JUDGMENT JUSTICE (R) MUHAMMAD JAHANGIR ARSHAD, CHAIRMAN --- This appeal is directed against the order dated 22.12.2008 passed by Executive District Officer (Revenue), Toba Tek Singh/competent authority whereby on the charge of misconduct and corruption etc. Major penalty of dismissal from service was imposed on the appellant and also against the order dated 30.6.2009 passed by Senior Member, Board of Revenue, Punjab, Lahore/respondent No. 3 as appellate authority whereby departmental appeal filed by the appellant was rejected.
2. The facts briefly stated are that while posted as Patwari of Chak No: 363/GB, Tehsil Gujrat, District Toba Tek Singh the appellant entered mutation of sale No. 1971, dated 29.5.2006 purporting to be sale of agricultural land measuring 20 kanals on behalf of Mst. Bashiran Bibi D/o Fazal Khan, the original owner on the ostensible sale price Of Rs. 9,00,000/- in favour of Qaisro Export House (Pvt.)
Limited, Faisalabad through Qaisar Idrees, Chief Executive. The trouble started when the real owner of the said property namely Mst. Bashiran Bibi moved an application to the District Coordination Officer, Toba Tek Singh on 27.9.2007 complaining that she neither entered into any transaction of sale with Qaisro Export House (Pvt.) Limited, Faisalabad nor did get the said mutation entered or attested after receipt of the sale price, but in fact Muhammad Hanif appellant in connivance with some other persons of the area, specifically Muhammad Younas got the same attested on her behalf by producing some lady purporting to be her (Bashiran Bibi), the real owner by pasting photograph of some other lady namely Mst. Bushra Bibi representing her, therefore the matter be probed into and the person found guilty be punished in accordance with law. It was also alleged in the complaint that subsequently photographs pasted on the said mutation were also got removed from the original mutation consigned in the office of Kanungo. On receipt of the said application, the D.C.O. Toba Tek Singh marked the same to Executive District Officer (Revenue), Toba Tek Singh for necessary inquiry/report. In terms of above-noted direction of the E.D.O. (Revenue), Toba Tek Singh, preliminary inquiry was conducted by Tehsildar/AC-1, Gujrat, who vide his report dated 11.12.2007 confirmed the allegation of Mst. Bashiran Bibi. On the basis of said preliminary inquiry, the Executive District Officer (Revenue), Toba Tek Singh/competent authority appointed Rana Naseer Ahmad, Deputy District Officer (Revenue), Toba Tek Singh as Inquiry Officer.
3. The following statement of, allegations was served on the appellant and his co-accused: "That Rana Muhammad Iqbal, Naib Tehsildar; Muhammad Aslam Wahla, Naib Tehsildar; Munawar Ahmad, Gurdawar; Muhammad Hanif, Patwari; and Maqbool Ahmad, Naib Office Kanungo got sanctioned. Mutation No. 1971, dated 29.5.2006 fraudulently through Mst. Bushra Bibi W/o Muhammad Nasim instead of real land-owner Mst. Bashiran- Bibi dishonestly and for that removed the photograph from the back of the mutation."
4. The appellant. And other co-accused filed their respective replies before the Inquiry Officer and the Inquiry Officer after recording evidence and completion of inquiry finally submitted his report on 17.7.2008 holding the appellant guilty of charge and recommended imposition of major penalty whereas according to the report despite proof of charge against Naib Tehsildar namely Rana Muhammad Iqbal who had recorded the statement of the parties on the mutation regarding factum of sale, but recommended no penalty whereas Muhammad Munawar, Girdawar was recommended as exonerated and Muhammad Aslam Wahla, Naib Tehsildar, who on the basis of recording of statement by Rana Muhammad Iqbal, Naib Tehsildar had actually sanctioned. The said mutation was recommended minor penalty as according to the Inquiry Officer he had attested the said mutation without satisfying himself about the identity of real owner Mst. Bashiran Bibi. When the said report was put before the competent authority as the same was silent about one of the co-accused namely Maqbool Ahmad, Naib Office Kanungo, therefore the competent authority sought finding/recommendation of the Inquiry Officer about said Maqbool Ahmad through order dated 26J.2008 and the Inquiry Officer vide his finding dated 28.7.2008 held Maqbool Ahmad guilty of connivance with the appellant in removing the photograph of the lady who had appeared at the time of attestation of mutation and thus recommended imposition of minor penalty on him. On the basis of the above-mentioned finding/recommendation of the Inquiry Officer, final show- cause notices were issued to the appellant as well as other co-accused to which they filed their respective replies and the competent authority/respondent No. 1 finally vide order dated 22.12.2008 imposed penalty of dismissal from service on the appellant, withheld two increments for two years of Muhammad Iqbal, Naib Tehsildar, penalty of censure on Muhammad Aslam Wahla, exonerated Muhammad Munawar, Girdawar as recommended by the Inquiry Officer, but surprisingly imposed major penalty of dismissal from service on Maqbool Ahmad, Naib Office Kanungo despite recommendation by the Inquiry Officer for imposition of minor penalty.
