SHAKEEL AHMAD, J. Knocking the doors of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has challenged the legal defensibility and tenability of the order dated 26th July 2019, passed by Member-I Board of Revenue, Peshawar/respondent No.1, whereby, he confirmed the order of the lower fora, dismissing the revision petition filed by the petitioner.
02. The facts essential to be adumbrated are that respondent No.1 & 2 Mst. Surrayya Begum & Mst.
Safeena Begum (now dead), on 16.06.2021, submitted an application to the District Officer (Revenue & Estate)/Collector Peshawar, for cancellation of registered general power of attorney bearing No.3852 executed on 23.03.2011 in favour of their brother namely Sardar Imtiaz Hussain, and subsequent transfer of the land measuring 09-Kanal 15-Marlas in favour of petitioner through sale mutation No.2909 executed on 25.03.2011 by their said attorney on the basis of aforesaid general power of attorney. The said application was marked to the DDO (R), Peshawar for inquiry and report. After conducting inquiry, he reported that the general power of attorney impugned by respondent No.1 & 2 is forged and the mutation attested on the basis of the said power of attorney, is liable to be reviewed in accordance with law. On the report of respondent No.4, mutation No.2909 was reviewed and cancelled by respondent No.5 vide order dated 27.07.2011. The said attorney of the petitioner, who was husband of the petitioner, submitted an application for review of order dated 01.07.2011, which was accepted by respondent No.5 vide order dated 03.08.2011, consequently, the order dated 03.08.2011, 01.07.2011 were laid to eternal peace, and status of impugned mutation was restored. However, on 05.08.2011, respondent No.5 set aside his earlier order, restoring the order dated 01.07.2011. Being aggrieved of the same, the petitioner filed revision petition before respondent No.6, which was accepted and the case was remanded back to respondent No.5 with the direction to conduct proper inquiry in the matter vide order dated 21.05.2012. After remand, respondent No.5, with the consent of the parties, appointed a local commission to record the statements of Parda Nasheen Ladies. Pursuant to the order of respondent No.5, the local commission recorded the statements of Mst. Sagheer Begum, Mst. Surrayya Begum, Mst. Iqbal Begum, Sardar Imtiaz Hussain (husband of the petitioner), Sardar Sajjad Hussain, without affording an opportunity to cross-examine them, and submitted its report. During pendency of controversy between the parties before respondent No.5, respondent No.1 & 2 booked the petitioner in crime No.09 dated 04.09.2012, alleging that, the power of attorney in question was executed fraudulently and it was forged. After a full dressed trial, the learned Special Judge, Anti-Corruption (Provincial) acquitted the petitioner vide judgment dated 26.04.2016, where-against, Agha Saqlain Zahid one of the legal heir of Mst. Safeena Begum, filed appeal No.254-P of 2016, before this Court, which was dismissed vide judgment dated 10.04.2017. Respondent No.5, after providing the parties right of hearing, not only cancelled the mutation No.2909 attested on 25.03.2011 but also declared the general power of attorney to be fake and forged vide order dated 20.08.2013. Not contented with the same, the petitioner filed appeal before respondent No.6, which was accepted vide order dated 02.01.2014, and the case was remanded back to respondent No.5 for decision afresh after recording statements of the parties including the statements of the witnesses who signed the power of attorney. Dissatisfied with the order dated 02.01.2014, the petitioner filed revision petition before the Member-I, Board of Revenue, Khyber Pakhtunkhwa, Peshawar, which was partially allowed vide order dated 19.05.2016, and the case was remanded back to learned Additional Deputy Commissioner with the direction to take the assistance of Forensic Science Laboratory to verify the genuineness of all documents including thumb impressions and signatures available on the deed.
It was also directed to determine as to whether an agent can legally use his power of attorney to transfer the land in favour of herself or his immediate family. After remand, the matter was thoroughly probed by respondent No.5, and proceeded to cancel the registered power of attorney as well as mutation in dispute vide order dated 23.01.2018. The said order was resisted by the petitioner by filing appeal before respondent No.6, which was dismissed on 13.08.2018. Being aggrieved of the same, the petitioner assailed the said order before respondent No.7, which was declined vide order dated 26.07.2019. Being aggrieved, the petitioner has preferred the instant petition.
