[14-3-1984].- The appellants' leave petitions bearing Nos. 4-R and 5-R of 1983 were converted into appeals to consider :
(1) Whether, an adequate alternative remedy being available under section 53 of the Land Revenue Act, 1967, recourse to writ jurisdiction could not be had ? And
(2) Whether the High Court had fallen in error in substituting its own finding of fact for that of Board of Revenue which it could not do in the exercise of its writ jurisdiction?
2. The facts are that the preparation of the record-of-rights of the village Soorgai, Tehsil Batagram, which had previously formed part of Tribal Area but had been added to Hazara district (now Mansehra district) in 1952 as settled area, was taken in hand for the first time in 1976-77 in pursuance of the Provincial Government's Notification No, 24602/Rev. IV, dated 28-10-1974.
Apprehending some misrepresentation on the part of the respondents, the appellants moved two applications, before the Settlement Officer, one on 18-6-1976, and the other on 16-11-1976, praying that the disputed area which was forest land and their ancestral property may be entered in their name. The respondents through Gul Zaman Khan also applied on 8-10-1976 that the area be entered in their name as they had purchased the same from Haji Abdul Rashid Khan in 1963 and 1965. The name of the respondents was, however, entered by the Settlemnt officials as owners of the disputed area. The Settlement operations concluded on 26-11-1977 and the proceedings were consigned to the records by the order of the Settlement Officer dated 6-12-1977. However, when the matter came up before the Settlement Officer, he by his order dated 5-3,978 directed that the entries in the record-of-rights in regard to ownership made in favour of the respondents be scored off and the relevant column be left blank till either of the parties established its right in that regard.
3. Both parties appealed before the Commissioner, who by order dated 7-4-1979 accepted the appeal of the respondents and dismissed that of the appellants. His view was that the Settlement proceeding having been concluded on 26-11-1977 after thorough enquiry and the records duly consigned on 6-12-1977, the Settlement Officer had no authority to direct that the entries made be deleted and the relevant column be left blank. The contention of the appellants that the entries could not be considered final as the matter had been still under enquiry, did not prevail. The decision was challenged by the appellants in revision before the Member, Board of Revenue, in the result of which the Commissioner's order was set aside and it was directed that the entry be changed to "Sharnifat-e-Deh" and that if any of the parties felt aggrieved it could move the Civil Court to establish its right. This is vide order dated 10-9-1980.
4. The respondents took the matter to the Peshawar High Court by filing Writ Petitions Nos. 88 and 89 of 1980/C. B. A., where their plea was accepted by the impugned order, dated 20.12-1982 and in the result the order of the Commissioner, dated 7-4-1979 was restored. The learned Judges of the High Court held that the question of entitlement being in controversy between the rival claimants, the Board of Revenue had no jurisdiction to treat the property as "Shamilat-e-Deh" and that entries having been made in favour of the respondents under the signature of the Settlement Officer, he was left with no authority to direct the deletion of the same and to treat the column blank. The High Court further observed that if any party felt aggrieved, it could seek remedy before a Civil Court where the question of entitlement of the rival claimants could be decided in accordance with law.
5. The case of the appellants was that they were the original owners of the lands in question, that the other party had succeeded through the manipulation of Sardar Gul Zaman Khan respondent who was then a provincial Minister and had later been disqualified under M. L.
0. 31, and his uncle Sardar Gulab Khan respondent who was then Assistant Settlement Officer during the Settlement operations, in getting the entries made in their favour in the ownership column despite the fact that the appellants had agitated the matter of ownership in the Settlement proceedings and that when the reports were eventually put up, the Settlement Officer rightly scored off the entry made in favour of the opposite-party. Their grievance was that the Settlement Officer should not have ordered the relevant column to be left blank but should have got them (appellants) recorded as owners in the record-of-rights. In this connection, it was pointed out that the learned Member, Board of Revenue, had found as follows "While the matter regarding entries to be made in respect of the disputed forest area was under enquiry and an order directing final entry in favour of one or the other party was yet to be determined, the Revenue staff made an entry in favour of the respondents and consigned the record on 31-1-1978 under the order of Settlement Officer, dated 6-12-1977. When the case came to the Settlement Officer, he passed an order on 5-3-1978 that he was not satisfied with the entry as no proper enquiries had been conducted.
' What stands out crystal clear is the fact that the ownership of the area is disputed and no one seems to act and take steps according to the rules and the instructions contained in the Settlement Manual to give notices to the parties and make proper enquiries before making any entry by passing a clear cut order. .. The only entries in favour of Pokal and others respondents made by the Patwari in Register Haqdaran-e-Zamin in this case is of no authority because the record was being prepared for the first time. Therefore, there should have been some sort of thorough and exhaustive enquiries to determine the entries to be made in favour of one or other party."
