MUHAMMAD NASEEM CHAUDHR1, J. - Mian Khurshid Ahmad son of Sardar Khan, caste Rajput, resident of Mianda Kot, Hafizabad was a hermaphrodite who was the owner of agricultural land situated in Mauza Hafizabad, Mauza Premkot and Mauza Dingran Wali, Tehsil and District Hafizabad. He lived in the house of Khadim Hussain petitioner. He had no brother, was never married and neither eligible to marry and thus he had no wife and children. During his life time Mian Khurshid Ahmad is said to have bequeathed whole of his property in the name of Khadim Hussain petitioner. Mian Khurshid Ahmad died on 21.8.1998 whose dead-body was received by Khadim Hussain petitioner as he looked after him being his sister's son (Bhanja). The fact of his death was entered in the Register of Municipal Committee, Hafizabad through Khadim Hussain petitioner. With respect to the property situated in Hafizabad Mutation No. 16332 was entered at the.
Request of Khadim Hussain which was contested by Bashir Ahmad respondent No. 4 who claimed to be the brother of Mian Khurshid Ahmad deceased. This mutation was sanctioned on 30.9.1998 by the Tehsildar/Assistant Collector-!, Hafizabad in favour of Khadim Hussain petitioner wherein the particularly referred to a written deed of will in favour of Khadim Hussain petitioner. With respect to the property situated in Mauza Dingranwaii and Premkot respective Mutations Nos. 101 and 583 were entered by the Patwari which have not been sanctioned as yet and obviously there is no dispute thereof before this Court.
2. On 30.9.1998 Bashir Ahmad respondent No. 4 made his miscellaneous application before the Deputy Commissioner, Hafizabad wherein he made the allegations of corruption against the Tehsildar about the sanction of the mutation on 30.9.1998 in favour Khadim Hussain. He prayed for the cancellation of the said mutation. This matter was proceeded by the Deputy Commissioner/District Collector, Hafizabad before whom the documents were produced and the matter was argued at length by the learned counsel for the contesting parties i.e. Bashir Ahmad respondent No. 4 in this writ petition and Khadim Hussain petitioner in this writ petition. The District Collector, Hafizabad passed the order dated 21.10.1998 whereby he accepted the application about the cancellation of Mutation No. 16332 attested on 30.9.1998, keeping pending the decision of the remaining mutations pertaining to the land situated in the remaining villages, sent the matter to the Assistant Commissioner, Hafizabad to hold the inquiry and directed him to submit the report within one month from the date of order through recording the documentary and oral evidence of the parties.
3. It would be proper to express that both Mutations Nos. 16332 and 16333 were entered about the land situated in Mauza Hafizabad but one mutation No. 16332 was attested on 30.9.1998 as the property is Situated in Mauza Hafizabad. This fact has to be mentioned as in his impugned order dated 21.10.1998 the Deputy Commissioner, Hafizabad has mentioned both mutations Nos. 16332 and 16333 while in fact about the whole of the property situated in Mauza Hafizabad mutation No. 16332 stands sanctioned. Thus it is made clear that this judgment shall pertain to whole of the land situated in Mauza Hafizabad and left by Mian Khurshid Ahmad.
4. Feeling aggrieved by order dated 21.10.1998 Khadim Hussain petitioner filed this writ petition wherein he questioned the jurisdiction of the Deputy Commissioner/District Collector, Hafizabad by expressing that order dated 30.9.1998 about the sanction of mutation was appealable under Section 161 of the Land Revenue Act before the Assistant Commissioner (Collector) and that the matter could not be taken up on the same date (30.9.1998) by the Deputy Commissioner. He contended that the Deputy Commissioner did not figure anywhere after the sanction of the mutation on 30.9.1998 and that the impugned order dated 21.10.1998 was without jurisdiction, arbitrary and has been passed in glaring disregard of the provisions of law which was liable to be set aside. He also touched the merits of his entitlement on the ground that Bashir Ahmad was not the real brother of Mian Khurshid Ahmad deceased and that he being his nephew in whose favour the will was executed was entitled to inherit the property.
