S. ABDUL JABBAR KHAN (CHAIRMAN).-Mr. Muhammad Ishaq, for--merly Settlement Naib Tehsildar, Mianwali, has filed this appeal under Section 4 of the Punjab .Service. Tribunal Act, 1974, in which he has impleaded Member (Revenue), Board of Revenue, Punjab, Lahore, Commissioner Sargodha Division, Sargodha, respondents.
2. By virtue of this appeal he has prayed that the order dated 3-1-1981 of respondent No. 2 and 15- 3-1982 of respondent No. 1 be set aside and the appellant be re-instated in service with all back benefits.
3. The brief facts of the case are that the appellant while he was posted as Settlement Naib Tehsildar, Mianwali, Mutation No. 1169 was entered by Patwari halqa on 13-2-1979 on the basis of a decree passed by the Civil Court. Under the terms of the said decree land owned by one Tayyab son of Hamid was to be mutated in favour of Saif-ur-Rehman's son of Abdur Rehman's. This mutation was duly verified by Girdawar Kanungo on 27-1-1980 and was presented before the appellant on 13-2-1980 of which day the appellant attested the said mutation.
4. On 2-4-1980 after the said mutation had been attested, the Divisional Forest Officer, Mianwali, made an application before the Settlement Officer for the review of the aforesaid mutation and the learned Settlement Officer was pleased to allow permission to review the said mutation vide his order dated 3-4-1980. The appellant was placed under suspension by the learned Commissioner, Sargodha Division dated 12-6-1980. The suspension order was followed by the charge-sheet and the statement of allegations. The appellant submitted his reply to the said charge-sheet wherein he denied the charges.
The Deputy Commissioner was appointed as Enquiry Officer who conducted the enquiry and submitted his report to the learned Commissioner, Sargodha Division. The learned Commissioner vide his order dated 3-1-1980 dismissed the appellant from service. Against the said order of dismissal the appellant preferred an appeal before the learned Member (Revenue). The learned Member, Board of Revenue vide order dated 15-3-1982 dismissed the appeal while he converted the penalty of dismissal into that of compulsory retire--ment. Hence this appeal.
5. We have heard the learned counsel for the appellant as well as the District Attorney assisted by the representative of the Department and have perused the entire record of this case carefully with their assistance.
6. It has been argued on behalf of the appellant that the order of dismissal passed by the Commissioner would be ultra vires of the Punjab Civil Servants Act of 1974 inasmuch as the learned Commissioner acted as authority as well as the authorised officer. The learned counsel argued that this act by itself would vitiate the entire proceedings in this case.
7. The learned counsel for the appellant vehemently argued that the stand of the learned Commissioner as well as the learned Member Board of Revenue i. e. Possession of the land being recorded in favour of the Forest Department and in the revenue record was sufficient ground for refusing the attestation of mutation-was an erroneous stand as the same would not be supported by any law, rule or instructions. The learned counsel pointed out that the entries relating to this mutation as it was presented before the appellant did not at all mention such facts i. e. Possession of the Forest Department anywhere. It was further submitted that according to paragraph 7.4 of the Land Record Manual it was Gardawar Kanungo who was under a duty to check the entries of the mutation sheet with the existing revenue record and it was not for the appellant to do so. It was further claimed that even if such entry would have been there showing possession of the Forest Department; toe same would not stand in the way of attestation of the mutation, as the entries in "Jamabandi" did not mention that the land in question had been permanently transferred in favour of the Forest Department. This claim of the appellant according to the learned counsel was based on the dictum of the Supreme Court of Pakistan in Ali Ahmad and another v. Muhammad Fazal and another (1972SCMR322).
8. It has also been submitted by the learned counsel for the appellant that the appellant was never asked by the Divisional Forest Officer not to attest the mutation-a fact proved from the very evidence of the Divisional Forest Officer, Tehsildar and Senior Clerk of the Forest Department. It was also pointed out that there was no evidence on the record either to show that the Robkar requisitioning the record was sent to the appellant before 13-2-1980. The learned counsel in this respect further pointed out towards a glaring fact on the record that it was Peshee Kanungo who was held responsible by the Settlement Officer vide his order dated 7-5-1980 delaying the transmission of the Robkar to the appellant. For this the statement of the Tehsildar has been relied upon by the learned counsel.
9. With regard to charge No. 2 that the appellant was living in the house of father of Saif-ur- Rehman's without paying any rent (beneficiary to the mutation) it has been argued that the said charge has been controverted through the statement of Mr. Saleem Akhtar, Senior Advocate, Mianwali, (who appeared in defence of the appellant) in which he has clearly sated that the appellant was living in his house at a monthly rent of Rs.
100. The learned counsel has made grievance that this important fact has been ignored both by learned Commissioner and Member Revenue.
