By oral gift from K.B. Haji Moula Bux Khan as per statement and City Survey Officer's order dated 5-6-1982.1. Ahmed Mian son of K.B.
Moula Bux.
2. Illahi Bux son of K.B.
Moula Bux.
3. Iftikhar Ahmed son of K.B.
Moula Bux. (in equal shares)
4-5-2002 By purchase of share of Ahmed Mian Soomro for Rs,80,000.00 vide RD No,27, dated 30-10-1984 and City Survey Officer's Order.1. Illahi Bux Soomro.
2. Iftikhar Ahmed Soomro.
17. A property Ruled Card, as envisaged in Rule 9(5) of the Sindh City Survey Rules, 1988, read with section 39(2)(d) of the Sindh Land Revenue Act, 1967 is deemed to be the record-of-rights.
Consequently, it is governed by the Sindh Land Revenue Act, 1967. Any subsequent change/mutation in the property ruled card is to be effected in accordance with the provisions of section 42 of the Sindh Land Revenue Act, 1967. For having proper perception, the procedure for making the records laid down in section 42 of the Sindh Land Revenue Act, 1967 read with paras.
148, 151, 152 of the City Survey Manual, is given as under:--
(i) Where a person has acquired any right or interest in holding he shall inform the Mukhtiarkar or the authorized officer appointed by the Board of Revenue, such acquisition within three months thereof.
(Subsection 3).
' Provided that it shall not be necessary to give the information if the right of interest has been acquired by a registered document. In which case it shall be the duty of the Sub-Registrar concerned to inform the Mukhtiarkar (Revenue) within three months of the registration of the document.
(Subsection 3).
(ii) The Mukhtiarkar or the 'authorized officer shall forward the information received by him to the incharge of cell created by. The Board of Revenue under subsection (1) and incharge shall on receipt of such information or where he is otherwise satisfied that any acquisition of any right or interest in any holding has taken place, enter that acquisition in the register of mutation.
(Subsection 6)
In case of property card, no mutation Register is to be kept. Charges will be written neatly against the superseded entry after striking out the later with a single line, so that it remains legible.
(Para.151 of the City Survey Manual).
(iii) The incharge of the cell or the Mukhtiarkar where there is no - cell aftermaking entry under subsection (6) shall:---
(a) affix a copy of the entry to the, Notice Board of the Taluka Office.
(b) Forward a copy of the entry to the Tapedar concerned for affixing it at a conspicuous place in Tapedar's Dero;
(c) Intimate, by notice in to all such persons who appear or are believed to be interested in the mutation. (Subsection 7).
' Public notice of mutation is to be given to those persons whose rights are reduced and their friends in the prescribed form.
(Para. 152 of the City Survey Manual)
' Any person aggrieved by the entry made under subsection (6) may file objections against such entry with the incharge of the cell or with the Mukhtiarkar where there is no cell within fifteen days of the service of the notice under subsection 7 (subsection-8).
(iv) The objections, if any, received under subsection (8) shall be entered in separate register hereinafter to be called the register of disputed cases.
(Subsection-9)
' Instead of a register of disputes it will suffice to write "disputed" against entries in this list and in the notices of mutations, as well as in the R.P.
(Para 151 of the City Survey Manual)
(v) The objections entered in the register of disputed cases shall be disposed by the Mukhtiarkar or such other officer authorized by the Board of Revenue in this behalf in open Katchery to be held in the concerned Tapa and all parties.
' Interested in the objections shall be given notice of not less than a week regarding the date and place of the Katchery and the orders made with regard to disposal of the objections shall be entered in the register of mutation.
(Subsection 10).
(iv) In 'proceedings under subsection (10) of section 42, a, record of the statements of parties and witnesses shall be made by the Revenue Officer with his own hand, and his order shall state briefly the persons examined by him, the facts to which they deposed and the grounds of the order.
(Rule 9 of the Sindh Land Revenue Rules, 1968).
