JUDGMENT MUHAMMAD NASEEM CHAUDHRI, J.- Zubair Aziz Durrani writ petitioner has his landed property in District Mandi Baha-ud-Din who is desirous to alienate his land through exchange. The mutation in the matter is not being attested by the Revenue Officer as restraint order has been passed by the Deputy Commissioner/District Collector, Mandi Baha- ud-Din (respondent) through the circulation of policy letter No. AC (R) 405-10/M, dated 17.1.1998 on the subject "Transfer of immovable property through mutation on the basis of oral gift and exchange". It is narrated in the aforesaid letter dated 17.1.1998 that the mutations of exchange and gift were being got attested by the owners of immovable property to avoid the stamp duty and transfer i.e and that mutations of transaction of exchange and gift in favour of donee who is not the heir of the donor shall not be sanctioned without the permission of the Deputy Commissioner, Mandi Baha-ud-Din.
2. Zubair Aziz Durrani petitioner is desirous to get sanctioned the mutations of exchange of the immovable properties. However, the Revenue Officers, being the subordinate functionaries of the Deputy Commissioner/District Collector, Mandi Baha-ud-Din, have refused to entertain the oral mutation in respect of exchange of land. Feeling aggrieved he has filed this writ petition to get declared aforesaid circular letter No. AC (R) 405-10/M, dated 17.1.1998 as illegal, nullity in the eyes of law and having been issued without any lawful authority. He maintained that the issuance of the impugned policy letter is violative of the fundamental rights of the citizens which has been circulated without any sanctity of law and against the policy of the Government. He contended that the Deputy Commissioner/District Collector, Mandi Baha-ud-Din has no jurisdiction and lawful authority to issue the impugned policy letter putting the restraints on the sanction of mutations regarding the transactions of exchange and gifts.
3. The Deputy Commissioner/District Collector, Mandi Baha-ud- Din submitted his comments wherein he expressed that the Government was pressing time and again that Deputy Commissioner should plug the leakage in the collection of Government dues while the people of District were in the habit to exchange valuable lands with barren or devalued lands, that in fact they had purchased the land but just for the evasion of stamp duty and other dues instead of registered or oral sale-deed they exchanged with less valued land. He maintained that to meet the said situation the policy letter dated 17.1.1998 was issued in the public interest. He contended that there was no restriction on the exchange of land. He referred to letter No. 2467- 98/1446/ST-IV, dated 9.7.1998 issued by the Board of Revenue Punjab assigning the target of stamp duty in which the emphasis was made upon the Commissioners and Deputy Commissioners to chalk/out the plan to plug the leakage and collection of other stamp duty. Thus the issuance of the impugned policy letter was admitted and the stand was taken that there was no restraint on the sanction of the mutations of exchange and gift about which the scrutiny was to be made by him.
4. I have heard the learned counsel for the petitioner as well as the learned Assistant Advocate General and gone through the record before me. Learned counsel for the petitioner referred to sections 42, 161 of the Land Revenue Act, 1967 and laid the emphasis that the procedure has been mentioned therein for the sanction of the mutation and in case anybody is aggrieved thereof the appeal is maintainable before the Assistant Commissioner/Collector and not before the Deputy Commissioner/District Collector. He asserted that as a whole the Government can make any rule or issue any Ordinance or pass any Enactment for whole of the Province but the Deputy Commissioner, Mandi Baha-ud-Din cannot pass the impugned order keeping in view Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973 according to which "all citizens are equal before law and are entitled to equal protection of law". He emphasised that the persons owning immovable property in District Mandi Baha-ud-Din cannot be afforded the inequitable treatment through the issuance of the impugned letter dated 17.1.1998. He also referred to Article 4(1) of the Constitution of the Islamic Republic of Pakistan, 1973 which provides that "to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen? Wherever he may be and of every other person for the time being within Pakistan". He maintained that the Deputy Commissioner, Mandi Baha-ud-Din has no jurisdiction to violate the provisions of sections 42/161 of the Land Revenue Act, 1967 and that the impugned order has been issued on the whimsical ideas to put the revenue hierarchy in his on hands to the exclusion of the competent Revenue Officers. On the contrary learned Assistant Advocate General argued that the impugned letter has been issued with bona i.e intention to safeguard the interest of the Government with respect to the collection of stamp duty and to plug the leakage of the same and that in view of the prevalent situation in the social set-up there is no justification to take an exception to the same. I, however, held that the reasoning adopted by the learned counsel for Zubair Aziz Durrani petitioner has to prevail. In this regard it is better to reproduce as under section 42 of the Land Revenue Act, 1967 so that the true picture emerges with respect to the sanction of mutations:- "42. Malang 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 landowner 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, or 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 sub-section (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 reasons 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) or sub-section (2) recorded by him under sub-section (3) 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); that 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 sub-sections, 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 or decree of a Court, the Revenue Officer shall make the order under subjection
(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 or 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 sub-section
(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
(1) or sub-section (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.