5. Against the above-noted order of the competent authority, the appellant alongwith Maqbool Ahmad and Rana Muhammad Iqbal filed three departmental appeals before respondent No. 3, who vide order dated 30.6.2009 rejected all the above-noted appeals through consolidated single order. Against both the above-noted orders, the appellant as well as his co-accused namely Maqbool Ahmad filed two appeals.
6. So far as the appeal of Maqbool Ahmad co- accused is concerned, the same has been disposed of today through a separate order whereby keeping the. Facts and circumstances attributed to him, the same was partly allowed and the punishment of dismissal from service was converted into withholding of increment for five years in the light of the findings/recommendations of the Inquiry Officer.
7. So far as the present appeal is concerned, the learned counsel for the appellant though in his arguments endeavoured to convince the Court that the appellant was innocent and was wrongly held guilty of the charge by the Inquiry Officer as well as by the competent authority, yet in view of the allegation against him, report submitted by the Inquiry Officer and the evidence produced before the Inquiry Officer compelled me not to agree with the contention of learned counsel for the appellant. Before proceeding to discuss the merits of the case further I would like to reproduce the relevant provision of Section 42 of the Land ' Revenue Act, 1967 lying down the procedure for attestation of mutation:-
(1) Any person acquiring by inheritance, purchase, mortgage, gift. Or otherwise, any right in an estate as a land-owner, or a tenant for a fixed term exceeding one year, shall, within three months from the date of such acquisition, report his acquisition of right to the Patwari of the estate, who shall-
(a) record such report in the Roznamcha to be maintained in the prescribed manner;
(b) furnish a copy of the report so recorded; free of cost, to the person making the report; and
(c) send a copy of report, within a week of its receipt by him, to the Union Committee, Town Committee-or Union Council within which the estate is situated.
(2) The Patwari shall enter in his register of-mutations every report made to him under subsection
(1) or sub-section (2) and shall also ' make an entry in the Roznamcha and in the register of mutations respecting the acquisition of any such right as aforesaid which he has reason to believe to have taken place, and of which report should have been made to him under either of those sub- sections and has not been so made.
(3) The report made to the Patwari under subsection (1) or sub-section (2) or recorded by him under sub-section (3) shall be displaced in such manner as may be prescribed.
(4) If the Patwari fails to record or to display a report made to him under sub-section (1) or sub- section (2), the person making the report may make the report in writing, to the Revenue Officer concerned and the Chairman of the Union Committee, Town Committee or Union Council in which the estate is situated, by registered post acknowledgment due and the Revenue Officer shall thereupon cause, such report to be entered in the register of mutations.
(5) A Revenue Officer shall, from time to time, inquire into the correctness of all entries in the register of mutations and into all such acquisitions as aforesaid coming to his knowledge of which under the foregoing subsections, report should have been made to the Patwari and entries made in that register, and shall in each case make such order as he thinks fit with respect to any entry in the periodical record of the right acquired.
(6) Except in cases of inheritance or where the acquisition of the right is by a registered deed or by or under an order or decree of a Court, the Revenue Officer shall make the order under sub-section
(6) in the presence of the person whose right has been acquired, after such person has been identified by two respectable persons, preferably from Lambardars or members of the Union Committee, Town Committee or Union Council concerned whose signatures or thumb impressions shall be obtained by the Revenue Officer, on the register of mutation.
(7) An inquiry or an order under sub-section (6) shall be made in the common assembly in the estate to which the mutation, which is the subject-matter of the inquiry relates.
(8) Where a Revenue Officer makes an order under sub-section (6) in regard to the acquisition of any right, an entry shall be made in the periodical record by the insertion therein of a description of the right acquired and by the omission from such record of any entry in any record previously prepared, which, by reason of the acquisition, has ceased to be correct.
8. The perusal of the above-noted provisions of law leaves no room for doubt that it was the duty of the Patwari as well as the Revenue Officer to satisfy themselves about the identity of the persons transferring the property through sale by identification from two respectable persons of the Union Councils concerned including obtaining their signatures and thumb impression on the register of mutation as laid down in sub-section (7) of Section 42 of the provisions reproduced above.