Explanation.-- Where the acquisition of the right is by a registered deed or by or under the order or decree of a Court, it shall not be necessary to record the statements of the parties, and witnesses or to enforce their attendance.
(Rule 9 of the Sindh Land Revenue Rules, 1968)
(viii) The incharge of the cell or the Mukhtiarkar where there is no - cell shall, after the expiry of the period for filing objections, if no objections- are filed, or within ten days of the order under subsection (10) make necessary correction in the copy of the record of rights in his custody and direct in writing the supervising Tapedar to have similar corrections made in the copies of the record of rights in the custody of council concerned and the Tapedar within fifteen days of the receipt of the directions.
(Subsection 12).
(ix) The corrections under sub-rule (12) shall be attested:
(i) By the Mukhtiarkar if the correction is made by the incharge of the cell;
(ii) By a Revenue Officer not below the rank of Assistant Mukhtiarkar in other cases.
(Subsection 13).
(x) When a mutation is decided by a Revenue Officer a gist of the order, shall be sent, in Form XVIII to the Secretary of the Union Committee, Town; Committee or the Union Council, as the case may be, in which the Deh is situated, and to the person whose right has been transferred.
(Rule 32 of the Sindh Land Revenue Rules, 1968).
18. In cities where there is City Survey, it is understood that for the words "Mukhtiarkar (Revenue)" wherever used in section 42 of the Sindh Land Revenue Act, 1967, the words "City Survey Officer" are to be read.
19. The Mukhtiarkar (Revenue)/City Survey Officer, Jacobabad as admitted by him in his statement recorded before me on 14-2-2004, neither issued notices nor invited objections .It is quite obvious and amply clear that the aforesaid mutations in the Property/Ruled Cards were not made in accordance with the stringent procedure laid down in section 42 of the Sindh Land Revenue Act, 1967, read with paras. 148, 151, 152 of the City Survey Manual and Rule 9 of the Sindh Land Revenue Rules, 1968, rather it were made in utter disregard and Violation of statutory provisions. It would be seen that every duty enjoined upon Revenue officials/officers under section 42 of the Act, 1967, has been prefaced with the word 'shall' which leads one to an inevitable conclusion that the procedure for entering and attesting a mutation, is mandatory and deviation from it would entail serious consequence which may amount in nullifying the whole exercise. The word 'shall' has a peremptory meaning and signifies that procedure laid down in section 42 is imperative and mandatory. There is a famous maxim 'A communi observatia non est recedendum' which means that where a thing is provided to be done in particular manner; it has to be done in that manner and if not so done same would not be lawful. It is well recognized rule of construction that where a power is given to do a certain thing in any certain way that thing must be done in that way or not at all. Any Other method of performance is necessarily forbidden PLD 2000 Lah. 262, etc. Relied upon. Under such circumstances where a mutation is not made in accordance with the laid- down procedure, the superior Courts have held as under:-
(i) 1993 SCMR 618-- When mutation is not legal and proper; the entire structure built on it shall crumble (p.630)1.
(ii) NLR 1995 Revenue 26-- Procedure entering and attesting a mutation is mandatory. Any deviation from it would nullify whole mutation exercise (p.32, 33).
20. In view of the legal position explained supra if notices are not issued to the concerned parties and they are not heard, the mutations effected or any appellate or revisional order passed in consequence of such ex parte proceedings would be deemed illegal and void. Consequently, the mutations effected by the City Survey Officer/ Mukhtiarkar (Revenue), Jacobabad vide five entries each dated 4-5-2002, were void, having no binding force or legal effect.
21. A moot question emanates from the above proposition, whether subsequent hearing to the petitioners/applicants/appellants at the appellate and revisional stage will cure the initial defect?
