' ABDUL SATTAR GORAYA, J.- By means of this Constitutional petition, order dated 12-11-2007 passed by the learned Member (Judicial-IV), Board of Revenue, Punjab, Lahore, has been brought under impeachment. A
2. Facts as steamed out of the record are that the petitioner's father was a permanent Lambardar of Chak No,l7/D, Tehsil Depalpur District Okara who joined majority and after his death the District Collector vide order dated 22-1-2003 directed to fill in the post and invited fresh applications. The District Collector appointed Muhammad Khalid Farooq, an adversary of the petitioner, as Lambardar on 4-9-2003. Petitioner and Javed Akhtar (one of the contestants) challenged the said order before the Executive District Officer (Revenue) through two separate appeals who accepted the appeal of the petitioner on 10-2004 while dismissed that of brought by Javed Akhtar. In due course of time, Javed Akhtar filed a revision petition before the Board of Revenue whereas Muhammad Khalid Farooq filed a review petition before the EDO(R)^ Lahore who vide order dated 9-7-2005 disposed of the review petition with the observation that interference is not possible by him because the other contesting candidate has gone in revision before the Board of Revenue. Two revision applications, one ROR No, 1962/04 titled, "Javed Akhtar v. Muhammad Yasin and another" and the other, "Muhammad Khalid Farooq v. Muhammad Yasin and another", were decided by Mr. Athar Tahir, Member (Judicial-IV), Board of Revenue through a consolidated order. Both revision petitions were dismissed vide order dated 15-11-2006. Resultantly, the choice of the EDO(R) in favour of the petitioner was maintained. Muhammad Khalid Farooq respondent No,l brought a review petition bearing No, 53/07 before the Member (Judicial-IV), Board of Revenue to challenge the order dated 15-11-2006 fundamentally on the ground that he stands on a better position and the order of the Member, Board of Revenue on its face value was illegal. Learned Member (Judicial- IV), Board of Revenue vide his order dated 12-11-2007 again discussed the meritorious position held by the respective candidates and in exercise of his power under section 8 of the Board of Revenue Act reviewed the order dated 15-11-2006 of his predecessor officer. Resultantly, respondent No,l was appointed as Lambardar against tlie post, which fell vacant on demise of petitioner's father.
3. Learned counsel for the petitioner contends that the order passed by the learned Member Board of Revenue on its face value in purported exercise of his power under section 8 of the Board of Revenue Act is clearly without jurisdiction, g Bitterly argued that petition of review before the learned Member Board of Revenue was hopelessly barred by time. Therefore, he could neither entertain the review petition nor the same could be accepted without crossing the hurdle of limitation. It is further argued that scope provided by review was of a limited nature and until it is shown that there was q an error apparent on the face of record, the power could not be exercised and the indulgence shown by the learned Member (Judicial-IV), Board of Revenue is patently illegal and without lawful authority.
4. Conversely learned counsel for respondent No,l states that the order passed by the learned Member Board of Revenue in review petition is rich in detail and no part of the controversy has been left unattended. Therefore, on consideration of available record, he recorded a correct finding by which respondent No,l was appointed as a Lambardar. Further argued that the Land Revenue Rules are not mandatory in nature and the same simply provide guidelines to the Revenue hierarchy to follow.
5. I have heard the learned counsel for the parties at considerable length. Available record perused.'
C ' This is a common ground between the two contestants that the review petition under section 8 of the Board of Revenue Act was filed on 3-4-2007, on the top margin of which, the Member Board of Revenue recorded an order directing the office to issue notice to the parties for hearing at Lahore and the next date so fixed by the office was 18-4-2007. Review petition was not accompanied by an attested copy of the order 15-11-2006 sought to be reviewed. When questioned, learned counsel for respondent No,l states that the order was announced by the Member, Board of Revenue on 15- 11-2006 but the same was not recorded and driven by force of circumstances keeping in view the acute urgency involved, the application for review was instituted without certified copy of the order.
