' This Constitutional petition assails the order dated 16-2-1983 passed by the learned Member (Revenue), Board of Revenue, Punjab, Lahore.
2. The dispute relates to the entry of Khasra Girdawari for Rabi 81 pertaining to the column of rent in regard to 72 Kanals and it Marlas of the land as described in detail in paragraph 2 of the present Constitutional Petition. This land was purchased by Ghulam Haider, the father of the present petitioners, and others in the year 1970 for Rs,63,000. Faiz Ahmed respondent No,4 (hereinafter referred to as the respondent), filed a suit for possession of the said land by pre-emption. His suit was decreed on 6-5-1972. It appears that till 1979, he did not take out execution proceedings pursuant to the said decree passed in L's favour. In 1979, however, he applied to the Revenue Officer c interned for attestation of mutation on the basis of the said decree. onsequently, a mutation was attested on 20-11-1979 in favour of the respondent.
3. The validity of the mutation was challenged by the petitioners up to the level of the Board of Revenue but unsuccessfully.
4. Up to Kharif 1980, petitioners used to be recorded as owners in possession in Khasra Girdawari entries pertaining to the aforementioned land. Dispute arose with regard to entries of Khasra Girdawari for Rabi, 1981. Patwari Halqa recorded the entry as paying no rent in the appropriate column for Rabi, 1981, but the Naib-Tehsildar, at the time of inspection ordered correction so as to give effect to the mutation and directed the entry of to be made for Rabi, 1981.
' Feeling aggrieved, the petitioners applied before the Collector for correction of the entry. A report was obtained from the Field Staff and the learned District Collector after considering the reports submitted by the Tehsildar and E.A.C. concerned passed an order dated 28-2-1982 to the effect that correction of ownership could not be made in view of the mutation and, therefore, the petition so far as related to the correction of ownership entries was dismissed. As regards dispue of rent between the parties, he directed the Tehsildar to take legal steps to determine the rent and to settle the dispute after hearing the parties.
6. Petitioners preferred an appeal before the learned Additional Commissioner, Gujranwala Division, Gujranwala. He too vide his judgment dated 6-12-1982 upheld the Collector's decision so far as the status of the petitioners as tenants-at-will under the respondent was concerned.
Regarding rent, however, he observed that provisions of section 14 of the Punjab Tenancy Act, 1887 were attracted in the case and the rent could be determined by the Revenue Court as a result of rent suit provided in section 77, Group III, clause (n) of the Punjab Tenancy Act. He thus accepted the appeal to the extent of entry in the rent column and directea that in the said column the word r-1-2/1;;,should be written.
7. The respondent thereafter went in revision before the learned Member (Revenue), Board of Revenue, Punjab, Lahore, through R.O.R. No,91/83. The learned Member (Revenue), after hearing the counsel for the respondent alone and having gone through the orders of the lower authorities, directed that the word might remain only with reference to the harvest during which the dispute had arisen. He, however, further observed that Revenue Officer concerned shall have to determine the mode/rate of rent for the subsequent harvests according to the prevalent rate in the locality after giving necessary opportunity to both the parties and a firm findings shall have to be given by him. He disposed of the Revision Petition accordingly. In this manner, the learned Member (Revenue), Board of Revenue, through his order dated 16-2-1983 which has been impugned through the present Constitutional Petition factually restored that of the District Collector which was set aside by the Additional Commissioner pursuant to an appeal filed by the petitioners,
8. As already observed, the impugned order was passed by the learned Member (Revenue), Board of Revenue, without hearing the petitioners and without affording an opportunity of show-cause to them.
9. The provisional jurisdiction vests in the Board of Revenue by virtue of section 164 of the land Revenue Act, 1967. Under the said provisions, the Board of Revenue, may, at any time, on its own motion, or on an application made to it within 90 days of the passing of any order, call for the record of any case pending before, or disposed of by, any Revenue Officer subordinate to it.
10. It is further provided that the Board of Revenue can, in any case thus called, pass such orders as it may deem fit. But by virtue of the proviso to section 164 (supra) it is provided that no order shall be passed under this section reversing or modifying any proceedings or .girder of a subordinate Revenue Officer affecting any person without giving such person an opportunity of being heard.
11. Thus, apart from the established principle of natural justice that no one should be condemned unheard, it has been made obligatory A for the Board of Revenue by virtue of the proviso to section 164 that no order in exercise of its revisional jurisdiction shall be passed reversing or modifying an order of a subordinate Revenue Officer affecting any person without giving opportunity of hearing to such person. In the under consideration case, no such opportunity was given to the petitioner.
Thus, the impugned order is violate of the mandatory provisions of section 164 of the Land Revenue Act besides being in utter disregard of the well-known principle that no one should be condemned unheard.
12. It may also be observed, that under the Land Revenue Act, no power vests in the Tehsildar to determine the rate/mode of rent if there is a dispute to that effect between an occupant of the land and its owner. In this manner, the impugned order passed by the learned Member (Revenue), Board of Revenue, has no legal sanction behind it. Section 14 of the Punjab Tenancy Act, 1887 provides that any person in possession of land occupied without the consent of the landlord shall be liable to pay for the use or occupation of that land at the rate of rent payable in the preceding agricultural year, or, if the rent was not payable in the year, at such rate as the Court may determine to be fair and equitable.
' The Court referred to in section 14 (supra) is the Revenue Court established under the Punjab Tenancy Act and not a Revenue Officer functioning under the Land Revenue Act, 1967.
' Suit of such nature is provided in clause (n) of III Group of section 77 of the Punjab Tenancy Act which reads:- "(n) suits by a landlord for arrears of rent or the ,money equivalent of rent, or for sums recoverable under section 14.".
13. Thus, under the law the remedy available to the respondent, the owner of the land, against the petitioners is to have recourse to the provisions of section 14 read with section 77, III Group clause
(n) of the Punjab Tenancy Act, 1887.
14. It has also been noticed that the Revision Petition filed by the respondent before the learned Member (Revenue), Board of Revenue, pertained to the dispute relating to the crop of Rabi, 1981. For the said crop, the learned Member (Revenue), Board of Revenue, held and rightly so that the word in the rent column could be recorded as already directed by the Additional Commissioner. There was hardly any occasion for the learned Member, (Revenue), Board of Revenue, to make any direction with regard to future course of action for the subsequent crops as no dispute regarding such subsequent crops was taken before him by the respondent.
15. It has been argued on behalf of the respondent that the writ jurisdiction of this Court is an equitable jurisdiction which can only be exercised in aid of justice and not to advance the cause of injustice. The petitioners have not come to this Court with clean hands as they have not paid any rent to the owners of the land for a pretty long time
16. This argument is devoid of any merit because the respondent has not proceeded in accordance with law for recovering the rent due to him from the petitioners, lie is at liberty to enforce his right in due course of law. The impugned order, as already observed, has no legal sanction behind it and there is no provision in the Land Revenue Act empowering Tehsildar to determine the mode and rate of rent.
17. In the light of the shortcomings and illegalities vis-a-vis, the impugned order, as noticed above, it is concluded that the order dated 16-2-1983 passed by the learned Member (Revenue), Board of Revenue, so far as it relates to the issuance of direction to the Revenue Officer, for determining the mode/rate of rent for the subsequent harvest (for harvest after Kharif, 1981) according to the prevalent rate, is held to be without lawful authority, void, in excess of jurisdiction and thus nullity in the eye of law. The Writ Petition is allowed accordingly, leaving the parties to bear their own costs.