SHAFI-UR-REHMAN, J.-These two Civil Appeals raise common questions of law, viz., the scope of powers of Review enjoyed by the Board of Revenue and the true construction of the Government instructions on the transfer of Tharas by sale in the town of Sargodha.
2. One Mangal Das was the purchaser of shop sites in the colony town of Sargodha from the Government. After the construction of the shops by him he was granted by the Government .The beneficial enjoyment of the Tharas, or the open spaces, owned by the Government but forming projections appurtenant to the shops. He had worked out his own demarcations of the Tharas and let out the shops to various persons along with the Tharas. Though the shops belonged to the evacuee the Tharas remained the Govern--ment property. Notwithstanding this, the Settlement Department in the first round auctioned the shops along with the Tharas as demarcated and let out by the evacuee. In this manner Shop No. 125 along with the Thara Site -126 already converted into a shop and a portion of Thara No. 127 given No. 127/1 forming one unit was auctioned in favour of Siraj Din, the brother of Bashir, whose parents jointly held the tenancy under the evacuee in respect of this very portion of the property. Similarly another portion of the Thara No. 127 given No. 127/3 along with the Shop No. 128 was purchased by Ashraf. The third Portion of Thara No. 127 given No. 127/2, which was in possession of Dost Muhammad, a tenant under the Government since before Partition and not in possession of the owner or tenant of any other adjoining shop was left untouched by the Settlement Department. These auctions were not confirmed, so far as the Tharas or portions thereof were concerned. Such a disposal of the evacuee shops, however, remained intact.
3. The disposal of Thara Site 127 which had been completely built up was taken up in the office of Deputy Commissioner, Sargodha. This Thara already stood divided into three portions. Thara No. 127/1 was in possession of Bashiruddin and others since 1943. Ashraf was in possession of Thara No. 127/3. The third portion Thara No. 127/2 was in occupation of one Dost Muhammad, a tenant under the Government since before Partition. The Colony Assistant in his report dated 27-5-1965 proposed the sale of the Portion 127/1 to Bashiruddin, Sirajuddin with whose shop it had been amalgamated since 1943 and the rest was proposed to be transferred to Ashraf, the transferee of shop 128 ousting Dost Muhammad altogether from the area.
4. The matter came up before the Deputy Commissioner and Collector of Sargodha on 16-10-1965.
The Collector after hearing the parties allowed Dost Muhammad to continue as a tenant of the Government on Thara Site 127/2 and confined the claim of Bashiruddin to 127/1 and of Ashraf to 127 /3.
5. Ashraf, Bashiruddin and heirs of Siraj Din appealed against this order and the appeals were directed against the order of the Collector in so far as it allowed Dost Muhammad to continue indefinitely as lessee of the State land on payment of the usual rent of Thara No. 127/2. The Additional Commissioner came to the conclusion that shop 125 had a Thara 126 in its front which Sirai Din and Bashiruddin had got. They were, therefore, not of Thara Site 127 and the Portion 127/1 which was allowed to Bashiruddin was taken away and giver, to Ashraf. As regards the claim of Dost Muhammad it was held that "if Dost Muhammad had net been allotted any building then he cannot be considered for the purchase of this Thara Site and cannot also be given the lease for an indefinite period as only Commissioners are competent to lease out such sites for a period of five years".
6. Bashiruddin and the heirs of Siraj Din then preferred a revision petition before the Board of Revenue. Ashraf also filed a revision petition in so far as he had been deprived of a portion of the Thara in possession of Dost Muhammad. Both these revisions were disposed of by Mr. Hassan Turab Ali, Member, Board of Revenue on 28-6-1968. He came to the conclusion that: "The predecessor-in-interests of Bashiruddin petitioner had purchased Shop 125 together with Thara 126 from the Rehabilitation Department for a sum of Rs. 39,000. Thara site No. 127/1 is in front of this site.
The petitioner Muhammad Ashraf is also transferee of the shop site to which Thara Site No. 127,/3 is attached and had paid more or les similar amount to the Rehabilitation Department as Bashiruddin etc. From the sketch map before me, and a perusal of the file. I find the Bashiruddin etc. Have Thara Site 127/1, as the frontage of their shop, Muhammad Ashraf petitioner has Site No. 12.7/3 as the frontage of their --shop, and Dost Muhammad is in possession of Site No. 12712 only."