03. The following submissions were made by the learned counsel for the petitioner: i. That the proceedings before the Revenue Officer or before Revenue Courts were summary in nature and therefore, the complicated questions of law and disputed questions offacts were not to be adjudicated in the said hierarchy, determination of such questions falls within the sole domain of the civil Court. ii. That plea that the registered general power of attorney executed in favour of the husband of the petitioner, on the basis of which, landed property of respondent No.1 & 2 was transferred to the petitioner through sale mutation No.2909 dated 25.03.2011, was procured by practising fraud, could not have been decided in proceedings which are civil in nature as such the controversy between the parties required adjudication by allowing the parties to produce evidence in support of their respective claims. iii. That section 172 of the land Revenue Act, 1967, does not create bar on the jurisdiction of the civil court to adjudge genuineness or authenticity of an instrument. iv. That section 172 of the Act of 1967 only empowers the Revenue Authorities to exercise administrative powers, they enjoy limited power of enquiry and did not possess the characteristics of a civil suit that necessitated framing of the issues and recording evidence of the parties, as such the dispute/matter fell within the sole domain of the civil courts and revenue hierarchy has no jurisdiction to take cognizance of the matter and went on to say that on this score alone, the impugned orders of the learned lower fora are neither maintainable in law nor on facts. v. That respondent No.1 & 2 have also filed a civil suit for redressal of their grievance on the same subject matter, which was dismissed as withdrawn, after cancellation of power of attorney and mutation. vi. That petitioner was not given an opportunity to cross examine the witnesses appeared before the local commission as well as Collector/ Additional Deputy Commissioner. vii. That section 172 (2) of the Act of 1967, left the adjudication offraud to be adjudged by the civil court. viii. That the learned lower fora exceeded and transgressed its limits in the instant case by declaring the power of attorney and mutation as having obtained through fraud and misrepresentation in support of his contention, he read out section 172 (2)(vi) of the Land Revenue Act, 1967 and section 39 of the Specific Relief Act, 1877. ix. That the petitioner has already earned acquittal in the criminal case registered against her on the same issue and concluded his arguments by saying that the impugned orders of the learned lower fora may be set aside.
04. In rebuttal, the learned counsel appearing on behalf of the legal heirs of respondents No.1 & 2 vehemently opposed the aforesaid submissions of the learned counsel for the petitioner and argued: i. That after promulgation of Land Revenue Ac, 1967 proceedings before the Revenue Court are deemed to be judicial proceedings, which lays down that every inquiry under this Act shall be deemed to be judicial inquiry proceedings, under this section Revenue Officer constitutes a Court and is empowered to receive evidence and administer Oath to any party and witness. ii. That under clause (vi) of sub section (2) of section 172 of the Act of 1967, the Revenue Officers are competent to make correction of any entry in a record of rights, periodical record or register of mutations. iii. That after a thorough probe, the revenue officers arrived at just and right conclusion that the general power of attorney was obtained by practicing fraud and misrepresentation and rightly held it to be forged and fictitious document, therefore, all transactions made thereunder or superstructure built on it would fall on ground. In support of his arguments, he also placed reliance on sections 42 & 44 of the Act of 1967. iv. That the petitioner was associated in the inquiry and was also given a fair chance of hearing before passing the impugned orders against him, however, she could not rebut the claims of the petitioner, therefore, the orders passed by the Revenue hierarchy do not suffer from any legal or jurisdictional defect, calling for interference. v. That mere acquittal in criminal case would have no bearing on the impugned orders of the learned lower fora. vi. That the impugned registered power of attorney was procured by the husband of the petitioner fraudulently to give benefit to his wife. vii. That original power of attorney produced before the revenue hierarch does not authorize the attorney hold to sell or transfer the property in question to anyone and sought dismissal of the writ petition with exemplary costs. In support of his arguments, learned counsel for the contesting respondents placed reliance on the following judgments. a. "Jamil Akhtar and others vs. LAS BABA and others" (PLD 2003 SC 494) b. "Maqsood Ahmad and others Vs. Salman Ali" (PLD 2003 Supreme Court 31) c. "Ali Azim Afridi, Advocate High Court, Peshawar vs. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and 03 others" (PLD 2020 Peshawar 105).
5. I have considered the rival submissions of the learned counsel for the parties and examined the record appended with the writ petition, the relevant law, and the case laws relied upon by the learned counsel for the contesting respondents.
6. The issue, that falls for my consideration and decision in this petition is, whether the Revenue Officer/Additional Deputy Commissioner/Collector had the power to cancel the registered general power of attorney on the ground that such power of attorney was procured through misrepresentation or fraud, and if the answer is in negative, whether the mutation attested on the basis of such power of attorney would automatically fall to the ground or any superstructure built on it would erase.
7. It is an admitted fact that the contesting respondents moved an application on 16.06.2011 for cancellation of general power of attorney No.3852 allegedly executed on 05.08.1996, procured through misrepresentation and practising fraud and sale mutation No.2909 executed on 25.03.2011, on the basis of said power of attorney, before the District Officer Revenue, Peshawar, which was accepted vide order dated 23.01.2018. It will be advantageous to reproduce the contents of said application as under:-
8. A perusal of the contents of the above-referred application clearly shows that cancellation of general power of attorney and mutation was sought on the ground of fraud and misrepresentation.
9. It is by now settled that proceedings before the revenue officer or before the revenue court are summary in nature and therefore, a disputed question of fact or complicated question of law cannot be decided by the Revenue Officer or Revenue Court. Parties in such like cases, ought to be directed to approach the civil Court. In this behalf reference may be made to the case reported as "Muhammad Ali Sabtain and 4 others vs. Mst. Shah Jehan Bibi and 9 others" (2004 YLR 1201). In this context, further reliance can be placed on the judgments reported as "Muhammad Yousaf and 3 others vs. Khan Bahadur through Legal Heirs" (1992 SCMR 2334), "Aurang Zaib vs. M/s. Al Haider Construction Company through Managing Partner and 4 others" (PLD 1993 Karachi 397), "GHAUSBOX vs. Altaf Hussain and others" (PLD 1993 Karachi 410), and "Mst. Gul Pari alias Gulbaro vs. Zarin Khan and others" (PLD 1994 Peshawar 249).
