' SARMAD JALAL OSMANY, J.---This Appeal impugns the Judgment of the learned Lahore High Court, Lahore dismissing C.R. No, 2038 of 2005 filed by the Appellant.
2. Briefly stated the facts of the matter are that one Badar Din was allotted the suit land under the Jadeed scheme in 1971 and he deposited 1/10th of the consideration amount. Thereafter per the Appellant he became a tenant of Badar Din. And later on agreed to purchase the land from said Badar Din but the transaction could not be consummated since the land was resumed by the Government. Of Punjab vide order dated 14.8 1977. This order was assailed by the Appellant as well as Badar Din in separate appeals before the Additional Commissioner Revenue, Multan but the same were dismissed vide order dated 5.12.1979. The Appellant also did not have any success before the Board of Revenue. After this round of litigation the the Appellant filed a civil suit for his remedy but failed as, the plaint was rejected. He challenged this before the learned Lahore High Court which remanded the matter to be decided afresh on merits but the suit. Was withdrawn by the Appellant. During all this time the Appellant remained in possession of the suit land.
3. The Appellant then moved an application on 29.9.1980 under the Notification No, 3215-79/3973- C-II, dated 3rd September, 1979 to the District Collector, Sahiwal for getting proprietary rights which was dismissed on 26.8.1981. The appeal filed against the order was also dismissed on 11.3.2002 on the ground that he was unqualified under said notification as he already owned land measuring 100 kanals and his wife 4 acres. The revision against such dismissal order was turned down on 18.12.2004 and so also the Review Petition was dismissed by the Member Board of Revenue on 26.2.2005. Yet again the Appellant filed a fresh suit against the decision of the Revenue Authorities which was - also dismissed by the learned Civil Court under Order 7, Rule 11, CPC as being devoid of any cause of action. The same fate was meted out in the Appeal filed before the Appellate Court and as noted above the Revision Application was dismissed by the learned Lahore High Court as well.
4. Ch. Muhammad Ashraf, learned Sr. ASC for the Appellant in support of this Petition submits that the previous round of litigation was resorted to by the Appellant for asserting his contractual rights I . e. The first suit was based upon the agreement to sell with Badar Din which failed as the land in question was repossessed by the Government of Punjab. Thereafter, he filed another civil suit but decided to withdraw the same and pursue his remedy before the revenue hierarchy which culminated in the revision petition before the learned Lahore High Court and dismissal of the same.
Consequently, it cannot be said that there was no cause of action at all. In support of his submissions learned Sr. ASC has relied upon the cases of Abdul Rab, etc. v. Wali Muhammad, etc. (PLJ 1980 SC 347), Muhammad Khan,' etc, v. Province of Punjab, etc. (PLJ 2007 SC 1031) and Muhammad lqbal and 3 others. v. Mst. Rehmat Bibi through Legal Heirs (1998 CLC 11). Per learned ASC the Appellant's rights have never been agitated on merits and hence without giving the right to lead evidence etc. In support of his claim the suit could not be dismissed by the learned Civil Court as well as by the Appellate and Revisional Courts. Hence, he has prayed that the matter be remanded back to the learned Civil Court for adjudication in accordance with law.
5. On the other hand Mr. Muddassar Khalid Abbasi, learned Assistant Advocate General, Punjab has submitted that the Appellant's rights had been adjudicated not Once but twice and he has failed both before the Civil Court as well as revenue hierarchy and hence the suit had been correctly dismissed without any cause of action as being barred under section 11, CPC i,e, as res judicata.
6. Learned Assistant Advocate General has further submitted that the Appellant is in illegal possession' of the land since' 1977- and he could not take any benefit under the notification in question as he has already owned 156 Kanals of land which he had transferred to his wife and son's names on 25.7.1978. Consequently, he was not eligible under condition 3 of the definition i,e, he was not either landless or owner of less than a subsistence holding. In rebuttal learned ASC appearing for the Appellant has submitted the scheme was launched in 1979 and the land was alienated by the Appellant in 1978 hence, he was eligible when the scheme was launched. In support of this 'proposition he has relied upon the case of Muhammad Aslam Baloch v. Member, Board of Revenue (Colonies), Punjab and 2 others (1988 CLC 356).
