PLJ 2013
[Bench at Sukkur]
Present: Shahid Anwar Bajwa & Muhammad Ali Mazhar, JJ.
ABID ALI BAIG & others--Petitioners
versus
ZAFAR ALI & others--Respondents
C.P. Nos. D-389 of 2007 and D-84 of 2009, decided on 22.2.2012.
----S. 8--Review of order passed by Board--Review application was not maintainable as condition precedent for exercising powers was based upon discovery of new and important matter or evidence--Review order sought to be reviewed on account of some mistake or error apparent on face, of record--Validity--It is clear beyond any shadow of doubt that special provisions introduced in enactments to provide additional remedy to an aggrieved person to move for review on discovery of new and important matter or evidence which could not passed by him at time when earlier order was passed or order sought to be reviewed--Contention of--Council for applicant moved an adjournment application on ground of illness of his mother but respondent was present, however instead of allowing opportunity--Member proceeded the case--Question of--Whether any adjournment application was moved or not nor any such application was produced before Court to hold that proper opportunity was not provided to respondent--Held: Power of review of M.B.R. are very limited and can be invoked only for specific points a discovery of new and important matter for evidence which after exercise of due diligence was not within knowledge of petitioner or cannot be produced at power when decree was passed or order was made on account of some mistake or error apparent on face of record--If power of review is exercised by M.B.R. for rectifying decision of Member, which suffered from incorrect interpretation or application of law or non-appreciation of facts, it would lead to an un-attending cycle of litigation--Such power were not available to any successor to adjudge validity of order--Review proceedings on face of error apparent on record where in all questions of facts and law were considered by appellate Court--Order passed by M.B.R. shall hold field with all consequential benefits. [Pp. 21, 22, 23 & 24] A, B, C, D, E & G
Review--
----Scope of--Scope of review is limited and can be invoked and allowed only on grounds specifically provided in provisions of law and is not to be mistaken with appeal. [P. 23] E
M/s. Jamshed Ahmed Faiz & David Lawrence, Advocates for Petitioner in C.P.No. D-389/2007 and for Respondent No. 1 in C.P.No. D-84/2009.
Mr. Shaikh Abdul Ghani, Advocate for Petitioner in C.P.No. D-84/2009 and for Respondent No. 1 in C.P.D-No. D-389/2007.
Mr. Imtiaz Ali Soomro, Assistant Advocate General Sindh.
Date of hearing: 22.11.2011.
Judgment
Muhammad Ali Mazhar, J.--The aforesaid petitions have been preferred to challenge the following orders:--
a. In C.P.No. D-389/2007, the petitioner has impugned the order dated 11.01.2007 passed by Respondent No. 2 in Review Application No. 121/2002 and Review Application No. 128/2002 filed by Respondent No. 1 and prayed that the said order be set aside and the order passed by Respondent No. 3 on 08.07.2002 be restored."
b. In C.P.No. D-84/2009, the petitioner has challenged the order dated 08.07.2002 passed by Respondent No. 3 and also prayed that the order passed by Respondent No. 2 on Review Application be declared as without lawful authority and jurisdiction."
