1. ' The matter in this petition relates to amenity plot measuring 9228 sq. Yards bearing No,PA- 64(SNPA-64) which, according to the petitioner, was allotted to it by respondent No,2, Cooperative Housing Society for establishment of school. Any how, since the factual position in respect to the use or the allotment etc. Is not subject-matter of this petition, therefore, we are not inclined to take up the issue which is not relevant in the matter. The very cause of filing of petition is a notice from the Government of Sindh for hearing the revision. The petitioner us contended that the notice is illegal and has been issued in a case which has already been disposed of by order, dated 1-7-1998 in the revision by the advisor to the Chief Minister, therefore, this notice to be knocked down.
2. ' On the other hand, the contention of Mr. Khawaja Shamsul Islam, the counsel for the respondent Cooperative Society, is that the order, dated 1-7-1998 is no longer in the field as same has been set aside in C.P. No,1176 of 1998. He submits that there were two orders passed by Mr. Munawar Ali Butt, acting as Advisor to Chief Minister Sindh in the subject revision and another revision both in respect to same Cooperative Society. These were orders dated 25-6-1998 and 1-7-1998. The former order was passed on the revision of Ahmed Yousuf Ali Rizvi while latter was passed on the revision of respondent No,2. He further submits that this Court in C.P. No,D-1176 of 1998, decided on 8-6-2000 and reported as Ahmed Yousuf Ali Rizvi and others v. Munawar Ali Butt and others PLD 2000 Kar.
3. 333, has taken up specific issue and one of the prayers in that petition was as follows:--- "That the impugned orders of respondent No,1, dated 25-6-1998 and 1-7-1998 and impugned order of respondent No,3 dated 28-12-1995 and impugned order of respondent No,4, dated 16-12-1996 are without jurisdiction, mala fide, illegal and ultra vires."
4. ' After pointing out above prayer, learned counsel has referred to finding and argued that since the appointment of Mr. Munawar Ali Butt, who passed both the orders in revision, was held invalid and without lawful authority, therefore, both the impugned orders passed by that person were without lawful authority and same is crux of finding in that petition. He further submits that after the order in said petition, matter was again taken up by the Sindh Government and petition of Ahmed Yousuf Ali Rizvi was taken up first which was attended to by the petitioner and was rejected. He further submits that the petitioner never challenged the order of C.P. No,D-1176 of 1998 rather followed the order of this Court in above constitutional petition and participated on the remand of the case. He further submits that now when the second matter of respondent No,2 has been taken up in same way and notice has been issued then same has been challenged before this Court.
5. ' In rebuttal, Mr. H.A. Rehmani, learned counsel for the petitioner submits that the order in C.P. No,D- 1176 of 1998, reported in PLD 2000 Kar. 333, is not a valid order and has not interpreted the law in true sense. He submits that the issue of competency of the Advisor to the Chief Minister and Minster has not rightly been answered and the said authority is contrary to the case of Karachi Cooperative Housing Societies Union Ltd. v. Government of Sindh and others 1990 M LD 389. He further submits that in the former authority it has, specifically, been laid down that since the Advisors have been appointed in accordance with Sindh Government Rules of Business as well as Article 139 of the Constitution, therefore, Advisors have power to dispose of the case and that their orders could not be set aside on the ground that the Advisors have acted without lawful authority.
6. He further submits that since there are contrary decisions of two Division Benches, therefore, this matter be referred to a Full Bench. He further submits that at the most the judgment reported as Ahmed Yousuf Ali Rizvi (supra) was a judgment per incuriam and is not applicable in generality and would not have been followed. He has further relied upon the case of Multiline Associates v.
7. Ardeshir Cowasjee and others PLD 1995 SC 423 and Ardeshic Cowasjee and others v. Karachi Building Control Authority (K.M.C.), Karachi 1999 SCM R 2883.
8. ' After hearing both the learned counsel, it appears that matter herein is simple and can only be solved after perusal of the judgment of this Court passed in C.P. No,D-1176 of 1998 (Ahmed Yousuf Ali Rizvi and others v. Munawar Ali Butt and others). In the said petition a specific issue was taken up by the Court as to whether Munawar Ali Butt, Advisor to Chief Minister, was competent to pass orders, dated 25-6-1998 and 1-7-1998 or not. The petition was filed by name as Munawar Ali Butt who was respondent No,
1. The finding of the Court in that petition is as follows:--- ".... Accordingly, the appointment of the respondent No,1 was invalid and without lawful authority.
9. Consequently, the impugned orders passed by this respondent are without lawful authority and of no legal effect. Petition is, accordingly, allowed to the extent and the matter is remanded to the respondent No,2 for proceedings and decision according to law."
10. ' It is also evident from the record that the said judgment was not taken into appeal before the Honourable Supreme Court rather was acted upon by the Government as well as the petitioner itself as it participated in the proceedings of another case which was also subject-matter of the petition, therefore, petitioner now is estopped from challenging the validity of the said judgment passed in the case of Ahmed Yousuf Ali Rizvi (supra). At the moment, there is no need to go into controversy as to whether the judgment in the case of Ahmed Yousuf Ali Rizvi (supra) is contrary to the case of Karachi Cooperative Housing Societies Union (supra) as judgment against the petitioner in the case of Ahmed Yousuf Ali Rizvi (supra) is very specific in respect to the person who has passed the order as well as specific to the order which was challenged in the petition while the petitioner participated in one remanded revision but now it is challenging the notice which has been issued in the second revision. In such a situation, the petitioner cannot be allowed to blow hot and cold in one sigh as it will amount to approbation and reprobation.
11. ' The plea of Mr. H.A. Rehmani that in the light of Multiline Associates v. Ardeshir Cowasjee and others PLD 1995 SC 423 this Division Bench should send the matter to a Full Bench is not appropriate as this Division Bench is not the Bench which is going in conflict with the earlier Division Bench while as per his own arguments two earlier Division Benches have already differed and that is apparently on specific legal point while here the question has become different as after the remand of the case the petitioner itself participated before the revisional authority as earlier revisional authority was mentioned by name and was debarred. The petitioner after participation in one revision remained silent for a longer period and is now objecting the notice issued in second revision.
12. Another issue of Mr. Rehmani that the decision in C.P. No,D-1176 of 1998 was the judgment per incuriam has no force as according to the exact interpretation judgment per incuiam can be only in which an information in respect to the previous decision along with proper legal assistance has been provided while it is apparent from C.P. No,D-1176 of 1998 that both these things are lacking when the judgment in that constitutional petition was passed. Therefore, that case is also not relevant in the matter. In such a situation, we do not find any force in the petition and same is dismissed.