The question has been answered by the superior Courts in the following manner:-- citation Ruling 1990 MLD 2353 (Karachi)
5. Under section 24 of the Colonization of Government Lands Act. 1912 prior notice to the grantee/allottee is required before his grant is cancelled. The petitioners were heard at the appellate and revisional stages but in view of the statutory requirement in section 24 of the Act, subsequent" hearing to the petitioners at the appellate and revisional stages cannot cure such initial defect. Mr. K.M. Nadeem learned Assistant Advocate-General has rightly submitted that a distinction is made between matters which require a statutory notice to be given to a party before any adverse order is passed against him and where an order suffers from violation of principles of natural justice. According to the learned Assistant Advocate-General in cases where there is a statutory requirement for a prior notice, and adverse orders are passed without such notice, hearing by the appellate or revisional authority would not cure the initial defect but in cases where there is no such statutory requirement but the grievance is that principles of natural justice have been violated inasmuch 'as the party against whom the adverse order is passed was not given a prior notice, a hearing to the party at the appellate or revisional stage will cure the initial defect.
The learned Assistant Advocate-General has referred to the decision of the Supreme Court in the case of Zaibtun Textile Mills Ltd. v. Central Board of.
Revenue, reported in PLD 1983 SC 358.
6. Admittedly, in the present case, no prior notice had been given to the petitioners before the grants were cancelled. There being a statutory requirement for a prior notice under section 24 of the Act of 1912, which requirement was not fulfilled in this case, the orders cancelling the grants of the petitioners are liable to be set aside.
The subsequent hearings at the appellate and revisional stage do not cure the initial defect of prior notice having not been given to the petitioners before cancellation of their grants.
PLD 1983 SC 358 The question whether the lack of hearing at the initial stage would vitiate the order even if there is a subsequent bearing afforded to the affected party at the appellate or review stage, depends upon the question whether the rule of natural justice is incorporated in the governing statute or is being merely imported on the basis of the common law rule. It is well- established that if the law under which action is taken by an authority expressly provides for notice then non-compliance with such provision would render the action taken or order passed in pursuance of the powers conferred by such law as void, but if there is no express provision to that effect, then the requirements of the rule of natural justice would be sufficiently fulfilled and the defect resulting from not hearing the affected party would stand cured by the subsequent hearing.
PLD 2003 Kar. 243 15. We have heard the learned counsel for the parties and have perused the record.
Indeed Mr. Muhammad Ali may be correct in asserting that in view of the mandatory provisions of section /4 of the Colonization of Government Lands Act and order of resumption of tenancy on grounds of the tenant breach of the' terms of tenancy could not be passed without giving the tenant an opportunity of hearing and if so passed it would, be nullity in law.
1981 SCMR 1061 Failure to issue statutory notice-- Contended that defect of failure to issue requisite notice stood cured by subsequent finding of appeal, etc. By original allottee where he was heard by all subsequent authorities-- Contention repelled as having no merit-- Held, subsequent hearing in cases of failure to issue a statutory notice cannot cure inherent defect as laid down in PLD 1971 SC 580.
22. It would be seen that five mutation orders each dated 4-5-2002 passed by the Mukhtiarkar (Revenue)/City Survey Officer, Jacobabad on Ruled Cards No,05477 (C.S. No,6/348), No,05495 (C.S. No,6365), No,05496 (C.S. No,6/365-A), No,05497 (C.S. No,6/366) and No,05498 (C.S. No,6/367) are hit by the Law mentioned in paras. 20, 21, above inasmuch as in all the above cases, before passing orders, notices were to be issued, to the concerned parties and their objections were to be invited and they were to be afforded the opportunity of being heard but in all, the aforesaid cases, neither notices were issued to the concerned/affected parties nor were they afforded the opportunity of being heard. Consequently, all the above mutation orders'were void ab initio and nullity in law.
These mutations were non-existent having no legal effect and binding force.
