Mst. Nasreen Iqbal has filed a review petition against the order dated 4-2-1987 passed by the then Member (Revenue) and Muhammad Arif and Shaffat Ali have come up in revision against the order dated 8-12-1986 of the Commissioner, Faisalabad, whereby their appeals were dismissed.
2.Since the subject-matter is common in these petitions, these are being taken up together and will be disposed of by this single order.
3.Brief facts of the cases are that Muhammad Bakhsh Lambardar of Chak No. 471/GD, Tehsil Samundari died. On inviting applications to fill in the resultant vacancy 21 candidates came forward. During the pendency of the cases the Assistant Commissioner, Samundari reported to the District Collector that some candidates had approached him to get a favourable decision so the cases be transferred to some other Court of competent jurisdiction. The District Collector transferred the cases to Assistant Commissioner, Jaranwala for disposal. Out of 21 candidates 11 did not appear before the Assistant Commissioner, Jaranwala whereas 4 candidate withdrew their candidature in favour of respondent and 7 candidates were left in the field. The Collector after considering the merits/demerits of each candidate appointed the respondent as lambardar vide his order 28-7-1986. Four appeals were filed against the said selection before the Commissioner, who upheld the order of the Collector on 8-12-1986. Being aggrieved by that order Mst. Nasreen Iqbal filed revision petition before the then Member (Revenue) who dismissed the same vide impugned order dated 4-2-1987, whereas the remaining two petitions have been preferred against the above-said order of the Commissioner dated 8-12-1986.
4. Learned counsel for the petitioners have raised a preliminary objection regarding the competency of the DC/Collector to transfer the case and that of the Assistant Commissioner/Collector to hear these cases as both were exercising the powers of the Collector. In this regard reliance has been placed on sections 14 and 16 of the West Pakistan Land Revenue Act, 1967 which are reproduced as under:-- Section 14 (1)The Board of Revenue may, by written order distribute, in such manner as may be deemed fit, any business cognizable by, any Revenue Officer under its control, and by like order, withdraw any case pending before any such Officer.
(2)The powers exercisable by the Board of Revenue under subsection (1) may, by like order and in like manner, be exercised by a Commissioner or Collector in respect of any business cognizable by, or any case pending before, other Revenue Officers.
(3)Where a case is withdrawn by the Board of Revenue under subsection (1), the Board may dispose it of itself, or by written order, refer it for disposal to any Revenue Officer and where a case is withdrawn by a Commissioner or Collector under subsection (2) the Commissioner or Collector, as the case may he, may dispose of it himself, or by like order, refer it to any other Revenue Officer.
(4)No order under this section shall empower any Revenue Officer to exercise any powers or deal with any business which he would not be competent to exercise o- deal with.
Section 16 (1)Government may by Notification, confer on any person all or any of the powers of a Commissioner or Collector under this Act, and may, in like manner, withdraw such powers.
(2)The Board of Revenue, may by notification, confer on any person all or any of the powers of an Assistant Collector under this Act, and may, in like manner, withdraw such powers.
(3)A person on whom powers are conferred under this section shall exercise those powers within such local limits, and in such classes of cases as Government or the Board of Revenue, as the case may by, may direct and, except as otherwise so directed, such person shall, for all purposes connected with the exercise thereof, be deemed to be the Commissioner, Collector or Assistant Collector, as the case may be.
Learned counsel for the petitioners have, therefore, vehemently stressed that the Collector being under the control of Commissioner, orders for the transfer of cases could only be passed by him; and not by the District Collector. And if the District Collector does so, the trial Court of AC/Collector would be acting illegally and all its actions/orders will be void, because the jurisdiction of the AC/Collector is confined to his local limits. And it extends beyond his local limits only under the direction of Government or the Board of Revenue or the Commissioner, (in case of transfer of cases). Learned counsel for the petitioner has also relied upon PLD 1981 Lah. 659. He has also referred to the judgment of Mr. Asad Ali Shah, Senior Member, Board of Revenue in an identical case. The learned Senior Member declared the order of the District Collector void ab initio and remanded the case for fresh decision..
5. The learned counsel has also contended that since the basic order suffers from lack of jurisdiction, therefore, superstructure built on a void order has no entity in the eyes of law and is liable to be quashed having no legal effect. Reliance is placed on Maj. Syed Wilayat Shah v.
Muzaffar Khan etc. PLD 1971 SC 1984.
