The petitioner Des Dewan obtained an allotment of land in .The border belt of the District of Bahawalnagar on the 12th of November 1958 in lieu of the claim of his father Muhammad A.I who was stated to have died during the Partition disturbances. The allotment was confirmed on the 14th of January 1959 and a mutation of inheritance was sanctioned on the 24th of March. 1960. The Entitlement Certificate in favour of the petitioner's father Muhammad A.I had been issued in 1957. In the Sear 1962 one Jan Muhammad gave a Mukhbri application against the petitioner alleging that the petitioner's father Muhammad A.I: was alive and in possession of his land in Bikaneer State in India and, therefore, the petitioner had obtained land fraudulently and dishonestly. According to the petitioner, an inquiry was made into these allegations, but they were not proved. A second Mukhbri application was filed against the petitioner in 1964 by one Burhan, and that application was also rejected after due inquiry by the Border Committee on the 15th of February 1965: Thereafter a third informant named Ghulam came forward with the same allegations, but did not succeed. There was still another application of the same nature by one Khan Muhammad but apparently no order was made on that application, with the result that the allotment obtained by the petitioner remained intact. However, there was a fifth application by the respondent No. 1 Major Nazir Beg (Retd.) employed as Wing Commander in the Desert Rangers, Bahawalnagar. This application is dated the 23rd of June 1967, as a result of which further elaborate inquiry was held by the Border Committee by examining witnesses on both sides. During the course of the inquiry the informant also relied upon an order stated to have been, made by the Government of India on the 13th of September 1960 to the effect that-Muhammad A.I was allotted alternative land in lieu of his own holding which had been given to non-Muslim refugees who had come to India. On the basis of the oral evidence as well as this document, the Border Committee came to the con--clusion that the petitioner's' father Muhammad A.I was indeed alive in India and in possession of land obtained in lieu of his original holding, with the result that the petitioner was not entitled to obtain any land in Pakistan in lieu 'of his father's property in India. On these findings an order was made on the 10th of June 1967 cancelling the allotment from the name of the petitioner and directing resumption of the land held by him.It was also directed that a letter should be addressed to the Central Record Office for cancelling the Claim Forms bearing Nos. 162699 and 162700, verified in the name of Muhammad A.I son of Baloo.
2. Aggrieved by this order of the Border Committee, the petitioner has invoked the extraordinary jurisdiction of this Court under Article 98 of the Constitution, and the main contentions urged on his behalf by his learned counsel Mr. Gulzar Hassan are:-
(a) that the Border Committee had no jurisdiction to review its previous order dated the 15th of February 1965 by which a similar application filed by the informant Burhan had been rejected after due inquiry,
(b) that the mutation of inheritance in the name of the petitioner as the heir of his father Muhammad A.I son of Baloo not having been reviewed by the competent Revenue Authority, the petitioner had to be regarded as an heir of his father Muhammad A.I and could not, therefore, be deprived of his holding by the Border Committee,
(e) that no opportunity was afforded to the petitioner to cross-examine the witnesses produced against him and, there--fore, the inquiry stands vitiated on this account, and
(d) that the Border Committee has erred in placing reliance on the certified copy of Government of India's order dated the 13th of September 1960 as it is not admissible in evidence for the reason that it was not certified by a Notary Public or a Pakistani Representative in India as required by section 78 of the Evidence Act.
3. On the question of the Border Committee's power to review its previous order, I find that paragraph 10(a) of West Pakistan Border Area Regulation No. 9 of 1959 clearly empowers the Committee to scrutinise all allotments of evacuee property within the border area. The power of scrutiny must be construed to be in the nature of a continuing power, and cannot be regarded as having come to an end with the order passed on the previous occasion on the Mukhbri application of Burhan. The finality which attaches to orders and decrees of Courts of law cannot be invoked in a case of the present kind where the Border Committee acts undoubtedly as an administrative tribunal, although in the matter of holding an inquiry it has to conform to certain requirements which will be presently noticed.
