' FAISAL ZAMAN KHAN, J.---The backdrop of the present petition is that parties are co-owners in Khata Nos.342, 343, 344 and 345 in Mouza Pooran Tehsil Sarai Alamgir District Gujrat.
2. Petitioners filed an application for partition of the aforementioned khatas before Tehsildar Sarai Alamgir which was accepted on 15-12-2006. A challenge was thrown to the order through an appeal before the District Officer Revenue who accepted the appeal and remanded the case to Tehsildar for decision afresh within three months. This order of remand was never challenged before any forum by the parties.
3. After the remand, vide order dated 12-3-2008, Tehsildar/AC-I Sarai Alamgir again ordered for the partition keeping in view the stipulation made in the remand order. Feeling aggrieved, respondent No,1 preferred an appeal before Collector District Gujrat which was dismissed vide order dated 6- 9-2008. As a sequel to that, the order passed by the Collector was challenged before Executive District Officer which also met the same fate and through order dated 5-3-2009 it was also dismissed.
4. Respondent No,1 preferred ROR No,537-2009 before respondent No, 5 which was accepted vide order dated 3-4-2010 and the case was remanded to Deputy District Officer Revenue Sarai Alamgir for decision afresh within three months, hence, this petition.
5. Learned counsel for the petitioner has argued that the impugned order has been passed in a perfunctory manner and is only based on the ground that under Rule 6(A) of the West Pakistan Land Revenue Rules, 1968, but for the Board of Revenue no subordinate functionary in the Revenue hierarchy is allowed to remand a case. In this backdrop, the Court held that order of remand passed by District Officer Revenue Gujrat was basically void and without jurisdiction, hence was not sustainable and in this view of the matter all subsequent proceedings were without lawful authority thus he remanded the case. Learned counsel for the petitioners has attacked the vires of the order on three grounds:--
(a) That the objection with reference to incompetence of District Officer Revenue under Rule 6(A) to remand the case was never raised before any other forum prior to the filing of the Revision before the Board of Revenue, hence at Revisional stage, this objection could not have been raised. He relies on 1996 MLD 954 (Ghulam Mustafa Khan v. Member Board of Revenue and others) and PLD 2013 SC 255 (Muhammad Anwar and others v. Mst. Ilyas Begum and others);
(b) Even if the order of remand was illegal, the same was accepted by both the parties and was never challenged. Apart from that in furtherance of that remand order, respondent No,1 has been appearing before the Tehsildar/AC-I for contesting the case and after its decision, has been challenging the same before different Revenue Functionaries.
(c) According to the learned counsel, Rule 6(A) is ultra vires the Act as declared by this Court in judgment reported as 2000 YLR 295 [Ismail v. Member, Board of Revenue, Punjab, Lahore and 13 others] hence cannot be placed reliance on.
6. Conversely, learned counsel for respondent No,1 has argued that as the original order of remand passed by the District Officer Revenue was void and without jurisdiction, the subsequent proceedings crumbled to the ground and are of no consequence irrespective of the fact that no challenge was thrown to the remand order. He further argues that the ground as to jurisdiction of the District Officer Revenue to remand the case has rightly been raised for the first time before the Board of Revenue as the subordinate Revenue Functionaries had no authority under the law to have decided about the import/interpretation of Rule 6(A) ibid. He further argues that the remand order passed by the Board of Revenue is an interim order and in writ jurisdiction, the same cannot be assailed. He has relied upon PLD 1997 SC 859 [Syed Qadar Dad and others v. Muhammad Afzal and others], 2010 CLC 1921 [Ghulam Ahmad v. Member Board of Revenue, Punjab, Lahore] and 2010 CLC 475 [Osman Khan through Attorney v. Aisha Naz and 2 others]. He further supplement his arguments that even if the order of remand is illegal, it cannot be touched. He relies on 2009 SCMR 851 [Ms. Clare Bendicta Conville and others v. Mst. Sabahat ldrees and others]. Lastly he argues that if a thing is to be done in a particular manner then no other mode can be adopted and as the District Officer Revenue was not invested with the power of remanding the case, he should not have done that. He relies on PLC 2013 SC 255 [Muhammad Anwar and others v. Mst. Ilyas Begum and others].
