' IBAD-UR-REHMAN LODHI, J.---On demise of Nawab Din, who was a Lambardar of Chak No.29-D, Tehsil Depalpur, District Okara, on 17-12-2003, the Revenue Authorities proceeded to appoint his successor in office and for that purpose, originally 31 candidates applied and when 21 out of the original applicants withdrew from their such candidature, the remaining 10 were considered and Tehsildar Depalpur on 13-8-2004 recommended Muhammad Aslam, the son of deceased Lambardar to be appointed. These recommendations were approved by the District Officer (Revenue), when on 15-12-2005 Muhammad Aslam was ordered to be appointed as Lambardar of the said chak. Such appointment was challenged in 07 different Appeals before the Executive District Officer (Revenue), Okara, who took up all the Appeals together on 27-12-2006 and proceeded to dismiss all of those, confirming the appointment of Muhammad Aslam as Lambardar.
2. Only one unsuccessful appellant before the E.D.O.(R) preferred a Revision Petition under section 164 of Land Revenue Act, 1967, which was dismissed by the Member Judicial (III) in Board of Revenue Punjab, Lahore on 7-10-2008.
3. Still dis-satisfied with the findings in revision, respondent Nazir Ahmad sought review of the order dated 7-10-2008 within the meaning of section 8 of West Pakistan Board of Revenue Act, 1957.
Another Member Judicial heard the review and vide order dated 27-5-2010 allowed the same and all earlier orders appointing and confirming such appointment in favour of Muhammad Aslam as Lambardar were set aside.
4. This time, it is Muhammad Aslam, who has challenged the vires of the order passed in review on 27-5-2010 through the present constitutional petition.
5. In support of the petition, learned counsel for the petitioner Mr. Jehangir Akhtar Jhojha, Advocate, has mainly argued that keeping in view the powers given to the Reviewing Authority, the Member Judicial sitting in Board of Revenue was having no jurisdiction to reopen the matter after re- hearing the arguments on merits. Learned counsel is of the view that there is very limited scope in review and that must be exercised keeping in view the restraints and fetters of review, either provided under Order XLVII, C.P.C. Or section 8 of West Pakistan Board of Revenue Act, 1957.
6. Conversely, Malik Noor Muhammad Awan, Advocate, appearing for respondent No.1, mainly argued his case on merits and highlighted the disqualifications attached with the petitioner, disentitling him to the appointment of Lambardar. Learned A.A.-G. Has placed reliance on the comments furnished by respondent No.8.
7. I have heard learned counsel for the parties and have gone through the record.
8. Admitted position is that the authorities in Revenue Hierarchy have unanimously not only recommended the appointment of the petitioner as Lambardar and throughout respondent No.1 has been contesting such appointment, but without any favourable result. In general law i.e. The Code of Civil Procedure, 1908, the remedy of review has been provided under Order XLVII Rule 1 read with section 114, which are reproduced here under for ready reference:-- "114. Review. Subject as aforesaid, any person considering himself aggrieved---
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred.
(b) by a decree or order from which no appeal is allowed by this Code, or
(c) by a decision on a reference from a Court of Small Causes; may apply for a review of judgment to the Court which passed the decree or made the order, and Court may make such order thereon as it thinks fit.
(2) Nothing contained in subsection. (1) shall apply to a review of any judgment pronounced or any order made by the Supreme Court.
Order XLVII (REVIEW)
(1) Application for review of judgment.---(1) Any person considering himself aggrieved---
(a) by a decree or order from which an appeal has been preferred.
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, 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 note be produced by him at the time when the decree was passed or order made, 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 decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.
(2) A party who is not appearing from a decree or order may apply for a. Review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review."
9. The remedy of review in West Pakistan Board of Revenue Act, 1957, separately provided by virtue of section 8 thereof, which reads as under:--
(8) Review of orders passed by the Board.---(1) Any person considering himself aggrieved by a decree passed or order made by the Board 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 decree was passed or the order was made, 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 decree passed or order made against him may apply to the Board for a review of judgment and the Board may, after giving notice to the parties affected thereby and after hearing them, pass such decree or order as the circumstances of the case require.
(1) Every application for a review of a decree or order under subsection (1) shall be made within ninety days from the date of that decree or order.
' From the perusal of above provisions of law, it is abundantly clear that a person considering himself aggrieved by a decree passed or order made, 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 under review was made or on account of some mistake or error apparent on the face of the record, may seek review of the order or judgment passed.
10. If the contentions of learned counsel for the petitioner are tested on the above touch stone, it would be the result that respondent No.1 in review was failed to meet the requirement of law for a successful review. The honourable Supreme Court of Pakistan in the case of Sh. MEHDI HASSAN v.
