MUHAMMAD FARRUKH IRFAN KHAN, J.---This instant Intra Court Appeal is directed against the order dated 31.3.2017 passed by the learned Single Judge-in-Chambers of this Court whereby the appellant's writ petition has been dismissed in limine.
2. Briefly stated facts of the case are that the appellant entered into agreement to sell dated 8.1.2013 with one Muhammad Siddique in respect property bearing S.77.R.15, situated at 16, Jail Road, Lahore (commonly known as Angola cinema) measuring 11 kanals 5 marlas for a consideration of Rs, 20,00,000/-. It is alleged that after execution of the said agreement the seller-Muhammad Siddique disappeared for which reason the sale transaction could not be completed. Thereafter on the report of respondent No,1 that sale deed executed between Khan Bahadur Salaiman Khan and Ahmed Ali Khan, vide document No,8901, registered at Book No,1 Vol. No,4403, dated 10.10.1966 is bogus one, respondent No,2 cancelled/reviewed mutations Nos,10730 and 10731, which were passed in favour of Muhammad Siddique, and entered new mutation No,12436. The appellant having entered into the alleged agreement to sell with Muhammad Siddique filed W.P. 9543/2017 seeking cancellation of mutation No, 12436 and restoration of mutations Nos,10730 and 10731, which was dismissed, vide order dated 31.3.2017. Hence, the instant appeal.
3. Learned counsel for the appellant contends that the impugned order of the learned Single Judge in Chambers is contrary to law and facts on record; that the learned Single Judge has failed to appreciate that respondent No,2/ the Additional Deputy Commissioner (Revenue) had no jurisdiction to cancel mutations Nos,10730 and 10731 as this could be done only after obtaining approval from the Board of Revenue, Punjab under section 163(2) of the Land Revenue Act, 1967; that prior to cancellation of the aforesaid mutations the appellant was not given opportunity of being heard which is against the principal of natural justice; that the impugned order is not sustainable in the eyes of law; that the impugned order of cancellation of mutations being without authority, writ petition was maintainable despite the availability of alternate remedy of review.
Reliance is placed on the cases of The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others (PLD 1972 SC 279) and Ch. Abdul Hamid v.
Deputy Commissioner and others (1985 SCM R 359).
3(sic) Learned AAG has opposed the instant appeal by arguing that the impugned order does not suffer from any illegality and the instant appeal being without any merit deserves to be dismissed.
He further argued that the mutations in questions have rightly been cancelled as having been found bogus and fake; that if the appellant was aggrieved of the order of cancellation of the mutations, remedy of review under section 163(2) of the Land Revenue Act, 1967 was available to him but he has failed to avail the said remedy within the prescribed period of 90 days; that as the appellant had alternate efficacious remedy under the Land Revenue Act, 1967, therefore, the writ petition was not maintainable.
4. Arguments heard. Record perused.
5. Admittedly, there is only an agreement to sell in favour of the appellant by Muhammad Siddique, who as per the appellant's own version has disappeared after execution of the aforesaid agreement to sell. It is settled principle of law that mere agreement to sell does not create any right or title in the property. Due to cancellation of mutations Nos,10730 and 10731 the alleged seller- Muhammad Siddique has lost title in the land, which the appellant claims to have purchased from him by virtue of agreement to sell dated 8.1.2013. The argument that prior to passing order for cancellation of the mutations in questions the Additional Deputy Commissioner (Revenue) should have obtained sanction of the Board of Revenue under section 163 of the Land Revenue Act, 1967 is misconceived. Under section 163(1) of the Land Revenue Act, 1967 there is no clog on the Executive District Officer (Revenue), Collector or an Assistant Collector to seek approval of the Board of Revenue, Punjab before reviewing, modifying or reversing of any order passed by himself or any of his predecessors-in-office. According to section 163(1) an Executive District Officer (Revenue), 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 so reviewing modify, reverse or confirm the same. Minute reading of proviso to section 163(a)(i)(ii) of the Land Revenue Act, 1967 reveals that this provision of law binds the Executive District Officer (Revenue), Collector or Assistant Collector, as the case may be, to seek approval of the Board of Revenue, Punjab only in the matters where he proceeds to modify, reverse or confirm any order passed by himself or by any of his predecessor-in-office pursuant to an application filed by an aggrieved person seeking review of any order passed against him. In the present case, without going into the question whether the appellant is aggrieved of the order passed by the Additional Deputy Commissioner (Revenue) or not this Court finds that none has availed the remedy available under section 163(2) of the aforesaid Act within the prescribed limit of 90 days as provided in section 163(a)(ii)(b) of the said Act.
6. Since the assistance rendered by both the sides was insufficient, we called for the record of this case wherein an order dated 9.1.2016 passed by Mr. Irfan Nawaz Memon, Additional District Collector is available granting permission for review of mutations Nos, 10730 and 10731 on the recommendations of the Assistant Commissioner, Lahore City. The said order gives graphic details of the tactics deployed by fraudulent persons who tried to usurp this property. We are amazed as to why these important documents were not earlier brought into our notice.
7. So far as maintainability of the writ petition in view of availability of alternate remedy is concerned, we are of the considered view that in the cases of The Murree Brewery Co. Ltd. v.
Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others and (supra) Ch.Abdul Hamid v. Deputy Commissioner and others (supra) writ petition was held maintainable on the ground that the impugned orders were found to be without authority, partial, unjust and mala fide. This is not the position in the case in hand. In the present case respondent No,2 cancelled the mutations in exercise of his powers under section 163 of the Act. Learned counsel for the appellant has failed to point out any excess of jurisdiction or mala fide on part of respondent No,2 while passing order of cancellation of the mutations in question. In these circumstances, learned Single Judge has rightly refused to invoke jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
8. In view of above, the instant appeal being devoid of any merit is dismissed. The instant ICA is even otherwise incompetent in view of proviso to section 3(2) of the Law Reforms Ordinance, 1972.