PESHAWAR: The Peshawar High Court has declared the functioning of revenue officers as revenue judges in the province under different provisions of the West Pakistan Land Revenue Act, 1967, unconstitutional and directed the provincial government to amend those provisions to fix the anomaly.

A bench consisting of Chief Justice Waqar Ahmad Seth and Justice Mohammad Nasir Mahfooz has given a guideline for the transfer of the pending judicial matters from different revenue officers to the relevant civil and criminal courts.

The bench had accepted on Apr 30 a petition of advocate Ali Azim Afridi, who had contended that assigning judicial powers to revenue officers under the WP Land Revenue Act was unconstitutional and against the principal of separation of judiciary from the executive.

In its 29-page detailed judgment, the bench declared that all those provisions wherein revenue officer functions as a revenue court are declared to be against Article 175 of the Constitution, providing for the separation of judiciary from the executive and thus, being non-existent in the law, so it should be amended accordingly within a reasonable time.

Rules functioning of revenue officers as judges unconstitutional

The bench rules that since ordinary civil and criminal courts are regularly functioning so revenue officers have got no power to try cases as a court, the relevant provisions, where the term revenue courts was mentioned must inevitably be declared void and ultra vires to the Constitution to be substituted for civil judge and judicial magistrates respectively.

It observed that all applications for partition of agricultural property only filed under Section 135 of the WP Land Revenue Act (WPLRA) currently pending with the revenue officers wherein co-shareship was admitted by parties would continue to be heard and tried by the revenue officers concerned.

The court, however, ruled that in any such application for partition before an assistant collector, wherein written reply was filed and a dispute of title was raised, it would be entrusted to the court of the district judge concerned, who would further assign the same to the court of civil judges for trial in accordance with the Code of Civil Procedure (CPC) as if they were civil suits.

It added that where any such dispute of title is involved and now subject matter of appeal before collector, it would be entrusted to the relevant district judge, who would either hear it himself or be assigned to any other additional district judge and shall be treated as appeal.

According to it, any first revision before additional commissioner and second revision before board of revenue wherein dispute of title is involved and not attended to by revenue officers will be entrusted to the high court where it will be heard and decided treating it as a writ petition.

Moreover, all cases falling within purview of sections 27, 80, 81, 82, 141 and 172 of the Act will be transferred to the court of civil judge and judicial magistrate concerned and will be entrusted to the court of district judge.

The bench observed that Section 27 of the Act empowered revenue officers to exercise powers that were vested in a criminal court.

It added that under sections 80 and 81 of the Act, the revenue officer could send to prison any defaulter in arrears of land revenue up to 10 days without complying with provisions of Code of Criminal Procedure and to have right to fair trial under Article 10-A of the Constitution.

The bench observed that in Section 141 of the Act, the revenue officer was empowered to decide a dispute of the title between the parties in application for partition of property filed under Section 135 though it was to be only between undisputed joint owners only.

It added that as soon as co-shareship was disputed, a revenue officer must withdraw from the partition of property.

The bench pointed out that under the Act, the assistant commissioner acted as a trial forum for different matters besides partition cases and his order was appealable before the collector and then first revision before the commissioner and second revision before the board of revenue lies.

It also quoted different judgments of the superior courts, especially the Supreme Court’s, observing that the apex court in a number of judgments struck down such provisions to be a flagrant violation of the independence of judiciary as enshrined in the Constitution.

Published in Dawn, May 16th, 2020