ABID HUSSAIN CHATTHA, J: This constitutional Petition is instituted by the Petitioners as functionaries of the Auqaf Department of Government of the Punjab (the "Auqaf Department") against the private contesting Respondents No. 1 to 19 (the "Respondents") impugning Order dated 02.02.2024 passed by Member (Judicial-II), Board of Revenue, Punjab, Lahore, (the "Respondent No. 21"), whereby, while accepting the Review Petition of the Respondents, the order dated 27.02.2017 passed in ROR No. 1271 / 2015 by predecessor of Respondent No. 21, order dated 10.04.2015 passed by Additional Commissioner (Revenue), Lahore Division, Lahore and order dated 01.07.2009 of District Officer (Revenue), Lahore were set aside and in consequence thereof, mutation No. 2088 dated 22.06.1988 was cancelled, whereas, mutation No. 1098 dated 14.07.1981 attested in favour of the Respondents was restored.
2. Learned counsel for the Auqaf Department submitted that the impugned Order is not sustainable in the eyes of law for the reasons that Review Petition of the Respondents before Respondent No. 21 is barred by time and the impugned Order is without jurisdiction being beyond the scope of review jurisdiction under Section 8 of the West Pakistan Board of Revenue Act, 1957 (the "Revenue Act"). He asserted that the Auqaf Department claims the entire land measuring 387 Kanals and 17 Marlas originally allotted to Dargah which was subsequently declared as Waqf property vide Notification dated 29.11.1968 which is still intact and has not been set aside, therefore, the impugned Order is patently unlawful being against the provisions of Section 21 of the Punjab Waqf Properties Ordinance, 1979 (the "Waqf Ordinance") which bars the jurisdiction of Civil or Revenue Courts.
Moreover, the dispute between the parties has been conclusively settled up to the Supreme Court of Pakistan and could not be reopened by the Respondents by filing an application for review of mutation No. 2088 and revival of mutation No. 1098 which even otherwise, is hit by principle of res judicata in view of order dated 28.04.1999 passed in W.P. No. 5724 of 1992. Therefore, the titled Petition is liable to be accepted.
3. Conversely, learned counsel for the Respondents submitted that plea of limitation was not taken before Respondent No. 21 and even otherwise, the Review Petition of the Respondents is within the prescribed period of limitation. The impugned Order is passed within the scope and mandate of Section 8 of the Revenue Act as it corrected an error floating on the surface of the record. The litigation culminating in the order passed by the Supreme Court of Pakistan is only with respect to exchange Mutation No. 451 through which private land of the Respondents was exchanged with the land of the Dargah. The originally allotted land measuring 387 Kanals and 17 Marlas of the Dargah stood reduced to 261 Kanals and 06 Marlas when Additional Settlement Commissioner vide order dated 14.01.1972 declared 126 Kanals and 11 Marlas land as excess land beyond the entitlement of Dargah which reverted to the Central Government. Hence, the Waqf property of 387 Kanals and 17 Marlas included in the Notification dated 29.11.1968 by the Auqaf Department stood automatically reduced to 261 Kanals and 06 Marlas. Thereafter, out of the said excess land measuring 126 Kanals and 11 Marlas, the Respondents were independently allotted 99 Kanals and 11 Marlas of land vide order dated 14.07.1981 passed by the Deputy Settlement Commissioner (Lands), Lahore pursuant to an earlier order of this Court dated 29.05.1979 passed in W. P. No. 367-R / 1978 in lieu of remaining unsatisfied personal claim of the Respondents and the same was mutated vide mutation No. 1098 dated 14.07.1981. The said orders dated 14.01.1972, 29.05.1979 and 14.07.1981 were never challenged and as such attained finality. Hence, the present claim of the Respondents is restricted to 99 Kanals and 11 Marlas which was not subject matter of any previous round of litigation and the same was accordingly recognized and allowed pursuant to the impugned Order. The order dated 28.04.1999 passed in W. P. No. 5724 / 1992 does not constitute res judicata since the request of the Respondents with respect to review of mutation No. 2088 and revival of mutation No. 1098 was never adjudicated by this Court. Hence, the impugned Order has been passed in consonance with law.
4. At the outset, it is pertinent to address the objection qua maintainability of the Review Petition of the Respondents before Respondent No. 21 on the ground of limitation. Record depicts that Review Petition of the Respondents was filed on 19.06.2017 against the impugned Order dated 27.02.2017, the certified copy whereof was applied on 01.03.2017 which was prepared and delivered on 22.03.2017. Thus, by excluding 22 days consumed in obtaining certified copy of the impugned Order, the Review Petition ought to have been filed on 18.06.2017 i.e. the 90th day. However, since 18.06.2017 fell on Sunday, as such, it was competently filed on 19.06.2017 on the following working day in terms of Section 4 of the Limitation Act, 1908 which stipulates that where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court re-opens.