10. Provisions of section 53 of the Land Revenue Act, 1967 clearly stipulate that any person aggrieved by any entry in a record of rights can institute a suit for declaration under section 42 of the Specific Relief Act, 1877 before a competent civil Court. The determination of complicated questions of law and facts falls within the sole jurisdiction of civil Court, which has plenary jurisdiction under section 9 CPC. to adjudicate upon the controversy between the parties. A perusal of the petition moved before the District Officer Revenue reflects that cancellation of general power of attorney and mutation was sought on the ground of fraud and misrepresentation and that fraud and misrepresentation can only be challenged before the competent civil Court by invoking the provisions of sections 39 & 42 of the Specific Relief Act, 1877, through a suit for declaration for cancellation of the instrument declaring the same to be void or voidable. A registered document cannot be cancelled without intervention of a civil Court of competent jurisdiction. Revenue Officer or Revenue Court, in law, cannot examine the authenticity of a registered instrument in exercise of the powers conferred under the provisions of the West Pakistan Land Revenue Act, 1967 in view of provisions contained in section 39 of the Specific Relief Act, 1877. Therefore, I have no hesitation to hold that the Additional Deputy Commissioner/Collector exceeded his power by declaring registered general power of attorney and mutation No.2909 executed on 25.03.2011 as having been executed by practising fraud and misrepresentation.
11. In my view scope of section 172 of the West Pakistan Land Revenue Act, 1967 is entirely different. It only excludes the jurisdiction of civil Court for taking in hand the functions assigned to the revenue officers or revenue Courts, under this section including correction of any entry in record of rights, periodical record or register of mutation, in terms of section 17(2)(vi), and also the question of their methodology adopted for the discharge of such functions. However, where allegation of fraud or misrepresentation as discussed in the preceding para is attributed and cancellation of the instrument is sought on such allegation, then it is within the domain of civil Court to examine such allegation and the bar of section 172 of the Act of 1967 will not oust the jurisdiction of the civil court in such cases. It is observed that clause (xvi) of sub-section (2) of section 172 of the Act, 1967 clearly provides that the civil Court has got exclusive jurisdiction to decide the plea of fraud, which needs as under:- Section 172 (2) (xvi) any claim to set aside, on any ground other than fraud, a sale for the recovery of an arrear of land revenue or any sum recoverable as an arrear of land revenue.
12. Adverting to the judgments, relied upon by the learned counsel for the contesting respondents, I find that the judgments reported as "Jamil Akhtar and others vs. LAS BABA and others" (PLD 2003 SC 494), "Maqsood Ahmad and others Vs. Salman Ali" (PLD 2003 Supreme Court 31) and "Ali Azim Afridi, Advocate High Court, Peshawar vs. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and 03 others" (PLD 2020 Peshawar 105) are out of context, so far jurisdiction of the Revenue Officer or Revenue Courts to cancel the registered general power of attorney or mutation No.2909 attested on 25.03.2011 is concerned, In first two cases, the controversies between the parties was brought before the civil Court, and finally adjudicated upon by the august Supreme Court of Pakistan and in Ali Azim Afridi's case, provisions of sections 27, 80, 81, 82, 141 & 172 of the Land Revenue Act, 1967, whereunder, the Revenue Officers were performing judicial functions, were challenged through constitutional petition. The writ petition was allowed and the authorities were directed to amend the said section accordingly within a reasonable time, therefore, these case laws are of no help to the contesting respondents.
13. No doubt, this Court while exercising jurisdiction under Article 199 of the Constitution ordinarily and normally does not interfere with the concurrent findings of the Courts below or lower fora, however, if allegation of lack of jurisdiction or malafide or patent illegality, is attributed to the tribunal/authority passing the impugned order, the same can be set aside in exercise of provisions conferred under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 by issuing a writ of certiorari as held in the instant case.
14. The material on record when adjudged on the touchstone of the legal principles adumbrated hereinabove, I have no doubt in my mind to hold that the Revenue Officer or Revenue Court had no jurisdiction to take cognizance of the matter, therefore, the impugned orders, passed by the learned lower fora cancelling the general power of attorney and mutation No.2909 executed on 25.03.2011, is declared illegal, without lawful authority and without jurisdiction, the same are, therefore, nullity in the eye of law. Consequently, all the orders of the Revenue Officers/Revenue Courts impugned through this petition are set aside. However, it is open for the legal heirs of respondent No.1 & 2 to question the genuineness, authenticity and legality of the general power of attorney and mutation No.2909 executed on 25.03.2011 in the court of competent civil court by claiming the benefit of section 14 of the Limitation Act, 1908.
15. This petition is allowed in the above terms.