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(Nawab Major) Mohammad Akbar Khan Vs. Court of Wards and Others - Court Judgment

LegalCrystal Citation
CourtPrivy Council
Decided On
Case NumberPrivy Council Appeal No. 8 of 1932 (From Peshawar)
Judge
Appellant(Nawab Major) Mohammad Akbar Khan
RespondentCourt of Wards and Others
Advocates:L. DeGruyther and W. Wallach, for Appellant; J.M. Parikh, for Respondents. Solicitors for Appellant, Stanley Johnson and Allen; Solicitors for Respondents, T.L. Wilson and Co.
Excerpt:
punjab land revenue act (17 of 1887) - section 13(b), section 14 and section 15 - punjab alienation of land act (13 of 1900), section 3(2) - revenue circular no. 39, section 19(viii) - comparative citation: 1934 air(pc) 93.....in respect of the revenue commissioner's sanction as court of wards. the provisions of the punjab land revenue act (act 7 of 1887) as to appeal and review are made applicable to proceedings of revenue officers under the alienation of land act, by s. 19, of the latter act. under s. 13 (b), land revenue act, an appeal will lie from the order of the deputy collector to the revenue commissioner within the time proscribed by s. 14. the power of review is conferred by s. 15, which, so far as is material, provides as follows: "15. (1) a revenue-officer may, either of his own motion or on the application of any party interested, review, and on so reviewing modify, reverse or confirm any order passed by himself or any of his predecessors in office: provided as follows: (b) an application for.....
Judgment:

Lord Thankerton:

In the present suit the appellant claims pre-emption of certain agricultural land, which forms part of the estate of Khan Fateh Mohammad Khan of Mardan, which has been under the management of the Court of Wards since 1927. The appeal is taken from the decree of the Court of the Judicial Commissioner, North-West Frontier Province, dated 13th January 1931, affirming a decree of the District Judge, Peshawar, dated 22nd April 1930, which dismissed the appellant's suit.

The appellant's claim of pre-emption was based on a registered sale deed of the lands in suit dated 15th January 1929, executed by the Manager, Court of Wards of the estate of Fateh Mohammed Khan, in favour of respondents 2 and 3 as vendees, who, along with respondent 1, were impleaded as defendants in the suit. The appellant claimed to have a right of pre-emption on the grounds stated in the plaint. On behalf of the Court of Wards it was stated in reply to the plaint that the sale had been cancelled by the Revenue Commissioner, and on 1st April 1930, a preliminary issue was settled by the District Judge, viz., ''in view of the cancellation of the sale by the Revenue Commissioner, can the suit still lie ?" Both the lower Courts have held that the cancellation was valid and effective and that the suit does not lie. The only issue in the appeal is whether the lower Courts were right in so finding.

The offer to purchase the lands in suit was made to the Court of Wards by respondent

2, who is a non-agriculturist and a money lender, and certain statutory sanctions were necessary to a valid sale. Under the Punjab Court of Wards Act (Act 2 of 1903), S.4(1), as applied to the North-West Frontier Province by Regn. 5 of 1904, S. 2, the Revenue Commissioner is the Court of Wards for the Province. By a Rule (Notification No. 1708, R. 13), made under S. 54, Court of Wards Act, no portion of the beneficial interest of the ward is to be alienated without the sanction of the Court of Wards. In the second place, under S. 3 (2), Punjab Alienation of Land Act (Act 13 of 1900), which applies to the North-West Frontier Province, the proposed alienation of land could not "take effect as such unless and until sanction is given thereto by a Deputy Commissioner." Lastly, under S. 19 (viii) of Revenue Circular No. 39, dated 12th September 1912, no Deputy Commissioner is to give his sanction to an alienation to a money lender on his own authority, but is to send the file to the Revenue Commissioner and ''ask his permission to give sanction." This is clearly a matter of Departmental administration.

On 30th December 1928, the Deputy Commissioner, Peshawar, wrote to the Revenue Commissioner, North-West Frontier Province, Peshawar, recommending the proposed sale to respondent 2 and asking for his sanction to the sale under S. 19 (viii) of Revenue Circular No. 39, and also under Notification No. 1708, Cl. 13. This latter sanction was required from the Revenue Commissioner in his capacity as Court of Wards. It will be noted that respondent 3, though included in the sale deed as a vendee, was not mentioned in that letter but no point has been made in respect of that fact.

On 7th January 1929, the Revenue Commissioner wrote to the Deputy Commissioner sanctioning the sale, and on 14th January 1929, the Deputy Commissioner made an order sanctioning the sale by registered sale deed. On 15th January 1929, the sale deed was executed and registered. The present appellant appealed against the orders dated 14th January 1929, and 7th January 1929, sanctioning the sale by a registered deed dated 15th January 1929, in respect of the lands in suit, and claimed ''reversal of the above order by sanctioning a fresh sale in favour of the appellant," on the ground of insufficient notification. By order dated 2nd May 1929, the Revenue Commissioner found that the sale was sufficiently notified and dismissed the appeal. On 25th July 1929, the present appellant presented an application for review of the Revenue Commissioner's order dated 7th January 1929, and 2nd May 1929. The relief asked for was that,

"the orders, dated 2nd May 1929, and 7th January 1929, according sanction to this sale may kindly be reviewed and the sanction to the sale be withdrawn and the land be ordered to be sold to the petitioner or another agriculturist."