7. We have heard learned Sr. ASC as well as learned Assistant Advocate General, Punjab and perused the record with their assistance including the original revenue record.
8. It would be seen that under the scheme dated 3.9.1979 proprietary rights were to be given to those eligible lessees who had a temporary cultivation lease. Eligible lessees have been defined as either landless persons or owners of less than a substance holding i,e, 12.5 acres and had been in continuous cultivating possession of the leased land since before Kharif 1977. In the first place it has not been established before us whether Appellant was a temporary lessee of the Government and in fact this could not be so since according to his own contention he had agreed to purchase -the land from Badar Din who was the original allottee. Secondly, the conduct of the Appellant has also to be examined as he firstly tried to obtain the land based on the consent decree in the suit filed by him against Badar Din seeking specific performance of an agreement to sell which was passed without impleading the Province which admittedly was the owner of the suit land. The second suit was withdrawn by him as not pressed and thereafter he approached the Revenue Authorities for his remedy which as noted above was denied to hint. Now finally he approached to Civil Courts again for his remedy.
9. In our opinion, the learned High Court has correctly observed that as per condition No, 13 under the notification the land cannot be allotted to a person who has occupied the same without the consent of the lessee and Or the previous permission of the competent authority. Learned counsel for the Appellant has failed to show, as to how he came under the possession of the land which he has been cultivating for his own benefit for a number of years. Secondly it would be seen that the Appellant owned more than the subsistence holding and it matters. Not that he had transferred his land to his wife and son in 1978 as the definition of family-in para 5 of the notification includes lessee's wife, parents, minor children, dependents etc. To that extent the case of Muhammad Aslam Baloch (Supra] is 'distinguishable as land in question was transferred to- the lessee's married son. Consequently, Appellant was correctly non-suited by the lower forums below. In fact, in our opinion proceedings should be initiated against the Appellant for recovery of Government dues for having illegally occupied the land in question. Order accordingly.
10. For all the foregoing reasons this appeal is dismissed.
High Court Judgment Upheld/Appeal Dismissed.
NLR 2014 Revenue Present: Mr. Justice Tassaduq Hussain Jillani Mr. Justice Asif Saeed Khan Khosa [Supreme Court of Pakistan] Civil Petition No, 390-L of 2013 dismissed on 19.6.2013.
(On appeal from the judgment dated 10.12.2012 passed by the Lahore High Court, Lahore in Writ Petition No, 7748/2010).
HAJI MUHAMMAD ZAMAN KHAN---Petitioner versus MEMBER BOR, PUNJAB, LAHORE, ETC.---Respondents
(a) Land Revenue Rules, 1968-- Rule 17. Lumberdar would- be rightly appointed by considering that his working as such was to the entire satisfaction of Government and public-at-large and that he was not a defaulter. Such appointment made by District Officer (Revenue), endorsed by Executive District Officer (Revenue) and upheld by Board of Revenue would not call for interference by High Court in exercise of its writ jurisdiction under Art,
199. Writ petition filed by rival candidate to challenge such unexceptionable appointment dismissed by High Court. Supreme Court affirming such judgment of High Court and refusing its leave to appeal against it. (P, 9,14,15)
(b) Constitution of Pakistan, 1973--- Art.
199. There is no cavil to the proposition that High Court in its Constitutional jurisdiction under Art. 199 can interfere with the order passed by a Tribunal of competent jurisdiction. However, the said exercise has to be confined to examine whether it was a case of no evidence, whether the authority had acted in bad faith or whether there was failure to follow the procedure prescribed in law. (P. 10)
Noor Muhammad Alvan, ASC for petitioner. Ch. Muhammad Hanif Khatana, Addl. A.G. For respondent No, 1.
Saif-ul-Malook, ASC for respondent No, 2.
Date of hearing: 19.6.2013.
' TASSADUQ HUSSAIN .JILLANI, J.---Through this petition leave is sought against the judgment dated 10.12.2012 vide which the Constitution petition filed by the petitioner Muhammad Zaman against the order dated 17.2.2010 passed by the Member (Judicial), Board of Revenue was dismissed.
