ORDER SHAHZAD HASSAN PERVEZ, MEMBER (JUDICIAL-I).- Nazir Ahmad son of Muhammad Ismail, caste Arain, was owner of 45 Kanals, 16 Marlas in Khata No. 58/156 of village Ghanieke, Tehsil and District, Kasur. Relating to Khata No. 56 measuring 70 Kanals, 11 Marlas,- Nazir Ahmad son of Muhammad Ismail, caste Arain was shown as owner in the Jamabandi for the year 1983-84. Nazir Ahmad sold his entire land in Khata No. 58/156 to Sardar Ali son of Khair Din, caste Arain through registered sale-deed. Mutation No. 607 pertaining to his transaction was sanctioned on 9th of April, 1987. At the time of registration of sale-deed, Patwari had endorsed on the Fard Malkiat that the total holding of Nazir Ahmad in the village was 45 Kanals, 16 Marlas. In his report submitted to D.C/Collector by Naib-Tehsildar in connection with processing of application submitted by Sajid Nazir for review of mutation No. 607, it was stated that because of the variation in names i.e. 58/156 and 56, the Patwari fell in error in holding that the total ownership of Nazir Ahmad was 45 Kanals, 16 Marlas, reckoning Muhammad Nazir to be another land owner whereas it was just a clerical mistake. Nazir Ahmad was owner of 105 Kanals, 5 Marlas of land in the revenue estate. Nazir Ahmad filed an appeal against mutation No. 607 which was filed due to non-prosecution on 10th of June, 1989. During pendency of the appeal, his son, Sajid Nazir, submitted an application to D.C/Collector, Kasur that mutation No. 607 had been attested in violation of the restriction of MLR 115 and as such was liable to be reviewed. This application was accepted by D.C/Collector vide his order dated 12th December. 1988. Revenue Officer Halqa thereupon proceeded to review the mutation and cancelled it vide his order dated 24th May, 1989. Sardar Ali filed revision petition against the order of D.C/Collector dated 12th December, 1988. The revision petition was dismissed on 16th October,. 1991.
The parties are before me. Heard.
2. The learned counsel,, for the petitioner stated that Sardar Ali "purchased 45 kanals, 16 Marlas land situated in village Ghanieke, Tehsil and District Kasur from Nazir Ahmad father of respondent No. 1 through registered sale-deed dated 6th July, 1986. On the basis of said sale-deed, mutation No. 607 was sanctioned on 9th April, 1987. Nazir Ahmad, father of the respondent No. 1 tiled appeal against mutation No. 607 before A.C/Collector, Kasur on 17th October, 1987 on the ground that he was owner of 105 Kanals, 5 Marlas and the transaction of sale was in violation of MLR 115. This appeal was tiled on the score of non-prosecution on 10th June, 1989 by A.C/Collector, Kasur. On 3rd of November, 1987, Sajid Nazir, respondent No. 1 submitted an application to D.C/Collector, Kasur for-review of mutation No. 607. Alleging that it was in violation of MLR 115. After examining report of the tiled revenue staff, D.C/Collector ordered for review of mutation No. 607 vide his order dated 12th December, 1988. The mutation No. 607 was consequently reviewed on 24th May, 1989. The revision against this order was dismissed on 16th of October, 1991. The contention of learned counsel for the petitioner is that Sardar Ali, petitioner, was condemned unheard not only by D.C/Collector but also by Revenue Officer Halqa' while Cancelling the mutation as no service was effected on him and ex-parte proceedings i.e initiated without any legal cause. It Was pleaded that Sajid Nazir, respondent No. 1, had no locus standi to i.e application for review of the mutation before D.C/Collector. It was submitted that the petitioner had purchased the land through registered sale- deed and before the execution of the sale-deed, Patwari Halqa had reported on the copy of the Record-of-Rights (Fard Malkiat) that Nazir Ahmad vender was owner of 45 Kanals, 16 Marlas of land which he was selling in its entirety to the vendee. The learned counsel for the petitioner referred to PLJ 1985 Revenue 10 in which it was held that orders passed without notice to and without hearing vendees in possession of land in question were not maintainable.
3. The learned counsel for the respondent No. 1 argued that Nazir Ahmad was owner of land more than subsistence holding. He as such could not alienate part of this holding under the prescription of para 24 of MLR 115. It was stated that D.C/Collector had satisfied himself as to the service of the notice-on the petitioner before initiating ex-parte proceedings which ultimately resulted in his order dated 12th December, 1988. The learned counsel tor the respondent argued that the registered sale-deed was void ab initio owing to the sale being violative of the standing law i.e. MLR
115. The Revenue Officer Halqaought to have ignored this instrument as it was not implementable.
Mutation No. 607 was merely a superstructure built on a void instrument and it was, therefore, correctly appreciated by D.C/Collector and later by Additional Commissioner that it had no force in law. It was further argued that mutations as has been held by Supreme Court did not create or extinguish any title. They are recorded merely for fiscal purposes. It was averred that it has been held in 1997 SCM R 1635 that illegal and void orders can in no circumstance remain in the record- of- rights and orders without jurisdiction ought to be ignored since they are corain-non-judice. This line of arguments is addressed to stress the point that the registered sale-deed was not implementable in the revenue record. In rebuttal that Sajid Nazir had no locus standi, it was stated that any person can bring any violation of law to the notice of the concerned Courts of rectification of entries in the revenue record.
4. Section 163 of Land Revenue Act, 1967 empowers a Commissioner, Collector or Assistant Collector to review any order passed against any aggrieved person on an application made within the stipulated period to he concerned officer with the proviso in sub-section (2)(d) that "an order against which an appeal or revision has been preferred shall not be reviewed". It is apparent from a reading of record and arguments of the parties that Nazir Ahmad had tiled an appeal which was still pending when the order of D.C/Collector was passed on the review petition. The word "shall" in Section 163 (2)(d) operates to render the power of reviewing officer non-existent in such an eventuality. The order of D.C/Collector, therefore, was bad in law and similarly order of Additional Commissioner upholding the order of D.C/Collector was legally infirm. The other points raised by both the parties in view of this Stark illegality detected in the two orders need no elaborate discussion tin their legal tenability. The two orders being legally infirm are set aside and the revision petition is accepted.