5. In his report and comments the Deputy Commissioner/District Collector, Hafizabad took up the stand that the land situated in Municipal limits of Hafizabad City was transferred in the name of Khadim Hussain without any registered document and that only 1/3rd property could be acquired by Khadim Hussain through will while the remaining property was to be inherited by the legal heirs of Mian Khurshid Ahmad. He expressed that he was competent to take the action on the application filed by Bashir Ahmad respondent No. 4 and that the impugned order dated 21.10.1998 was perfectly justified and legal. He also took the stand that he was empowered to interfere on any application or take the suo motu action in regard to illegality/irregularity committed by the subordinate staff. He maintained that against the impugned order dated 21.10.1998 the appeal was maintain before the Commissioner, Gujranwala Division, Gujranwala and that the petitioner can also join in the inquiry sent by him to the Assistant Commissioner, Hafizabad. Bashir Ahmad respondent No. 4 submitted the written statement wherein he took up the stand that the impugned order was legal and that he was the brother of deceased.
6. I have heard the learned counsel for the parties and gone through the record before me. Learned counsel for Khadim Hussain petitioner argued that Mutation No. 16332 was sanctioned by the Tehsildar under Section 42 (6) of the Land Revenue Act, 1967 and that the said order is appealable under Section 161 of the Land Revenue Act, 1967. He maintained that Notification No. 6399-91/41185- E(F)-III, dated 1.7.1998 has made out that the powers of the Collector under the Land Revenue Act, 1967 have been conferred by the Government of the Punjab on the Assistant Commissioners except the District of Lahore to be exercised within the area of their respective jurisdiction subject to the control and supervision of the District Collector concerned and that in terms of Section 161 of the Land Revenue Act the appeal was maintainable before the Assistant Commissioner/Collector, Hafizabad. He added that the District Collector/Deputy Commissioner, Hafizabad had no jurisdiction to entertain the application dated 30.9.1998 and to process with the same who had also no jurisdiction to suo motu proceed in the matter. On the contrary learned Assistant Advocate- General and the learned counsel for respondent No. 4 laid the emphasis that under his supervisory jurisdiction the District Collector, Hafizabad has the power to interfere into the matter. For the proper appreciation of the dispute in hand it would be convenient to reproduce as under Sections 42 and 161 of the Land Revenue Act, 1967:- Section 42 . Making of that part of periodical records which relates to land-owners. - (1) Any person acquiring by inheritance, purchase, mortgage, gift, or otherwise, any right in an estate as a land- owner or a tenant for a fixed term exceeding one year, shall, within three months from the date of such acquisition, report his acquisition of right to the Patwari of the estate, who shall-
(a) record such report in the Roznamcha to be maintained in the prescribed manner;
(b) furnish a copy of the report so recorded, free of cost, to the person making the report; and
(c) send a copy of the report, within a week of its receipt by him, to the Union Committee, Town Committee or Union Council within which the estate is situated.
(2) If the person acquiring the right is a minor, is otherwise unable to report, his guardian or other person having charge of his property shall make the report to the Patwari.
(3) The Patwari shall enter in his register of mutations every report made to him under sub-section
(1) of subsection (2), and shall also make an entry in the Roznamcha and in the register of mutations respecting the acquisition of any such right as aforesaid which he has reason to believe to have taken place, and of which report should have been ' made to him under either of those sub-sections and has not been so made.
(4) The report made to the Patwari under sub-section (1) A or sub-section (2) or recorded by him under sub-section (3) shall be displayed in such manner as may be prescribed.
(5) If the Patwari fails to record or to display a report made to him under sub-section (1) or sub- section (2); the person making the report may make the report, in writing, to the Revenue Officer concerned and the Chairman of the Union Committee, Town Committee or Union Council in which the estate is situated, by registered post acknowledgement due and the Revenue Officer shall thereupon cause such report to be entered in the register of mutations.