Similarly in terms of subsection (8) reproduced above, the Revenue Officer before attesting the mutation -had to make inquiry in the common assembly known as 'Jalsa-e-Aam' in the estate to which the mutation, which is the subject-matter of the inquiry relates. Despite the above^noted mandatory provision, it is established from the record and so found by the Inquiry Officer that neither the appellant nor Rana Muhammad Iqbal, Naib Tehsildar took proper measures with regard to identification of Mst. Bashiran Bibi nor did hold the said inquiry in the common assembly of the estate, rather statement of the parties to the transaction and the inquiry, if any, was conducted in the house of Muhammad Younas, who was very much privy to the fraud and this fact alone is sufficient to hold the appellant as well as Rana Muhammad Iqbal, Naib Tehsildar equally guilty of the charge, It has been held time and again by the superior Courts that not only attestation of mutation in the common assembly 'Jalsa-e- Aam' is a mandatory requirement. For attestation of mutation, but its violation also render&the proceedings irregular as well as illegal and the mutation not attested in common assembly can be declared without legal effect. Reliance to this effect can be placed on 2007 SCM R 729. The allegation that instead of Bashiran Bibi (real owner), one Mst.
Bushra Bibi W/o Muhammad Nasim appeared or was produced before the Revenue Officer itself requires no corroboration when Bushra Bibi herself appeared before the Inquiry Officer and made her statement in the inquiry stating therein that it was Muhammad Younas co-accused in whose home she was working as employee and it was Muhammad Younas who took her to Gujrat City, got her photograph in the presence of Muhammad Hanif appellant and .Rana Muhammad Iqbal, Naib Tehsildar and they both forced her to make statement before the appellant and Rana Muhammad Iqbal, Naib Tehsildar with regard to sale of property through the disputed mutation.
She further admitted in cross- examination by Rana Muhammad Iqbal that she was forced to appear before him as Bashiran Bibi. Despite cross- examination on Mst. Bushra Bibi, Rana Muhammad Iqbal failed to make any dent in her statement. Even the appellant neither appeared before the Inquiry Officer as his on witness nor did produce any evidence in order to prove his innocence, In view of plethora of evidences on record made available to the Inquiry Officer, I have no reason to disagree with the report of the Inquiry Officer as well as the finding of the Inquiry Officer holding the appellant guilty of charge i.e. Getting the mutation attested on behalf of Mst.
Bashiran Bibi by producing some- other lady misrepresenting her before Bashiran Bibi' real owner: The appellant miserably failed to procure satisfactory evidence regarding identification of Mst.
Bashiran Bibi, the real owner at the time of getting mutation sanctioned whereas he was supposed to ensure the identification of Bashiran Bibi, the real owner, hence he was rightly held guilty by the Inquiry Officer and the same was so declared correctly by the competent authority.
9. At this stage, the question is as to whether the penalty as imposed by the competent authority and maintained by the appellate authority was justified, In view of the fact that it was Rana Muhammad Iqbal, Naib Tehsildar who also committed glaring violation of the provision of Section 42 of Land Revenue Act, 1967 being a Revenue Officer as reproduced above by attesting mutation in the house of one Muhammad Younas who was also involved in the fraud instead of holding common assembly in the estate. Neither the Inquiry Officer nor the
10. On the other the learned Deputy District Attorney has opposed this appeal by referring to evidence as well as report of the Inquiry Officer and submits that as the appellant intentionally and with impunity tried to deprive the real owner of the property from her valuable agricultural land, therefore he has rightly been found and dealt with by the competent authority and the penalty as imposed by the competent authority and maintained by the appellate authority are not exceptionable and this appeal is liable to be dismissed.
11. I have carefully considered the arguments advanced from both sides and have also perused the record. I have also considered the last argument of the learned counsel for the appellant with reference to extending concession and also on the quantum of penalty.
12. In ordinary circumstances and in view of-the gravity of the charge of the appellant whereby he .
With impunity tried to deprive the real owner of the property by playing havoc and got the fictitious mutation of sale attested deliberately and for that matter he deserves no leniency, but keeping in view the fact that despite playing equally dirty game with the appellant, co-accused Rana Muhammad Iqbal, Naib Tehsildar has been given concession by the competent authority in the matter of punishment, though prima facie without any justification and further the original property also stands reverted to its real owner and further according to the learned counsel for the appellant due to the present proceedings, one of the daughters of the appellant has gone abnormal, therefore I feel that the appellant be also shown some concession in the matter of punishment and instead of punishment of dismissal from service on the appellant, it would be most appropriate if the penalty of dismissal from service is converted into penalty of compulsory retirement from the date of order of dismissal passed by the competent authority.
13. Before parting with this judgment, I would like to make it clear that this judgment shall be no bar for decision of criminal proceedings already pending against the appellant before the criminal Court of competent jurisdiction and the said criminal proceedings shall be decided on its on merits purely on the basis of evidence as well as in accordance with law uninfluenced by any observation or finding recorded in this judgment.