5. If any person is aggrieved of the sanction of the mutation there is section 161 of the Land Revenue Act, 1967 about the preference of appeal. Against the order of a Revenue Officer/Assistant Collector of either grade the appeal is maintainable before the Collector and not before the District Collector. It means that the District Collector does not figure before or after the sanction of the mutation. Now it shall have to be settled as to whether the District Collector can issue any restraint order keeping in view the mandatory provisions of section 42 of the Land Revenue Act, 1967 reproduced above. My answer would be in the negative. A complete and self-speaking procedure has been laid down under the aforesaid section 42 wherein the District Collector does not figure anywhere. This being the position the impugned Notification could not be issued by the District Collector, Mandi Baha-ud-Din pertaining to the said District wherein he has been posted as the representative of the State. He can refer the matter to the Board of Revenue to take the steps in the matter, but he cannot have the direct control in his on grip to the inconvenience of the owners of immovable property of the' District who have the Constitutional right to be treated in accordance with law and to be treated with equality available to all the pesidents of Province of Punjab.
6. J am tempted to express that the Government of the Punjab Revenue Department has issued Notification No., 1590-89/1Q71-LR-IV, dated 18.6.1989 about the control and supervision of the District Collector to be exercised by him in the revenue hierarchy in the District. The same is reproduced as under:- "GOVERNMENT OF THE PUNJAB REVENUE DEPARTMENT NOTIFICATION Lahore dated the 18th June, 1989, No. 1590-89/1-71 @LR- IV. In pursuance of Government of the Punjab, Revenue Department's Notification No. 454-B/87/818-LR IV, dated the 10th May, 1987, the Governor of the Punjab, in exercise of the powers under sub-section (1) of section 16 of the Punjab Land Revenue Act, 1967, is pleased to confer all the powers of Collector under the said Act upon the Assistant Commissioners, to be exercised within the area of their respective jurisdiction, subject to the control and supervision of the District Collectors concerned. The following cases will, however, continue to be taken cognizance by District Collector directly:-
(i) Appeal against the orders of Assistant Collector 1st Grade in cases of partition;
(ii) Correction in revenue records; (i.e) Sanction for review of Mutations;
(iv) Suspension & remission of Land Revenue;
(v) Creation of demand of Land Revenue; and
(vi) Appointment or removal of Headmen (Lambardars).
BY ORDER OF THE GOVERNOR OF PUNJAB.
Sd/- SYED SARFRAZ HUSSAIN SECRETARY TO GOVERNMENT OF TH PUNJAB, REVENUE DEPARTMENT.
No. 1590-89/ 1072-LR-IV.
A copy is forwarded to the Superintendent, Government Printing Press, Punjab, Lahore, for publication in the extra-ordinary issue of the Punjab Gazette.
2. 200 printed copies of the Gazette Notification may please be supplied to the undersigned.
Sd/- ADDITIONAL SECRETARY GOVERNMENT OF THE PUNJAB, REVENUE DEPARTMENT.
