1. This writ petition has been filed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 whereby the orders passed by the respondents have been challenged for having been passed without lawful authority.
2. Brief facts giving rise to the instant writ petition are that through Govt. Notification No, 3551-57/81 dated 29.11.1981, Khalsa land comprising Survey No, 396-old measuring 4 Marlas situated in District Bagh was sanctioned as "Teh zamnie in favour of the petitioner.
3. It is stated that against the above mentioned Notification, Respondent No, 6 and one Qari Muhammad Yasin filed a review petition, upon which a commission was appointed and ultimately the review petition was dismissed by the Government vide order dated 4.12.1982. The same Notification was thereafter challenged through a writ petition which was also dismissed on 26.1.1983. Respondent No, 6 instituted a civil suit before the Sub-Judge Bagh for declaration that he is owner of the land in dispute, but after proceedings the same was dismissed by the sub-judge and a revision filed against the said order also met the same fate. It is alleged that another declaratory suit was filed by the respondents which was also dismissed by the trial Court on 3.12.1991. The judgment was maintained up to this Court. Another round of litigation was started on - behalf of one Qari Muhammad Yasin by filing a separate suit on similar grounds which was also dismissed and the order/judgment was maintained by the learned District Judge as well as this Court respectively. It is averred that a further round of litigation was started by Respondent No, 6 by filing a civil suit regarding the same land before the Court of sub judge Bagh. During the pendency of this suit, the matter came up before this Court in revision. This Court took serious notice about filing of fraudulent, frivolous and protracted litigation by Respondent No, 6, ultimately it was ordered that Respondent No, 6 shall pay Rs, 15,000/- as cost to the other side. The appeal filed by Respondent No, 6 before the Hon'ble Supreme Court was dismissed vide judgment dated 15.1.1992.
4. During the settlement, land measuring 4 Marlas bearing Survey No, 396, sanctioned in favour of the petitioner was not entered in his name with connivance of Respondent No,
6. In this regard an application was moved by the petitioner to the Collector District Bagh for correction. After necessary proceedings, the application was allowed and an order of correction was -passed on 13.4.1999. In compliance of this Court a mutation was also sanctioned on 15.4.1999. The above- mentioned two orders were challenged by Respondent. No, 6 through an appeal before the Commissioner Poonch Division. The appeal was dismissed and ultimately this order was upheld by the Board of Revenue vide judgment dated 31.5.2001. It is averred that after judgment of the Civil Court which was finally upheld up to Supreme Court the matter has become final. A further application was filed by Respondent No, 6 for correction of entry in revenue record before the Collector District Bagh. The learned Collector entrusted the same to Tehsildar Bagh for report which was accordingly submitted on 10.11.2003. It was reported by the Tehsildar that the land measuring 8 Marlas has also been sanctioned as "Tehzamanai" in favour of Respondent No, 6 from Survey No, 396, which has been renumbered as Survey No, 1310, and this piece of land has been in occupation of Respondent No, 6 who has also constructed shops over the said survey number. Consequently, collector District Bagh ordered for sanction of Mutation No, 391 in favour of Respondent No,
6. The petitioner challenged the orders dated 26.12.2003 and 29.12.2003 through an appeal before the Revenue Commissioner Poonch who dismissed the same vide its order dated 8.5.2004. The petitioner further filed an appeal/revision petition before the Board of Revenue, which was dismissed on technical grounds vide order dated 16.10.2004.
5. The petitioner categorically alleged that the land measuring 4 Marlas was legally and lawfully sanctioned in his favour and he is also in possession of the same. The petitioner has constructed a shed over the said piece of land. The petitioner further craved that Respondent No, 6 could not prove his claim over the land in dispute before the civil and Revenue Courts and the matter between the parties had been finally concluded up to the Hon'ble Supreme Court, therefore, the same became a past and closed transaction which could not be reinvestigated and reopened by the Revenue Courts. (after the judgment of the Board of Revenue, and final verdict of the Apex Court). The petitioner Maintained that all these orders of the revenue Courts in subsequent round of litigation were passed with the collusion of Respondent No, 6 are also without lawful authority and are liable to be set aside.
6. The respondents have filed the written statement and controverted the facts and allegations levelled against them. Respondents No, 1 to 6 further alleged that the petition has been filed for ill- gotten gain which is liable to be dismissed. The respondents also alleged that "Tehzamani" in favour of petitioner from Survey No, 396 is against the provisions of relevant law and rules.
