' AJMAL MIAN, J.-This petition calls in question the order dated 29th July, 1965 passed by the respondent No. 1 1. e. The Board of Revenue, West Pakistan, Lahore. The facts leading to the filing of the petition as disclosed in the petition, are that a land bearing Survey No, 677 situated in Deh Vaigi.
Taluka Kakar in District Dadu, measuring 4.18 acres (hereinafter referred to as the land) being Government land was available for disposal by the revenue authorities. The petitioner and one Meenhoon Khan father of the respondent No, 2 along with 2/3 relations made counter-offers.
According to the averment in the petition as the land was situated within 20 chains of the village of the petitioner and the respondent under the rules, it was necessary that there should be no objection to the disposal of the same for agricultural purpose and, therefore, the Barrage Mukhtiarkar of the beat visited the village and held an inquiry and gave his report to the effect that there was no objection to its disposal. Thereupon, on 17th May, 1965 the Assistant Revenue Officer accepted the petitioner's offer and granted the land to him and rejected the other offers including the said Meenhun Khan. Being aggrieved by the ' above transfer said Meenhun Khan filed an appeal before the Colonisation Officer/Revenue Officer. While the appeal was pending the respondent No, 2 and his relations filed an application dated 15th August, 1957 before the Commissioner, Hyderabad Division, praying that the land may be kept for the purpose of Asaish' of the residents of the village and that the same should not be granted for agricultural purpose as it was done. It has also been averred in the petition that the appeal filed by said Meenhun Khan was rejected by the Colonisation Officer on 9th Septembpf, 1957. Consequently, the petitioner was granted the land with the facility to pay the amount of its value in 10 yearly instalments. However the petitioner paid up the full amount on 28th January. 1958 and obtained transfer order in his favour and got his name mutated in his record of riehts on 1st March, 1958. It has also been asserted by the petitioner that he was put into possession of the land by virtue of the I jazatnama and thereafter remained in occupation of the same and brought it under cultivation.
2. The aforesaid application filed by the respondent No, 2 and some of his relations for reserving the land as "Asaish" was taken up by the Commissioner Hyderabad Division, who treated the above application as an appeal against the order of the Revenue Officer and decided the same on 29th January, 1959. He held that the land could not be taken away from the community and given to an individual and that it must be reserved for Asaish. The petitioner being aggrieved by the above order filed a revision before the Board of Revenue but the same was rejected on 8th September, 1960. The Board also found that the land was suitable for reservation for the community, for Asaish.
After the rejection of the revision by the Board of Revenue, the petitioner filed a writ petition in the erstwhile High Court of West Pakistan, Karachi Bench, namely, Petition No, 465/60 challenging the aforesaid orders of the Commissioner dated 29th January, 1959 and the Board's order dated 8th September, 1960. The above petition was allowed through an order dated 20th December.
1961. Whereby it was held that the Commissioner by treating the respondent No, 2's aforesaid application for reserving the land for Asaish as an appeal, bad acted without jurisdiction and therefore, the aforesaid two impugned orders were quashed. However, in para. 6 of the judgment the following observation was made : "6 This order of ours, however, is no bar to the Commissioner exercising his power vesting in him in law to consider the advisibility of Survey No, 677 being left aside for 'Asaish' of the village."
' After the above High Court judgment the respondent No, 2 and other villagers again approached the Commissioner of Hyderabad, through an application dated 24th January, 1962 which was rejected by the Commissioner through his order dated 16th October.
1963. Being aggrieved by the above order the respondent No, 2 filed a revision before the Board of Revenue which was allowed through the impugned order dated 29th July.
1965. The learned Member Board of Revenue in his impugned order has held that the land was suitable to be reserved as "Asaish" for community. He also agreed with the following observation contained in the first order passed by the Commissioner, Hyderabad Mr. Niaz Ahmed :- "I have heard the parties. The village is very small with no room for expansion. This small plot of less than 5 acres should not be taken away from the community and given to any individual. It adjoins `abadi'. It must be reserved for village Asaish."
' The petitioner has challenged the above order through this Constitutional petition.
3. The learned counsel for the petitioner Messrs Imamali Kazi and S. H. Rehmani have assailed the impugned order on the following grounds-
(I) that the application dated 24th January, 1962 filed by the respondent No, 2, before the Commissioner, Hyderabad, was not competent in view of section 38 of the Sind Land Revenue Code ;
(2) that the learned Member Board of Revenue, could not have exercised his revisional jurisdiction as the land was no longer a Government land ;
(3) that the transfer of the land in favour of the petitioner was finally upheld by the High Court in its aforesaid order dated 20th December, 1961 and, therefore, the land was no longer a Government land which could have been reserved for Asaish.