' It was submitted that the above finding of the learned Member, Board of Revenue, which was based on a detailed discussion of the facts, had not been given proper consideration by the learned Judges of the High Court. It was further submitted that the Board of Revenue had given good reasons to hold that the disputed entry had been made without an order of the competent authority which was a finding of fact, not liable to interference in the constitutional jurisdiction, and yet the High Court held and that too, without proper basis that the order of the Board of Revenue was "not only erroneous but suffers from jurisdictional defect". The order of the High Court was assailed also on the ground that a statutory alternative remedy was available under section 53 of the Land Revenue Act, 1967, enabling the party aggrieved by the order of the revenue hierarcy to take recourse to Civil Court for a declaration of its right.
6. On the other hand, it was urged on behalf of the respondents that the Settlement operation having concluded and the record-of-rights having been completed, the Settlement Officer had no jurisdiction to score off the entry made in favour of the respondents which was validly rectified by the Commissioner. It was, therefore, urged that it was the learned Member, Board of Revenue, who had fatten in error by acting in excess of his jurisdiction in interfering with the valid order of the Commissioner, and as such recourse to the constitutional jurisdiction of the High Court was proper.
According to them, it was for the appellants if still aggrieved to move the Civil Court under section 53 of the Land Revenue Act.
7. We find that the learned Member, Board of Revenue, had after a detailed examination of the facts leading to the making of the entry in favour of the respondents, come to a definite finding that the entries had been made without a final order of the competent authority and while the dispute regarding ownership was still under enquiry. RI! 1:12,2?. Cement debt. That there was no legal entry. Leen-nee' counsel for the respondents was unable to controvert on the (actual plane the correctness of the above finding of the learned Member, Board of Revenue. He was also unable to show that the entry made had been under the signature of the Settlement Officer, The High Court thus obviously fell in error in presuming that the entry had been legally made and that the Settlement Officer could not as such later score off the same. We also do not find any warrant for the High Court to hold that the order of the Board of Revenue was "erroneous" or "suffers from juridictional defect".
8. It is true that a party aggrieved by an entry in a record-of-rights could move the Civil Court under section 53 of the land Revenue Act but there is nothing to prevent that party from seeking redress first in the Revenue hierarchy by way of appeal and revision. Under section 164(4), the Board of Revenue has the power to call for the record of any case pending or C disposed of by any revenue officer subordinate to it and "to pass such orders as it thinks fit". The only limitation on this power is that no order shall be passed without giving the affected person an opportunity of being heard. It was not and cannot be denied that this jurisdiction was available even in matters relating to preparation of record-of-rights and that the orders passed by subordinate revenue officers merged in the order of the Board of Revenue which became the final adjudication of the dispute between the parties in so far as the revenue authorities were concerned. At this stage if any party was aggrieved, it could invoke the provision of section 53 which was an adequate remedy and as such the constitutional jurisdiction of the High Court in terms of Article 199 of the Constitution was not available. While ruling out an interference by the High Court in its constitutional jurisdiction with the revisional order of the Board of Revenue, this Court had in Muhammad Faris Jan v. Colonisation Officer (1) observed that :- "By section 211 of the Act (Sind Land Revenue Code, 1879), the Board of Revenue possesses power to revise an order passed by any subordinate officer and questions of legality as well as propriety of such a decision would be open in revision before the Board. The order of the Board was passed after full hearing of both parties on the merits of the case. Even if, therefore, the intermediate appellate links were weak, the final order in revision, referable as it was to section 211 of the Act, could not be successfully assailed as illegal.
' Again, in Khuda Bakhsh v. M. Ember, Board of Revenue (2) this Court had declared that the power of the Board of revision under section 164 was very wide and subject only to the condition firstly that it considered the case "fit" for its interference and secondly that it gave prior notice to the affected party. In other respects the power is unqualified. The principle generally to be followed in exercising the constitutional jurisdiction in respect of decisions taken by a Court or Tribunal, was laid down in clear terms in Muhammad Hussain Munir v. Sikandar (3) in which it had been ruled that : .It is wholly wrong to consider that the above Constitutional provision was designed to empower the High Court to interfere with the decision of a Court or tribunal of inferior jurisdiction, merely because in its opinion the decision is wrong. In that case, it would make the High Court's jurisdiction indistinguishable from that exercisable in a full-fledged appeal, which plainly is not the intention of the Constitution-makers."
9. For these above reasons we set aside the impugned judgment of the High Court and allow the appeals with costs. {{FOOT NOTE}}
(1) PLD 1965 SC 399 (2) 1976 SCM R 26
(3) PLD 1974 SC 139 {{FOOT NOTE}}