The Member, Board of Revenue, on this finding restored the order whereby Bashiruddin got 127/1 and Ashraf got only 127/3. Dost Muhammad was allowed to continue as Government tenant on Thara No. 127/2.
7. Muhammad Ashraf sought review of the order of Mr. Hassan Turab Ali, Member, Board of Revenue, under section 8 of the West Pakistan Board of Revenue Act, 1957. Mr. A. A. Ansari, the succeeding Member, Board of Revenue, found that Thara Site 127/1 was not in front of Bashiruddin's shop. It was in front of Ashraf's Shop No. 128. This appeared to the learned Member, Board of Revenue "self evident" and "admitted of no contradic--tion". Similarly it was found to be "wrong to allot Site No. 127/2 to Dost Muhammad" because Dost Muhammad had got no shop behind this site.
The order was reviewed and he directed that ail three Sites 127/!, 127/2 and 127/3 should be transferred/sold to Muhammad Ashraf petitioner pursuant to the instructions contained in Government memoranda.
8. Two Constitutional petitions were filed against this order, order by Bashiruddin and heirs of Siraj Din (W. P. No. 304/69) and the other by Dost Muhammad (W. P. No. 376/69). Both were directed against the order passed in review. The learned Judge in the High Court held that there was no mistake or error of fact or law apparent on the face of record nor was there any other jurisdictional fact present to justify a review of the order of Mr. Hassan Turab Ali by another Member, Board of Revenue, and consequently be could not exercise powers of review. Besides, according to the learned Judge the order impugned before him had been passed as if it were an appeal or a revision and amounted the rehearing of the case which could not be done by way of review. As regards the merits of the claim of the parties, it was found that the dispute was restricted to the three portions of Thara 127 acid did not extend to any other property. For this reason reference to and orders with regard to the disposal of shop/Thara 126 were held to be outside the purview. The learned Judge also found that the words "behind" and "front" appearing in the instructions have been employed to convey the same meaning i.e. If the entrance of a shop is behind Thara or if a Thara is front of the entrance of a shop, it should be sold to the owner of that shop." Ap--plying this principle Ashraf's claim was confined to 127/3, Bashiruddin's claim to Thara Site 127/1 was recognized with the following observations :- "Even if Site No. 126 was originally a Thara belonging to the Provincial Government, the Colony Department did not claim its ownership and the present dispute relates only to the disposal of Thara 127. However, Thara 127/1 has remained in possession of Bashiruddin etc. Petitioners and their shop has access through it from the right side. Hence it constitutes the frontage of Shop No. 125/126 and Bashiruddin etc. Petitioners are entitled to purchase the same under the instructions."
As regards the claim of Dost Muhammad, the learned Judge in the High Court found that he was in possession of the Thara 127/2 which did not constitute the frontage of either Shop No. 125/126 or of Shop 128. The instructions were found to be silent, but in view of the construction raised Dost Muhammad was found entitled to its transfer.
9. Ashraf is the appellant before us in two appeals. One of his appeals is directed against Dost Muhammad and the other against Bashiruddin. He challenges the order of the High Court in so far as it restricts his entitlement to Thara 127/3 and it deprives him of aright to purchase the other portions of Tharas 127 viz. 127/1 and 127/2. The argument advanced is that the instruc--tions of the Government dated 30th October 1936 were explicit that the sale could only be made to an occupier and the word occupier was given a special meaning in the same instructions as the "person to whom the building behind the Thara belongs". On this definition, the order of Mr. Hassan Turab Ali suffered from a mistake apparent on the face of the record making it review-- able. In passing the impugned order the High Court ignored the effect of this definition. The impugned order of the High Court, according to the learned counsel, suffered from the same defect because if the definition is given full effect neither Dost Muhammad nor Bashiruddin could have claimed any portion of Thara 127.