Therefore, notwithstanding that plea of limitation was not raised before Respondent No. 21, Review Petition of the Respondents was not barred by time in terms of Section 8(2) of the Revenue Act which provides a period of limitation of 90 days from the date of decree or order.
5. The admitted facts of the case are that deceased Pir Abdur Rashid, predecessor-in-interest of the Respondents was a refugee claimant from India who was held entitled to 5634 PIUs against his private claim. He was allotted land in villages Bagrian Dharam-Chand and Ganja Sidhu against 4919-PIUs and remaining claim equivalent to 716-PIUs remained unsatisfied. Apart from the personal claim of predecessor-in-interest of the Respondents, he as Sajjada Nashin / Mutawalli of Dargah was also administrating the land measuring 387 Kanals & 17 Marlas which was separately allotted to Dargah.
6. Pir Abdur Rashid exchanged Banjar Qadim land measuring 245 Kanals and 12 Marlas of the Dargah with his personal allotted irrigated canal land measuring 63 Kanals and 12 Marlas vide exchange mutation No. 451 dated 30.09.1964 followed by gift mutation No. 454 with respect to exchanged land. In the meantime, the entire land of Dargah measuring 387 Kanals and 17 Marlas was declared as Waqf property and taken over by the Auqaf Department vide Notification dated 29.11.1968 under the Waqf Ordinance. It is pertinent to mention here that the Respondents brought a challenge to the act of the Auqaf Department to declare the land allotted to Dargah as Waqf property vide Notification dated 29.11.1968 which ended in favour of the Auqaf Department. In consequence thereof, it is admitted that the land allotted to Dargah is a Waqf property.
7. The Auqaf Department challenged the exchange and gift mutation Nos. 451 and 454 which went up to the Supreme Court of Pakistan, whereby, the said exchange and gift mutations were declared unlawful and cancelled. Resultantly, the irrigated land measuring 63 Kanals and 12 Marlas reverted to Pir Abdur Rashid / the Respondents and 245 Kanals & 12 Marlas Banjar Qadeem reverted to Dargah.
8. As a parallel development, Ali Muhammad and Rulia filed Mukhbari application under the Displaced Persons (Land Settlement) Act, 1958 against the allotted land to Dargah measuring 387 Kanals and 17 Marlas. The said Mukhbari application was decided vide order dated 14.01.1972, whereby, the land measuring 126 Kanals and 11 Marlas equivalent to 748-PIUs allotted to Dargah in village Bagrian Dharam-Chand was declared as excess land and cancelled. Accordingly, it opened for allotment to other claimants including the Respondents. The said order dated 14.01.1972 attained finality under the law, whereafter, the excess land measuring 126 Kanals and 11 Marlas reverted to Central Government vide mutation No. 644 dated 12.12.1972.
9. The Respondents filed W. P. No. 367-R/1978 before this Court which was disposed of vide order dated 29.05.1979 with the direction that the Respondents as legal heirs of deceased Pir Abdur Rashid shall be allotted land equivalent to 580-PIUs. Pursuant thereto, the then Deputy Settlement Commissioner (Land), Lahore allotted land measuring 99 Kanals and 11 Marlas against 580-PIUs to the Respondents and 27 Kanals equivalent to 113-PIUs to the legal heirs of deceased Aizaz Ahmad Khan. In consequence of the said allotment, mutation No. 1098 dated 14.07.1981 was attested in favour of the Respondents.
10. A series of orders were passed in the revenue hierarchy regarding implementation of order passed by the Supreme Court dated 15.01.2004 in C. P. No. 1268-L and 1084-L / 1999 regarding exchange and gift mutation Nos. 451 and 454. In the process of implementation, the District Revenue Authorities cancelled the exchange and gift mutation Nos. 451 and 454 as well as mutation No. 1098 in favour of the Respondents and mutation of other co-allottee Mr. Aizaz Ahmad Khan, although, the said mutations were not the subject matter of litigation. In consequence thereof, mutation No. 2088 was passed in favour of the Auqaf Department who took over the entire land measuring 387 Kanals and 17 Marlas instead of 245 Kanals and 12 Marlas of Dargah which was subject matter of litigation before the Supreme Court.