10. With regard to the main charge of sanctioning mutation while the land was in the name of the Forest Department it was submitted that the P. T. D. Issued in favour of the Forest Department dated back to 15-6-1965 but till 1980 i. e. Full after 15 years the Forest Department did not take any step in the matter and only moved the Settlement Tehsildar after the mutation had been entered and fully attested. Lastly it was argued that the appellant did nothing but only obeyed the mandatory provision of section 42 (7) of the Land Revenue Act and thus was guilty of no misconduct or violation of any rules in this behalf. The learned counsel while closing his arguments also referred to the unblemished service of 26 years of the appellant which according to him should have gone in his favour and not against him.
11. On the other hand the learned District Attorney has adopted the comments submitted by the learned Commissioner, Sargodha Division and has submitted that it has been proved on the record that the attestation of the mutation was carried out after the relevant .Facts had come to .The knowledge of the accused. Since the possession had not actually been transferred, the order passed by the Naib Tehsildar was illegal being opposed to the mandatory provision of Section 45 of the Land Revenue Act, 1967. According to the learned District Attorney the appellant was bound under the said section to ascertain whether the possession of the land under transaction had actually been transferred to the vendee/trans--feree. He has further stressed on the fact that despite the fact proved that he was fully informed by the Forest Department not to attest the mutation on the basis of the decree which was obtained through fraud, he did attest the mutation.
The learned counsel has also relied on certain adverse entries pertaining to year 1966-67 to show that the appellant was an average officer whose `Partal' work was poor. .
12. We have given our anxious thoughts to the arguments so advanced by the parties and after giving full consideration to the case before us, we find that the appellant has been punished for the following two charges. The Charge No. 1 relates to attestation of mutation of a property in pursuance .Of a decree of a civil Court, although the property according to the Charge No. 1 was property of the Forest Department vide P. T. D. Issued in its favour dated 15-6-1962. By virtue of this charge it has been held by the two Courts below :-
(i) that the appellant had acted with ulterior motives and failed to ascertain the actual possession at the spot ; and
(ii) that also neglected to act on the information of the D. F. O. So provided by him before the actual attestation of the mutation.
13. The second charge pertains to his absence from duty, so found by Mr. Qasim Ali, Reader to Settlement Officer, Bhakkar. In this context it has also been found by the learned Commissioner as well as Member, Board of Revenue that he was under obligation to Saif-ur-Rehman's. The beneficiary of this mutation as he was living in his father's house without paying any rent.
14. We would also like to mention at this stage to the trends of thinking of learned Commissioner as well as Member, Board of Revenue, wherein they have expressed-that a valuable title on the property has been passed in favour of Saif-ur-Rehman's by sanctioning the said mutation by the appellant in his favour.
15. Before entering into discussion on the merits of the main charges i. e. Charge No. 1 as well as charge No. 2 in this case, we would like to remove the fallacious impression which many times has been wardly in the minds of the general public and resonance of the same has been sounded in this case also by senior revenue officers of this land. The fact of the matter is that mutation does not confer any title whatsoever to a person in whose favour a mutation is attested by a revenue officer and it is just an arrangement to correct the record of rights (Jamabandi) and other revenue records in respect of certain property. The principle so enunciated by us finds full support in 1968 SCMR 573 and 1968 SCMR 842 (2) wherein it was clearly held that entries in mutation register were not in nature of title deeds and there value was only evidentiary in nature in support of a title-a matter which is only within the competence of a Civil Court to decide.
16. In view of these authoritative pronouncements of the highest courts of the country we are fully fortified to say that both the learned Courts have erred in law by holding that the appellant in any manner had bestowed a title through his act of sanctioning the disputed mutation.' The most crucial issue in this case for the purpose holding the appellant guilty of act of commissin or omission would be-whether the appellant did sanction the mutation when he had been positively asked by the Forest Department to refrain to do so for some ulterior motives. In this respect we have looked into the statement of Mr. Ajmal Hussain, D. F. O., Mianwali, P. W. 5 and Mian Ahmad Masood, Tehsildar P. W. 4 as well as the report of the Settlement Officer dated 30-4-1980. Mr. Ajmal Hussain has stated in cross---examination that he had corresponded with the Settlement Tehsildar and did not inform the appellant personally about his request that the mutation may not be sanctioned as the property was the property of the Forest Department. He has further admitted that although the P. T. D. In the name of the Forest Department related to year 1965, yet no effort was made on the part of the Forest Department to get it incorporated in the revenue record right up till 1980. He has also agreed to the suggestion in cross examination that no effort of any kind was made by the department to get the allotment cancelled from the name of one Tayyab in any manner earlier to the present incident. Mian Ahmad Masood, Settlement Tehsildar P. W. 4 has conceded in cross-examination that he did not tell or inform the appellant personally not to attest the mutation but the same was done through a Robkar. We further find that the Settlement Officer in his report dated 30-4-1980 has mentioned as under; "I am sure that this delay was intentionally caused by Mr. Ata Ullah Peshee-Kanungo to Settlement Tehsildar Mianwali, he should there--fore, be charge-sheeted. It is just possible that the Revenue Officer attested the mutation after receipt of the notice for summo--ning the record." .
