CH. IJAZ AHMAD, J. --- The petitioner has challenged the vires of the order of Member Board of Revenue through this Constitutional petition.
2. The learned counsel of the petitioner submits that Member Board of Revenue has passed the impugned order without application of mind and without adverting to the grounds taken by the petitioner in the memorandum of the revision petition and specially ground No. 1. He further submits that it is the duty and obligation of Respondent No. 1 to decide the controversy between the parties after application of mind.
3. The learned counsel of the legal heirs of respondent No. 2 submits that Member Board of Revenue passed the impugned order after application of mind, therefore, Constitutional petition is not maintainable. He further submits that this Court has no jurisdiction to substitute its own findings in place of the findings of the Tribunals below while exercising powers under Article 199 of the Constitution. He further urges that counsel of the petitioner fails to point out any infirmity or illegality committed by Respondent No. 1 at the time of passing the impugned order, therefore, Constitutional petition is liable to be dismissed.
4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
5. It is better and appropriate to reproduce ground No. 1 taken by the petitioner in the memorandum of the revision petition before Respondent No. 1 and operative part of the impugned order to resolve the controversy between the parties: --- {{URDU TEXT}} "The contention of the learned counsel for the petitioner is that he was allotted land under temporary cultivation lease scheme by Collector Mianwali and he has paid rent regularly. The counsel for the respondents agreed that Abdul Aziz (whose heir is the present respondents) was allotted and in 1971 under 15 years' Lease Scheme from the schedule prepared for this scheme. As such this land could not have been allotted to any other person in 1984. The breach of condition regarding default in payment of rent is rectifiable. The 15 Years' Lease Scheme is a permanent Scheme and respondent remained in possession of the land allotted to him for about 14 years. He has a long association with this land. Being an allottee of 15 years' Lease Scheme which was a permanent scheme, the respondent has a preferential right over this land. I, therefore, reject the revision petition of the petitioner and uphold the orders of Addl. Commissioner, Sargodha dated 17.5.1990 and D.C./Collector, Mianwali dated 18.11.1989."
In case the ground No. 1 and operative part of the impugned order are put in juxta-position then it is crystal clear that the Member Board of Revenue has passed the impugned order without application of mind which means that he has passed the impugned order without perusing the record, which is not in consonance with the mandatory provisions of section 24-A newlyadded in the General Clauses Act, which has retrospective effect being a procedural in nature as per law laid down by the Honourable Supreme Court in Zain Yar Khan vs. The Chief Engineer (1998 SCM R 2419). The Honourable Supreme Court has interpreted the said provision of law and laid down a principle that public functionaries are duty bound to decide the controversy between the parties after application of mind as per law laid down by the Honourable Supreme Court in M/s. Airport Support Services vs. The Airport Manager (1998 SCM R 2268). Respondent No. 1 has decided the revision petition of the petitioner while exercising the power quasi-judicial therefore, it is the duty and obligation of Respondent No. 1 to decide the revision petition of the petitioner after judicial application of mind, which is condition precedent as per law . laid down by the Honourable Supreme Court in Mollah Ejahar Ali vs. Government of East Pakistan and others (PLD 1970 S.C. 173). The same view was taken by the Honourable Supreme Court in Gouranga Mohan Sikdar vs. The Controller of Import and Export and 2 others (PLD 1970 S.C. 158). It is also settled principle of law that judgment of the Honourable Supreme Court is binding on each and every organ of the State as is envisaged by Articles 189 and 190 of the Constitution. Member Board of Revenue has decided the revision petition of the petitioner in violation of the parameters prescribed by the Honourable Supreme Court in the afore-said judgments, therefore, same is not sustainable in the eyes of law, therefore, same is set aside. Meaning thereby the revision petition filed by the petitioner shall be deemed to be pending adjudication before Respondent No. 1. Parties are directed to appear before Respondent No. 1 on 28.2.2005, who is directed to decide the revision petition of the petitioner afresh after application of judicial mind preferably within six months.
Parties and their counsel are directed to cooperate with Respondent No. 1 so that the matter may be finalized within the prescribed period. In case any of the parties or its counsel fails to cooperate with Respondent No. 1 then Respondent No. 1 is directed to invoke the penal provisions against the said party.
6. With these observations the writ petition is disposed of. Copy dasti on payment of usual charges. /Case Remanded.