At the same time a similar application was presented by Sarfaraz Khan, brother of the ward, and the two applications were heard and disposed of together by the Revenue Commissioner, who, by order dated 23rd February 1930, reviewed the orders of 2nd May 1929, and 7th January 1929, and cancelled the sale. The appellant had instituted the present suit on 13th January 1930, some weeks before the issue of the Revenue Commissioner's order of 23rd February 1930. Sarfaraz Khan had also instituted a similar suit, which was dealt with along with the present suit and in which similar decrees were pronounced, but Sarfaraz Khan has not appealed from the decree of the Court of the Judicial Commissioner. The appellant challenged the validity of the Revenue Commissioner's order of 23rd February 1930, on two grounds. His first contention was that the land in suit was within the limits of Mardan notified area, and, that the notification of 8th January 1925, exempting Municipalities in the North West Frontier Province from the operation of the provisions of the Punjab Alienation of Land Act, 1900, applied to the said notified area, with the consequence that the Revenue Commissioner had no jurisdiction under that Act, to make either the order of 2nd May 1929, or the order of 23rd February 1930. Their Lordships have no difficulty in rejecting this contention, for the reasons stated by the Court of the Judicial Commissioner. The second contention of the appellant, which has been stated for the first time at the hearing before this Board, challenged the competency of the order of 23rd February 1930, on the ground that the order of 2nd May 1929, was a review by the Revenue Commissioner of the Revenue Commissioner's order of 7th January 1929, and that any further review was incompetent. In their Lordships' opinion this contention proceeds on an erroneous view of the orders of 7th January 1929 and 2nd May 1929. In the first place, it seems clear that any question of appeal or review arises only in respect of proceedings under the alienation of Land Act, and not in respect of the Revenue Commissioner's sanction as Court of Wards. The provisions of the Punjab Land Revenue Act (Act 7 of 1887) as to appeal and review are made applicable to proceedings of Revenue Officers under the Alienation of Land Act, by S. 19, of the latter Act. Under S. 13 (b), Land Revenue Act, an appeal will lie from the order of the Deputy Collector to the Revenue Commissioner within the time proscribed by S. 14. The power of review is conferred by S. 15, which, so far as is material, provides as follows:

"15. (1) A Revenue-Officer may, either of his own motion or on the application of any party interested, review, and on so reviewing modify, reverse or confirm any order passed by himself or any of his predecessors in office:

Provided as follows:

(b) An application for review of an order shall not be entertained unless it is made within ninety days from the passing of the order, or unless the applicant satisfies the Revenue-Officer that he had sufficient cause for not making the application within that period." .

The appellant maintained that the Revenue Commissioner's order of 2nd May 1929 reviewed the order of his predecessor dated 7th January 1929, and that thereby the power of review was exhausted, so that it was incompetent for the Revenue Commissioner to review these orders of his two predecessors by his order of 23rd February 1930. As already indicated, this contention proceeds on an erroneous view of the Revenue Commissioner's sanction to the sale given on 7th January 1929. This sanction was two-fold. In the first place, it gave the statutory sanction by the Court of Wards under. Notification No 1708, Cl. 13. In the second place, it gave the Revenue Commissioner's administrative permission under S. 19 (viii) of Revenue Circular No. 39 to the Deputy Commissioner to give his statutory sanction to the sale under S. 3 (2), Alienation of Land Act. The right of appeal or review under the Land Revenue Act only affected the order made by the Deputy Commissioner on 14th January 1929 -after he had obtained the permission of the Revenue Commissioner-giving his sanction to the sale under S. 3 (2), Alienation of Land Act. Quite correctly, the application of the present appellant, on which the Revenue Commissioner's order of 2nd May 1929, was made, took the form of an appeal against the Deputy Commissioner's order of 14th January 1929, though he also included the order of 7th January 1929. In that view, the present appellant's application for review dated 25th July 1929, and the order made thereon dated 23rd February 1930, were perfectly competent. Although the application was made more than ninety days after the date of the order of which review was sought, it must be assumed that the Revenue Commissioner, before entertaining it, was satisfied that there was sufficient cause for the delay. In the course of the last mentioned order the Revenue Commissioner states the position correctly when he states:

"Petitioners in both cases apply for review of my predecessor s order dated 2nd May last dismissing an appeal presented against the order of Deputy Commissioner, Peshawar, sanctioning the sale by a registered-deed, dated 14th January 1929, of 42 kanals 3 marlas of agricultural land the property of an agriculturist, to the respondents-non-agriculturists and moneylenders. The sanction given by the Deputy Commissioner was only recorded on receipt of permission from the Revenue Commissioner given in his letter, dated 7th January 1929, and petitioners, therefore, seek a review of the order of sanction given by the Revenue Commissioner also."

Their Lordships would only add that it may not have been technically necessary to seek review of the Revenue Commissioner's permission given under Revenue Circular No. 39. Their Lordships therefore agree with the answer given by both the lower Courts to the preliminary issue. They will humbly advise His Majesty that the decree of the Court of the Judicial Commissioner dated 13th January 1931, should be affirmed and the appeal should be dismissed with costs to the respondents who appeared.

Appeal dismissed.


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