' This Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, challenges the order dated 26.04.2010 passed by the Full Board, Board of Revenue, Punjab on a second review petition.
2. The relevant facts are that according to the petitioner his father died in the year 1995 and in his place the petitioner's elder brother Haji Altaf was appointed as a Lumberdar. He too died sometime thereafter and the petitioner filed an application with the Respondent No, 3, Executive District Officer (Revenue), Khanewal for appointment as Lumberdar. The Respondent No, 3 called applications from the residents of the locality of Chak No, 74/10/R. The District Officer (Revenue), Khanewal vide its order dated 26.08.2006 appointed Haji Zahoor Hussain to be the Lumberdar for the locality. The application of the petitioner was dismissed on the simple ground that there was an adverse report of the local police regarding the character of the petitioner and which was not satisfactory. The District Officer (Revenue), Khanewal did not elaborate on the nature of the adverse report which formed the basis of the ouster of the candidature of the petitioner. An appeal was filed against the said order which was accepted and the petitioner was appointed as Lumberdar. Against the said order in appeal, a revision petition was filed before the Board of Revenue which was accepted and the order of EDO (R), Khanewal dated 27.12.2006 was set aside. A review petition under Section 8 of the West Pakistan Board of Revenue Act, 1957 (Act) was filed by the petitioner which was accepted vide order dated 27.1.2009 and the petitioner was reinstated as Lumberdar of the village. Second review petition was filed by the Respondent No, 5 which was heard by the Full Board of the Board of Revenue and which resulted in the impugned order, which is now under challenge in this petition.
3. The learned counsel for the petitioner has, on the threshold, raised the objection that the impugned order is without lawful authority and runs counter to the provisions of the Act. He submits that there is no provision for a second review and no such power has been conferred on the Board by law.
4. The learned A.A.G has relied upon subsection (2) of section 7 of the Act to urge that there is legal basis for the exercise of jurisdiction of Full Board by way of a second review petition. The learned counsel for the Respondent No, 5 submits that the impugned order is valid and no illegality has crept into it.
5. I intend to take up the threshold question before proceeding on merits of the case. It is trite principle that in order for a forum to exercise its powers, certain jurisdictional facts must exist to enable that forum to exercise its powers. Also it is settled by now that the right of review is a statutory right and is a creature of the statute. It must be conferred specifically by law as is the case with a right of appeal and cannot be inferred or presumed to exist. If any authority is required for the said proposition it would suffice to refer to the judgment of the Supreme Court of Pakistan reported as Muzaffar Ali v. Muhammad Shafi (PLD 1987 SC 1994).
6. The Board is conferred with the power of review under section 8 of the Act. For facility, section 8 is reproduced as under:-- "8. Review of orders 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 matters 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 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.
(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."
7. It is this power of review which was exercised by the Board while passing the order dated 27.1.2009. The further review of the said order could not have been done by the Board in the absence of any such power to vest in the Board by law. In my opinion, the Board has exceeded its jurisdiction by passing the impugned order in the ostensible exercise of the power of review to vest in it. There is no power to review an order passed on a review petition by the Board itself. The learned counsel for the parties have not been able to point out any such power conferred by law.
8. The learned counsel for the petitioner has referred to two judgments of this Court which are on all fours with the facts of this case. In Ghulam Muhammad v. Member, (Judicial-III), Board of Revenue Punjab, Lahore (2005 CLC 1512) it was held as under: "6. It is admitted fact that the matter has been finally concluded by the Member, Board of Revenue vide order, dated 3-11-1994. It is no doubt about it that the petitioners have filed various review petitions before the Member, Board of Revenue, being aggrieved by his order, dated 3-11-1994.
Thereafter, last and 5th review petitions filed by the petitioners were rejected by the Member Board of Revenue vide order, dated 10-3-2005. It is admitted position that there is no provision under the law to file second review petition before the Member Board of Revenue, therefore, order dated 3-11- 1994 passed by the Member Board of Revenue, is final between the parties. The petitioners have not challenged the same well in time, therefore, the writ petitions are liable to be dismissed on the well- known principle of lathes..."
9. Similarly, in Khan Muhammad Khan" through Legal Heirs v. Member (Judicial-I), Board of Revenue Punjab, Lahore and 5 others (PLD 2006 Lahore 322) the following observations of this Court are relevant: "...The impugned order suffers from legal infirmity, it has been passed, ignoring the express provisions of law and is not sustainable. Additionally, no provision exists under the law to allow the second review application before the Board of Revenue. A learned Division Bench of this Court in the case of Province of Punjab v. Muhammad Akram 2004 YLR 915 has held that the Court cannot do what the statute expressly forbids. The order passed on the first review application rejecting the review application, attained finality, as it has not been challenged before any other forum."
10. The learned counsel for the Respondent No, 5 has cited two judgments in support of the proposition that the exercise of power by the Board was valid and justified. In Muhammad Amin and 7 others v. Member (Consultation) Board of Revenue Punjab and 3 others (1992 CLC 2338) the issue was regarding the challenge to an order passed by the. Board of Revenue in the exercise of its review powers under Section 8 of the Act. In this judgment, no issue regarding the second review arose and thus this judgment is not relevant for our purpose.
11. The second judgment relied upon by the learned counsel for the Respondent No, 5 is Allah Wasaya v. Member (Colonies) Board of Revenue, Punjab, Lahore (2006 YLR 2084). This judgment, infact, supports the proposition which has been laid down in the judgments relied upon by the learned counsel for the petitioner to the effect that there is no power for the exercise of jurisdiction in respect of a second review petition. In this regard, the following observations of the Court are referred to: "8. There is no provision in the West Pakistan Board of Revenue Act for filing a second review petition. This legal question of maintainability of second review petition by the Board of Revenue has already been dealt with by the superior Courts. A careful analysis of the provisions of section 8 (supra) leads to a conclusion that power of review can be exercised by the Board of Revenue, only upon an application filed by a person who considers 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 and the order was made. The Board has no power to suo motu review. In this context reliance can be placed to the case of Umar Din and others v.
Member (Colonies) Board of Revenue and others (1984 CLC 17)."
"10. The power of entertaining second review application is neither contained in the West Pakistan Board of Revenue Act nor in the Civil Procedure code as contained in Rule 9 of Order XLVII (supra).
In case of Muhammad Shafi v. The Member (Colonies) Board of Revenue and 2 others (1995 CLC 966) it has been observed that after dismissal of first review application, second review application on the same grounds and against the same order could neither be entertained nor adjudicated- Although there was no express prohibition for second review in West Pakistan Board of Revenue Act, 1957, yet the Act did not either expressly or impliedly exclude general principle of res judicata and rule of finality of judgment---Except for clerical or arithmetical mistakes or accidental slips or omissions in the decision which every Court, Tribunal or Authority has inherent powers to correct second application for review after the decision of first on its merits could not be competently instituted."
12. In view of the judgments cited above and the ratio decidendi of those judgments, it is settled by now that there is no power of a second review under the law and the exercise of any such jurisdiction is without lawful authority and non est.
13. In view of the above, the instant petition is accepted and the impugned order, being without lawful authority, is set aside.