4. The contention that the Border Committee could not proceed to cancel the petitioner's allotment so long as the mutation of inheritance previously sanctioned in his name was not reviewed, has no merit whatsoever. The mere sanctioning of a mutation of inheritance does not create any entitlement in the name of any person. In the present case the very question of inheritance was in the melting pot before the Border Com--mittee, in the sense that it was being alleged that the petitioner father being alive, no occasion had arisen for the petitioner to inherit his father's property or to file a claim in-lieu thereof. I consider, therefore, that the Border Committee could proceed in the matter without getting the mutation of inheritance reviewed by the Revenue/Rehabilitation Officers.
5. The allegation that no opportunity was afforded to the petitioner to cross-examine the witnesses produced against him is not borne out by the record of the inquiry as it appears that at least in one case questions were put up by the petitioner in cross-examination and, therefore, it has to be presumed that in other cases also opportunity' must have been given, but no questions were put.
6. Coming to the last contention regarding the admissibility of the certified copy of the Government of India's order dated the 13th of -September 1960, I find that the order of the Border Committee makes it abundantly clear that it was strongly in--fluenced by this documentary -evidence which established the fact that the petitioner's father Muhammad A.I was still alive in India and had been given alternative land in lieu of his own holding by the Government of India. It is true that the oral statements of witnesses have also been relied upon in support of this finding, but the main stay does appear to be this document--ary evidence. The question, therefore, is whether the document could have been relied upon in the absence of attestation by a Notary Public or by a Representative of Pakistan as required by clause (6) of section 78 of the Evidence Act.
7. In order to answer this question it has to be determined whether the Evidence Act is applicable to proceedings before the Border Committee. According to section 1 thereof, "the Act extends to the whole of Pakistan and applies to all judicial proceedings in or before any Court, including Courts- martial, other than Courts-martial convened under the Army Act, the Naval Discipline Act or that Act as modified by the Pakistan Navy (Discipline) Act, 1934 or the Air Force Act but not to affidavits presented to any Court or officer, nor to proceedings before an arbitrator". The word "Court" as used in section 1 is defined in section 3 of the Evidence Act as including all Judges and Magistrates and all persons, except arbitrators, legally authorised to take evidence.
8. The submission made by the learned counsel for the petitioner is that although the Border Committee may be an administrative tribunal, yet for the purpose of holding an inquiry it has all the powers of a civil Court under paragraph 14 of Regulation No. 9 and is, therefore, a person legally authorised to take evidence. Paragraph 14 lays down that "for the purpose of holding any enquiry or scrutinizing any allotment, a committee shall have the same powers as a civil Court trying a suit under the Code of Civil Procedure, 1908 in respect of summoning and enforcing the attendance of any person and examining him on oath or affirmation, compelling the discovery and production of any document, and requisitioning any public record from any office. It will be seen that while holding an inquiry the Border Committee is under an obligation to act judicially in the matter of summoning and enforcing the attendance of witnesses and examining them on oath or affirmation. Paragraph 14 clearly gives legal authority to the Border Committee to take evidence.
Such being the case, it seems to me that while holding an inquiry of the Border Committee would come within the definition of the term "Court" as given in section 3 of the Evidence Act, anti consequently the question of the admissibility of evidence produced during an inquiry before the Border Committee will have to be decided with the reference to the Evidence Act.
9. However, it was submitted by Mr. Mannan, the learned counsel for the Border Area Committee, that the Committee being an administrative tribunal, the technicalities of the Evidence Act were not applicable to proceedings before the Committee, and that the mere fact that it had been given all the powers of a civil Court trying a suit under the Code of Civil Procedure did not mean that automatically the provisions of the Evidence Act were also attracted. It is contended by the learned counsel that the Evidence Act has to be specifically applied to proceedings before administrative tribunals, and in the absence of such express application the provisions of the Evidence Act would stand automatically excluded. In support of this proposition the learned counsel has placed reliance on a Division Bench judgment of this Court, namely, Abdul Hamid v. Malik Karam Dad and 2 others (PLD 1966 Lah. 16).