(6) A Revenue Officer shall, from time to time, inquire into the correctness of all entries in the register of mutations and into all such acquisitions as aforesaid coming to his knowledge of which, under the foregoing subsections, report should have been made to the Patwari and entries made in that register, and shall in each case make such order as he thinks fit with respect to any entry in the periodical record of the right acquired.
(7) Except in cases of inheritance or where the acquisition of the right is by a registered deed or by or under an order of decree of a Court, the Revenue Officer shall make the order under sub-section
(6) in the presence of the person whose right has been acquired, after such person has been identified by two respectable persons, preferably from Lambardars or members of the Union Committee, Town Committee or Union Council concerned, whose signatures for thumb impressions shall be obtained by the Revenue Officer on the register of mutations.
(8) An inquiry or an order under sub-section (6) shall be made in the common assembly in the estate to which the mutation, which is the subject-matter of the inquiry, relates.
(9) Where a Revenue Officer makes an order under subsection (6) in regard to the acquisition of any right, an entry shall be made in the periodical record by the insertion therein of a description of the right acquired and by the omission from such record of any entry in any record previously prepared, which, by reason of the acquisition, " has ceased to be correct.
(10) If within three months of the making of a report of the acquisition of a right under sub-section
(I) or subsection (2), or the recording by the Patwari of an entry in the Roznamcha under sub- section (3) respecting the acquisition of any right, no order is made by the Revenue Officer under sub-section (6), he shall report the cause of delay to the Collector in the prescribed manner.
(11) The Revenue Officer shall, in the prescribed manner, send or cause to be sent, the gist of an order made by him under sub-section (6). To the person whose right is acquired, and also to the Union Committee, Town Committee or Union Council in which the estate is situated.
Section 161. Appeals: Save as otherwise provided by this Act, an appeal shall lie from an original or appellate order of a Revenue Officer as follows, namely:-
(a) to the Collector, when the order is made by an Assistant Collector, of either grade:
(b) to the Commissioner, when the order is made by a Collector;
(c) to the Board of Revenue only on a point of law. When the order is made by the Commissioner: Provided that--
(i) when an original order is confirmed on first appeal, a further appeal shall not lie;
(ii) when any such order is modified or reversed on appeal by the Collector, the order made by 'the Commissioner on further appeal, if any, to him shall be final.
Explanation. - (1) An order passed in review, modifying or reversing a previous order, shall be deemed to be an original, order tor the purposes of this section.
(2) An order shall not be confirmed, modified or reversed in appeal unless reasonable notice has been given to the parties affected thereby to appear and be heard in support of or against the order appealed from.
7. Following is the Notification issued on 1.7.1991 by the Government of the Punjab (Revenue Department) published as NLR 1991 Punjab Statutes 22:- "Notification No. 6399-91/22185-E(F)III, dated the lst July, 1991. In exercise of the powers conferred under sub-section (1) of Section I6 of the Punjab Land Revenue Act. 1967 (W.P. Act XVII of 1967) and in supersession of Government of the Punjab, Revenue Department's Notification No. 3773-82/1908 E(F)!II and No. 3773-82/1910-E(f)III, dated 30.4.J982 and No. 1590- 89/107-LR.IV, dated 18.6.1989 the Government of the Punjab is pleased to confer all the powers of Collector under the said Act upon
(a) all the Assistant Commissioners in the Punjab except Assistant Commissioners of sub Division in Lahore District and (b) Additional Deputy Commissioners (General), Lahore City and Lahore Cantonment to be exercised within the area of their respective jurisdiction, subject to the general superintendence and control of the District Collectors concerned except the following cases which will, however, continue to be taken cognizance by District Collector:-
(i) Appeal against the orders of Assistant Collector 1st Grade in cases of partition:
(ii) Correction in revenue records:
(iii) Sanction for review of mutations;
(iv) Suspension and remission of Land Revenue;
(v) Creation of demand of Land Revenue;
(vi) Appointment or removal of Headmen (Lamberdars); and
(vii) Allocation of Revenue Circles among Tehsildars and Naib Tehsildars.