10. The Government policy with regard to Tharas in front of shops and houses in Sargodha Town is not contained in one document but in a series of circulars which issued during the period 1924 to 1967. Copies of five such circulars have been placed on record. The circular letter dated 21-11-1924 conveyed the sanction of the Governor-in-Council to the sale of the land under the Thara in front of shops and houses in Sargodha Town outright to owners of the shops and houses at the prices proposed by the Deputy Commissioner, Shahpur. In case no such purchases were made rent calculated at 1/6th of the price fixed was to be collected from 1-1-1925. Circular letter of 1936 incorporates the instructions contained in earlier circular dated 14-3-1934 and consolidates the instructions on the subject. The persons who had built upon Thara sites were required to pay for these sites at the same rate as they or their predecessors paid for the sites behind the Tharas on which houses and shops had been constructed. With regard to the Thara sites not built on the Deputy Commissioner was to make a recommendation whether they should be sold to the owners of the building in front of which Tharas exist. The Municipal Committee was to assess and collect a moderate rent per annum per Thara on Tharas which were not built over. The Tharas having immovable structure on it were to be regarded as built on. In prescribing the procedure for doing the needful it was indicated that notice should be given to each occupier of the Thara to be sold and the occupier was to mean the person to whom the building behind the Thara belonged. A final decision by the Government was to be taken in respect of the Tharas not yet built on and in the meantime the Municipal Committee was to continue to assess and collect a moderate rate of rent per Thara per annum from the occupiers.
The right to purchase the Tharas was extended by the circular dated 6-2-1940 and the conditions of sale with regard to the price and interest for delayed payment were modified.
By a circular letter dated 4-9-1967 the Government of West Pakistan accorded sanction to the sale by private treaty of the Thara sites in front of the shops and the houses in Colony Towns of Sargodha District in favour of owners of respective shop/house at the rates indicated.
11. The scheme of the instructions was that the Tharas were to be divided into two categories those which were built on and those which were not built on. In respect of the Tharas built on complete instructions had already issued and what was reserved was the determination of the policy with regard to Tharas not built on. Further, the disposal of the Tharas was to take place in accordance with the state of building or construction at the time when the particular instruction came into the field 'and the question of their disposal was taken up. The subject-matter of the circulars, namely, the Tharas or projections appurtenant to the shops or houses itself suggested that these were small pieces of land serving as adjuncts. The instructions governing the disposal of built on Thara sites were of pre-Partition period. They envisaged a purchaser of the site for shop or house and the same purchaser was the grantee of the rights in the Thara in front of the purchased site, who for the beneficial enjoyment of the site purchased had built on the Thara. To eliminate the intermediary, not deriving any interest from Government, but may be, from the purchaser grantee, occupier was defined to mean the person to whom the building behind the Thara belongs". The partition of the country broke the integrity of the holding of the purchaser grantee. The purchaser's interest at places became evacuee, the grant portion remained non-evacuee. At first the distinction was not kept in view and disposal of the property took place irrespective of such a distinction. The position was thereafter retrieved. Other interests intervened. They could not be swept aside as if by a sidewind, without notice or hearing to the affected parties. It was this background of events that the instructions came up for interpretation and application.
12. From these instructions three principles for disposal of built on Tharas could possibly be gathered. First, that the Tharas were to go with the shop or house in front of which they were located. Second, that they were to go with shops or houses which were located behind the Tbaras requiring disposal. The third, that the Tharas were to go' with properties of which they formed the frontage. No better example than of Shops Nos. 125 and 128 discussed in these proceedings can be given to bring out the con--ceptual and operational distinction of each of these principles. Thara No. .126 is m front of Shop No. 125 but Thara No. 126 along with Thara 127/1 formed the frontage of Shop No. 125 since 1943, i. e. When Shop No. 125 was let out along with Thara 126 and Thara 127/1.
Tharas No. 127/1 and 127/2 were not in front of Shop No. 128 though Shop No. 128 was behind Tharas Nos. 127/1, 127/2 and 127/3. The frontage of Shop No. 128. Was confined to Thara 127/3.
13. Mr. Turab Ali, Member, Board of Revenue followed and the High Court approved the principle of frontage. Mr. Ansari, the other Member Board of Revenue, followed the second principle of locating the property at the back of the Thara requiring disposal. The extracting of a principle from series of instructions would be an exercise in interpretation of documents and not a determination of fact.
There is no error in the actual application of the frontage formulate to the case of the parties. The entire dispute is whether the frontage formula could be justifiably extracted from the instruc--tions and applied to the case of the parties.
