' The dispute between the parties is about the allotment of land allotable to Lambardar in Chak No, 182!GB Tehsil Toba Tek Singh, District Faisalabad under the Livestock Breeding Scheme. There being five Lambardars the Collector was confronted with the situation as to which one should be preferred. This matter was resolved by the consent of the Lambardars. They agreed that lot may be drawn and the allotment may be made in favour of the successful candidate. As a result of the lot drawn by the Collector, Mohammad Latif, predecessor-in-interest of the appellants was declared to be a successful candidate and the allotment was made to him. The respondent Mohammad Ali filed an appeal before the Commissioner against this allotment claiming that the lot could not be drawn by the Collector without referring the matter to the Regional Director Animal Husbandry Department but the Commissioner dismissed the appeal. Instead of filing a revision petition before the Board of Revenue the respondent filed a civil suit to challenge this allotment on the ground that though the lot was allotable to the Lambardar under the Livestock Breeding' Scheme but in accordance with memo. No, 6284/63-306-OGL dated 28th January 1964 issued by the Secretary (Colonies), Board of Revenue, Lahore to the Deputy Commissioners, the Collector could select one person out of the few Lambardars only on the recommendation of the Regional Director Animal Husbandry Department. This suit was resisted by the defendant/predecessor-in-interest of the appellants inter alia on the ground of jurisdiction of the civil Court. A number of issues were framed including issue No, 1 in regard to the jurisdiction of the civil Court. This issue was decided against the plaintiff. It is not necessary to refer to other issues, which were also decided against him. The learned Civil Judge returned the plaint under Order VII, rule 10, C. P. C. After holding that the civil Court's jurisdiction was barred in the matter.
2. The learned Additional District Judge in appeal based his judgment on the said memo. (EMI. P. 4) and held that since the procedure provided by this memo was not adopted, the order of the Collector was without jurisdiction and there being no estoppel against the Statute, the plaintiff was not estopped from filing the suit. He, therefore, passed a decree for declaration in favour of the plaintiff thus setting aside the order of the Collector.
3. Hence this appeal.
4. I had dealt with the case on 14th January 1980, and posed certain questions to the learned counsel for the respondent. It is for this reason that I have asked him today to satisfy me on the legal points. He has argued the matter in detail. The crux of his arguments is that it is unnecessary to go into the question of applicability of the said memo, since the Livestock Breeding Scheme itself in para. 5 makes it incumbent upon the Collector to ask for the recommendation of the Director, Animal Husbandry Department. He also argued that this Scheme having been drawn under powers given by section 10 of the Colonization of Government Lands (Punjab) Act, 1912, it has the force of law and it could not have been departed from. The Collector being bound by the Scheme, any action taken by him in a manner contrary to it would be sufficient to render his order as ultra vires and the civil Court would have ample, jurisdiction to go into the vires of the order. He relied upon Jiwana v. Mst. Sahbi (1) and Karim Dad v. Arif All and another (2). He also referred to Sub.
Muhammad Asghar v. Mst. Safia Begum and another (3) in support of his submission that a scheme constituting statutory instructions have the force of law.
5. I am of the view that the petitioner had an adequate remedy, before the Board of Revenue whose instructions were claimed to have been violated by the Collector. I have already held in Abdul Aziz v. Syed Arif Ali and 6 others (4) that a civil suit is not competent unless the remedies (1) PLD 1954 Lah. 253 (2) PLD 1978 Lah. 679 (3) PLD 1976 SC 435 (4) PLD 1978 Lat. 441 provided by a special law are not exhausted. For this reason I am of the view that the civil suit was not competent.
It is no doubt correct that if the question of the vires of the order of the Board of Revenue or the Authority under it, is raised, a civil suit would be competent to enable the Court to see whether the Authority has acted within the four corners, of the Act V of 1912. Section 36 will apply in all cases where the question is about the manner in which the Provincial Government, Board of Revenue or Collector are any Revenue Officer exercises any power vested in him by order under this Act. The contention of the respondent is against the power of selecting a person for allotment vested in the Collector. He had thus jurisdiction. It was only the manner in which this power should have been exercised which was being challenged. There is a specific bar in regard to that in section 36. The civil Court consequently had no jurisdiction over the matter. In this connection it is also worthwhile seeing that the respondent having agreed to abide by drawing of lot and the passing of a declaratory decree being within the discretion of the Court, the Court could exercise the discretionary jurisdiction against the respondent. Even if it is assumed that the principle that there is no estoppel against the statute applied to this case, this is pre-eminently a fit case in which the learned Additional District Judge should not have exercised that discretionary jurisdiction in favour of the respondent. For this reason also this appeal is liable to be accepted.
6. Even on merits of the case I do not agree with the argument of the learned counsel that the matter is governed by para. 5 of the Livestock Breeding Scheme, 1960. The said Scheme for areas not exceeding 300 acres is not a scheme for the Lambardars, it is a general scheme in which any person who could fulfil the conditions was eligible for the grant of land. As stated in para. 2 of the plaint that the Government issued a memorandum to the effect that the Lambardars were entitled to the allotment of land to the extent of 1/2 square under the Livestock Breeding Scheme, under this memorandum a Lambardar is entitled to claim allotment clearly where there is one Lambardar.
The question of making any reference to the Director of Animal Husbandry Department does not arise. Para 5 of the scheme referred to by the learned counsel for the respondent would not, therefore, apply to a case of allotment to a Lambardar. It will apply only to a case where there are a number of applications on behalf of persons who are otherwise eligible to apply under this scheme. It is for this reason that some memorandum was sent for guidance by the Deputy Commissioner Rahimyar Khan on 20th December 1963, on which memorandum Exh. P. 4 is said to have been issued. This memorandum reads as follows :- "There seems hardly any need to select suitable persons by a Board, since the land is to be given only' to the Lambardar of the Chak, as required by Government instructions contained in circular No, 1160/63-1242-CVII, dated 28th March, 1963. Where there are more than one Lambardar in one Chak and the lot is single, the allotment in such case should be made on the same lines as it is done in respect of Horse Breeding grants where the Collector selects one of the persons recommended by District Remount Officer. In these areas the Regional Director Animal Husbandry Department will recommend and the Collector will select one out of them ..."
7. From the facts stated above it would be amply clear that para. 5 of the scheme being not applicable the matter is governed only by memorandum Exh. P.
4. The question whether this memorandum is a part of the scheme framed under section 10 or not can be decided in the light of the observation of their Lordships of the Supreme Court in Sub.
Muhammad Asghar v. Mst. Sofia Begum and another which was relied upon by the learned counsel for the respondent. In that case there were two memos apart from the scheme. These memos were held to be having force of law on the same principle as was laid down in the case of Government of West Pakistan v. Dr. A. A. Aziz (1). It was, however, held that this principle could not be applied to cases where the proprietary rights were involved and though the statement of conditions of tenancy issued under section 10 has the force of law the memo. Relied upon in that case was not given that force.
8. In view of this, the memo. Relied upon by the respondent lay only a guiding principle which has to be kept in view by the Collector but it has not force of law as have the terms and conditions of grant governed by B section 10 of Act 5 of 1912. If this is so, a violation of this instruction will not bring the principle of ultra vires into play. Consequently the civil Court cannot have any jurisdiction over this matter.
9. I allow this appeal with costs, set aside the judgment and decree of the learned Additional District Judge and restore the order and decree of the learned trial Court.
(1) PLD 1961 SC 105