This writ petition has been filed under Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974.
The precise facts giving rise to the instant writ petition are that the petitioners and Respondents No, 6 to 10 are the residents of Village Kharak District Mirpur and the owners of agricultural land on the basis of their shares/possession recorded in the revenue record in the same Village and Shamlat Deh land is also recorded in the revenue record. It is stated that some of respondents moved an application to Revenue Assistant for partition and distribution of Shamlat land between the land- owners. This application was opposed by the petitioners/land owners and some of them admitted the application. It is further stated that all the land owners in the Village were not made party in the application. It is alleged that the Revenue Assistant accepted the application and directed the Tehsildar to start partition proceedings in accordance with law. The petitioners herein feeling aggrieved from the said order, filed an appeal before the District Collector and the same was disallowed vide its order dated 30.09.2010. The petitioners also filed an appeal before the Revenue Commissioner against the order of District Collector, which met the same fate vide order dated 06.12.2010. It is -stated that the petitioners preferred a revision petition before the Board of Revenue against the order of Revenue Commissioner, who after hearing the parties, accepted the same through order dated 16.09.2011 by directing the subordinate Officers, that after hearing all the inhabitants of the Village and if they want partition of the Shamlat Deh land, then the partition proceedings be completed in accordance with law. It is stated that feeling aggrieved from the above said order, the present Respondents No, 6 to 10 filed a review petition before the Member Board of Revenue, who, by accepting the review petition, set-aside its previous order through his order dated 30.04.2012, hence this writ petition.
Notices were issued to the respondents. Respondents No, 1 to 5 were proceeded ex-parte, while Respondents No, 6 to 10 contested the petition by filing written statement. The Respondents No, 6 to 10 raised preliminary objections that; the petitioners are not entitled to get any relief and this writ petition has been filed with malicious intention and to prolong the partition proceedings. It is further objected by Respondents No, 6 to 10 that the petitioners have also filed a Civil Suit in the Court of learned Senior Civil Judge Mirpur on 24.02.2010 for declaration of permanent injunction and they intentionally misconceived this fact at the time of filing of the instant writ petition. The respondents prayed that this writ petition may be dismissed with, heavy costs. Arguments have been heard.
Raja Khalid Mehmood, the learned counsel for petitioners argued that the order of Member Board of Revenue dated 30.04.2012 is illegal and against the facts of the case. The learned counsel argued that while passing the impugned order, the Member Board of Revenue fell in error and the case is of misreading and non-reading of the record produced before him by the petitioners. The learned counsel for the petitioners, Raja Khalid Mehmood forcefully argued that:-- a. The scope of review is very limited and it cannot be heard as a regular appeal. b. In review jurisdiction a case cannot be re-opened for rehearing of all the facts and points. c. That the earlier order of remand was warranted in either way, as the order of remand of file by learned member of Board of Revenue did not harm any of interests/right of the respondents.
That order of learned Member Board of Revenue dated 16.09.2011 was perfect legal and benefiting to all the parties and land owners of the Deh. The learned counsel while referring the grounds of petition as well as of the replication argued at length and taken us to the details of litigation right from Revenue Assistant to the Board of Revenue and attacked all the proceedings/orders of partition, "SANAD-NAMA" and attestation of Mutation of partition and termed these proceedings/ orders as baseless ex-parte, without completing the legal necessities and without adhearing to the relevant legal provisions of Land Revenue Act as laid down in Section 135 and other enabling provisions of the Act. He further argued that the impugned order is against the spirit of Section 8 of AJ&K Board of Revenue Act 1993. He also argued that impugned order is bad in law and being against the legal provisions of a Special Act i,e, AJ&K Board of Revenue Act 1993, which has no legal effect and passed without lawful authority and may be set at naught and an appropriate writ may be issued against the respondents as prayed for. The learned counsel has referred the following case law in support of supra mentioned submissions:--
1. 2000 SCR 192;
2. 2001 SCR 228;
3. 2003 SCR 306;
4. 2005 SCR 373;
5. 2003 SCR 61;
6. 2003 SCR 66 and;
7. 2003 SCR 423.
