This judgment disposes of the following writ petitions
(1) W. P. No. 34/75 (Muhammad Aslam v. Muhammad Rafiq and three others).
(2) W. P. No. 114/75 (Nazar Ali v. Member Board of Revenue and another).
(3) W. P. No. 653/75 (Muhammad Ismail v. Additional Chief Land Commfysloner and another).
(4) W. P. No. 1280/75 (Amir Bakhsh v. Allah Ditta and three others).
(5) W. P. No. 1293/75 (Ali Muhammad v. Additional Chief Land Commis--sioner, Board of Revenue, Punjab).
(6) W. P. No. 1065/75 (Malik Khushi Muhammad v. Additional Chief Land Commissioner and another).
(7) W. P. No. 2182/75 (Khair Din v. Abdul Ghani and three others).
(8) W. P. No. 2204/75 (Muhammad Sarwar v. Additional Chief Land Commissioner and two others).
(9) W. P. No. 2340/75 (Muhammad Mumtaz v. Additional Chief Land Commissioner, Board of Revenue Punjab).
(10) W. P. No. 2444/75 (Muhammad Yaqub and five others v. Additional Chief Land Commissioner and two others).
(11) W. P. No. 1932/75 (Ejaz Ahmad v. Board of Revenue, Punjab and three others).
2. The question of law common to all the petitions requiring determi--nation is whether Mr. S. M.
Nasim Additional Chief Land Commissioner could discharge the duties and perform the functions of Member, Board of Revenue Punjab, for the sole purpose of disposal of Colony Judicial cases, in addition to his own duties as Additional Chief Land Commissioner.
3. There are two notifications of the Government of the Punjab in the Services and General Administration Department on this subject, one dated 19-7-1973 and the other dated 18-10-1973. As all the revisional orders under challenge in these writ petitions were passed by Mr. S. M. Nasim after 18-10-1973, this notification alone requires examination. It is reproduced hereunder in extenso.
"NOTIFICATION The 18th October 1973 No. CI-11-1973, Mr. S. M. Nasim, Additional Chief Land Commissioner Punjab, shall exercise the powers of Member, Board of Revenue, Punjab, for the disposal of Colony Judicial cases, in addition to his own duties, till further orders.
By Order of the Governor of Punjab S. Afzal Agha."
4. The Board of Revenue Punjab was set up under Act XI of 1957 known as West Pakistan Board of Revenue Act, 1957. Sections 3 to 7 thereof set out its composition, powers and functions. Section 3 by its first subsecticn establishes a Board of Rexenue by enacting that "there shall be a Board of Revenue for West Pakistan which shall consist of such Members as may be appointed by the Government from tinge to time." Its subsection (2) vests the Government with power to appoint or remove a Member.
5. Section 4 by its subsection (1) provides "notwithstanding anything to the contrary contained in any other law for the time being in force, but subject to provisions of subsection (2) and to any Orders of the Govern--ment with respect to the appcrintments and conditions of service of Revenue Gfficers, the general superintendence and control over all Revenue Officers and Revenue Courts in West Pakistan shall vest in, and all such officers, in so far as their functions as Revenue Officers are concerned, shall be sub--ordinate to the Board."
6. Before going over to subsection (2) of section 4 which alone, and no other sub constitutional law does, control subsection (1) thereof, it is necessary to take note of subsection (2) of section 5 and subsection (2) of section 6. The former provides that "the Board shall be the highest Court of Appeal and Revision in revenue cases in the Province." The latter provides "any order made or decreed by a Member shall be deemed to be the order or decree of the Board."
7. Coming now to subsection (2) of section 4 we find the manifestation of the legislative intent in the following words : "The Board shall be subject to the control of the Government, and in all matters, other than those in which the Board exercises appellate and revisional jurisdiction, the Government shall have power to issue such directions to the Board as may be considered necessary or ex--pedient and the Board shall carry out those directions."
8. In all these cases Mr. S. M. Nasim has passed the impugned orders in revisions arising out of proceedings under Colonization of Govern--ment Lands (Punjab) Act. Section 7 thereof governed the proceedings before the Board of Revenue. It provides that "subject to the provisions of this Act, the Punjab Land Revenue Act and Chapter VII of the Punjab Tenancy Act and the Rules made thereunder shall in so far as they are applicable, apply to the proceedings under this Act. But nothing in the Punjab Land Revenue Act or the Punjab Tenancy Act, 1887, shall be so construed as to vary or to invalidate any condition entered in any statement of conditions." The powers and procedure applicable to the parties in the matter of appeal and revision under this Act, are therefore the same as exist under the Land Revenue Act and it was in view of such a legislation by reference that revisions against the orders of the Additional Commissioners had come to be filed before the Board of Revenue.