7. Replying to the argument that remand order is an interim order and cannot be looked into in writ jurisdiction, learned counsel for the petitioners argues that this Court has sufficient powers to interfere in cases of remand. In order to fortify his argument, learned counsel relies on PLD 2001 SC 518 [Qamar ud Din v. Muhammad Din and others], 2002 SCMR 1536 [Muslim Commercial Bank Limited through General Manager v. Muhammad Farooq Abid and another] and 2007 SCMR 621 [Muhammad Sami v. Additional District Judge, Sargodha Mr.Mehr Ghulam Farid Khan,
2. Civil Judge 1st Class, Sargodha,
3. Sh. Muhammad lkram Ullah Khan].
8. Learned Law Officer while adopting the arguments of the learned counsel for respondent No,1 has prayed that writ petition may be dismissed.
9. I have heard learned counsel for the parties and have gone through the record.
10. The pivotal question to be decided in this petition is the interpretation of Rule 6(A) of the West Pakistan Land Revenue Rules, 1968 which for convenience is reproduced as under:- [6-A. Remand of case. (a) In an appeal under section 161, or in a revision under section 164 against the final order of a Revenue Officer in a case, no Appellate or Revisional authority other than the Board or Revenue shall have the power to remand the case. (underlining is mine).
' The above provision refers to sections 161 and 164 of the West Pakistan Land Revenue Act 1967 which are also reproduced:
161. Appeal (1) Save as otherwise provided by this Act, an appeal shall lie from an original or appellate Order of a Revenue Officer as follows, namely:-
(a) to the Collector, when the order is made by an Assistant Collector, of either grade;
(b) to the Executive District Officer (Revenue), when the order is made by a Collector;
(c) to the Board of Revenue only on a point of law, when the order is made by a Executive District Officer (Revenue); ' Provided that-
(i) When an original order is confirmed on first appeal, a further appeal shall not lie;
(ii) When an such order is modified or reversed on appeal by the Collector, the order made by the Executive District Officer (Revenue) on further appeal, if an, to him shall be final.
164. Revision. (1) The Board of Revenue, may, at any time, on its own motion, or on application made to it with ninety days of the passing of any order, call for the record of any case pending before, or disposed of by, any Revenue Officer subordinate to it.
(2) A Executive District Officer (Revenue) or Collector may, at any time of his own motion, or on an application made to him within ninety days of the passing of any order, call for the record of any case pending before, or disposed of by, any Revenue Officer under his control.
(3) If in any case in which a Collector has called for a record he is of opinion that proceedings taken or order made should be modified or reversed, he shall report the case with his opinion thereon for the orders of the Executive District Officer (Revenue)
(4) The Board of Revenue may, in any case called for under. Subsection (1) and a Executive District Officer (Revenue) may in any case called for under subsection (2) or reported to him under subsection (3) pass such orders as it or he thinks fit: ' Provided that no order shall be passed under this section reversing or modifying any proceedings or order of a subordinate Revenue Officer affecting any person without giving such person an opportunity of being heard.
11. Section 161 deal with the Appeals whereas 164 deal with the Revisions in the Revenue Hierarchy.
This Court has not been able to find any word in these provisions which debars a Court while acting as an Appellate or a Revisional Court from remanding any proceedings pending before it. The Courts while exercising powers under these provisions can either "modify or reverse a previous order". These words do not preclude a Court while reversing or modifying an order from remanding the case. The rider placed through Rule 6(A), notwithstanding sections 161 and 164 appears to be excessive as the parent provisions do not restrict the exercise of a power whereas through a Rule, an embargo is being placed on the powers of the Appellate or the Revisional Court. It shall not be out of place to mention here that West Pakistan Land Revenue Rules, 1968 are made under section 182 of the West Pakistan Revenue Act, 1967, in order to carry out the purposes of the Act and not to curtail the powers invested through the Act.
12.
It is settled proposition of law that in cases of inconsistency between the Statute and the Rules framed thereunder, the Rules shall yield towards the Statute and the latter shall prevail. This Court is of the view that there is no provision in the parent Statute against the order of remand of a case by a Court and while reversing or modifying an order, the embargo placed through Rule 6(A) by restricting the powers of remand only in the Board of Revenue is an inconsistency and cannot be reconciled. Rules when placed in juxtaposition with the Act, will make way for the Act giving it primacy. For guidance, reliance can be placed on judgments reported as PLD 2009 SC 217 [Suo Motu Case No,13 of 2007], 2003 SCMR 370 [Pakistan through Secretary Finance, Islamabad and 5 others v. Aryan Petro Chemicals Industries (Pvt.) Ltd., Peshawar and others] 2001 SCMR 1806 [Messrs Mehraj Flour Mills and others v. Provincial Government and others], 1993 SCMR 328 [Excise and Taxation Officer, Karachi and another v. Burmah Shell Storage and Distribution Company of Pakistan Limited and 5 others] and PLD 2011 Lah. 276 [Shahzada Khurram Nazir and another v.
