' CH. IJAZ AHMED, J.---The petitioner has sought leave to appeal against the order of the Lahore High Court, Lahore dated 12-11-2003 wherein the Constitution Petition No, 93 of 2003 filed by, he petitioner against the order of the Member Board of Revenue dated 24th March, 1999 was dismissed.
2. Detailed facts have already been mentioned in memo. Of petition. However, necessary facts out of which present petition arises are that land in question was allotted by the Revenue authorities/officers to the predecessor-in-interest of the petitioners on 31-10-1952 under the Tube- well Sinking Scheme which was resumed on account of violation of the terms and conditions by the predecessor-in-interest of the petitioners in June, 1958. Predecessor-in-interest of the petitioners being aggrieved filed Constitutional Petition before the Lahore High Court which was accepted along with connected W.Ps. Including W.P. No, 610 of 1958 vide judgment dated 13-7-1996, wherein the resumption order was set aside in the following terms:-- "The result is that the authority itself having failed to discharge its own obligation, the petitioners stood absolved of their obligations, under grant. The resumption made is, therefore, without lawful authority and it is of no legal efiect."
3. The petitions filed by the respondents against the judgment dated 13-7-1966 before this Court were dismissed as barred by time vide order dated 1-2-1967. Respondents again resumed the land in question vide order dated 20-10-1986 against which appeal was filed by the predecessor-in- interest of the petitioners which was dismissed vide order dated 5-7-1987 against which he had filed revision petition before the Member Board of Revenue which was accepted vide order dated 22-10-190. Paragraph 5 of the said order is reproduced hereunder:-- "In the above circumstances, since seven lots in question were subject of a specific pronouncement of the High Court which still holds the field, these could not be resumed for non fulfilment of conditions about which the High Court has already given its verdict. However, the petitioner cannot claim proprietary rights or otherwise alienate the properties."
4. The petitioners preferred an application for proprietary rights before the Collector on 23-5-1990 which was dismissed by the Collector vide order dated 20-4-1994. Petitioners being aggrieved filed appeal before the Commissioner, which was also dismissed. Revision petition before the Member Board of Revenue also failed vide order 24-3-1999 against which Constitution Petition No,93 of 2003 was filed which was also dismissed vide impugned judgment.
5. Learned counsel for the petitioners submits that learned High Court as well as the tribunals below had erred in law to decide the case against the petitioners merely on the observation made by the Member Board of Revenue in its order dated 22-10-1987 while accepting Revision of the petitioners. The observation made by the Member Board of Revenue in the said order had no bearing with the resumption order which was challenged by the petitioners before the Member Board of Revenue. The question of proprietary rights qua the land in question was not before the Member Board of Revenue in the earlier round of litigation. The proprietary rights were not granted to the petitioners merely on the said observation in the aforesaid order of Member Board of Revenue which had no nexus with the terms and conditions as well as the resumption order passed earlier against the petitioner. In support of his contentions, he relied upon the cases of "Irshad Ahmed Shaikh. v. The State" (2000 SCMR 814) and "Khawaja Auto Cars Limited v. Haji Sharif Khan (1996 CLC 1337). He further submits that the impugned judgment is judgment per incuriam by relying upon the said observation, therefore, impugned judgment is not sustainable in the eyes of law. In support of his contention, he relied upon "Abdul Razzak v. The Collector of Customs and another (1995 CLC 1453).
6. He further urges that Member Board of Revenue is duty bound to decide the lis between the parties as its observation is binding upon his subordinates. The Member Board of Revenue has erred to render observation in its order dated 22-10-1987 which was not in consonance with the terms and conditions and the lis before him, therefore, the same is not sustainable in the eyes of law. In support of his contention, he relied upon "Noorwar Jan v. Senior Member B.R. N.-W.F.P. (PLD 1991 Supreme Court 531). He further urges that Principle of res judicata is not attracted in the case in hand. In support, he placed reliance on "Sultan Ali v. Khushi Muhammad" (PLD 1983 Supreme Court 243 ). He further urges that learned High Court had also erred in law to dismiss the Constitution Petition on the Principle of laches which did not accrue in this case in view of the controversy arising between the parties. He placed reliance on "Pakistan Post Office v. Settlement Commissioner and others "(1987 SCMR 1119).
7. Learned Law Officer has supported the impugned judgment and stated that predecessor-in- interest of the petitioners as well as the petitioners had violated the terms and conditions as evident from the contents of the impugned orders. The observation of the Member Board of Revenue is binding upon the Collector. The impugned order dated 22-10-1987 had attained finality as the petitioners had not challenged the vires of the order of the Member Board of Revenue before any higher forum with regard to the observations made by the Member Board of Revenue in para- 5 or the order dated 22-10-1987.