PROVINCE OF PUNJAB through Member, Boatel of Revenue and 5 others (2007 SCM R 755), has authoritatively held that points already raised and considered by Court could not be re-agitated in review jurisdiction. This Court in the case of MUHAMMAD AMIN and 7 others v. MEMBER (CONSOLIDATION), BOARD OF REVENUE, PUNJAB, and 3 others (1992 CLC 2338) while dealing with the subject of review under section 8 of West Pakistan Board of Revenue Act, 1957 has held that the power to review being limited, Member Board of Revenue is not competent to set aside the order passed by his predecessor and substitute it by his own order, for, there had neither been any discovery of new or any important matter or evidence, which, after exercise of diligence was not within respondent's knowledge or could not be produced at the time when earlier order was passed nor order passed in earlier round suffered from any mistake or error apparent on the face of the record. Dealing the proposition from another angle, the honourable Supreme Court of Pakistan in the case of MUHAMMAD DIN and 2 others v. MUHAMMAD AMIN and 8 others (PLD 1994 S.C. 288), has provided the guidelines as to what would be the scope of review and held that the jurisdiction of review was not to be mistake with appeal and where the review petition was allowed in absence of a discovery of new or important matter for evidence, the High Court's view was upheld whereby the order passed in review by the Board of Revenue was set aside. This Court again in, case of Malik AHMAD KHAN v. DISTRICT RETURNING OFFICER, JHANG and 3 others (2005 CLC 1935), while dealing with the subject of review has held, that review could not be made a pretext for re-arguing whole case and matter could not be re-opened under the garb of review application and that for a review, the grounds mentioned in the enabling provisions must be taken into consideration.
11. It is thus clear that the review under the provisions of section 8 of West Pakistan Board of Revenue Act, 1957, would not at any cost amount to an appeal and the Board reviewing the order would not be permitted to sit in judgment on its own order or that of a predecessor in office, particularly when all the grounds taken in the review stood already agitated upon, in the order under review, the. Board would have no option to give findings on those grounds afresh without first establishing whether there was any apparent mistake or error in the order sought to be reviewed.
12. Learned counsel for the respondent by placing reliance on the judgment in Shariat Appeal No.69 of 1992 MAQBOOL AHMAD QURESHI v. THE ISLAMIC REPUBLIC OF PAKISTAN (PLD 1999 S.C. 484), has tried to attack the appointment of the petitioner as Lambardar by maintaining that considerations as have been provided in Rule 17 of West Pakistan Land Revenue Rules 1968 including the hereditary claim of the candidate has been declared as repugnant to the injunctions of Islam, therefore, the appointment of the petitioner on that score also was not legal. The honourable Supreme Court of Pakistan in that reported, matter has no doubt has given some observations on the hereditary claim, but has not completely put a bar on such appointments. The relevant portion dealing with the subject in the said reported view is reproduced hereunder:-- "The objection with regard to provision of hereditary claim amongst other factors to be considered in matter of appointment under Rule 17 is without merit as this rule provides the relevant considerations which .The Collector is to keep in view while making selection of the most suitable persons amongst the candidates. The cause to raise objection in respect of this Rule arose as the officer in the graded hierarchy of the Revenue adminis- tration in their judgments came to accord "hereditary claims", overriding effect, as against other considerations of area, tribe, community etc. If" hereditary claim" is taken only as one of the relevant considerations, as contemplated in the rules, in favour of a candidate whose other merits are favourable comparable with other contestants, no cause of grievance will arise, rather it will meet the plea of the administration that by appointment a person from amongst the nearest eligible heir of previous Lambardar continuity in the work and in the liaison created between the land owners and the administration is intended to be achieved. Rule 17 is, therefore, not repugnant to any Injunction of Islam."
13. In the case in hand the petitioner was not only appointed on the consideration of his hereditary claim, but other matters, which were to be considered in view of Rule 17 of West Pakistan Land Revenue Rules, 1968 were also taken into consideration by the lower authorities and thus his appointment on that score also cannot be termed as illegal or ultra vires.
14. The upshot of the above discussion is that the Member Judicial (III) in Board of Revenue exceeded to his jurisdiction and exercised a jurisdiction, which was in fact not vested in him while passing the impugned order on 25-7-2010, accepting the review. Resultantly the said order is set aside, restoring the earlier orders passed by the District Officer Revenue, Executive District Officer (Revenue) and Member Board of Revenue dated 15-12-2005, 27-12-2006 and 7-10-2008, respectively. The constitutional petition is allowed without any order as to cost.