11. The said Aizaz Ahmad Khan who had been allotted land measuring 27 Kanals land filed a review of mutation No. 2087 dated 22.06.1988 to ADC (Cantt) which was allowed and the said land was restored to him which was subsequently inherited by his legal heirs. As per revenue report dated 16.01.2024, the legal heirs of Aizaz Ahmad Khan have alienated the said land in favour of other purchasers.
12. The Respondents also applied for correction of mutation No. 2088 to the extent of their entitlement and restoration of mutation No. 1098. The said application was adjourned sine die at the request of the Auqaf Department due to pending litigation which was assailed by the Respondents in W. P. No. 5724 of 1992. However, this Court vide order dated 03.05.1992 dismissed the same by observing that application of the Respondents was adjourned sine die due to passing of stay order in connected Writ Petition but the same has been decided, therefore, the question as to whether the application of the Respondents was rightly or wrongly adjourned sine die is merely academic. Needless to mention that this Court did not adjudicate the claim of the Respondents on merits but merely dismissed the Petition since the reason on account of which the application of the Petitioner was adjourned sine die had abated. Thereafter, the Respondents filed an application for revival of application which eventually culminated into the impugned Order passed in their favour.
13. It is manifestly evident from the above that challenge brought by the Respondents to the Notification dated 29.11.1968 of the Auqaf Department with respect to allotted land of the Dargah measuring 387 Kanals and 17 Marlas declared as Waqf property was met with failure. However, the said allotted land of Dargah and subsequently declared as Waqf property under the Waqf Ordinance was later reduced after acceptance of Mukhbari application by 126 Kanals and 11 Marlas vide order dated 14.01.1972 passed by Additional Settlement Commissioner and in consequence thereof, the said excess land reverted to the Central Government vide mutation No. 644 dated 12.12.1972. Thus, the land measuring 387 Kanals and 17 Marlas originally allotted to Dargah and taken over by the Auqaf Department through Notification dated 29.11.1968 was reduced to 261 Kanals and 6 Marlas. The litigation culminating up to the Supreme Court of Pakistan was with respect to exchange and gift mutation Nos. 451 and 454 which had no nexus with the claim of the Respondents relating to land measuring 99 Kanals and 11 Marlas that was subsequently allotted to them out of excess land of 126 Kanals and 11 Marlas against their pending personal verified claims vide order dated 14.07.1981 passed by the then Deputy Settlement Commissioner (Lands), Lahore pursuant to an earlier order dated 29.05.1979 passed by this Court in W. P. No. 367-R / 1978 by holding that out of the land cancelled in the name of Dargah, the land equivalent to 580 PIUs shall be allotted to the heirs of Pir Abdur Rashid / the Respondents. The Auqaf Department did not challenge either of the three orders dated 14.01.1972, 29.05.1979 and 14.07.1981 which had attained finality and in order to give effect thereto, mutation No. 1098 dated 14.07.1981 was attested in favour of the Respondents. The Auqaf Department pursuant to order dated 14.01.1972 passed by the Additional Settlement Commissioner regarding exclusion of excess land of 126 Kanals and 11 Marlas from originally allotted land to Dargah measuring 387 Kanals & 17 Marlas and mutated vide mutation No. 644 dated 12.12.1972 ought to have passed a corrigendum to the Notification dated 29.11.1968, thus, reducing its holding qua Waqf property from 387 Kanals and 17 Marlas to 261 Kanals and 06 Marlas. Inaction on the part of the Auqaf Department created the entire confusion which led the Respondents to take their grievance to the revenue hierarchy which was ultimately recognized through the impugned Order by cancelling mutation No. 2088 dated 22.06.1988 and restoring mutation No. 1098 dated 14.07.1981 in favour of the Respondents.
14. Section 8(1) of the Revenue Act stipulates that power of review is available against the order passed by Member of the Board of Revenue on the grounds of discovery of new and important matter or evidence which after the exercise of due diligence was not within the knowledge of the aggrieved person or could not be produced by him at the time when 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 any other sufficient reason, the aggrieved person desires to obtain a review of the decree passed or order made against him. In the instant case, review was competently entertained and decided on merits on account of mistake and error apparent on the face of record. Therefore, objection of learned counsel for the Auqaf Department that Respondent No. 21 acted beyond the scope of review conferred under Section 8(1) of the Revenue Act is without merits. Needless to mention that claim of the Respondents qua correction of revenue record squarely fell within the ambit and jurisdiction of revenue hierarchy and as such, Section 21 of the Waqf Ordinance had no relevance.
15. In view of the above, this Petition is devoid of any merit and the same is hereby dismissed.