2. Facts in brief are that on the death of Noor Zaman, lumberdar of Chak No, 9/DB Tehsil Piplan District Mianwali, Muhammad Sharif respondent was appointed as lumberdar. This was challenged in appeal before the Executive District Officer (Revenue), Mianwali, which was partly allowed and the case was remanded to the District Officer Revenue. The said order of remand was challenged before the Board of Revenue in a revision petition which was dismissed and the order of remand was upheld. The District Officer Revenue after hearing all concerned once -again appointed Muhammad Sharif as lumberdar which was challenged by the petitioner before the EDO(R), Mianwali and the same was dismissed on 16.1.2008. The said order was upheld by the Member (Judicial-I), Board of Revenue' on 17.2.2010. The learned High Court vide the impugned judgment did not interfere with the order of the Board of Revenue and dismissed petitioner's Constitution petition.
3. Learned counsel for the petitioner seeks leave on the ground that the Member, Board of Revenue has not considered the law I4id down by this Court in Noorwar Jan v. Senior Member B.R. NWFP (PLD 1991 SC 531 at 538), Muhammad Rafique v. Nasir Ahmed (NLR 2007 Revenue 66) and Muhammad Saeed v. Ghulam Sarwar (PLD 2008 SC 1586), He maintained that petitioner has better credentials as he is more educated i,e, he. Is F. A. Whereas respondent Muhammad Sharif is a middle pass; he has been working as sarbrah lumberdar for quite some time and he has rendered various services to the Government at the local level.
4. Learned counsel for the respondent who was on watching brief defended the impugned judgment by submitting that the appointment of lumberdar is primarily the function of the competent authority in the revenue hierarchy; that the DOR vide the order dated 16.11.2001 having considered the comparative merit of the competing candidates had appointed the respondent and since then he is working as such to the entire satisfaction of the Government and the public at large; that he is riot a defaulter; that he is a middle pass and in terms of Rule 17 of the Land Revenue Rules the revenue officer has to consider various factors while appointing a lurnberdar, that if all those, factors are kept in view, respondent Muhammad Sharif had better credentials, and that the concurrent orders passed by the revenue officers in this regard cannot be interfered with in exercise of writ jurisdiction. In support of the submissions made, learned counsel relied on the judgments of this Court reported at Fateh Masih v. Member, Board of Revenue (1996 SCMR '377).
Basher Ahmed v. Member (Judicial-III), Board of Revenue (2002 SCMR 1371).
5. We' have considered the submissions made by learned counsel for the parties and have considered the precedent case-law quoted at the bar.
6. There is no cavil to the proposition that the learned High Court in its Constitutional jurisdiction can interfere with the order passed by a Tribunal of competent jurisdiction. However, the said exercise has to be confined to examine whether the order passed was in accordance with law; whether it was a case of no evidence; whether the authority acted in bad faith or there was failure to follow the procedure prescribed in law. In Noorwar Jan v. Senior Member B.R., NWFP (PLD 1991 SC 531), this Court had occasioned to examine the scope of writ jurisdiction against the order of the Board of Revenue: The Court held as follows:- - "19. The Board of Revenue at the apex of the Revenue hierarchy is charged with the statutory duty of interpreting the law of applying it to individual cases coming up before it and laying down the law for the subordinates in the hierarchy to follow. Any error on its part in understanding the law, in applying it or in laying down the law can and must be 'corrected in the Constitutional jurisdiction. If it is left uncorrected, it will result in subverting the rule of law. It is in this context that Ammon Rubinstein in Chapter V of his book `Jurisdiction and Illegality' under the heading "Supervision over the Observance of the Law in the Course of the Exercise of Jurisdiction" observes as hereunder:-- "Certiorari is a writ which 'extends to the whole of the record'. As long as it is supportable by the record, any defect, irregularity, or error which, in the opinion of the supervisory Court is substantial, will enable the Court to issue certiorari. Where the error is not substantial, the, Courts may feel less inclined to intervene. Their reluctance can be expressed either by invoking the discretionary nature of the remedy, by treating an error of law, as an error of fact or by limiting the meaning of 'record'.