7. Syed Nazir Hussain Shah Kazmi, the learned Advocate appearing on behalf of the petitioner, strenuously argued that the land measuring 4 Marlas was sanctioned in favour of the petitioner and the same is in his possession and a shed has been constructed by the petitioner whereas Respondent No, 6 has no concern with the said piece of land. The learned Advocates maintained that the Collector illegally cancelled the Mutation No, 391 without hearing the petitioner which is against the principle of audi alteram partem. They also contended that when the matter stood concluded finally by the judgments of the revenue as well as by the Apex Court, the same cause cannot be reopened in the garb of correction of the record, especially when the Revenue Courts in earlier round of litigation have appreciated the record in its true perspective and the fresh proceedings are based on mala fide, illegal and violative of the relevant law and rules made there under. The learned Advocates further maintained that the judgments of the Civil Court, which have attained finality, could not be nullified by the Revenue Courts. The learned counsel for the petitioner also argued that the Board of Revenue is vested with the ample revisional powers under Section 164 of the West Pakistan Land Revenue Act, 1967. Under the above-mentioned provision, the Board of Revenue was bound to exercise its revisional jurisdiction for correction of its subordinates. The learned counsel in support of his contention placed reliance on PLD 1963 W.P. (Rev.) 106 and 1980 SCM R 952.
8. While controverting the arguments advanced on behalf of the petitioner, Raja Muhammad Hand Khan, the learned Advocate for the respondents, vehemently contended that the petition has been filed to protect the ill-gotten gains, therefore, the is not entitled to any relief. The learned counsel also maintained that original sanction of Khalsa Waste Land in favour of the petitioner was violative of the relevant law and rules holding the filed, hence, cannot be protected in writ jurisdiction. The learned Advocate further contended that these facts could not be resolved in extraordinary jurisdiction. According to the learned Advocate second appeal was not competent before the Board of Revenue, therefore, the respondents, have not committed any illegality which needs the interference by this Court. The learned Advocate placed reliance on the following cases:--
(1) 1998 SCR 221.
(2) 1992 SCR 149.
(3) 2001 SCR 179.
9. I have heard the learned Advocates for the parties and examined the record very carefully.
10. A contemplate perusal of the record shows that Respondent No, 6 earlier filed a suit on the same grounds in the Court of Civil Judge, Bagh on 7.1..1982 which was dismissed on 29.7.1989. This judgment was challenged by filing a revision before this Court which was also dismissed on 4.9.1980. Another round of litigation was started by Respondent No, 6 which stood finalised by the judgment of the Hon'ble Supreme Court rendered in Civil Appeal No, 1 of 1992 decided on 15.1.1992.
11. After this round, orders passed by the Collector dated 13.4.1999 and 15.4.1999 were challenged by Respondent No, 6 in appeal' before the Commissioner Poonch on 10.6.1999. This appeal was dismissed vide order dated 19.1.2000 and the order was upheld by the learned Member' Board of Revenue in revisional jurisdiction on 31.5.2001. Thus it is well established that the controversy between the parties regarding the land in dispute was again examined and finalised by the highest revenue authority. Thus, it is crystal clear that the matter stood, finalised by the civil as well as revenue authorities up to the Apex Court. Neither the Collector Bagh nor any subordinate revenue officer can upset or reopen the past and closed transaction on a miscellaneous application in the garb of correction of the record. It is also evident from the record that while doing so the Collector has not heard the petitioner nor obtained the prior sanction from the Commissioner as envisaged by Section 163 of the Land Revenue Act which reads as under: "163. Review.--(1) A Commissioner, Collector or an Assistant Collector, may, at any time, on his own motion, review any order passed by himself, or any of his predecessors in office, and on so reviewing modify, reverse or confirm the same.
(2) 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 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 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 predecessors in office: Provided that--
(a) An order passed by, his predecessor-in-office shall not be reviewed under sub-section (1) of sub-section (2) by the--
(i) Commissioner, without first obtaining the sanction of the Board of Revenue;
(ii) Collector, without first obtaining the sanction of the Commissioner, and no order shall be reviewed by any other Revenue Officer, without first obtaining the sanction of the Revenue Officer to whose control he is immediately subject;
(b) An application for review of an order shall not be entertained unless it is made within ninety days from the passing of the order, or unless the applicant satisfies the Revenue Officer that he had sufficient cause for not making the application within that period.