' In support of the first contention the learned counsel for the petitioner have invited or attention to section 38 of the Sind Land Revenue Code. Which reads as follows :- '18. Subject to the general orders of (the Board of Revenue), it shall be lawful for Survey Officers whilst survey operations are proceeding under Chapter VIII, and at any other time for the (Collector), to set apart lands the (property of the Crown for the purposes of the Province) and not in the lawful occupation of any person or aggregate of persons, in unalienated villages or unalienated portions of villages for free pasturage for the village or cattle for forest reserves, or for any other public or municipal purpose ; and lands assigned specially for any such purpose shall not be otherwise (used) without the sanction of the (Collector) ; and in the disposal of land under section 37 due regard shall be had to all such special assignment."
' According to the learned counsel for the petitioner it is the Collector who was competent to reserve the land for Asaish and not any other authority. Mr. Imam Ali Kazi has further contended that there is a distinction between a 'Collector' and 'the Collector' as the former would include any person exercising the power of a Collector by virtue of an Act or Rule or an administrative order, but the latter shall only cover the Collector of the District, which would also mean 'the Deputy Commissioner'.'
4. Before dealing with the above contention, it may be pertinent to mention that the learned counsel for the petitioner has conceded, we think rightly so, that the Assistant Revenue Officer and the Colonisation Officer both were exercising power of a Collector and, therefore, the appeal filed by said Meenhun Khan before the Colonisation Officer was not competent as under section 203 of the Sind Land Revenue Code the appellate authority was the Commissioner. In other words, the learned counsel for the petitioner concedes that at the time of the passing of the order dated 29th January 1959 by the Commissioner, Hyderabad Division, Mr. Niaz Ahmed, on the respondent No, l's application he was an appellate authority for the purpose of examining the transfer order made in favour of the petitioner whereas in the above Petition No, 465/60 the position taken up by the petitioner was that the Commissioner had no power to act as an appellate authority against the order of the Assistant Revenue Officer or the Revenue Officer/the Colonisation Officer. From the above concession, it follows that the Board of Revenue was the revisional authority against the aforesaid first order of the Commissioner Hyderabad, dated 29th January 1959, whereby the land was reserved for 'Asaish'. The above concession made by the learned counsel for the petitioner is in consonance with or Supreme Court case, namely, Pir Mohd. Farid Khan v. Colonisation Officer, Sukkur Barrage, Hyderabad and others (1). It may be advantageous to reproduce hereinbelow an extract from page 402 of the above case which reads as follows "In view of the notification referred to above, there appears to be some force in the contention raised that the Revenue Officer who purpoited to exercise the Commissioner's powers in appeal, had ceased to enjoy those powers. Reference was also invited by Mr. Pirzada to Standing Order 10 of the Revenue Department, at page 12 whereof, the procedure is prescribed for land grants in the barrage area. It is recited in section B of that Standing Order that the Revenue Officer exercises the power of a Revenue Commissioner and the Assistant Revenue Officer of the Collector, under the Land Revenue Code, in respect of land grant matters in the barrage area. It should follow from the notification set out above that this recital is no longer accurate and indeed, in the absence of a notification divesting the Assistant Revenue Officer of the Collector's powers which he presumably enjoyed under a similar notification, it would appear that the Revenue Officer and the Assistant Revenue Officer both now enjoy co-equal powers in respect of land grants. The order purporting to be passed in appeal by the Revenue Officer, therefore, had no legal basis and consequently the order passed in second appeal by the Additional Commissioner would appear to be a futile proceeding. An appeal is the creature of a statute and must be confined within the limits imposed by the relevant statute. Under section 203 of the Act, an appeal from an order passed by a "Revenue Officer" under the Act. Would lie to his immediate superior but the Revenue Officer who heard it, was clearly not in that position above the Assistant Revenue officer, since both of them were invested with powers of. a Collector. The order of the Revenue Officer being itself a nullity, it was inapt to make it the subject of an appeal, without canvassing the point of jurisdiction of the Officer hearing the first appeal.