Adds that there is no requirement in law that an attested copy of the impugned order should accompany the memorandum of review. He clarified the position that when the order became available, the certified copy of the order dated 15-11-2006 was brought on the record. Respondent No,l applied for a certified copy of 16-11-2006, which is shown to have been prepared on 17-4-2007 and on the same day it was received. The review application was instituted on 4-2007. The plain reading of section 8 of the Board of Revenue Act discernibly provides that the language implied in the said section is similar to Order XLVll of the Code of Civil Procedure. There is no material change or difference between the two. The proposition of law is too settled to admit any debate that the review application could be filed without there being a certified copy and if the petitioner or some one filed the review application accompanied by a certified copy of the order sought to be reviewed, the period spent in obtaining the copies of the said order shall be excluded and if the review petition, as in the case in hand, was filed without certified copy and the order became available thereafter, the period spent in getting the copy shall not be excluded and considered to the benefit of the review petitioner. This question came-up for consideration before the apex Court in Ahmad Din v. Mst. Styran Bi and others (1980 SCM R 959) wherein the controversy was set at rest.
The relevant paragraph of the judgment reads: "Additionally, there is another difficulty in the way of the petitioner on which we have not received assistance on the footing that the petitioner's revision was maintainable it had to be filed under Article 162 of the First Schedule of the Limitation Act within twenty days from the dismissal in limine of the petitioner's revision application. Instead it was filed nearly three months later without any application for condoning the delay in filing the review application. However, in his application for condoning delay in this Court the petitioner has stated that his petition for leave is in time if time is reckoned from the date of the delivery of the impugned orders to him. And, his further contention is that he had applied for a certified copy of the High Court's order dismissing his revision on the very day on which the revision was dismissed and that this copy had been delivered to him on 11-1974, therefore his petition for leave was in time as it was filed on 7-12-1974. The question, however, is whether the petitioner's review application was within time in the High Court and on the piain language of Article 162 it was grossly time- barred. Now, as far as we can see, it is in order to overcome this difficulty thai the petitioner has pleaded that the time for obtaining the certified copy of the High Court's order of 29-3-1974 should be excluded. But, this certified copy was obtained on 27-11-1974, whilst the review application was filed on 24-6-1974. This means that the review application was filed without supplying the Court a certified copy of the order which was sought to be reviewed and on examining the High Court's record that appears to be the position.
Therefore, as the petitioner did not file a certified copy of the High Court's order of 29-3-1974 in support of his review application, it is clear that the time taken by him in obtaining this certified copy was not time which was required within the meaning of section l2 of the Limitation Act for filing a time-barred review application in the High Court. Therefore, the review application merited dismissal on the further ground that it was grossly time- barred and as it was time-barred the question of granting leave does notarise".
7. The main reason which weighed with the learned Member Board of Revenue in reviewing the order passed by his predecessor was that on meritorious position respondent No,l stands on a better position. The scope and grounds to which the review of an order has been specified by subsection (1) of section 8 of the Board of Revenue Act is that the period specified for review application is computed from the date of order or decree passed and section 5 of the Limitation Act has not been made applicable to the review application. Therefore, in any case the review should be filed within 90 days from the order and the delay in filing such application, cannot be condoned by applying section 5 of the Limitation Act. The learned Member Board of Revenue could not embark upon to discuss the merits and demerits of the case until he crosses the hurdle of limitation. The power of review emanates from the Statute and if not provided, the power cannot be exercised for any consideration in view of reiteration in Muzaffar Ali v. Muhammad Shaft PLD 1981 SC 94 and Brig. H.H. Nawab Muhammad Abbas Khan Abbasi, Ameer of Bahawalpur v. The Government of Pakistan and others PLD 1984 Supreme Court 67. Power to exercise in fact, emanates from the Statute and therefore, it has to be exercised within the four corners of the conditions and limitations provided by the Statute conferring power to exercise and this power is only available subject to the rider clause that the petition should be instituted well within time, which in the present case was 90 days from the order passed by the predecessor Member Board of Revenue.
8. The other main reason which weighed with the learned Member Board of Revenue is that respondent No,l had a better meritorious position and good record to be appointed as a Lambardar. The reasons which are embodied in the impugned order were mooted before the learned predecessor Member Board of Revenue who noted down in the impugned order but for the sake of brevity when he was sitting in revisional jurisdiction, dismissed the revision petition with the observation that the order passed by the Additional Commissioner was not suffering from any illegality or point of jurisdiction. There was no discovery of new and E important facts, which respondent No,l could not brought on the record of the learned Member Board of Revenue who passed the order in revisional jurisdiction. The power conferred upon the Member Board of Revenue under section 8 of the West Pakistan Board of Revenue Act, 1957 does not empower the successor Member to rehear the matter on merit because he was not sitting in appeal or in a visitorial jurisdiction to correct the error in the order passed by the successor Member. This power could be exercised solely and only where there is a mistake or error of law or fact apparent on the face of record and to find-out error has not to scrutinize the record or evidence but it should be self- evident from perusal of the record itself and it can be pointed out within elaborate examination.
