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Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • T.L. Wilson
  • J.M. Parikh
  • W. Wallach
  • L. DeGruyther
Judges
  • Sir Lancelot Sanderson
  • Alness
  • Justice Lords Thankerton
Acts
  • Alienation of Land Act, by S. 19, of the latter Act. Under S. 13 (b), Land Revenue Act,
  • provisions of the Punjab Land Revenue Act (Act 7 of 1887)
  • provisions of the Punjab Alienation of Land Act, 1900,
  • S. 3 (2), Punjab Alienation of Land Act (Act 13 of 1900),
  • Punjab Court of Wards Act (Act 2 of 1903), S.4(1),
  • Rule (Notification No. 1708, R. 13),
  • S. 3 (2), Alienation of Land Act.
  • S. 54, Court of Wards Act,
  • Land Revenue Act
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • T.L. Wilson
  • J.M. Parikh
  • W. Wallach
  • L. DeGruyther
Judges
  • Sir Lancelot Sanderson
  • Alness
  • Justice Lords Thankerton
Acts
  • Alienation of Land Act, by S. 19, of the latter Act. Under S. 13 (b), Land Revenue Act,
  • provisions of the Punjab Land Revenue Act (Act 7 of 1887)
  • provisions of the Punjab Alienation of Land Act, 1900,
  • S. 3 (2), Punjab Alienation of Land Act (Act 13 of 1900),
  • Punjab Court of Wards Act (Act 2 of 1903), S.4(1),
  • Rule (Notification No. 1708, R. 13),
  • S. 3 (2), Alienation of Land Act.
  • S. 54, Court of Wards Act,
  • Land Revenue Act
See more information ...
Smart Summary

Structured Summary of the Opinion (Lord Thankerton)

Factual and Procedural Background

The appellant sued for a right of pre-emption over certain agricultural land that formed part of the estate of Khan Fateh Mohammad Khan of Mardan. The estate had been under the management of the Court of Wards since 1927. The suit challenged a registered sale deed dated 15 January 1929 executed by the Manager, Court of Wards, in favour of respondents 2 and 3. The Court of Wards, in reply to the plaint, stated that the sale had been cancelled by the Revenue Commissioner.

Procedurally, the appeal is from the decree of the Court of the Judicial Commissioner, North-West Frontier Province (dated 13 January 1931), which affirmed a decree of the District Judge, Peshawar (dated 22 April 1930), dismissing the appellant's suit. A preliminary issue had been framed by the District Judge asking whether, "in view of the cancellation of the sale by the Revenue Commissioner, can the suit still lie?" Both lower courts held the cancellation to be valid and effective and dismissed the suit; the sole issue on appeal was whether those findings were correct.

Key dates and administrative steps appearing in the opinion:

  • 30 December 1928: Deputy Commissioner wrote to the Revenue Commissioner seeking sanction for the proposed sale to respondent 2 under relevant rules and circulars.
  • 7 January 1929: Revenue Commissioner wrote to the Deputy Commissioner sanctioning the sale (providing permission under Revenue Circular No. 39, S.19(viii)).
  • 14 January 1929: Deputy Commissioner made an order sanctioning the sale.
  • 15 January 1929: Sale deed executed and registered.
  • 2 May 1929: Revenue Commissioner dismissed the appellant's appeal, holding the sale sufficiently notified.
  • 25 July 1929: Appellant applied for review of the Revenue Commissioner's orders dated 7 January 1929 and 2 May 1929.
  • 23 February 1930: Revenue Commissioner reviewed earlier orders and cancelled the sale.
  • 13 January 1930: The appellant had instituted the present suit (some weeks before the 23 February 1930 order).
  • 13 January 1931: Judicial Commissioner decree affirming dismissal (date of the appealed decree).

Legal Issues Presented

  1. Whether the lower courts were correct in finding that the Revenue Commissioner's cancellation of the sale was valid and effective such that the appellant's suit for pre-emption could not lie.

Arguments of the Parties

Appellant's Arguments

  • First contention: The land was within the limits of the Mardan notified area and, as a result of the notification of 8 January 1925 exempting Municipalities in the North West Frontier Province from the operation of the Punjab Alienation of Land Act, 1900, the Revenue Commissioner lacked jurisdiction under that Act to make either the 2 May 1929 order or the 23 February 1930 order.
  • Second contention (raised for the first time before the Board): The Revenue Commissioner's order of 2 May 1929 was itself a review of his predecessor's order of 7 January 1929 and therefore the power of review had been exhausted; accordingly the subsequent review leading to the 23 February 1930 cancellation was incompetent.