' A perusal of the above-quoted para. Shows that an Assistant Revenue Officer and a Revenue Officer enjoyed equal powers in respect of the land grants,
5. If the above correct legal position would have been brought to the notice of their Lordships in the above Writ Petition No, 645/60, the judgment of their Lordships might have been different. Be that as it may, the question which requires consideration is as to whether the application filed by the respondent No, 2 before the Commissioner after the above judgment dated 20th December, 1961 of the High Court for {{FOOT NOTE}}
(1) PLD 1965 SC 399 {{FOOT NOTE}} reservation of the as land "Asaish" was competent or not. It is true that under the above-quoted section 38, of Sind Land Revenue Code the competent authority to treat the Government land as `Asaish' is the Collector and not any other officer. But the observation made by the High Court in para. 6 of the aforesaid judgment passed in Writ Petition No, 465/60, to the effect that their Lordships' judgment was no bar to the Commissioner exercising his power vested in him in law to consider the advisibility of Survey No, 677 being left for Asaish of the village, led the respondent No, 2 to file an application before the Commissioner for requesting that the land be reserved for Asaish.
As stated hereinabove, the Commissio ner rejected the above application. Being aggrieved by the above order the respondent No, 2 filed a revision before the Board of Revenue. The learned Member, Board of Revenue, through his impugned order has reserved the land for Asaish. And cancelled the grant in favour of the petitioner. The order of reserving the land for Asaish is not of the Commissioner, who had no jurisdiction but is of the Board of Revenue. The learned counsel for the petitioner concedes that if the land would not have been transferred to the petitioner, the Board of Revenue as a revisional authority could reserve the land for Asaish even under its suo motu power. In or view, as the order for reserving the land for Asaish has been passed by the Board of Revenue, the fact that the aforesaid application dated 24th January, 1962 under section 38 of the Sind Land Revenue Code was filed before the Commissioner loses its significance, and in or view is of no consequence. In this regard it may be pertinent to quote another extract from the above Supreme Court case of 1965 page 402: which reads as follows: "This however, does not conclude the matter. Even if the two appellate orders suffered from an infirmity, the order passed in revision by the learned Member, Board of Revenue, was not open to any such exception on the legal plane by section 211 of the Act. The Board of Revenue possesses power to revise an order passed by any subordinate officer and questions of legality as well as propriety of such a decision would be open in revision before the Board. The order of the Board was passed after full hearing of both parties on the merits of the case. Even if therefore the intermediate appellate links were weak, the final order in revision, referable as it was to section 211 of the Act, could not be successfully assailed as illegal."
' Their Lordships of the Supreme Court after holding that the appeal against the order of the Assistant Revenue Officer was not competent before the Revenue Officer as both were enjoying the powers of a Collector, were pleased to hold that notwithstanding that the two appellate orders suffer from an infirmity the order passed in revision by the learned Member, Board of Revenue was not open to any such excel:). Lion on the legal plane.
6. As the second and third contentions are interconnected, we wish to take up the same together.
Referring to the learned counsel for the petitioner's contention that the High Court through its judgment dated 5tit December, 1961 had finally confirmed the transfer in favour of the petitioner, it may be observed that the sole question before their Lordships was, as to whether the Commissioner was competent to treat an application under section 38 of the Sind Land Revenue Code as an appeal against the order of the Revenue Officer which order did not exist. In this regard it may be pertinent to quote hereinbelow relevant portion of the judgment which-reads as follows : "This order shows that the Commissioner has treated the application of respondent No, 4 and others made to him on 15th August, 1957 as an appeal and has disposed it of as such. The order passed by the Commissioner purports to set aside the order of the Revenue Officer. The factual position, admittedly on the record is that on 15th August, 1957 the order of the Revenue Officer did not exist. The Revenue Officer had passed an order in appeal taken to him by Meenhun Khan father of respondent No, 4 against the order of the Assistant Revenue Officer on 9th September, 1957. The occasion, therefore, of taking the appeal to the Revenue Commissioner did not arise on 15th August, 1957."
' In or view the above contention of the learned counsel for the petitioner that the High Court had upheld the transfer in favour of the petitioner through the aforesaid judgment dated 5th December, 1961 is devoid of any force. Their Lordships had not adverted to the question as to whether the transfer made in favour of the petitioner was rightly made or was liable to be cancelled if the land was to be reserved for "Asaish."