2. The petitioner Abid Ali Baig in C.P.No. D-389/2007 narrated the facts that the Deputy Commissioner, Sukkur granted 15 ghuntas of land out of Survey No. 387, Deh Jehan Khan Unar, Taluka Mirpur Mathelo to Abdul Aziz Khan for installation of petrol pump and consequent upon the grant, the name of Abdul Aziz Khan was also incorporated in the record of rights Form-II of Deh Jehan Khan Unar vide Entry No. 4 dated 08.06.1968. The said Abdul Aziz Khan let out the said plot to Caltex Oil Pakistan Limited for a period of 30 years through registered deed dated 20.08.1968 against the payment of monthly rent and the said tenancy remained in force up to 20.08.1998. On 11.01.1994, the said Abdul Aziz sold out his aforesaid property to the petitioner through statement for change of Khata before Mukhtiarkar, Mirpur Mathelo, which was approved and incorporated in the record of rights of Deh Jehan Khan Unar, vide Form-VII-B, Entry No. 135 dated 11.01.1994 and he also intimated Caltex Oil Pakistan Limited vide letter dated 16.01.1994. Due to change of ownership, Caltex Pakistan Limited started payment of rent to the petitioner and such transfer was never disputed either by Caltex Pakistan Limited or Abdul Aziz Khan. It was further averred that tenancy expired on 20.08.2000 but since Caltex Pakistan Limited failed to hand over the possession, therefore Rent Case was filed by petitioner. Meanwhile, the Respondent No. 1 raised a dispute over the ownership of the land on the basis of fake and fraudulent Entry No. 7 dated 15.05.1991 and also instituted F.C. Suit No. 40/2000 in the Court of Senior Civil Judge, Mirpur Mathelo against the petitioner and four others for declaration, cancellation and permanent injunction. However, in the meanwhile, vide order dated 14.11.2001, the EDO (Revenue), District Ghotki decided that Entry No. 7 dated 15.05.1991 and Entry No. 135 dated 11.01.1994 both are false and land in question was declared to be government property. By virtue of this order, the entries of petitioner as well as Respondent No. 1 relating to their claim on the same property were cancelled. Meanwhile, the F.C. Suit No. 40/2000 was also dismissed by the Senior Civil Judge on 12.04.2002 keeping in view the order of
3. The Respondent No. 4 filed his comments along with the brief history of the case and it was, inter alia, stated that 15 ghuntas of land was leased out to Abdul Aziz Khan for 30 years for installation of petrol pump but he was lessee and not the owner of the said and was not competent to sell the property to anyone. It was further stated that the entry kept by Mukhtiarkar was illegal. The
4. In C.P.No. D-84/209, the petitioner Zafar Ali Lund contended that he is a man of hari class and cultivates his land in Deh Jehan Khan Unar. In the year 1990-1991, he purchased 15 ghuntas of land from Abdul Aziz Khan through registered sale deed and such entry was kept in revenue record being Entry No. 7, Form-II, Deh Jehan Khan Unar, Taluka Mirpur Mathelo, District Ghotki dated 15.05.1991. He was running his petrol pump peacefully up to the year 2000 when the Respondent No. 1 Abid Ali Baig submitted an application to EDO (Revenue) claiming to be the owner of the land in question. The
5. In this petition also, the Respondent No. 4 filed the same comments and reiterated that the land in question is owned by government and the claims of both the petitioners were denied.
6. The learned counsel for the petitioner in C.P.No. 389/2007 argued that vide order dated 08.07.2002, the Respondent No. 3 rightly amended the order passed by EDO (Revenue), Ghotki and on the basis of material and perusal of the record including the evidence produced by the parties observed that the EDO (Revenue) incorrectly held that the land was on 30 years' lease with Abdul Aziz Khan. The order of Deputy Commissioner, Sukkur dated 21.12.1967 shows that the land was allotted to Abdul Aziz Khan on permanent basis in consideration of the payment of Malkana and the land originally belonged to Abdul Aziz Khan, which was sold by him to the petitioner Abid Ali Baig vide Entry No. 135. He further argued that the impugned order passed by
7. On the contrary, the learned counsel for the Respondent No. 1 and for the petitioner in C.P.No. D-84/209 has also not supported the order passed by Respondent No. 2 not on the ground that the entitlement of the petitioner in C.P.No. D-389/2007 was denied but he argued that by the said impugned order, the right and claim of both the petitioner and Respondent No. 1 had been denied on the ground that the land in question is owned by the government, therefore he submits that the order suffers from jurisdictional defect and also not in accordance with law as the Respondent No. 2 was obliged to remain confined within the sphere of the review application as the order for review was passed on the application of Respondent No. 1 and not suo moto. However, he further argued that the order passed by Member Board of Revenue (Judicial) on 08.07.2002 is also liable to be set aside, which is basically the main order under which the rights of Respondent No. 1, who is also petitioner in C.P. No. D-84/2009, have been denied and the Entry No. 7 dated 15.05.1991 existing in favour of Abid Ali Baig was upheld, therefore the learned counsel prayed that not only the impugned order be set aside but the order dated 08.07.2002 passed by Respondent No. 3 is also liable to be set aside.