Province of Punjab through Secretary Industries, Punjab, Lahore and 4 others]. It will be beneficial to reproduce a Para from 2001 SCMR 1806:-- "There is no cavil with the proposition that the rule shall always be consistent with the Act and no rule shall militate or render the provisions of the Act ineffective. The test of consistency is whether the provisions of the Act and that of rules can stand together. Main object of rules is to implement the provisions of the Act and in case of conflict between them the rule must give way to the provisions of the Act. In any case, the rules shall not be repugnant to the enactment under which they are made"
' This court is further fortified by the view taken by this court in judgment reported as 2000 YLR 295 [Ismail v. Member, Board of Revenue, Punjab, Lahore and 13 others]. Relevant portion of Para 4 of the said judgment is reproduced below:-- The section itself also does not spell out that the powers vested in the Appellate Authorities has to be exercised in accordance with rules. Rule 6-A of the. West Pakistan Land Revenue Rules, 1968, of course, prohibits the Commissioner or the Collector from remanding the case. In my opinion the said Rule 6-A is derogatory of the powers of Appellate Court/ Authority authorised under section 161 of the parent Act to hear the appeals and as such is ultra vires
13. The finding rendered by this Court is further supported by an amendment made in the Baluchistan Land Revenue Act 1967 through Baluchistan Land Revenue (Amendment) Ordinance (X of 1980), by virtue of which, section 163-A has been incorporated, which is reproduced below:-- 163-A. No Revenue officer or Revenue court except the Board of Revenue shall have the power to remand any case to a Revenue Officer or Revenue Courts subordinate to him or it, as the case may be.
' This amendment is a clear index to the fact that the legislature was conscious that through subordinate legislation, no rider can be placed on the powers of the Court hence an amendment has been made in the parent statue for creating an embargo against the power of remand.
14. The judgments cited by the learned counsel for respondent No,1 that remand order being an interlocutory order, cannot be looked into in writ jurisdiction are not attracted in the present case.
This Court is of the view that while exercising its Revisional jurisdiction, Board of Revenue went wrong in law in misinterpreting Rule 6(A) of the West Pakistan Land Revenue Rules 1968 and exceeded its jurisdiction. A Court is required to exercise its jurisdiction rightly and not wrongly therefore a decision erroneous on a point of law can be quashed under the writ jurisdiction on the ground that it is in excess of jurisdiction. Reliance in this regard can be placed on PLD 2013 SC 255 [Muhammad Anwar and others v. Mst. Ilyas Begum and others] PLD 1987 SC 447 [Utility Store Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others], PLD 1974 SC 139 [Muhammad Hussain Munir v. Sikander].
15. As regard the interference by this Court in entertaining and exercising jurisdiction against an order passed in Revisional jurisdiction no specific bar has been created on exercise of such jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan. It is the discretion of the Court to interfere where it is warranted. As in the case in hand, order passed by respondent No, 1 was not on merits and passed merely on technical ground of non-compliance of Rule 6(A), which is declared to be without jurisdiction hence discretion can be exercised. In this regard, reliance can be placed on PLD 2013 SC 255 [Muhammad Anwar and others v. Mst. Ilyas Begum and others], PLD 2011 SC 905 [Muhammad Ashraf Butt and others v. Muhammad Asti Bhatti and others] and PLD 2001 SC 518 [Qamar ud Din v. Muhammad Din and others].
16. The argument that the objection about application of Rule 6(A) was never raised before the forums below does not hold good as this was a legal objection and could have been raised at a subsequent stage. This however remains to be unexplained that in case respondent No,1 was aggrieved of the remand order to be without jurisdiction and void why did he not challenge the same before the next higher authority and continued to contest the proceedings.
17. For what has been discussed above this petition is accepted and the order passed by the Board of Revenue is set aside, the case is remanded to Board of Revenue for decision afresh on merits.