23. Adverting to the facts of the case, Mst, Maliha daughter and one of the legal heirs of the late Ahmed Mian Soomro being aggrieved by and dissatisfied with the five entries each dated 4-5- 2002 in respect of C.S. Nos. 348, 365, 365-A, 366 and 367, Ward 6 of Jacobabad, filed record-of- rights appeal (No,34 of 2002) against Mukhtiar. And City Survey Officer, Jacobabad (making him respondent No,1) and the Sub-Registrar, Jacobabad (making him respondent No,2) before the learned Executive District Officer (Revenue), Jacobabad on 19-10-2002. She, however, did not implead Messrs Illahi Bux Soomro and Iftikhar Ahmed Soomro as a necessary party.
24. Section 161 of the Sindh Land Revenue Act, 1967 deals with the filing of appeal. It contemplates that an appeal shall lie from an original or appellate order of a Revenue Officer to the--
(a) Assistant District Officer (Revenue) of the first grade when the order is made by the Assistant District Officer (Revenue) of the second grade;
(b) District Officer (Revenue) when the order is made by an Assistant District Officer (Revenue) of the first grade;
(c) Executive District Officer (Revenue) when the order is made by a District Officer (Revenue).
(d) Board of Revenue only on a point of law, when, the order is made by an Executive Officer (Revenue).
25. It is evident that appeal against an order passed (mutation effected) by the City Survey Officer/Mukhtiarkar (Revenue) lies before the Assistant District Officer of first grade. Obviously, the appeal before the Executive District Officer (Revenue), Jacobabad was not an appeal but it was an application for revision under section 164 of the Sindh Land Revenue Act,-1967 which was time- barred. Since the order of the City Survey Officer, Jacobabad was void, the question of condonation of delay was immaterial and the appeal/application was to be considered in time.
26. The above appeal/application was heard by the learned Executive District Officer (Revenpe), Jacobabad. Mr. Sadarddin Shaikh, learned counsel for the appellant argued before the learned Executive District Officer, Jacobabad that the basic document viz. General Powerof-Attorney said to have been executed by late Ahmed Mian Soomro in favour of his father late K.B. Haji Moula Bux Soomro and registered at the office of Sub-Registrar, Jacobabad, is void, incomplete and not maintainable for the reasons that the:--
(i) construction of the general power of attorney has not been drafted in accordance with the provisions of law inasmuch as it does not contain the scope and object of the instrument and the recitals (reasons and conditions) thereof which are mandatory;
(ii) General power of attorney does not show/contain the details and description of the property to be dealt with by the Authority which is violation of section 21 of Registration Act and renders the power of attorney void and illegal;
(iii) signature of the executant appears to be fake signature if compared With any other document;
(iv) entries in the Registered deed were to be enquired into by the Revenue Officer with view to ascertaining the correctness thereof. The reliance is placed on PLD 1993 Rev. 19 (Punjab) Mst.
Nirmala Mehdi v. Iqbal Mehdi 1993 SCMR page 618.
(v) mutation of the property purchased through Registered Sale-Deed on 30-10-1984 has been affected in the City Survey Record after the passage of 18 years and in absence of the Vendor which is violation of the law PLD 1962 W.P. (Rev) 21,-relied;
(vi) Sub-Registrar, Jacobabad has failed to record certificate with regard to the admission and execution of the document as provided at Order No,232 of the Code of Standing orders under the Registration Act.
27. The counsel for the appellant before the learned Executive District Officer (Revenue), Jacobabad prayed for the cancellation of mutation in respect of urban. Property bearing C.S. Nos.6/365, 5/365-A, 6/366, 6/367 and 6/348 of City Jacobabad which are based on void Power-of- Attorney as basic requirements of law were not adhered to which renders the document as null and void.
28. The learned Executive District Officer (Revenue), Jacobabad decided the appeal vide his order dated 28-10-2002 and passed the following verdict:-- "Accordingly, the mutations effected on the sale-deeds on 4-5-2002, by the City Survey Officer, Jacobabad after the passing of 18 years without any prior approval/permission are set aside and the original position in the names of Ahmed Mian Soomro and others is restored."