6. In rebuttal learned counsel for the respondent has argued that section 16 ibid relates to the conferment of powers on the Revenue Officers and does not deal with the matter relating to the transfer of cases from one to another Court. He has stated that if section 14 ibid is read with sections 9 and 13(4), reproduced below, it will be clear that District Collector having supervisory powers and control over the whole of the District has ample powers to transfer the case from one AC/Collector to another AC/Collector within local limits of his control as laid down in section 14(2) ibid:-- Section 9. Additional Commissioners and Additional Collectors.
Government may appoint in any Division an Additional Commissioner or in any District an Additional Collector, who shall exercise throughout the Division or District concerned all or any of the powers and discharge all or any of the duties conferred or imposed on a Commissioner or Collector, as the case may be, by or under this Act, subject to the general supervision and control of the Commissioner of the Division in the case of Additional Commissioner, and the Collector of the District in the case of Additional Collector.
Section 13(4)Subject as aforesaid and to the control of the Commissioner, a Collector shall control all other Revenue Officers in his District.
The learned counsel has further stated that in the case referred to by the learned counsel for the petitioners--PLD 1981 Lah. 659, the Settlement Officer was conferred with the powers of Collector and was not empowered as Collector of the District, therefore, his status was quite different from the District Collector, who had supervisory control of the District. As such this citation is not relevant to the instant case. He further agitated that it is a well-settled law that a point not taken at an earlier stage cannot be taken later on in appeal or revision. Since the petitioners never protested that point either before the Collector or the Commissioner, therefore, they are not entitled to raise it here.
7. After arguing on the `preliminary objection' the parties also put forth their point of view on merits of the case---which are not being discussed here as the case is being decided on a legal issue.
8. Learned counsel for Mst. Nasreen Iqbal petitioner in Review No. 188/ 1987 has mainly contended that if this Court arrives at a conclusion that the cases of the other petitioners are to be sent back to DC/Collector for reconsideration and fresh decision then the prayer of the petitioner would be that she is also permitted to join the proceedings before the lower Court.
9. I have heard the parties and have also examined the legal position and the record of the cases.
Since a very valid question of law has been raised as a `preliminary objection' it is desirable that this issue is disposed of first. Counsel for both the parties very ably and comprehensively put forth their points of view which have already been stated in paras. 4 and 5 above.
10. A perusal of sections 14 and 16 creates an accumulative effect that j District Collector is not empowered to transfer a case from one AC/Collector to the other one because in that situation the trial Court of AC/Collector will not be having such `powers' which could be enjoyed by him if conferred by the Government or in case of transfer of case if directed by Board of Revenue or the Commissioner to hear the case. In this behalf I am fortified by a ruling of Mr. Asad Ali Shah, Senior Member, Board of Revenue. In the said order it has been I held that the DC/Collector had no authority to transfer the case from one AC/Collector to another as he was not the authority which had originally conferred the powers of Collector under section 16 of Land Revenue Act.
11. I regret to disagree with the counsel for respondent that the provisions of Section 9 and section 13(4) are attracted to this case, it is provided there that the Additional Commissioner and Additional Collector are under the general supervision and control of Commissioner and District Collector respectively but we know that Government have posted the Additional Commissioners having the jurisdiction throughout the Division. But where are the Additional Collectors having their competency throughout the District? The jurisdiction of AC/Collector is confined to his own subdivision. And it is not a situation where the case was transferred to any Additional Deputy Commissioner (General) or Additional Deputy Commissioner (Cons.), etc. Conferred with the powers of a Collector for the district.
12. The argument of the counsel for respondent that since the point of jurisdiction had not been raised in the lower Courts so it cannot he considered in this Court has no force in it. It is purely a law point based on interpretation of the statute. Such points can, in my opinion, be raised at any stage, in any competent forum.
13. Conclusively I am of the considered opinion that the District Collector had grossly erred in transferring the case from the file of one AC/Collector to another and the order passed by the trial Court of AC/Collector was void having no legal effect. Any superstructure built on a void order will also collapse with the striking down of the void order. Hence the orders of AC/Collector, Jaranwala dated 28-7-1986 and that of Commissioner dated 8-12-1986 are set aside. I also recall the order of learned Member (Revenue) dated 4-2-1987 and also set it aside. The cases are remanded to the DC/Collector, Faisalabad for fresh decision, on merits after hearing all the parties including Mst.
Nasreen lqbal.