Ghulam Mustafa Mughal, J.--The captioned appeals by leave of the Court have been filed against the consolidated judgment dated 28.10.2014, passed by the Azad Jammu & Kashmir High Court in writ petitions No.1268, 1269, 1270, 1271, 1272 and 1273 of 2009. As common questions of facts and law are involved in the all the appeals, hence, are heard together and are disposed of as such.
2. The facts of the case need not to be reiterated because the same have sufficiently been incorporated in the impugned judgment of the High Court as well the Board of Revenue. Suffice it to observe that the land mentioned in the writ petitions before the High Court was in the possession of the respondents, herein, as 'Arakdar'. The proprietary rights of the same were granted to them separately by the Collector through even order dated 12.04.1999, on the ground of 'Nautor' by respondents, herein. Feeling aggrieved, Munawar Hussain and Anwar Shah, appellants, herein, filed separate appeals before the Commissioner Mirpur Division on different dates challenging the legality and correctness of the order dated 22.04.1999. All the appeals were dismissed by the Commissioner Mirpur Division on account of limitation vide judgment dated 22.03.2006. The appellants, herein, challenged the order passed by the Commissioner Mirpur Division dated 22.03.2006 by way of separate revision petitions before the Member Board of Revenue on 23.05.2006 and 07.11.2006, respectively. The learned Member Board of Revenue vide judgment dated 16.05.2009, up held the findings recorded by the Commissioner Mirpur Division and dismissed the appeals on the ground of limitation. The order dated 16.05.2009, passed by the learned Member Board of Revenue in the above revision petitions was challenged before the Full Board of Revenue through separate revision petitions on 21.05.2009. The learned Full Board of Revenue consolidated all the revision petitions and after hearing the parties, vide judgment dated 01.10.2009, accepted the revision petitions and cancelled the allotment made in favour of the respondents by the Collector vide order dated 12.04.1999. The consolidated order passed by the learned Full Board of revenue on 01.10.2009 in the revision petitions was challenged through separate writ petitions by respondents, herein, before Azad Jammu & Kashmir High Court. The learned High Court after consolidating all the writ petitions and hearing the parties, through impugned judgment dated 28.10.2014 accepted the writ petitions and set aside the order passed by the learned Full Board of Revenue on 01.10.2009.
3. Mian Sultan Mehmood, the learned Advocate appearing for the appellants (in all the appeals) argued with vehemence that the respondents, herein, were in possession of the land in question as 'Arakdar' and they were not entered in the revenue record as Nautor Kunindgans, therefore, mandatory condition listed in The AJ&K Regularization of Nautors and Grant of Khalsa Land (Amendment) Act, 1989, were not fulfilled, therefore, the Collector was not competent to grant proprietary rights of the land which was reserved for the village common purpose. The learned Advocate argued that order passed by the Collector dated 12.09.1999 was ab initio void, capricious and arbitrary, hence, was rightly challenged by the appellants, herein, by way of appeals before the Commissioner Mirpur Division but the Commissioner without looking into the legality and correctness of the order dated 12.04.1999, dismissed the appeals on the ground of limitation. The learned Advocate further argued that separate applications for condonation of delay were made before the Commissioner Mirpur Division but the same were not considered by him while disposing of the appeals. The learned Advocate argued that that as the order of grant of proprietary rights was ab initio void, therefore, the Commissioner was bound to exercise its revisional jurisdiction notwithstanding the fact that the appeal filed on behalf of the appellants, herein, was beyond limitation. The learned Advocate further argued that that the order dated 16.05.2009, passed by the single Member Board of Revenue was equally bad in law for having been passed without considering the mandatory provisions of law and record of the case. The learned Advocate further argued that the revision before the Full Board of Revenue was competent and if it is assumed for the sake of arguments that second revision was not competent before the Full Board of revenue even than the Board can exercise suo-moto revisional jurisdiction which was just in the circumstances of the case. He argued that this exercise of powers by the Board of Revenue cannot be termed as without jurisdiction, arbitrary or without lawful authority. The learned Advocate further argued that the Board of Revenue when notice an illegality or irregularity, cannot sit as an idle spectator and can exercise jurisdiction conferred on it under the Land Revenue Act, 1967, as well as The Azad Jammu and Kashmir Board of Revenue Act, 1993. The learned Advocate strenuously argued that that the judgment passed by the learned High Court was erroneous and illegal because ill-gotten gains cannot be protected while exercising constitutional jurisdiction. In support of his submissions, the learned Advocate placed reliance on the case reported as Custodian of Evacuee Property & 7 others vs. Tariq Mahmood Butt [2002 SCR 38].
4. Conversely, Ch. Muhammad Mumtaz, the learned Advocate appearing for the respondents, submitted that all the appeals were rightly dismissed by the Commissioner Mirpur Division for having been filed after statutory period of limitation and order was rightly maintained by the learned Member Board of Revenue. The learned Advocate further argued that the second revision was not competent before the Full Board of Revenue against the order passed by the learned Member Board of Revenue in revisional jurisdiction. The learned Advocate further argued that the suo-moto jurisdiction was not available to the Full Board of Revenue upon the move of an unsuccessful party. In this regard, he placed reliance upon the case reported as Muhammad Azam vs. Allah Beli alias Tassadq Baig and 9 others [PLJ 2005 SC (AJ&K) 97]. The learned Advocate further argued that it is an admitted position that the respondents were entered in the revenue record as 'Arakdar' and they are cultivating the land as such, which fact was testified by the Tehsildar, hence, the order passed by the Collector cannot be cancelled mere on technical grounds.