Lastly, the learned counsel submitted that a Civil Suit field before the competent Court between the same persons and the parties herein, has since been withdrawn, hence the only adequate remedy by way of this constitutional jurisdiction is sought, being an aggrieved party/person as required by law/constitution. He prayed for the acceptance of the petition.
Mr. Khalid Rasheed Ch. the learned counsel for Respondents No, 6 to 10, while controverting the arguments of the learned counsel for petitioners, argued that the order passed by the Member Board of Revenue dated 30.04.2012 is quite in accordance with law. It is argued by the learned counsel that the petitioners do not want partition of Shamlat Deh land, because they have occupied excess Shamlat Deh land. The learned counsel further argued that this writ petition has been filed only to prolong the partition proceedings. The learned counsel for respondents further argued:--
(a) That the impugned order has been passed by the learned Member Board of Revenue under Section 8 of the AJ&K Board of Revenue Act 1993, on the point of sufficient, case effective service as postulated in Sections 135-B, 135, 137 of West Pakistan Land Revenue Act 1967 as adapted in AJ&K by Adaptation of Laws Act 1988 and as well as in light of relevant provisions of Land Record Mannual.
(b) That points in petition are the matter of facts which cannot be resolved in writ jurisdiction by this Court.
(c) That the proceeding before the Revenue authority/Court cannot be equated with the proceedings of Civil and Criminal Courts.
(d) That the Revenue authorities have ample power to review their order and the impugned order is not open to attack in constitutional jurisdiction.
(e) That the petition is hit by laches as well as in all Revenue Courts the petitioners filed appeals/revisions after a considerable period of the stipulated limitation which is the evidence of great negligence and mala fides of the petitioners.
(t) That as the petitioners have chosen to file a Civil Suit titled Inayat Ali and others Vrs. Zafar Iqbal and others" in the Court of Senior Civil Judge Mirpur Azad Kashmir instituted on 24.02.2010 and withdrawn on 03.09.2012 with prayer to restrain the Respondents No, 4 and 5 herein to undertake the partition proceedings of the subject Shamlat Deh land before the institution of instant petition and did not mention this important fact. Thus, the petitioners have not come to this Court with clean hands hence not entitled to' any relief by this Court in constitutional jurisdiction.
The learned counsel for respondents Mr. Khalid Rasheed Chaudhary argued with vehemence that the petition is mala-fide as the petitioners are not aggrieved persons and impugned order has been passed with lawful authority which warrants no interference by this Court in writ jurisdiction and prayed for dismissal of the, petition. He placed reliance on the following case law:--
1. 1993 SCR 44;
2. PLD 2004 AJ&K 4;
3. PLD 2007 SCAJ&K 14 and
4. 2001 SCM R 279.
I have gone through the contents of the petition, written statement, replication, case law referred by the learned counsel for the parties and the documents annexed with the pleadings of the parties and gave my utmost care and caution.
To comment upon respective submission/arguments of the learned counsel for the parties I deem it proper to reproduce relevant law discussed by the counsel for the parties. As the, matter pertains to the legality and competency/lawful authority of a review order of the learned Member Board of Revenue, which is vested in the Board under Section 8 of the AJ&K Board of Revenue Act 1993, which is akin/similar to the provisions of Section 163 of West Pakistan Land Revenue Act 1967 and adapted in AJ&K by AJ&K Adaptation of Law Act 1988, which reads as follows:-- 8."Review of orders by the Board:--(1) Any person 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 cause 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.
(2) Every application for a review of a decree or order under sub-section (1) shall be made within ninety days from the date of that decree or order".
163. "Review.--(1) A Commissioner, Collector or an Assistant Collector, may, at any time, on his own motion, review any order passed by himself or any of his predecessors in office, and on reviewing modify, reverse or confirm the same.