8. Learned AAG referred to the comments filed by EDO (Revenue), Ghotki and submitted that neither the petitioner nor the Respondent No. 1 are entitled to any relief as the land in question is owned by the government and since it was brought into the knowledge of Respondent No. 2 while hearing the review application of the Respondent No. 1, therefore in exercise of his powers the Respondent No. 2 rightly held that except the government, nobody is entitled to claim ownership of the land in question and he supported the comments filed by EDO (Revenue), Ghotki.
9. To start with, let us have a glance over Section 8 of the Board of Revenue Act, 1957, which has been meant for review of orders passed by the Board. For the sake of convenience and ready reference, Section 8 of the Board of Revenue Act, 1957 is reproduced as under:--
"8. Review of orders by the Board.
(1) Any person aggrieved by a decree passed or order made by the Board and who, from the discovery of new and important matter or evidence which after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order was made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason desires to obtain a review of the decree pass or order made against him may apply to the Board for a review of judgment made and the Board may, after giving notice to the parties affected thereby and after hearing them, pass such decree or order as the circumstances of the case require.
(2) Every application for a review of a decree or order under sub-section(1) shall be made within ninety days from the date of that decree or order. "
10. There is no doubt that Section 8 empowers a person aggrieved by a decree or order passed by the Board and who from the discovery of new and important matter or evidence which after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or the order was made or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, may apply for a review, therefore it is clear beyond any shadow of doubt that this special provision introduced in the enactment to provide additional remedy to an aggrieved person to move for review on discovery of new and important matter or evidence, which could not produced by him at the time when earlier order was passed or the order sought to be reviewed under Section 8 of the aforesaid Act.
11. We have also examined the review application filed by the Respondent No. 1 before Respondent No. 2. In fact, in the review application the Respondent No. 1 took the plea that the case was fixed before the Member Board of Revenue (Judicial) on 08.07.2002 for arguments on which date the counsel for the applicant moved an adjournment application on the ground of illness of his mother but the Respondent No. 1 was present, however instead of allowing an opportunity to the counsel for the Respondent No. 1, the Member Board of Revenue (Judicial) proceeded the case. Besides this ground, the Respondent No. 1 reiterated all previous pleas, which were already decided in previous litigation and no new ground or discovery of new and important matter or evidence which after the exercise of due diligence could not be produced along with the review application was brought forward, which may justify its institution. It is clear from the order passed by Member Board of Revenue (Judicial) on 08.07.2002 that the petitioner and Respondent No. 1 both were present and order was passed after hearing them and nothing is transpiring from the order whether any adjournment application was moved by the counsel for the Respondent No. 1 or not nor any such application has been produced before us to hold that proper opportunity was not provided to the Respondent No. 1.
12. It is also an important fact which cannot be ignored that though the Respondent No. 1 claims to have purchased the land in question from Abdul Aziz Pathan in the sum of Rs.200,000/- (Rupees two lacs only) in the year 1990-91 through registered Sale Deed but not only the E.D.O. Revenue Ghotki in its order dated 14.11.2001 observed that the Respondent No. 1 failed to produce any registered Sale Deed but the Member (Judicial), Board of Revenue, the Respondent No. 3 also observed that Respondent No. 1 had not produced any evidence to establish his claim in the land in question but for the petitioner it was observed in the order dated 08.7.2002 that it is very easy to assess that the real owner of the land in question was Abdul Aziz Khan who transferred the land to Abid Ali Baig by way of sale and sufficient evidence was brought on record to establish their ownership. It is also material to mention that even in C.P. No. 84/2009, the petitioner. Zafar Ali Lund failed to file any copy of registered Conveyance Deed by which he allegedly acquired the land in question.