29. Against above order, the present application for revisions under section 164, of the Sindh Land Revenue Act, 1967 has been filed with the prayer to set aside the impugned order and restore the entries cancelled by the learned Executive District Officer (Revenue), Jacobabad on 28-10-2002 in respect of urban property situated in Jacobabad, on the following grounds:--
(i) That, the impugned order has been passed by respondent No,2 without providing opportunity of hearing to petitioners and it has offended the mandatory provisions of law.
(ii) That, the respondent No,2 had no jurisdiction to entertain the appeal because he is not appellate authority, even he is not competent to declare power, of attorney as illegal, it is purely function of Civil Court and not the Revenue Court.
(iii) That, the power of attorney of late Ahmed Mian Soomro executed in favour of his father late K.B.
Moula Bakhsh Khan Soomro or registered sale-deeds are legal and aggrieved party could file suit in competent Civil Court for declaration and cancellation within proper time.
(iv) That, the learned respondent No,2 has held that entry in city survey record is to be made with permission but according to Land Revenue Act, permission is not required when sale-deed is registered.
30. Mr. Wahid Bux Baloch, learned counsel for the appellant has filed an application dated 22-10- 2004 which is followed by another application dated 29-3-2005 with the common prayer to decide in the first instance the core question of law involved in the matter respecting the very jurisdiction.
It is the contention of Mr. Wahid Bux Baloch that the learned Executive District Officer (Revenue), Jacobabad had no jurisdiction to pass the impugned order for the - following main reasons:--
(i) Ms. Malliha Malik is not sole surviving legal heir of late Ahmed Mian Soomro. Neither other surviving legal heirs were impleaded in the Memo. Of Appeal nor the present appellant who are/is necessary party.
(ii) That, Executive District Officer (Revenue) by determining the registered documents being void, took upon him functions of a Civil Court hence acted beyond his jurisdiction.
(iii) That, determination and decision of points alleging fraud, is an exclusive function of 'Civil Court of competent jurisdiction and Revenue Officers cannot under law take upon himself the powers of a Civil Court.
31. Heard the parties. Mr. Wahid Bux Baloch learned counsel for the appellant has filed the written arguments. It will be advantageous to state a brief analysis of the said written arguments in the below given sub-paras:--
(i) Question of jurisdiction being a question of law can always be raised by any party at any stage including the appeal. Question of jurisdiction goes to the very root of the case and renders the entire coram non judice thereby vitiating the entire proceedings and making the judgment illegal and void. Matter ordinarily has to be dealt with in general jurisdiction unless it falls squarely within special jurisdiction PLD 2003 Quetta 11.
(ii) The bare perusal of the present appeal would show that the order dated 28-10-2002 impugned before this Court is assailed basically challenging the jurisdiction and competency of the learned Executive District Officer (Revenue), Jacobabad and the very competency of the respondent No,1 Mst. Maliha Malik to invoke the jurisdiction of Revenue Officer for her relief challenging thereby the validity of sale-deed in respect or relating to title in and over the urban immovable property in dispute. Ii) Section 39 of Specific Relief Act provides for cancellation of instrument. While section 42 of it provides relief for Declaration. In both cases it is the only Civil Court of competent jurisdiction to grant relief and not any Revenue Officer.
32. During the hearing of instant appeal, Mr. Sadarddin Shaikh stated that as per findings of the learned Executive District Officer (Revenue), Jacobabad, no special power-of-attorney is available/in existence, as such the learned counsel for the appellant may be asked to:--
(i) produce the original power-of-attorney for inspection and verification of signatures of elate Ahmed Mian Soomro put thereon, which are suspicious and in case of failure -to produce the original special power-of-attorney it, as laid down in 2000 MLD 1374, may be presumed that if it was produced, the same would have gone against the version of the party relying on that power- of-attorney.
(ii) produce copy of special permission given by the principal to the agent to sell out his property to his another son (as laid down in the rule mentioned in PLD 2003 SC 494) and in case of failure to produce the copy thereof, the sale may be considered void.