These same expedients may be resorted to where the decision sought to be .Quashed is appealable under statutory provisions. Nevertheless, where the Court wills it, it has authority to correct 'all irregularities in the proceedings of inferior Tribunals'. In exercising this authority the Court is only circumscribed by the existence and contents of a record.
' What is generally meant by recurring assertions that certiorari cannot serve as means of appellate proceedings is that the supervisory Court cannot:--
(i) go behind the record;
(ii) vary or alter the decision impugned (it can only affirm or quash it);
(iii) admit extrinsic evidence or hear any further evidence unless relating to a jurisdictional matter;
(iv) weigh the evidence or otherwise interfere with findings of fact."
7. In Rahim Shah v. The Chief Election Commissioner of Pakistan; ' etc. (PLD 1973 SC 24), this Court while -examining the scope of writ- jurisdiction, observed as follows:- ' it may be further observed that although the conditions for grant of certiorari which obtain in English Courts do not apply to High Courts in Pakistan at the same time the extent of this Constitutional jurisdiction cannot be enlarged to an appeal on facts or questions of law. An appeal is a creation of statute and if no appeal is provided by the Legislature the determination of a Tribunal of exclusive jurisdiction is final. The scope of interference in the High Court is therefore limited to the inquiry whether the Tribunal has in doing the act or undertaking the proceedings acted in accordance with law. If the answer 'be in the affirmative the High Court will stay its hands, and will not substitute its own findings for the findings recorded by the Tribunal."
8. In Muhammad Rafique v. Nazir Ahmed (NLR 2007 Revenue 66). The Court allowed the appeal and set aside the order of the learned High Court as it was of the view that the learned High Court had travelled beyond its jurisdiction under Article 199 of the Constitution by interfering with the order passed by the BOR though neither the said order suffered from, any jurisdictional defect or illegality and that the Board of Revenue had merely concurred with the opinion of the District Collector with regard to the appointment of lumberdar. The Court observed as follows:-- "4. There was nothing on record which could be pointed out to indicate any reason which could have disqualified Rafique petitioner from his appointment as a LUMBERDAR. Nor could the Constitutional jurisdiction of the High Court be ever used to substitute its own preferences with the preferences of the competent fora unless it could be shown that the decision made by the competent authorities suffered from any jurisdictional defect or any illegality. It could not be said that the Board of Revenue did not have the jurisdiction to pass the order that it had passed nor could be said that the discretion exercised by the Board of Revenue in concurring with the selection of the LUMBERDAR as done by the District Collector was based on any reasons or considerations which were illegal or extraneous to law. In the circumstances, no reasons existed which could have authorized the learned High Court to declare the order passed by the Board of Revenue, as being without jurisdiction or having been passed without lawful authority. Needless to add that the learned High Court while exercising powers vesting in it under Article 199 of the Constitution does not sit in appeal over the decisions or judgments questioned through the said jurisdiction."
9. In Muhammad Saeed v. Ghuldm Sarwar (PLD 2008 SC 4586); this Court did not interfere with the judgment of the High Court though the said learned Court had reversed the order of the Board of Revenue with regard to the appointment of lumberdar The ground which found favour with this Court not to interfere with the order of the High Court was that in reversing the order' of the District Officer Revenue the BOR neither discussed the reasons advanced by the appointing, authority
(DOR) nor it considered the point that lumberdar was to be appointed in accordance with the criteria given in the Land Revenue Rules.
10. In the instant case, however, the Board of Revenue has not-only concurred with the order of the District Officer Revenue with regard to the appointment of Muhammad Sharif as lumberdar but has given reasons for doing so. The learned High Court rightly did not interfere with the concurrent orders passed in revenue hierarchy. Even otherwise, we find that the competent authorities in revenue hierarchy had duly considered the comparative merits of the petitioner and respondent Muhammad Sharif and no illegality or jurisdictional defect has been pointed out by learned counsel, which could persuade us to interfere with the orders passed. In the face of these concurrent findings in the revenue hierarchy any interference in Constitutional jurisdiction without their being a valid ground would have amounted to substitution of those orders by the High Court, which would not have been tenable in law.
11. In the afore-referred circumstances, we do not find any merit in this petition, which is dismissed and .
High Court Judgment Upheld/.