9. There are three legal defects found in the appointment and functioning of Mr. S. M. Nasim, which make the proceedings in revision before him coram non judice. The Legislature by establishing the Board of Revenue as the highest Court of appeal and revision in revenue cases in the Province and by keeping it absolutely free of all Government control in the exercise of these functions manifested unmistakably its intention of ensuring so far as this activity was concerned its independence and insularity. There could be found some justification for supporting such an authorization had it been confined to non judicial work of a Member, Board of Revenue, as has been explicitly placed under the control of the Government under subsection (1) of section 4. In respect of judicial cases, such an authoriza--tion is clearly against the express language of the statute. As the highest Court of appeal and revision in revenue cases it is only proper that it should be free from such control and interference and should also appear to be so.
10. Secondly, the power conferred on the Government by section 3 is "to appoint or remove a Member of the Board of Revenue." The direction to Mr. S. M. Nasim to "exercise the powers of Member, Board of Revenue Punjab, for the disposal of Colony Judicial cases," does not have the effect of appointing him a Member of the Board of Revenue. A Member has been defined as a Member of the Board of Revenue established under this Act. It is only the order made or a decree passed by a Member which is deemed under the law (section 6(2)) to be the decree or order of the Board. The Board of Revenue alone has the power, subject to the approval of the Government to distribute its business amongst its Members and it may, by rules, also regulate the procedure of all proceedings before it (section 6(1)). By such an authorization to a person who is not a Member of the Board, the intention of the Legislature, the object of the law and the express language of the statute is all violated and the entire set up of the highest Court of appeal and revision in revenue cases in the Punjab is thrown into disarray.
11. Thirdly, the Board of Revenue (Conduct of Appeals and Revisions) Rules, 1959, which have statutory force on the strength of section 6(1), provides (Rules 4) that "on receipt of such appeal or application for revision, the Registrar shall immediately place it before the Member concerned for such orders as he may consider appropriate in accordance with law for the time being in force." In placing these matters for disposal or appro--priate orders before Mr. S. M. Nasim who was not a Member, the Registrar violated this rule.
12. 1 have examined the conduct of the petitioners with a view to find out whether they themselves have not contributed to such usurpation of jurisdiction. I find that in all the cases revisions were filed with the Board of Revenue and in no case with Mr. S. M. Nasim. It was thereafter the duty of the Registrar (rule 4) and of the Board of Revenue (section 6) to have ensured its handling and disposal by a Member of Board of Revenue and by none else. The petitioners do not in any measure share their failings. i 13... Where proceedings are coram non judice it is futile to examine the merits of the orders impugned, for if they are well reasoned and sound on merits, they will only establish that persons not duly appointed to a post, can equally well, if not more competently, discharge its duties as compared to those who are duly appointed. Even such an inference cannot save these proceedings which are coram non judice.
14. This specific legal objection to the exercise of powers of a Member, Board of Revenue by Mr. S. M.
Nasim was for the first time, noted by me on 5-11-1974 in W. P. No. 1932 of 1974. A report was then called for on this point from Board of Revenue Punjab (through Member Colonies). The report was never received. When a copy of the Notification dated 18-10-1973 was placed on record the petition .Was admitted for hearing on 12-12-1974. Since then a number of other petitions were admitted, and came --n for hearing on a number of dates, In none of the cases, the Board of Revenue, its Member-in-charge or Mr. S. M. Nasim filed a written statement. In hearings that took place before the long vacations it transpired from the record produced at the hearing that this question had been referred to the Law Department and adjournments were allowed to permit the Board of Revenue to formulate its own view in the matter. When the cases came up for hearing after vacations there was no improvement in the effectiveness of representation on behalf of the Board of Revenue. On an application (C. M. 2-1975) in W. P. No. 114 of 1975, 1 directed the office to fix the connected matters in the first fortnight of November 1975 with a direction that "the learned Advocate-General should also be asked to ensure effective representation in these cases." Even after this direction there was no improvement and the only submission made was that if the authorization was invalid it should be so declared and these petitions be allowed. In none of the petitions written statements have been filed to date and the report submitted in one (W. P. No. 1293/75) while taking note of this ground comments "The matter, is pending in the High Court".
15. In the circumstances, these petitions are all allowed with costs and the disposal of the revision petitions by Mr. S. M. Nasim is declared to be without lawful authority and of no legal effect. These re vision petitions shall be deemed to be still awaiting disposal by a Member, Board of Revenue.