(iii) prove that consideration amount was paid to the principal and in case of failure to prove such fact, the sale, as laid down in 2000 MLD 1324, may be treated as sham transaction; hence void.
(iv) explain as to why the power-of-attorney being unregistered, may be excluded from taking into consideration.
33. Accordingly, through a written order 'dated 1-3-2003 of this Court duly served upon him, Mr. Wahid Bux Baloch was requested to produce the original power-of attorney executed by late Ahmed Mian Soomro in favour of late K.B. Haji Moula Bux Soomro, for authentication and verification of signatures as desired by the parties. He was further requested to produce the documents/papers shown at subparas, (ii) and (iii) of para. 32 ibid and also to explain the position asked at sub-para. (iv) of para 32 (ibid).
34. Mr. Wahid Bux Baloch has neither produced the registered documents not has proved that consideration amount was paid to the principal and explained as to why the power-of-attorney (only a photostat copy is available on this Court's record) being doubtful may be excluded from taking into consideration. He vide paras. 7 and 8 of his IInd application dated 29-3-2005, has however replied as under:--
(7) That undeniable, the citations of Superior Courts show that decisions have been determined by the Civil Courts of competent jurisdiction in civil suits after recording of evidence of parties, Principal and Agents in accordance with the law after testification, presentation, production and declaration of such documents is an exclusive function of Civil Courts and not of any Revenue Officers. Even the Revenue Officers have got no power under law to summon such documents.
(8) That, in light of the submission and settled law, the applicants would pray that this Honourable Court may be pleased to recall notice issued for production of registered documents and decide the application dated 26-10-2004 to meet the ends of justice as it would go to the very root of the matter."
35. Mr. Wahid Bux Baloch, instead of complying with the directions of this Court, which were in his own interest, has questioned the authority, of the Board of Revenue to summon the witness and require the production of documents which are related to the matter being adjudicated upon by it
36. The .Board of Revenue is constituted under and is governed by the W.P. Pakistan Board of Revenue Act, 1957 (hereafter referred as the Act 1957). As laid down in section 5(2) of the Act, 1957, the Board of Revenue is the highest Court of appeal and revision in revenue cases in the Province.
Section 6(2) of the Act, 1957 postulates that any 'order' made or a 'decree' passed by a Member shall be deemed to be the order of decree of the Board. From the perusal of Rule 6 of the Sindh Land Revenue Rules, 1968 provisions of Civil Procedure Code are partly made applicable in the proceedings before the Revenue Officer/Revenue Courts.
37. The word "Court", as defined in Article 2(1)(a) of the Qanun-e- Shahadat Order, 1984 includes all Judges, Magistrates and all persons except arbitrators, legally authorized to take evidence.
Similarly, the word 'decree' as defined in section 2(2) of the Civil Procedure Code means the formal expression of an adjudication which so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. A cumulative study of these laws together with Oaths Act, reveals that Board of Revenue being the `Revenue Court' is quite competent to record evidence and require the submission of documents. Not so much so that the Board of Revenue/Revenue Officer is legally authorized to record evidence in the matters being adjudicated upon by him but it/he can also issue commissions as envisaged in Rule 7 of the Sindh Land Revenue Rules, 1968. It is ridiculous how a Member Board of Revenue can pass 'order' or 'decree' when he is not authorized to summon witnesses and require documents, etc. The Board of Revenue is not only a 'Revenue Court', but it is also a 'Revenue Officer' classified in section 7(1)(a) of the Sindh Land Revenue Act, 1967 and it is empowered under section 22 of the Sindh Land Revenue Act, 1967 to summon any person who shall be bound to state the (truth) upon and produce such documents and other things relating to any such matter as the Revenue Officer may require (Order.XLI, Rules 23, 23-A, 28 etc. Of the Civil Procedure Code, also referred). The objection of Mr. Wahid Bux Baloch and explanation given in his application dated 29-3-2005 are neither legally justified nor tenable. Resultantly, the non- production of documents viz. General and Special Power-of-Attorney, special permission given by the principal to his agent etc. By Mr. Wahid Bux Baloch, goes against him and I am left no other option but to presume as in sub-paras. (i), (ii) and (iii) of para.32 above.
