MUHAMMAD AKHTAR 8HABBIR, J -Facts giving rise to the present petition are to the effect that Charagah land measuring 107 kanals, 6 Marlas had been allotted in favour of Abdul Rehman father of respondent No. 3 but it was resumed on 10.10.1977. The said land has been allotted to the present writ petitioner on 4.7.1978 under two years temporary lease scheme in open auction. The - petitioner applied to the District Collector Sheikhupura for exchange of this land, who vide, his order dated 2.1.1989 accepted the same. The said order of the Collector has been assailed by the respondent No. 4 Mubarak AN before Additional Commissioner (Revenue), Lahore Division, Lahore who, through his order dated 16.7.1992 accepted the same and set aside the order of the District Collector allowing exchange of the Charagah land with some other State land. Feeling aggrieved, present petitioner preferred a revision ROR No. 298/1992 before Board of Revenue which carpe up for hearing before Mr. Raza Ali Member (Colonies), Board of Revenue, who maintained the order of the Additional Commissioner, partly accepted the revision restoring the lease of the Charagah subject to deposit of all the arrears within three months observing that the allottee would not be entitled for proprietary rights of the land. The lease was extended on short term basis till its utilization for any public purpose.
2. The said order of the Board of Revenue was reviewed by another Member through ROR No. 756 of 1998 reviewing the order dated. 25.1.1995 directing that the land should be leased out through open auction in accordance with the public policy. This order has been assailed by the petitioner through the instant writ petition.
3. Learned counsel for the petitioner contended that the order of the Board of Revenue passed in revision could not be reviewed by another Member Board of Revenue on administration side. He placed reliance on a decision of the MBR in case Fazal Ali etc. Vs. Muhammad Hussain (PLD 1962 W.P. (Revenue) 66), Chhuttan and others Vs. Sufaid Khan and others (NLR 1987 Revenue 122). Further contended that the order dated 25.1.1995 passed by Raza Ali Member (Colonies), Board of Revenue had been reviewed by another Member of Board of Revenue after the expiry of period of 90 days as provided in Section 8 of the Board of Revenue Act and the Member while passing the impugned order has not condoned the limitation. Lastly contended that the failure to apply proper law cannot be taken to be mistake or effort apparent on face of record. Further contended that application for review before Board of Revenue must be filed within 90 days to be computed from the decree or and Section 5 of the Limitation Act, 1908 have not been made applicable to review and the limitation could not be condoned. Reliance was placed on case Riaz Hussain and others Vs. Board of Revenue (1991 SCM R 2307) and Ahmad Ali Vs. Muhammad Bakhsh (PLD 1958 W.P. (Revenue) 49).
4. On the other hand, the arguments of the counsel for the petitioner have been vehemently controverted by the counsel for the contesting respondents Nos. 3 and 4 who supported the impugned order passed in review contending that the order in favour of the petitioner has been passed in violation of policy instructions of the Government.
5. I have heard the arguments of learned counsel for the parties, perused the record. The Board of Revenue enjoys power of review of order passed by the Board. Section 8 of the West Pakistan Board of Revenue Act, 1957 envisage as under:-
(1) Any person considering himself aggrieved by a decree passed or 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 the when the decree was passed or 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 passed 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.
(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.
From the plain reading of the above provisions of Section 8 of the Board of Revenue Act it is manifestly clear that the review petition by an aggrieved person can be filed against the decree or order within 90 days from the date of that decree. The previous order dated 25.1.1995 had been filed in the presence of Mubarik Ali/respondent No. 4 herein and the the for filing the review application would start running from the date of the said order but the review petition had been filed in year 1998 after a delay of about three years of the earlier order. The power of review jurisdiction has been conferred on the Board from the Statute (West Pakistan Board of Revenue Act) and it should have been exercised within the four corners of the prescribed powers and limitation and as provided in sub-section (2) of section 8 of the West Pakistan Board of Revenue Act that the review application can be filed within a period of 90 days and it is settled proposition of law that the power to extend the the can be extended provided it has been conferred on the authority on expiry of such period, if it is not provided such jurisdiction cannot be exercised by the authority. Section 5 of the Limitation Act has not been made applicable empowering to condone the delay or extend the limitation and the authority exercising review power in breach of statutory provision cannot assume power and extend the the. After the expiry of 90 days from the date of order, the Board of Revenue did not have the jurisdiction to apply section 5 of the Limitation Act. The MBR/respondent No. 1 Mr. Abdul Rashid Khan had entertained in the review petition contrary to the provisions contained in Section 8 of the. West Pakistan Board of Revenue Act.
6. The other aspect bf the case is that the power of review jurisdiction conferred on the Revenue Board under section 8 of the West Pakistan Board of Revenue Act does not permit the rehearing of the matter on merits and it could be exercised only where there is a mistake or errors of law or fact apparent on the face of the record and to find out such error one has to scrutinize the record or evidence and it should be self evident from the perusal of record itself and can be pin-pointed without elaborate examination, in this context reference can be made to case of Riaz Hussain and others (1991 SCM R 2307) supra. The arguments/reasons mentioned in the impugned order dated 2.6,1999 were available at the the of passing of the order dated 25.1.1995, therefore, no case for review of the order was made out in the year 1998 before the Board of Revenue.
7. The other aspect of the case is that through the order dated 25.1.1995, the MBR Mr. Raza Ali has not approved the exchange of the charagah nor conferred proprietary rights. Only lease of the land has been extended on short-term basis and that too on enhanced rent. Further there was the policy of the Government to extend the lease of the land, which were excluded from the scheme for grant of proprietary rights like such lands are as under:-
(i) Lands already allotted under permanent grants.
(ii) Lands already reserved or embarked for permanent grants or for a public purpose.
(iii) - Reserved charagah order charagah Baqaya in Colony Chaks
(iv) Lands lying within 10 miles of the outer limits of a Municipal Corporation within 5 miles of the outer limits of a Town Committee/Mandi Town.
(v) Lands lying within 5 miles of the outer limits of a Cantonment Board Area.
(vi) Lands allotted or leased out under services grants viz Lambardan grants. Horse/Mule Breeding tenancy Livestock Breading tenancy and River Action Scheme.
8. Member Board or Revenue while passing the order dated 25.1.1995 has clearly stated that the proprietary rights of charagah land could not be granted and the District Collector should not have changed status of the land in this manner. The order is clearly against the public interest. The proprietary right allowed is hereby revoked. He has extended the lease in favour of the present petitioner Muhammad Sharif on short-term basis till its utilization for any public purpose. Meaning thereby that he has protected/saved the public and Government interest.
9. For the foregoing reasons, this writ petition is accepted. As a result whereof the impugned order dated 2.6.1998 passed by respondent No. 1 is declared to have been passed illegally, without lawful authority and of no legal effect. There shall be no order as to costs.