14. The very first instructions dated 21-11-1924 show that the instruc--tions dealt with "land under Tharas in front of shops and houses". The disposal of un-built Tharas was to take place on the recommendation of Deputy Commissioner to the owners of the buildings in front of which Tharas exist". The instructions dated 4th September, 1967 conveyed the -sanction of sale of Thara sites in front of the shops and houses. Then there is the definition of occupier in the instructions of 1936 as the person to whom the building behind the Thara belongs. Mr. Turab Ali arrived at the conclusion that "Bashiruddin etc. Have Thara Site 127/1 as the frontage of their shop and Muhammad Ashraf petitioner has Site 127/3 as the frontage of his shop". Mr. Ansari looked at it from a different angle to hold that Thara Site 127/1 is not in front of Bashir Din's shop. It is on the other hand, in front of Muhammad Ashmf's Shop 128. " Further Mr. Ansari proceeded to hold that "it was wrong to allot Site No. 127/2 to Dost Muhammad, because Dost Muhammad has got no shop behind this site".
15. It is quite clear from the instructions that what was to be sold was the Thara in front of the shop/house. It was to be sold to the owner of the shop house behind the Thara. The front of Shop 12.5 comprised Thara 126 and part of Thara 127 given No. 127/1. This was so since 1943 when the predecessor-in-interests of Bashiruddin and Siraj Din got the tenancy of shop from Nagal Das and the position had continued. This Portion 127/1 never formed the frontage of the shop of Muhammad Ashraf though his Shop 128 was behind it. Similarly Thara 127/2 never formed the frontage of the shop of Muhammad Ashraf though his shop was behind it. Frontage created entitlement and properly so because it ensured and perpetuated the beneficial enjoyment of the purchased property of which the Thara formed the frontage. The other property which did not form the frontage was not necessary for the beneficial enjoyment of the property at its back, and no right to purchase it was given. This was the proper, the more sensible interpretation, advancing the object of the re--cognition of the right of the owner of the property located behind the Thara requiring disposal. Once the right of Ashraf was confined to Portion 127/3 and of Bashiruddin Sirajuddin to 127/1, it was none of their concern how the Thara 127/2 was disposed of. Dost Muhammad being a pre-Partition tenant of site belonging to Government could be dealt with separately and differently.
In this context Mr. Hasan Turab Ali took one view of the instructions, which could be taken, and simply because another view could be taken by another succeeding Member of Revenue, was no justification nor B provided the jurisdictional requirement- for review of the earlier order.
16. Section 8 of the Board of Revenue Act, 1957 after its amendment by Act XVIII of 1964 makes the jurisdictional requirement for review identical with Order XLVII, rule 1, C. P. C. The scope of latter provision came up for consideration in Chhajju Ram v. Neki and others(AIR 1922 P C 112). It was held that: "For it is obvious that the Code contemplates procedure by way of review by the Court which has already given judgment as being different from that by way of appeal to a Court of Appeal. The three cases in which alone mere review is permitted are those of new material overlooked by excusable misfortune, mistake or error apparent on the face of the record or any other sufficient reason'."
The expression "any other sufficient reason" was construed "as meaning a reason sufficient on grounds at least analogous to these specified immediately previously".
This question was clinched in Muhammad Amir Khan v. Controller of Estate Duty (PLD 1962 SC 335 ) at page 354 in the following words :-- "No mistake in a considered conclusion, whatever the extent of that mistake, can be a ground for the exercise of review jurisdiction ............ It is not because a conclusion is wrong but because something obvious has been overlooked, some important aspect of the matter has not been considered, that a review petition will lie."
It is clear therefore that power of review, limited as it is, was not available to any Member of the Board of Revenue for setting aside the order of Mr. Hasan Turab Ali and substituting it by an order as was passed by Mr. Ansari.
17. The other question whether a succeeding Member, Board of Revenue, could at all review the order of his predecessor, was not disputed by any of the parties to this litigation. Such a power was conceded and, we think rightly in view of the definition of Member, in clause (iii) section 2 and the provision made in subsection (2) of section 6 of Board of Revenue Act, 1957 that "Any order made or a decree passed by a Member shall be deemed to be the order or decree of the Board".
18. The result of the foregoing discussion is that both the appeals fail and are hereby dismissed. In the circumstances of the case no order is made as to costs.