38. Mr. Wahid Bux Baloch has next stressed upon and conceded with vehemence that the impugned order passed by the learned Executive District Officer (Revenue), Jacobabad is an ex parte order and as such it cannot sustain.
39. Issue of notice and affording opportunity of hearing to -the person affected/being affected is mandatory and equally applicable in all cases viz. Mutation under section 42, Appeal under section 161 and Revision under section 164 of the Sindh Land Revenue Act, 1967 in the following manner:-- Section Contents 42(7) The incharge of the cell or the Mukhtiarkar where there is no cell after making entry under subsection (6) shall---
(a) affix a copy of the entry on the Notice Board of the Taluka Office. (b) Forward a copy of the entry to the Tapedar concerned for affixing it at a conspicuous place in Tapedar's Dero.
(c) Intimate, by notice in writing, to all such persons who appear or are believed to be interested in the mutation.
161(4) Proviso (ii)An order shall not be confirmed, modified or reversed in appeal unless reasonable notice has been given to the parties affected thereby to appeal and be heard in support of or against the order appealed from.
164(4)
ProvisoProviso 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.
40. Undoubtedly, the learned Executive District Officer(Revenue) while passing impugned order did not issue notice and hear Messrs Illahi Bux Soomro and Iftikhar Ahmed Soomro against whom he passed adverse order of cancellation of entries effected in the Ruled Card/ Record of Rights vide five entries each dated 4-5-2002.
41. For the reasons given in paras. 20, 21 non-hearing of affected persons (Applications herein) by the learned Executive District Officer (Revenue), Jacobabad is proved fatal to the impugned order.
The hearing given to the present applicant at this juncture viz. Revisional/appellate stage, for the reasons given in para. 21 above, will not cure the defect and on this score alone, the impugned order is void.
42. I have read the impugned order. The learned Executive District Officer (Revenue), Jacobabad has set aside the mutation on the core ground that the sale-deed was 18 years old and it was mutated without any prior approval/permission. I have examined this legal aspect of the case.
43. Under the law, no limitation is fixed for the mutation of registered document. However the Board of Revenue, Sindh in its decision reported in PLD 1980 Rev.48 and PLD 1980 Rev.27 has held that extreme unexplained laches would debar a person from seeking mutation. The Board of Revenue, Sindh in these two cases refused the mutation which was sought after 45 years and 71 years of a transaction and further held that the party be directed to seek a declaration from a Civil Court.
44. Similarly, seeking permission for the mutation of registered document is not a legal requirement as it finds place nowhere under any law/enactment. Mutation on the basis of a document which is duly registered, whenever produced, cannot be refused if `Mutsafri' is clear and there is no legal embargo and the statutory procedure is strictly adhered to/complied with. Therefore, cancellation of entries on this ground alone cannot be considered justified.
45. In view of above circumstances and detailed reasoning I am of the considered view that the learned Executive District Officer (Revenue), Jacobabad and of them, have committed the similar gross illegalities by not following the proper legal procedure, as such, the orders passed by them are nullity in law and not sustainable.
46. Consequently, the impugned order dated 28-10-2002 passed by the learned Executive District Officer (Revenue), Jacobabad is set aside and the five mutation orders/entries each dated 4-5- 2002 effected by Mukhtiarkar (Revenue)/City Survey Officer, Jacobabad in Ruled Card No,05477 (C.S.) No,348), 05495 (C.S. No,365) 05496 (C.S. No,365-A), 05497 (C.S. No,366) and 05498 (C.S. No,367) of Ward-6, Jacobabad, are also cancelled/set aside because of being violative of laid down legal procedure.
47. The present application is disposed of in above terms with no order as to the cost.
48. Announced. Given under my hand and seal of the Court, this 23rd day of June, 2005 at Hyderabad.