(2) xxxxx
(a) xxxxx
(i) xxxxx
(ii) xxxxx
(b) xxxxx
(c) xxxxx
(d) xxxxx
(3) xxxxx
(4) An appeal shall not lie from an order refusing to review or confirm on review a previous order."
That both the learned counsel for the parties argued at length and agitated the many points of facts which need not to be discussed for the reason that while exercising the constitutional jurisdiction under Section 44 of the Interim Constitution Act, 1974, the Court has to look into vires of the impugned order: The point agitated by the learned counsel for the petitioners, who seek a remedy by issuing of a writ of certiorari, argued/pointed out that the learned Member Board of Revenue, who has gone beyond the limits which are available to Board of Revenue under Section 8 of the Revenue Act, whereas the Section 8 as reproduced in earlier is clear that the Member is competent to pass an order on the application of any aggrieved person for the reason/conditions laid down in Section which includes or (any other sufficient cause). The main point argued was that the service upon the petitioners was not properly affected and in case of defective service on the orders mentioned in the petition issued by official Respondents No, 1 to 5 were of no legal effect and bad in law.
While considering the contents of Section 135 of West Pakistan Land Revenue Act 1967, which relates to application for partition and Section 137 of the said Act which relates to notice of partition, it visualized that the review order on the point of sufficient cause passed by the learned Member Board of Revenue is in accordance with the provisions of law. For convenience sake Sections 135 and 137 are reproduced as under:--
135. Application for partition.--Any joint owner of land may apply to a Revenue officer for partition of his share in the land (a)at the date of the application the share is recorded under Chapter VI as belonging to him; or (b)his right to the share has been established by a decree which is still subsisting at that date; or (c)a written acknowledgement of that right has been executed by all persons interested in the admission or denial thereof.
137. Notice of application for partition:--The Revenue office, on receiving the application under Section 135 shall, if it is in order, and not against the provisions of the West Pakistan Land Reforms Regulation, 1959 (Martial Law Regulation No, 115), and not open to objection on the face of it, fix a day for the hearing thereof, and:-- (a)cause notice of the application and of the day so fixed to be served on such of the recorded co-sharers as have not joined in the application; and (b)if thinks fit cause the notice to be served on or proclaimed for the information of any other person whom he may deem to be directly or indirectly interested in the application.
Thus, the contention that the scope of review is limited is not tenable as the review order has been passed within limitation prescribed by the above quoted law. The other points which need consideration by the Court is that the petitioners have chosen another adequate remedy by filing Civil Suit in the competent Court of jurisdiction as pointed out by the learned counsel for respondents titled Inayat Ali and others Vrs. Zafar Iqbal and others", which is clear from the record of the file that before institution of the writ, a Civil Suit was filed in the Court of Senior Civil Judge Mirpur on 24.02.2010 and during the pendency of the suit, the instant writ petition has been filed in this Court on 24.05.2012 and nothing was mentioned about the pendency of suit which was for the same subject matter. Moreover, during the pendency of this writ petition as the petitioners have withdrawn the suit on their own sweet will, thus, this is ample evidence of mala-fide litigation by the petitioners.
The concluding part of the impugned order transpires that the learned Member Board of Revenue has ordered the partition proceedings saving the rights of the absent owners and the other owners who could not participate in partition proceedings, whereas the appeals before the other respondents were filed by petitioners, hopelessly time barred which were rightly dismissed.
After going through the last Para of the impugned order, I am of the view that no grievance/injury has caused to the petitioners and thus, they are not aggrieved persons, because the rights of all the land owners of the Village have been properly secured by the impugned order thus, this petition is without any substance. Last relevant portion of the impugned order is reproduced for convenience sake:-- {{URDU TEXT}} Moreover, the petition is also hit by principle of lathes. Petitioners having knowledge of the proceedings taken by the respondents have intentionally slow in pursuing their cause. the above stated circumstances, finding no force in this petition, it is hereby dismissed with costs.