5. We have heard the learned counsel for the parties and gone through the record of the case. It may be stated that the learned High Court has accepted the writ petitions solely on the ground that second revision before the Full Board of Revenue was not entertainable under the proviso of section 7, sub-section (2), of The Azad Jammu and Kashmir Board of Revenue Act, 1993. For proper apprehension of the controversy, it would be advantageous to reproduce section 7(2) of the said Act, which is as under:- "(2) Any person aggrieved by an order made or a decree passed by a Member, in such class of cases as may be specified in the rules framed under section 9 of this Act, may apply to the Board for revision of such order or decree, and it the full Board considers that there are sufficient reasons for doing so, it may revise that order or decree and pass such further order as it may think fit after hearing the applicant: Provided that no revision shall lie to the full Board against on order made or a decree passed by a Member in exercise of the revisional jurisdiction."
A perusal of the above reproduced provision of law would show that under sub-section (2) of section 7, a person who is aggrieved by the order or decree passed by the Member Board of Revenue as may be specified in the rules framed under section 9 of this Act, may apply to the Board for revision of such order or decree etc. Under proviso of sub-section (2) of section 7 of the Act, has controlling effect. The jurisdiction of the Board of Revenue to entertain the second revision where the order challenged in the revision before the Full Board of Revenue has been passed by the Member Board of Revenue in exercise of revisional jurisdiction has been specifically excluded. It may be observed here that there is always a purpose behind the legislation. The power of revision are only available against the subordinate Revenue Officer and a Member Board of Revenue cannot be termed as an officer subordinate to the Board of Revenue. The revisional powers are also available to the Board of Revenue as well as Commissioner under section 164 of The West Pakistan Land Revenue Act, 1967 (as is adopted in the Azad Jammu and Kashmir), which postulates that the Board of Revenue, may, at any time, on its own motion, or on an application made to it within 90 days of passing of any order, call for record of any case pending before or disposed of by, any Revenue Officer subordinate to it. As stated above, the order passed by the Member Board of Revenue while exercising powers under clause 6(3) of the Azad Jammu & Kashmir Board of Revenue Act, 1993, shall be deemed to be the order or decree of the Board, therefore, the Member of the Board is not subordinate to the Full Board for the purpose of exercising revisional jurisdiction.
The Revenue Officer mentioned in section 164 is not defined in the aforesaid Act rather it is defined in section 2 (23) of the Land Revenue Act, 1967, which says "Revenue Officer" means, Revenue Officer having the authority under this Act to discharge functions of Revenue Officer. As mentioned above, the Member Board of Revenue cannot be included in the definition of the Revenue Officer, therefore, exercising suo-moto power for correction of the order passed by the Member Board of Revenue was not permissible under the provisions of the Azad Jammu & Kashmir Board of Revenue Act, 1993. Moreover, the suo-moto powers have not been mentioned in the Act, and it is command of the Constitution that no Court can exercise jurisdiction which is not conferred on it under the Constitution or any law. A perusal of the order passed by the Board of Revenue further reveals that the Board of Revenue has not exercised the jurisdiction suo-moto for setting aside the order dated 12.04.1999 passed by the Collector rather has set aside the same while exercising revisional jurisdiction conferred on it under the Board of Revenue Act, 1993, and condoned the delay while observing therein that the order passed by the Collector is ab initio void, hence, can be corrected at any time. No doubt such like power can be exercised in suitable cases but in appropriate proceedings not otherwise. Therefore, it cannot be said that while handing down the impugned judgment the learned High Court has committed any illegality.
6. The contention of the learned Advocate that writ cannot be granted in order to protect ill-gotten gains is devoid of any force as the Member Board of Revenue has exercised the jurisdiction which was not vested in him under law and when the excess of jurisdictions is apparent on the face of the record then it cannot be said that such order cannot be corrected by the learned High Court in exercise of supervisory jurisdiction. Reference may be made to a case reported as Haji Noorwar Jan vs. Senior Member, Board of Revenue, N.W.F.P. Peshawar and 4 others [PLD 1991 Supreme Court 531], wherein, at page 538 of the report it was observed as under:- "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 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.
Within these limits, the supervisory Court may exercise a semi-appellate power of review which is aimed at remedying errors committed within jurisdiction. It is this intra-jurisdictional review which renders certiorari the useful remedy it is: 'It must be apparent to anyone that if the superior Court could only examine into the right of the inferior one to enter upon an inquiry, without reference to the manner in which that inquiry is conducted, this remedy would be of small account.' It was this recognition which led, in some American states, to a better appreciation of the nature of certiorari; in the State of New York it had the effect of turning certiorari into an almost complete means of appeal.'"
The contention of the learned Advocate that the land in question was not made Nautor by the respondents need not to the attended in light of the aforesaid conclusion. Even otherwise, in light of law laid down in Muhammad Azam's case supra and in presence of the report of the Tehsildar, this argument has no substance in it. In para 8 of the report it was observed as under:- "8. A perusal of the above law makes it abundantly clear that a person who is found in possession of the land on any day before 17th of June, 1985 shall be granted the propriety rights by the Collector in accordance with the formula laid down in clauses (a) and (b) of sub-section (2) referred above. The above referred law reveals that in the absence of entries in the revenue record, the Collector has to satisfy himself through an inquiry as to whether the 'Nautor Kinindah' is in the possession of the land or not, which means that even the absence of entries in the revenue record does not disentitle a person to the grant of proprietary rights, if on inquiry, he is found in continuous possession of the land as claimed by him."
The upshot of the above discussion is that finding no force in these appeals, the same are hereby dismissed with no order as to costs.