Insignificant error will also not furnish justification in law to interfere in the matter. Scope of review is completely different from the appeal or revision. Needless to say that while sitting in revision, not only the order passed by the Courts below but also the proceedings can be checked but this power is not available with the Court sitting in the jurisdiction of review until the error was in the nature which was floating on the surface of the record. In the case in hand, the review petition was hopelessly barred by time and neither the application for review could be entertained nor such delay can be condoned. I am fortified in my view by Muhammad Sharif v. Abdur Rashid Khan, Member Board of Revenue (Colony), Punjab, Lahore and 5 others 2004 CLC 1520, Muhammad Sh'fi v. The Member (Cons.), Board of Revc 1 and 2 others 1995 CLC 966 and Anjuman-e-Falah-e- Abadkaratn v. Chief Administrator Auqaf, Government of Sindh and 2 others 1987 CLC 1385.
9. Learned counsel for respondent No,l while relying upon Ghulam Hussain v. Ghulam Muhammad and another 1976 SCM R 75 contended that West Pakistan Land Revenue Rules, 1968 are merely directory in nature and provides a guideline for choice of successor Lambardar and it does not create any vested right. The said judgment was considered in Noor Muhammad v. Member (Revenue) Board of Revenue, Punjab, Lahore and 5 others 1988 CLC 154 in which the principle of law laid down in the said judgment was mooted and discussed but in circumstances of the case, it was held that because of pronouncement of the judgment in Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447, the position stood changed and whenever there is violation of the statutory Rules, the interference in the matter of appointment of Lambardar is possible. The view taken by the learned Single Judge of this Court also found favour with the apex Court in Haji Noorwarjan v. Senior Member Board of Revenue, N.- W.F.P. Peshawar and 4 others PLD 1991 SC 531. Much emphasis was laid by the learned counsel for respondent No,l that in view of reiteration in Mst. Shah Begum through Legal Heirs and others v.
Province of Sindh through Deputy Commissioner, Sukkur ana others PLD 2002 SC 696, it has been wen settled that in exercise of writ jurisdiction, the High Court ordinarily does not interfere in me finding of fact recorded by the Courts below and a Tribunal created unr'er the provisions of law unless such findings are arbitrary, perverse or based on misreading of evidence. In the case in hand, the question has been confined only to the extent of jurisdiction of the Member Board of Revenue and the jurisdiction vested with the said Member Board of Revenue sitting at the apex in the revenue hierarchy under section 8 of the Board of Revenue Act. The reasons on which the learned Member Board of Revenue proceeded to interfere in the order passed by the learned successor Member Board of Revenue and the Executive District Officer (Revenue), are not permissible in law and for those reasons, the power of review could not be exercised. Although, it is an administrative function of the Revenue Officer to appoint suitable Lambardar of the basis of their rich experience and the view of the superior Courts prior to 1988 was somewhat different in which the Courts always remained reluctant to interfere in the matter purely of administrative nature but on account of attachment of I0O Kanals of land with the said office which with the passage of time has now been declared to be non- scheduled tenancy because the proprietary rights are being conferred on the allottee of the Lambardari Grant, the matter had stolen more importance and it appears that it is for this conspicuous reason, the trend of the authorities have now been changed. According to the view taken in Haji Noorwarjan v. Senior Member Board of Revenue, N.-W.F.P. Peshawar and 4 others PLD 1991 SC 531, it is not possible for this Court to substitute its view and after correcting error in the judgment, the matter should be remitted to the Member Board of Revenue for decision afresh but in the case in hand, the proposition of law is entirely different and the issue is confined only to the extent that as to whether the petition was barred by time or not and if it was found to be barred by time, the jurisdiction was available with the Member Board of Revenue either to entertain the petition or to condone the delay, the issue has been answered in negative. Because the factual inquiry is not involved in the case in hand, I am not inclined to send the matter to the learned Member Board of Revenue again.
10. For whatever it has been stated above, this petition is accepted and the impugned order dated 12-11-2007 passed by the learned Member (Judicial-IV), Board of Revenue is declared to be without jurisdiction, without lawful authority and of no legal affect. No order as to costs.