13. The power of review of Board of Revenue are very limited and can be invoked only for specific points namely a discovery of new and important matter for evidence which after exercise of due diligence was not within the knowledge of the petitioner or cannot be produced by him at the power when the decree was passed or order was made; on account of some mistake or error apparent on the face of record; or for any other sufficient reasons. If power of review is exercised by Board of Revenue for rectifying the decision of a Member, Board of Revenue, which suffers from incorrect interpretation or application of law or non-appreciation of facts, it would lead to an un-attending cycle of litigation. Such power in the circumstances are not available to any successor to adjudge the validity of order of his predecessor. The hon'ble Supreme Court in the case of Muhammad Din v. Muhammad Amin reported in (PLD 1994 SC 288) held as under:--
"Scope of review and validity of its exercise by Member, Board of Revenue.--Power of review can be invoked only when new and important matter or evidence was discovered which was not available on previous occasion when decree was passed or order was made on account of some mistake or error apparent on the face of the record or for any other sufficient reason--Not every cause would make remedy by way of review available but such cause must be relatable to the circumstances as discovery of new and important matter or some apparent mistake or error on the face of the record--Scope of review was limited and could be invoked and allowed only on the grounds specifically provided in the provisions of law and was not to be mistaken with appeal--Inconsequential or insignificant errors which would not go to the root of the matter were to be ignored but if error had material bearing on the final result of the case, it could be made a ground for review--Review petition having not been allowed on discovery of new and important matter or evidence, High Court was justified in setting aside order passed in review and restoring original order of Board of Revenue".
14. The Hon'ble Supreme Court supra further held that language used in Section 8 of the Board of Revenue Act is identical to the language used in Order XLVII, Rule 1, CPC. It is apparent from perusal of language used under Section 8 that power of review can be invoked only when new and important matter or evidence is discovered which is not available on the previous occasion when decree was passed or the order was made on account of some mistake or error apparent on the face of the record or for any other sufficient reasons. Words "for any other sufficient reasons" are to be read ejusdem generis with words preceding them. It is not every cause which would make the remedy by way of review available but such cause must be relatable to the circumstances as discovery of new and important matter or some apparent mistake or error on the face of the record. Scope of review is limited and can be invoked and allowed only on the grounds specifically provided in the provisions of law and is not to be mistaken with appeal. The hon'ble Supreme Court in the judgment supra further quoted its own judgment reported in 1991 SCMR 2307 in which it was held that power to review can be exercised where there is a mistake or error of law or fact apparent on the face of the record. To find out such error, one has not to scrutinize the record or evidence but it should be self evident from the perusal of record itself and can be pinpointed without elaborate examination. The review proceedings on the face of error apparent on record whereas in appeal all questions of facts and law are considered by the appellate Court. In the case of Muhammad Amin, Member (Consolidation) Board of Revenue Punjab it was held in 1992 CLC 2338 as under:--
"Power to review under S. 8, West Pakistan Board of Revenue Act, 1957 being limited, Member Board of Revenue was not competent to set-aside the order passed by his predecessor and substitute it by his own order for there had neither been discovery of new and important matter or evidence, which, after exercise of diligence was not within respondent's knowledge or could not be produced at the time when earlier order was passed nor order passed in earlier round suffered from any mistake or error apparent on the face of the record nor there were any sufficient reasons warranting review within ambit of S. 8, West Pakistan Board of Revenue, Act, 1957. Where grounds on which review was sought related to merits of case, case could not be permitted to be re-opened in purported exercise of power under S.8, West Pakistan Board of Revenue Act, 1957".
15. As a result of above discussion, the impugned order dated 11.01.2007 passed by the Respondent No. 2 is hereby declared as without lawful authority and of no legal effect. The result is that the order dated 08.7.2002 passed by the Respondent No. 3 shall hold the field with all consequential benefits. Both the Constitutional petitions are disposed of in the above terms.
(R.A.) Petition disposed of
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