8. We have given our anxious consideration to the contentions raised by the learned counsel for the parties.
9. It is admitted fact that in the earlier round of litigation the question before the Member Board of Revenue was with regard to the resumption. The observation made by the Member Board of Revenue in order dated 22-10-1987 had no relevancy whatsoever with the lis before him. It is also not in consonance with the terms and conditions agreed between the parties on 31-10-1952. The word observation has been interpreted in Muhammad Ismael Zafar's case (PLD 1967 Karachi 22), relevant paragraph is reproduced herein below:-- "This is therefore, not a case in which the later order of Government was cancelled and the further point that had this order of remission been put into effect and the petitioner released it could not in such circumstances be cancelled thereafter is a hypothetical consideration and not one based upon the actual facts of the case. This hypothetical considerations cannot take the place of law declared and applied and hence we are not inclined to place any reliance upon such suppositious cases."
10. The learned Member Board of Revenue in the earlier round of litigation has given observation without application of mind therefore, that observation particularly in a case of resumption did not create B hindrance in the way to the authority to decide the application of the petitioners qua proprietary rights which lis is now before us. This fact shows that Member Board of Revenue has given observation which is not in consonance with the law laid down in Noorwar Jan's case (supra).
It is settled Principle of law that each and every public functionary is duty bound to decide the cases in accordance with law as the dictum laid I down by this Court in Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others "(PLD 1987 Supreme Court 447). The order dated 22-10-1987 of the Member Board of Revenue had given observation without application of mind and in terms of the law laid down by this Court in Noorwar Jan's case (supra).
The word per incuriam means "carelessness" as held by this Court in "Sindh High Court Bar Association v. Federation of Pakistan"(PLD 20091 Supreme Court 879). It is also settled Principle of law that once the Court has come to the conclusion that the judgment was delivered per incuriam.
Such judgment itself is without jurisdiction as per incuriam, therefore, learned High Court erred in law to give due weight to said observation without application of mind. It is settled maxim that laws of the land must be in the sleeves of the Judge. This fact alone is sufficient that the learned High Court had decided the Constitution Petition without proper application of mind which is not in- consonance with the law laid down by this Court in the following case:-- "Mollah Ejahar Ali v. Government of East Pakistan and others" (PLD 1970 Supreme Court 173)
"Gouranga Mohan Sikdar v. The Controller of Import and Export and 2 others" (PLD 1970 Supreme Court 158)
11. It is pertinent to note that even the public functionaries are duty bound to decide the cases after application of mind after addition of section 24-A of the General Clauses Act whereby the Judicial Officers F are duty bound in terms of the dictum laid down in the aforesaid judgments to decide the cases after application of mind. We have thoroughly examined the impugned judgment. The learned High Court had decided the case without application of mind and without adverting to the law declared by this Court in various pronouncements. In the aforesaid judgment, by this Court has laid down the following Principle:- "The ratio of the aforesaid principle on the basis of the mentioned judgments is that decisions rendered without reference to crucial words of rule and without any citation of authority are not binding and would not be followed".
12. The observation in Para-5 in the order of the Member Board Revenue dated 22-10-1987, the last two lines are reproduced as under:-- "However the petitioner cannot claim proprietary rights or otherwise alienate the properties."
13. It is settled principle of law that decision which is not based on reason is not judgment in the eyes of law. The following are three basic ingredients of every decision:--
(i) Findings of fact both direct and inferential.
(ii) Statement of principles of law applicable to the legal terms disclosed by the facts.
(iii) The judgment passed on the combined effect of the above ingredients.
14. In other words, the word decision or decisions means decision of Court only when it fulfills the following three conditions:--
(a) It decides a question of law.
(b) It is passed upon the basis of law.
(c) It enunciates a principle of law.
15. It is proper to note here that the said observation had no nexus with real lis qua resumption order and had also no nexus with the other parts of the order dated 22-10-1987. It is settled law that order must be read as a whole if we read the order as an organic whole, then the said observation had no connection with other part of the order.
16. In view of aforesaid discussion, the abovementioned two lines of para-5 of order dated 22-10- 1987 of Member Board of Revenue are set aside.
17. Learned High Court has also erred in law to observe that the petitioners had filed constitution petition after a considerable delay without analyzing and keeping in mind the facts as mentioned hereinabove. In the earlier round of litigation as mentioned above, the issue was with regard to the resumption of the land in question from the petitioners or their predecessor-ininterest whereas the present controversy relates to grant of proprietary rights.
18. For the foregoing reasons, all the orders of the Tribunals below. Collector, Member Board of Revenue and impugned judgment are set aside. The petition is converted into appeal and allowed.
The result is that application filed by the petitioners before the Collector on 23-5-1990 for grant of proprietary rights shall be deemed to be pending adjudication. The Collector shall decide the same in accordance with law without influence of aforesaid observation of order dated 22-10-1987 mentioned above and strictly in accordance with law.