Court of Wards / Respondents' Position

  • 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.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court's analysis proceeded by examining the statutory and departmental framework governing the sale and the scope of appeal and review for the orders involved.

1. Statutory and administrative framework relied on in the opinion:

  • Punjab Court of Wards Act (Act 2 of 1903), S.4(1), as applied to the North-West Frontier Province (Regn. 5 of 1904, S.2): the Revenue Commissioner is the Court of Wards for the Province.
  • Notification No. 1708, R.13 (a rule 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.
  • Punjab Alienation of Land Act (Act 13 of 1900), S.3(2): a proposed alienation could not take effect unless and until sanction was given by a Deputy Commissioner.
  • Revenue Circular No. 39, S.19(viii) (12 September 1912): no Deputy Commissioner is to give sanction to an alienation to a money lender on his own authority; he must send the file to the Revenue Commissioner and ask permission to give sanction (a matter of departmental administration).
  • Provisions of the Punjab Land Revenue Act (Act 7 of 1887), including S.13(b) (appeal from Deputy Collector to Revenue Commissioner) and S.15 (power of review by Revenue-Officer, including the 90-day limitation subject to sufficient cause).

2. Application of the framework to the facts:

  • The sale required two distinct forms of sanction: (a) the statutory sanction by the Court of Wards (Notification No.1708, Cl.13) and (b) the administrative permission under S.19(viii) of Revenue Circular No.39 for the Deputy Commissioner to give his statutory sanction under S.3(2) of the Alienation of Land Act. The Revenue Commissioner's letter dated 7 January 1929 furnished that permission; the Deputy Commissioner recorded his statutory sanction on 14 January 1929 and the deed was executed on 15 January 1929.
  • The court emphasized that the right of appeal or review under the Land Revenue Act applies to proceedings under the Alienation of Land Act (i.e., the Deputy Commissioner's statutory order under S.3(2)), not to the Revenue Commissioner's sanction when acting in his capacity as Court of Wards. Therefore, the procedural regime of S.13(b) and S.15 (Land Revenue Act) operates primarily in relation to the Deputy Commissioner's order.
  • The appellant's earlier application (which resulted in the Revenue Commissioner's 2 May 1929 order) was properly cast as an appeal against the Deputy Commissioner's order of 14 January 1929, though it also included the order of 7 January 1929. Because the appeal/review machinery properly applied to the Deputy Commissioner's order, the subsequent application for review dated 25 July 1929 and the Revenue Commissioner's order of 23 February 1930 cancelling the sale were competent.
  • Although the application for review was made more than ninety days after the order in question, the court accepted (as did the trial reasoning) that the Revenue Commissioner must have been satisfied that "sufficient cause" existed for the delay, as contemplated by S.15 of the Land Revenue Act.
  • The court therefore rejected the appellant's second contention (that the power of review had been exhausted by the 2 May 1929 order) as based on an erroneous view of the nature of the earlier orders.
  • The court also rejected the appellant's first contention (jurisdictional objection based on the Mardan notified area and the 8 January 1925 notification) for the reasons given by the Court of the Judicial Commissioner (those reasons are referred to but reproduced in summary form in the opinion as being without difficulty to reject).

3. Conclusion of analysis:

  • The Board agreed with the lower courts' answer to the preliminary issue — namely, that the Revenue Commissioner's cancellation was valid and effective and that the appellant's suit therefore could not succeed.

Holding and Implications

Holding: APPEAL DISMISSED. Their Lordships advised that the decree of the Court of the Judicial Commissioner dated 13 January 1931 should be affirmed, and the appeal should be dismissed with costs to the respondents who appeared.

Implications (direct consequences stated in the opinion):

  • The Revenue Commissioner's review and cancellation of the earlier sanction to the sale (order dated 23 February 1930) was upheld as competent and effective.
  • The District Judge's and Judicial Commissioner's decrees dismissing the appellant's suit were affirmed; the appellant's claim for pre-emption over the lands in question failed in this litigation.
  • Costs were ordered in favour of the respondents who appeared.
  • The opinion does not state or establish any broader precedent beyond the resolution of these parties' rights and the interpretation of the limited statutory and administrative framework as applied to these facts; no new, generalized legal principle beyond the court's application to the present facts is announced in the text of the opinion.

Source: Opinion delivered by Lord Thankerton (text provided). This summary is strictly confined to information explicitly contained in that opinion.

Show full summary ...

    (Nawab Major) Mohammad Akbar Khan v. Court Of Wards And Others

    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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    (Nawab Major) Mohammad Akbar Khan v. Court Of Wards And Others
    (Dec 13, 1933)