"S. 45. Restriction on variations of entries in records.-Entries in a record of rights or in a periodical record, except entries made in periodical records by Petwaries under clause (a) of section 43 with respect to undisputed acquisition of interest referred to in that section, shall not be varied in subsequent records otherwise than by-
(a) making entries in accordance with facts proved or admitted to have occurred ;
(b) making such entries as are agreed to by all the parties interested therein or are supported by a decree or order binding on those parties ; and
(c) making new maps where it is necessary to make them."
17. The clauses (a) and (b) lay down that entries in a record of rights or in a periodical record are to be made in accordance with the facts proved or admitted to have occurred or making such entries as are agreed to by all the parties interested therein or are supported by a decree or orders binding on those parties. The reading of this section nowhere discloses that this is a relevant citation in the present case before us which deals with the attestation of mutation and not to entries in a record of rights or in a periodical record. Although this section is absolutely misconceived in the present context of the case, yet it lends support to the case of the appellant that even in such matters a decree or an order of a Court is binding on all concerned whether official or non-official.
18. Now we look into section 42 (7) of the Land Revenue Act, 1967 which runs as under:- Section 42.
(1) to (6).........------------------------
(7) Except in case 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 subsection
(6) in the presence of the person whose right has been acquired, after such person has been identified by two respectable persons, preferable 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 mutations."
19. According to this subsection of section 42, a Revenue Officer is bound to incorporate the effect of a registered deed or a decree of a Court without any demur in an implicit manner. Law on this point has been fully settled in various judgments of the Supreme Court, High Court and Board of Revenue from time to time some of which we rely as under :- "In 1972 SCMR 322, their Lordships of the Supreme Court held that even a time-barred decree of a civil Court is ' to be implemented and it does not lose its utility, simply because it barred by time.
It was further observed as follows :- "In our opinion the view of the High Court is correct that the revenue authorities were under obligation to sanction mutation on the basis of the decree whether collusive or not."
"Revenue authorities in mutation proceedings are under obligations to give effect to the decree of a civil Court and change entries in records in accordance with the rights so determined thereby."
20. Their Lordships of the High Court were of the considered opinion that on failure on the part of the revenue officer to attest such mutations the High Court was within its competence to direct him to do so. Similar was the view taken in Mst. Jumman v. Dilawar and others (PLD 1978 Rev. 13) taken by the Revenue Board wherein it was held that mutations were to be attested in compliance of a decree of a civil Court and the Revenue Officer was not supposed to go beyond the same.
21. In the present case the mutation was duly entered by the Patwari, verified by the Kanungo and was placed before the appellant for attestation. The mutation was attested before any information was received by him in writing from a superior, not to do the same. Even if, there was a mandate or direction of a superior to the appellant not to attest the mutation, according to law laid down, he had no other alternative but to ignore such directions and attest the mutations. We are, therefore, of the considered opinion that the appellant did not violate any provisions of the Land Revenue Act and rather acted in compliance to directions laid down in section 42 (7) of the said Act.
22. With regard to the charge/allegation that as the appellant was resid--ing in the father's house of Saif-ur-Rehman's, therefore, he has obliged him by attesting the mutation in dispute, it would be sufficient to say that this allegation has been controverted by a senior Advocate who appeared in his defence and told the enquiry officer that the appellant was living in his house as a tenant and was paying a monthly rent of Rs.
100. We have noted from the record that this aspect of the case- law not been attended to either by the learned Commissioner or by the learned Board of Revenue.
23. The other limb of the charge relates to his absence from his circle when it was found that he had gone on tour to certain villages and was not found present by the: Reader of the Settlement Officer. We have looked into the evidence of Munshi Ghulam Ali, a solitary witness of this charge and find that he has admitted that his enquiry was restricted to the area of bus stand wherefrom he enquired about the whereabouts of the appellant and was told that nobody had seen the appellant proceeding towards the villages so claimed by him to have gone on tour. Such (like slipshod and purfunctory enquiry would hardly prove the allegation of absence front duty against the appellant.
24. In view of the detailed analysis of the entire facts and the law relating to this case, we are of the considered opinion that the learned Courts below had failed to apply the correct law and have misread the evidence so recorded against the appellant in this case.
25. The result is that we accept the appeal, set aside the impugned orders and direct that the appellant be re-instated in service with all benefits.
However, there will be no orders as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.