7. A copy of aforesaid Notification dated 18.6.1989 was sent to all the Deputy Commissioners and the Commissioners in the Province of the Punjab and other connected Officers. A perusal of this notification dated 18.6.1989 has made out that the powers of Collector under the Land Revenue Act, 1967 are to be exercised by the Assistant Commissioners subject to the control and supervision of the District Collector concerned. However, the cognizance can be taken by the District Collector of the six type of matters mentioned in the Notification. The District Collector has not been empowered to issue any policy letter in the District enhancing his on powers as in the instant matter wherein the letter dated 17.1.1998 issued by him has been impugned. As expressed above he t^an move the Board of Revenue Punjab in the matter for proceeding for the proper control and smooth running of the District according to his administrative capabilities. Thereafter the matter can be taken up by the Board of Revenue with the competent authority.
8. Memo. No. 2467-98/1446/ST/IV, dated 9.2.1998 sent by the ' Board of Revenue Punjab to all the Commissioners of Division in Punjab and all the Deputy Commissioners in Punjab, referred to by the Deputy Commissioner, Mand I Baha-ud-Din in his comments is reproduced in toto as under for proper appreciation of the controversy:- "Phone No. 6324560 No. 2467-98/1446/ST-IV.
Board of Revenue, Punjab, Lahore, dated 9.7.1998, From The Board of Revenue, Punjab. To (1) All Commissioners of Divisions in Punjab.
(2) All Deputy Commissioners in Punjab.
Subject: ' ACTION PLAN FOR RECEIPT OF STAMP DUTY FOR THE YEAR 1998-99 UNDER HEAD 02^0000/0271000.
Memorandum The Finance Department has directed to fix the District- were/quarter were target to achieve the Budget estimate of Rs. 3,42,08,06,000/- for 1998-99 for the implementation of the action plan approved to plug- the leakage in the collection of stamp duty. An estimated receipt of each district is enclosed.
2. You are therefore requested to take special measures to plug the evasion/leakage of the stamp dirty and also superwise, to achieve the target fixed for your Division/District for the year 1998-99.
Sd/- Secretary (Consolidation), Board of Revenue, Punjab.
No. 2467-98/1147-ST.IV.
A copy of the target statement is forwarded to the Budget Officer VI, Government of the Punjab Finance Department with reference to his letter No. BVI-33(5)/98-99, dated 24.6.1998 for information and necessary action.
Sd/- Secretary (Consolidation), Board of Revenue, Punjab.
9. This memorandum has no bearing on the dispute in had wherein the Deputy Commissioner, Mandi Baha-ud-Din has issued the impugned direction violative of section 42 of the Land Revenue Act, 1967. It is not mentioned therein that the transactions of exchange and gift shall be banned by the Deputy Commissioner of the District. The measures having the blessing of law and not violative of fundamental rights as well as law can be initiated and adopted. Rather the aforesaid letter is a reminder to the Deputy-Commissioners to exercise the supervisory jurisdiction on the work of their subordinate in the revenue hierarchy in the District. However, the same does not empower him to violate the statutory law provided under section 42/161 of the Land Revenue. Act, 1967. All the citizens in the Province pf the Punjab are equal before law and are entitled to equal protection of law under Article 25(1) of the Constitution, 1973. No inequitable treatment can be afforded to the owners of immovable property in District Mandi Baha-ud-Din who are also entitled to enjoy the protection of the aforesaid section 42 of the Land Revenue Act, 1967 and to be treated in accordance with law under Article 4 (1) of the Constitution, 1973. This Article 4(1) is of that much importance that the same cannot be suspended even during the Emergency. The aforesaid fundamental rights cannot be infringed by the respondent Deputy Commissioner, Mandi Baha-ud- Din and/or any of his superior officers. As such no benefit can be allowed to the respondent in the matter as canvassed and claimed by him.
10. I, therefore, hold that the circular letter No. AC(R) 405-10/M, dated 17.1.1998 issued by the Deputy Commissioner, Mandi Baha-ud-Din is illegal, nullity in the eyes of law and has been issued without any lawful authority which is not binding against the petitioner as well as, other residents of District Mandi Baha-ud-Din having the immovable property therein. This writ petition, accordingly, is accepted with costs.