BY ORDER OF THE GOVERNOR OF PUNJAB S/d- (SECRETARY)
GOVERNMENT OF THE PUNJAB REVENUE DEPARTMENT.
No. 6399-9l/22985-E(F)III A copy is forwarded for the information and necessary action to:-
(1) All the Commissioners of Divisions in the Punjab-
(2) All the Additional Commissioners (Revenue) in the Punjab.
(3) Secretary (Settlements), Board of Revenue, Punjab.
(4) Director Land Records, Punjab, Lahore.
(5) Director Punjab Revenue Academy, I61-C PECO Road, Township, Lahore.
(6) All the Deputy Commissioners in the Punjab.
(7) Settlement Officers, D.G.Khan and Rajanpur.
(8) The Managing Director, Cholistan Development Authority, Bahawalpur.
(9) All the Assistant Commissioners in the Punjab.
(10) The Political Assistants, D.G.Khan Rajanpur.
(11) The Additional Deputy Commissioner (General) Lahore City and Lahore Cantt.
(12) Registrar, Board of Revenue, Punjab, Lahore.
(13) Librarian Board of Revenue, Punjab, Lahore.
(14) Private Secretary to the Minister for Revenue, Punjab, Lahore.
Sd/- ADDITIONAL SECRETARY GOVERNMENT OF THE PUNJAB REVENUE DEPARTMENT"
8. It is proper to express that Section 42 of the Land Revenue Act, 1967 deals with the procedure for making of that part of periodical records which relates to the land owners. Under sub-section (6) of the said Section 42 the mutation of inheritance, purchase, mortgage, gift or acquisition of any right otherwise is sanctioned by the Revenue Officer after the entry is made by the Patwari, verified by the Halqa Qanoongo and placed before the Tehsildar or the Naib Tehsildar (Assistant Collector Grade-I/Grade-II) who can sanction a mutation. If any interested person is aggrieved by the order of the sanction of mutation an appeal is competent under Section 161 of the Land Revenue Act, 1967 before the Collector when the order is made by an Assistant Collector of either grade. According to the aforesaid Notification dated 1.7.1991 the appeal is maintainable before the Assistant Commissioners exercising the powers of Collector and not before the District Collector. The appeal is maintainable before the Commissioner when the order is made by a Collector and the appealls preferred before the Board of Revenue only on a point of law when the impugned order is passed by the Commissioner. A careful perusal of Section 161 of the Land Revenue Act, 1967 read with aforesaid Notification dated 1.7.1991 has made out that the District Collector/Deputy Commissioner stands eclipsed therefrom and thus the vires of the order dated 30.9.1998 whereby the impugned mutation No. 6332 was sanctioned could not be examined and analysed by the District Collector, Hafizabad (respondent No. 1). Rather he was not competent to entertain the miscellaneous application on 30.9.1998. In the aforesaid Notification dated lst July, 1991 the nature of the cases of which the District Collector can take cognizance have been enumerated who can proceed thereof on the judicial side. The District Collector cannot control the Revenue Officers so as to assume their role. This impression stands shattered in view of the very issuance of the said Notification dated 1.7.1991 whereby arrangement has been made about the conferment of powers of Collector on the Assistant Commissioners and rather about the exercise of powers of District Collector the water right compartment of jurisdiction has been created/established by specifically enumerating his domain in the revenue hierarchy. The appeals incorporated in Section 161 of the Land Revenue Act, 1967 are not within the jurisdiction of the District Collector. There is the maxim "A COMMUNIOBSERVANTIA NON ESTA RECEDENDUM" i.e. "where a thing was provided to he done in a particular manner it had to he done in that manner and if not done so would not he lawful".
