The petitioners have taken the exception to the order dated 13.6.2003 passed by Respondent No, 1 in exercise of his review jurisdiction, whereby, he reviewed the order dated 25.5.2000 of Member(C), Board of Revenue, dismissing the revision petition filed by the respondents.
2. Facts giving rise to the present writ petition are to the effect that the Consolidation Scheme of agricultural land situated in mauza Bela Singh. Kukra, Tehsil Minehanabad, Distt. Bahawalnagar, was sanctioned by the Consolidation Officer, vide, his order dated 29.9.1988 on the basis of record of rights pertaining to the year 1983-84. The petitioners and Haji Luqman Ali etc. had challenged the said Scheme through two separate Appeals Nos, 1178 and 1210 respectively on multiferious grounds, alleging that Wanda No, 92 of the petitioners has been jointly prepared with owners of different Wandas No, 88 against their will. It was also alleged that 163 kanals 6 marlas land of the petitioners had been reduced. Both the afore-mentioned appeals were accepted by the Additional Deputy Commissioner (Consolidation)/Collector, Bahawalpur Camp Bahawalnagar, through order dated 12.8.1992, determining the entitlement of all owners and separating the Wandas Nos, 88 & 92. The respondents aggrieved by the said order had challenged the same before Addl. Commissioner (C), Bahawalpur Division, Bahawalpur through revision which was treated as second appeal under Section 11 of the Ordinance and was dismissed vide order dated 27.11.1994.
3. Respondents Nos, 2 and 3 had filed a Revision Petition No, 3162/1994 before the Member Board of Revenue, Punjab, Lahore on 14.12.1994, challenging the orders dated 12.8.1992 and 27.11.1994 referred to above, who, after affording an opportunity of hearing to the parties and examining the record, dismissed the same vide, judgment dated 25.5.2000. This order was assailed by Respondents Nos, 2 and 3 by filing a Review Petition No, 107/2000 before Respondent No, 1, who, vide his order dated 13.6.2003 accepted the review petition and remanded the case for decision afresh.
4. Learned counsel for the petitioners contends that-MBR/Respondent No, 1 has reviewed the order dated 25.5.2000 without adverting to the provisions of review and review is provided in Section 163 of Land Revenue Act, Section 8 of Board of Revenue Act and Order 47 CPC. Further submitted that the impugned order has been passed on the basis of factual arguments which is not the ground of review. Further added that Respondent No, 1 had not assigned sufficient reasons while passing the impugned order and by remanding the case to EDO (R) had re-opened the past and closed matter.
5.Conversely, learned counsel for the respondents has vehemently opposed the arguments of learned counsel for the petitioners, contending that the review petitioners were given 10 kanals of land less than their entitlement by the Collector as well as Addl. Commissioner (C) and the important documentary evidence, record of rights, misal haqiyat, and registered scheme was not taken into consideration. Further argued that respondents had proved the case for review of earlier order.
6. I have heard the learned counsel for the parties at length and perused the record.
7. Respondent No, 1 while accepting the review petition had observed as under:- "Facts of this case hinges on one point only, which is that whether or not petitioners have' been allocated land 10 kanals less then their entitlement. Counsel for petitioners has contended that petitioners contention is supported by Register Haqdaran, Khatooni Ishtimal and Map Haqdaran. In other words, entire revenue record supports their contention that they owned 423 one marla. I think this point needs reconsideration. Without being absolutely sure on this point, the case cannot be decided. I do not see on record a definite proof substantiating or negating petitioners". The impugned order has been passed holding that the review petitioners were owners of 423-K, 1 marla, land while the lower officer have declared them entitled for 413 Kanals of land. A copy of record of rights pertaining to the years 1995-96 produced by learned counsel for the respondents depicts that Sardar Ali and Bagh Ali, Respondents Nos, 2 and 3 were owners of land in Khasras Nos, 560/15, 560/16, 580/16 and according to the observation made by Respondent No, 1 this land of the petitioners was not calculated.
8. The provision of review is provided, in Section 163 of Land Revenue Act and sub-section (2) of this section of the Act envisaged that any person considering himself aggrieved by an order passed by a Commissioner, Collector or an Assistant Collector, and who, from the discovery of new and important matter of 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 order was passed 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 order passed against him, may apply for a review of the order to the Commissioner, Collector or Assistant Collector, as the case may be, and such officer may modify reverse or confirm any order passed by himself or by any of his predecessor-in-office.
9. Section 8 of Punjab Board of Revenue Act, 1957 confers power of review on the Member, Board of Revenue subject to certain conditions contained in that section which reads as under:-- "Any person considering himself 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 (for any other sufficient reason) desires to obtain a review of the decree passed or order made against him may apply to the Board for a review of judgment 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."
10. The powers of review of the M.B.R. are same as conferred by Order 47 Rule 1 CPC and a decree or order can be reviewed on account of (1) discovery of new and important matter of evidence which, after due diligence was not within his knowledge or could not be produced by him at the time when the order was passed 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 decree passed or order made against him, may apply for a review of the judgment to the Court which had passed the same (2). The discovery of new and important matter or evidence would mean that where important evidence having a material bearing upon the merits of the case is subsequently discovered, three courses are open to such party (i) it may apply for review of judgment after judgment has been pronounced, or (ii) it may apply for admission of fresh evidence before judgment is pronounced, or (iii) it may appeal from the judgment and apply for admission of additional evidence before the appellate Court and a party applying for review under this ground should establish that there was no negligence on its part.