7. Referring to the other contention of the learned counsel for the petitioner that the land having been transferred to the petitioner was no longer available for reservation as an Asaish land' and that the learned Member Board of Revenue had no jurisdiction to entertain the above revision, it may be observed that the petitioner's offer was accepted on 17th May, 1957 by the Assistant Revenue Officer, against which Meenhun Khan father of the respondent No, 2 and others had filed an appeal before the Colonisation Officer (Revenue Officer), and that before the disposal of the above appeal, the respondent No, 2 and others had filed an application dated 15th August, 1957 before the Commissioner, Hyderabad Division. Praying that the land be reserved for Asaish. After the dismissal of the appeal filed by Meenhun Khan, the petitioner instead of paying 10 yearly instalments in 10 years paid the full amount on 15th August, 1957 for the obvious reason that the aforesaid application of the respondent No, 2 dated 15th August, 1957 for reserving the land for Asaish was pending. As stated hereinabove that the appeal against the order of the Assistant Revenue Officer was not competent before the Colonisation Officer/Revenue Officer and that the competent authority under section 203 of the Sind Land Revenue Code was the Commissioner. But unfortunately the parties as well as the High Court proceeded on the assumption that the appeal against the order of Assistant Revenue Officer was competent before the Revenue Officer and not before the Commissioner. The Commissioner, Hyderabad Division treated the respondent No, 2's aforesaid application dated 15th August, 1957 as an appeal and held through his order dated 29th January, 1958 that the land should be reserved for Asaish. The above order was upheld by the Board of Revenue. However, both the above orders were quashed by the High Court in the above Writ Petition No, 465/60 on the ground referred to hereinabove in para.
2. "After that the respondent No, 2 again approached the Commissioner in view of the observation of the High Court referred to hereinabove in para. 2 which resulted in the passing of the aforesaid Commissioner's order dated 16th October, 1963 and the Board of Revenue's impugned order dated 29th July, 1965. It is clear that the question as to whether the land should be reserved for Asaish or not was very much in issue in the litigation, which ensued after the acceptance of the petitioner's offer by the Assistant Revenue Officer. In or view the Board of Revenu after having seized of the matter was competent to examine the legality or propriety of the transfer made in favour of the petitioner notwithstandin that the matter was brought before it in connection with the question as to whether the land should be reserved for Asaish. The transfer order made in favour of the petitioner was set aside under the revisional power, which could have been exercised by the Board of Revenue even suo motu and. Therefore, the fact that the matter was not brought before the Board A of Revenue through a regular revision, against the transfer in favour of the petitioner would not make any difference. In or view the question as to whether the land should be reserved for `Asaish' and the question as to whether the transfer made in favour of the petitioner should not b disturbed were so interconnected that the former question could not have been divorced from the latter question. The Constitutional remedy is a discretionary remedy and the Court will be reluctant to exercise its discretion in a case where such exercise will result in causing prejudice to large number of public. In the instant case the learned Member Board of Revenue after examining the case was of the view that the land is suitable for reservation for Asaish which is a public purpose. In this regard it may be pertinent to reproduce hereinbelow an extract from the impugned order which reads as follows : "As for the merits of the case I find myself in full agreement with Mr. Niaz Ahmad's order reserving the land for Asaish of the village as quoted in Paragraph 2 (supra). My learned predecessor Mr. M.
W. Abbasi M. B. R. Also came to the same conclusion in his revisional order dated 8th September, 1960 and agreed to the opinion of the two successive Commissioners, who after prolonged consideration found that the village is small and the land in dispute was the only space left for future extension for the use of the village Cattle. The sketch also corroborates Mr. Abbasi's observations. I whole-heartedly concur with his remarks that 'there can be no doubt that the common purposes of the village have to be given precedence over personal or individual interest'.
1, therefore accept the revision with costs, cancel the respondents grant and direct that the land in dispute be reserved for the Asaish of the village Khaliq Dino Bughio."
' The above extract clearly shows that the learned Member, Hoard of Revenue has applied his mind to the facts of the case and therefore, it cannot be contended that the impugned order is without lawful authority or suffers from any infirmity. Under section 211 the learned Member Board of Revenue had the power to decide the above issue. Even if it is to be conceded that the above decision is erroneous, the same cannot be a ground for allowing the above writ. We may refer to the case of Mohammad Hussain Munir and others v. Sikandar and others (1). In the above case their Lordships while considering the power of the Board of Revenue were pleased to observe that it is well settled that where a Court or tribunal has jurisdiction, it determines that question it cannot be said that it acted {{FOOT NOTE}}
(1) PLD 1974 SC 139 {{FOOT NOTE}} illegally or with material irregularity mainly because it came to an erroneous decision on a question of fact or even on a question of law.
' In the view of the above discussion we are of the view that the petition does not merit and, therefore. The same is dismissed but in the circumstances of this case there will be no order as to costs.