Perhaps the Deputy Commissioner, Hafizabad is under the impression that he has the over all supervisory jurisdiction upon his subordinates in the District in their judicial working as weil by taking up all the matters at his%on end. A District Head of every department has to control and supervise the working of his subordinates. However, the impression of the District Collector/Deputy Commissioner, Hafizabad is violative of good governance as the same can only materialise if the law of the land is respected by the civil servants. No doubt he is the representative of the State.
However, he cannot be allowed to project his powers in this illegal manner. The impugned order dated 21.1. 198 is beyond the scope of the substantive and procedural statutory law. The important point to be kept in mind is that the power and authority to set the law in motion is linked with the substantive jurisdiction without which the application dated 30.9.1998 submitted before the Deputy Commissioner, could not be entertained and the proceedings could not be initiated and culminated. Due to the lack of jurisdiction about the processing with the application dated 30.9.1998 it can safely he held that the impugned order dated 21.10.1998 is without jurisdiction and thus illegal. A Deputy Commissioner has the supervisory jurisdiction over his subordinates yet be cannot trespass into the jurisdiction of any other such officer. The water tight compartments of jurisdiction have been enumerated in Section 161 of the Land Revenue Act, 1967 for the preference and hearing of appeals in the revenue hierarchy. The notification dated 1.7.1991 has conferred the power of Collector on the Assistant Commissioner within the territorial limits of his sub-division.
Section 161 of Land Revenue Act, read with Notification dated 1.7.1991 has eclipsed the jurisdiction of the Deputy Commissioner, Hafizabad to decide the application dated 30.9.1998 made by Bashir Ahmad respondent No. 4 before him. It is proper to express that Mutation No. 16332 was sanctioned on 30.9.1998 while the application for setting aside the same was directly moved before the Deputy Commissioner, Hafizabad on the same date and with a considerable speed the application was partly disposed of by setting aside the mutation and referring the matter to the Assistant Commissioner tor holding the inquiry who was made competent to record the evidence of the parties. This novel method/procedure has not been provided in the Land Revenue Act. 1967. Against the order of mutation only and only the appeal is competent under Section 6 of the Land Revenue Act. The supervisory jurisdiction of the District Collector cannot go to the extent of suo morn action.
There are water tight compartments of jurisdiction in all the departments. The jurisdiction of one subordinate Officer cannot he exercised by the Officer of the same department posted at the high pedestal. It is thus held that against the sanction of a mutation under Section 42 of the Land Revenue Act, 1967 the appeal is to be preferred before and heard by the Assistant Commissioner/Col lector, Hafizabad and the Deputy Commissioner/District Collector, Hafizabad has no jurisdiction to entertain any application and to pass the impugned order dated 21.10.1998 which is simply coram non judice from the date of its announcement.
9. At this stage I. Am tempted to express that Bashir Ahmad seems to have gone to the Deputy Commissioner/District Collector, Hafizabad due to mis-conception where the matter is pending and thereafter the matter remained pending before this Court, in case of preference of appeal he may file the application under Section 14 of the Limitation Act for condonation of delay, on the ground of proceeding before the Deputy Commissioner, Hafizabad and defending this matter before this Court, before the Appellate Court in the revenue hierarchy which shall be considered and disposed of in accordance with law.
10. For what has been said above, I accept this writ petition, set aside the impugned order dated 21.10.1998 dismiss the application tiled by Bashir Ahmad respondent No. I before the Deputy Commissioner/District Collector, Hafizabad and close the proceedings initiated before him.
However, Bashir Ahmad petitioner may proceed in accordance with law through the preference of an appeal before the Court of competent jurisdiction as contemplated under Section 161 of the Land Revenue Act, 1967 which shall be disposed of in accordance with law without feeling prejudiced by this judgment. In the circumstances the parties are left to bear their on costs.