11.The scope of exercise of power of review in terms of Order 47 Rule 1 CPC, and Section 8 of Punjab Board of Revenue Act was limited and interference would be made if Court was satisfied on discovery of new and important matter, which, after exercise of due diligence, was not within knowledge or could not be produced by concerned party at the time when . decree was passed or made on account of some mistake or error apparent on the face of the record, or for any other sufficient reason. Reliance in this respect can be made to case of Kalsoom Malik vs. Assistant Commissioner (1996 SCM R 710).
12. The mistake or error on the basis of record would mean such mistake or error may be one of law or fact and should be apparent on the face of the record, it should be self evident from a perusal of the record itself, and should not require any extraneous evidence to establish it and it should be established without elaborate arguments. It should be so manifest and clear as cannot be permitted by any Court to remain on record and the error must also have a material bearing on the fate of the case.
13.There is a distinction between appeal and review. In this connection the points of distinction jotted down in Chitaley's commentary on Rule 1 Order 47 CPC may be referred to for convenience.
They are as follows:-- "A review is not the same thing as, or a substitute, for, an appeal. The two proceedings differ in very many particulars:
(i) The Primary intention of a review is the reconsideration of the subject of the suit by the same Judge under certain conditions, while an appeal is a re-hearing by another Tribunal.
(ii)A point which may be a good ground of an appeal may not be a good ground for an application for review. Thus, an erroneous view of evidence or of law is no ground for a review though it may be a good ground for an appeal.
(iii)A review, does not of necessity, re-open questions already decided between the parties. The matter in issue is only re-opened when the application for review is accepted, while in the case of an appeal, the matter is re-opened as soon as an appeal is admitted."
In this context, a reference may be made to the case of Allah Dino vs. Fakir Muhammad (PLD 1969 SC 582).
14. Learned Member (Judicial-I) Board of Revenue, while passing the order in Revision. No, 3162/94, in Paragraph No, 8 of the order had observed as under:-- "It was held by the Additional Commissioner that the appellants have been given land to the extent of 413 kanals 1 marla which was in accordance with their entitlement. As regards their contention that certain khasra numbers which had been. in their possession before consolidation, were included in the wanda of other right holders after consolidation, the Addl. Commissioner determined that all khasra numbers indicated by the petitioners were in possession of the present respondent prior to consolidation. Since the Additional Commissioner had come to the conclusion that Sardar Ali. and Bagh Ali had been given land in consolidation proceedings according to their entitlement before consolidation, this question being one of fact cannot constitute a valid ground for interference with the impugned order in revision. No law'point has been cited by the learned counsel for Sardar Ali and Bagh Ali. In this view of the matter, Revision Petition No, 3162/94 is liable to be dismissed which is accordingly ordered."
The Addl. Commissioner Bahawalp-ur Division, Bahawalpur, vide his order dated 27.11.1994 had observed that consolidation operation in village Bela Singh Kukra, Tehsil Minchanabad were carried out on the basis of Register Haqdaran Zamin 1983-84 and the consolidation scheme was confirmed on 29.9.1988. All the khasra numbers indicated by the learned counsel. for the appellants exist in Khata No, 10 of Register Haqdaran Zamin 1983-84 and have been shown in possession of Luqman Ali, respondent since died. The appellant have been given land to the extent of 413 K, 1 Marla, which is in accordance with their entitlement: 15.The A.D.0 (C) in his order dated 12.8.1992 also calculated the entitlement of Sardar Ali and Bagh Ali, Respondents Nos, 2 and 3 as 413 K, 1-M, including all land in different khasra numbers. Three Consolidation Officers, The Collector, Additional Commissioner and MBR, concurrently held the entitlement of Respondents Nos, 2 and 3 as 413 K and one marla. Respondent No, 1 while reviewing the order dated 25.5.2000 had based his findings on record of rights pertaining to the years 1995- 96 while consolidation was made on the record for the years 1983-84. If after close of the consolidation proceedings, Respondents Nos, 2 and 3 have obtained some land it would not become the part of their wandas. The Revision Petition No, 3162/94 was filed by Respondents Nos, 2 and 3 on 4.12.1994 and at that time they were not the owners of above referred land.
16.The consolidation scheme after confirmation has been incorporated in the record of rights and all the three Consolidation Officers while passing the orders had examined the record and calculated the entitlement of the share-holders of the wandas.
17. In view of the above discussed position, I find that the MBR/Respondent No, 1 while passing the review order had not assigned sufficient reasons, hence, the same being not in consonance with the provisions of law and not sustainable in law and declared to have been passed illegally, without lawful authority and of no legal effect: 18.Resultantly, this writ petition is accepted. The impugned order. dated 13.6.2003 is set aside and that of order dated 25.5.2000 is restored. There shall be no order as to costs.