10. In the case relied upon by Mr. Mannan the question before the learned Judges was whether the provisions of the Evidence Act were applicable to proceedings held by an Election Tribunal constituted under the Electoral College Act, 1964 and their Lordships came to the conclusion that as the tribunal in question was empowered to hold a summary inquiry and there was no specific provision authorising it to summon witnesses, the tribunal was a purely administrative tribunal not bound by the technicalities of the Evidence Act. Their Lordships further observed that there was nothing in the Electoral College Act to show that the Evidence Act had been made applicable to the trial of an election petition by the tribunal. The learned Judges, however, hastened to add that "the tribunals, especially-in cases where they are required to adjudicate upon the civil rights of the parties, are under an obligation to act judicially and are bound to follow the fundamental rules of evidence and fair-play which are embodied in the principles of natural justice . . . . . . .". Acting on this principle they held that in the case before them the inquiry was vitiated as opportunity for cross-examination of the deponents of the affidavits relied upon by the tribunal was not afforded.
11. A careful analysis of the reasoning adopted by the learned Judges shows that they ruled out the application of the Evidence Act to the proceedings before the tribunal in question on the ground that the tribunal was empowered to hold a. Summary inquiry and there was even no provision in the Electoral College. Act authorising the tribunal to summon witnesses, although in actual practice the tribunal did record evidence. Considerable part of the judgment is devoted to the question whether a tribunal of this kind can be regarded as a Court and the answer is returned in the negative for the reason that the tribunal is under no obligation to act formally and there is no provision whatsoever in the Electoral College Act applying the provisions of the Civil Procedure Code or the Evidence Act to the proceedings before it. This aspect of the matter is clearly brought out in paragraph 7 of the judgment where their Lordships have distinguished the Electoral College Tribunal from the Election Tribunal established under the National and Provincial Assemblies (Elections) Act, 1964 which was held to be a Court for all intents and purposes, on the ground that it had all the powers of a civil Court trying a suit under the Code of Civil Procedure while dealing with an election petition, and that the provisions of the Evidence Act had also been made expressly applicable for the trial of election petitions. Now, it seems to me that in the present case paragraph 14 of the Border Area Regulation clearly prescribes that while holding an inquiry the Border Area Committee would have all the powers of a civil Court trying a suit, and particular mention is- made of summoning and enforcing the attendance of witnesses and of the discovery and production of documents. Such being the case, no doubt is left in my mind that a Border Area Committee is a person legally authorised to take evidence in the manner permitted to a civil Court trying a suit under the provisions of l the Code of Civil Procedure, a position which would immediately bring the Border Committee within the definition of the term "Court" as contained in section 3 'of the Evidence Act. It. Will be noticed that paragraph 14 of the Regulation specifically mentions the discovery and production of documents in the same manner as is admissible to a civil Court trying a suit. The intention of the law-maker to attach formality to the inquiry conducted by the Border Committee is manifest from the provisions contained in Paragraph 14 of the Regulation. On this view of the matter, the question of the admissibility of evidence adduced before the Border Committee would clearly fall to be regulated by the provisions of the Evidence Act.
12. The document on which the Border Committee has relied is a foreign document falling within clause (6) of sec--petition 78 of the Evidence Act. It is conceded that it does no bear the requisite certificate of a Notary Public or of a Pakistani representative in India. Such being the case, it was not admissible in evidence (See Saeed Ahmad v. Mahmood Ahmad (P -L D 1968 Lah. 520) ).
13. I have already stated that a perusal of the impugned order makes it clear that in coming to an adverse conclusion against the petitioner the Border Committee was largely influenced by the document in question and it is, therefore, difficult to say what the conclusion of the Border Committee would have been if this document had been excluded from consideration. It was contended by Mr. Mannan that there was oral evidence to support the allegations of the informant, but as against this it was pointed out by Mr. Gulzar Hassan that on the previous occasion oral evidence had been rejected by the Border Committee when dealing with the application of informant Burhan. In these circumstances, it is indeed difficult to say how the mind of the Border Committee would have worked in `the absence of the document in question. Accordingly, I would set aside the order .Of the Border Committee dated the 10th of June 1967 and remit the case to the Committee for a fresh decision after excluding the documentary evidence produced before it in the shape of the Government of India's order dated the 13th of September 1960. However, it would be open to the party concerned to have the document properly authenticated in terms of section 78(6) of the Evidence Act and in that event the document would be admissible in evidence and could be acted upon. The petition is, therefore, accepted to this extent, but the parties are left to bear their own costs.