(c) The Commissioner and Member Board of Revenue have also violated the relevant provisions of The West Pakistan Land Revenue Act, 1967. The learned Member Board of Revenue has not considered the limitation provided for review of the mutation and also has not taken into consideration the effect of final verdict of the Hon'ble Supreme Court. The revisional and supervisory jurisdiction have been vested in the Board of Revenue with a specific purpose by the legislature. Where an express violation of law is noticed then the Board of Revenue was bound to exercise suo motu powers of revisional jurisdiction. Another important aspect of the case is that a serious allegation has been levelled against the Member Board of Revenue regarding deletion of the word "revision" from the memo of appeal. This allegation in respect of deletion of word "revision" is supported by an affidavit which is not refuted from the other side by the counter affidavit. The Board of Revenue has deliberately violated the revisional and supervisory jurisdiction. I would like to refer some cases in support of the view: In Rab Nawaz's case [PLD 1984 Lah. 242], it was held as under: "On the question of competency of the Board of Revenue to allow review of the impugned mutations vis. No, 5247 dated 10.12.1986 of village Silwan and Mutation No, 1922 dated 14.4.1969 of village Ghallaughara, the learned Member Board of Revenue, in the impugned order has found that the Board of Revenue could interfere in exercise of its suo motu revisional powers to set the wrong right and these powers of the Board were unfettered and could be freely invoked whenever there- had been a material irregularity and also material injustice. While dealing with the question of locus standi, it has already been observed that in exercise of its powers under Section 164 of the Land Revenue Act, 1967, Board of Revenue could competently exercise revisional jurisdictional whereby the record could be called and appropriate order could be passed."
12. In Haji Noorwar Jan's case [PLD 1991 SC 531], in Para No, 19 of the judgment the Apex Court of Pakistan observed as under:- "The Board of Revenue at the apex of the revenue hierarchy is charged with the statutory duty of interpreting the law, of applying it to individual cases coming up before it and laying down the law for the subordinates in hierarchy to follow. Any error on its part in understanding the law in applying it or in laying down the law, can and must be corrected in the constitutional jurisdiction. If it is left uncorrected, it will result in subverting the rule of law."
13. Under the Interim Constitution Act, 1974, the judgment/ decision of the Hon'ble Supreme Court is binding on all the other Courts in the State, whether civil or revenue. The revenue authorities in this case have flagrantly violated the constitutional provisions and made an attempt to frustrate the judgments of the Civil Courts. No authority can be allowed to frustrate the object of the judgment or to nullify the same by putting an erroneous, capricious interpretation. Thus, it can safely be concluded that the whole proceedings taken by the revenue authorities are clear cut abuse of the process of the Court and are liable to be quashed in exercise of inherent jurisdiction of this Court.
14. Section 151 of the Code of Civil Procedure confers jurisdiction to this and grants powers to do all such acts to execute its own mandates and orders. This view finds support from Muhammad Sharifs case [1994 CLC 2034], wherein the Hon'ble Supreme Court observed as under: "Where a law confers-a jurisdiction it impliedly grants powers of. doing all such acts or employing such means as are necessary in its execution. The Court has inherent power to take all steps to execute its own mandates and orders. Under Section 151, of C.P.C. the powers are to be. exercised to secure the ends of justice or for the purpose of preventing the abuse of process of Court and it is intended to prevent the Court from being rendered powerless on account of having omission in the Code and to make necessary orders."
15. A reference can also be made to Tariq Mahmood Mirzg's case [PLJ 2004 AJK 102], wherein it has been observed as under: "Now we may take up the objections taker. by the appellant's counsel. It may be stated that Section 151 of the Code of Civil Procedure does not confer any new power upon a Court but only saves its inherent powers already vested. The inherent powers of the Civil Courts to do right and undo the wrong are preserved under this section. Where a law confers a jurisdiction it impliedly grants power of doing all such acts or employing such means as are necessary in its execution. The Court has inherent power to take all steps to execute its own mandates and orders. Under Section 151 of the Civil Procedure the powers are to be exercised to secure the ends of justice or for the of preventing the abuse of the process of the Court and it is intended to prevent the Court from being rendered powerless on account of having omission in the Code and to make necessary orders.
16. The upshot of the above discussion is that the petition is accepted and the orders passed by the Collector on 26.12.2003, Assistant Collector dated 29.12.2003, and Revenue Commissioner, Poonch dated 8,5.2004 as well as Board of Revenue dated 16.10.2004 are hereby quashed, with no order as to the costs.