This constitutional petition calls in question the order dated 20-11-1982 passed by Mr. Anwar Zahid, Member Board of Revenue, Punjab, Lahore whereby the review petition filed by respondents NOS.1 & 2 was accepted and the order dated 5th of November, 1981 passed by Mr. S.M. Nasim, Member Board of Revenue was re-called.
2. The circumstances leading to the filing of this petition are that through a deed of sale dated 9th of April, 1978, respondent No.3, Rasool Bakhsh purchased agricultural land measuring 29 Kanals 8 Marlas out of Khata No.45 of Mauza Kotla Dad, Tehsil and District, Rajanpur. The petitioner filed a suit seeking to pre-empt the sale in the Court of Civil Judge, Rajanpur which was decreed on 29th of April, 1979. During the pendency of the aforesaid suit, respondent No.l, Muhammad Abdullah also filed a suit for possession through pre-emption in respect of the same sale before the Assistant Commissioner/ Collector, Rajanpur, claiming superior right of pre- emption as a tenant of the suit land. Respondent No.2, Abdul Rehman was also impleaded as a co-plaintiff on 9th of July, 1979. On 8th of March, 1980 the suit filed by the respondents was decreed to the extent of 19 Kanals and 12 Marlas of land by the Collector, on the finding that they were tenants in respect of this area of land.
Two appeals, one by the petitioner and the other by respondents Nos. l and 2 were filed against the decree and judgment of the Assistant Commissioner, Collector in the Court of Commissioner, Multan. It also appears that respondents Nos. 1 & 2 had during the pendency of the suit for pre- emption filed an application for correction of entries in the Khasra-Girdawari which was rejected by the Collector on 17th of December, 1979. An appeal against this order was also filed by the respondents before the Additional Commissioner, Multan.
3. All the three appeals were heard by the learned Additional Commissioner, Multan, who on 17th of April, 1981 accepted the appeal filed by Haq Nawaz petitioner and held that the respondents were not tenants in respect of the land on the relevant date. In view of this finding he dismissed the appeal filed by respondents Nos.l & 2. A revision petition was filed by the respondents against the judgment and decree of the learned Additinnal Commissioner, Multan dated 17th of April, 1981, dismissing the pre-emption suit filed by the respondents Nos.l & 2. This revision petition was heard by Mr. S.M. Nasim, Member Board of Revenue, who dismissed it on 5th of November, 1981 (Annexure'H'). On 30th of December, 1981, an application seeking review of the order of Mr. S.M.
Nasim was filed by the respondents Nos.l & 2, which came up for hearing before Mr. Anwar Zahid Member, Board of Revenue, who in the meantime had taken over as Member (Revenue). He proceeded to accept the review application and re-called the order dated 5th of November, 1981, passed by Mr. S.M. Nasim, with the result that the judgment and decree of the Collector, Rajanpur dated 8th of March, 1980 was restored and that of the Additional Commissioner, Multan dated 17th of April, 1981 set aside.
4. The learned counsel appearing in support of this constitutional petition has assailed the validity of order dated 20-11-1982 passed by Mr. Anwar Zahid, Member, Board of Revenue on the following grounds:- (a)That there is no power vested in the Board of Revenue to review its orders arising out of the pre- emption suits under paragraph 25 of the Land Reforms Regulation, 1972 MLR 115.
(b)That power of review could be exercised only by Mr. S.M. Nasim, who at the relevant time continued to be a Member, Board of Revenue, though holding a different charge, and the review petition could not be heard by Mr. Anwar Zahid, Member, Board of Revenue.
(c)That in any case, the scope of review was limited to removal of errors apparent on the face of record and it was not open to Mr. Anwar Zahid to re-open the case on merits as review is not rehearing of the cause.
5.In reply it has been submitted by the learned counsel for the respondents that the Board of Revenue enjoys the power of review as under paragraph 25(8) of the Land Reforms Regulation, 1972 it is deemed to be a Civil Court and has all the powers vested in a Civil Court including the power of review. Further, under the Board of Revenue Act 1957 also. Such a Dower is available to the Board. As regards the second contention, it was argued that Mr. S.M. Nasim ceased to be the Member (Revenue) of the Board of Revenue and as such Mr. Anwar Zahid, who at the relevant time was Member (Revenue) was competent to hear the review petition. The learned counsel also contended that the order of the Member Board of Revenue dated 5th of November, 1981 suffered from errors patent on the record and was rightly reviewed by Mr. Anwar Zahid on 20th of November, 1982.
6. Elaborating the first contention, it was submitted by the learned counsel for the petitioner that review is not a matter of procedure but is a substantive right which has to be specifically conferred by the Statute and can neither be implied nor is the same inherent. The learned counsel submitted that paragraph 25, provides for appeals and revisions, but does not contain any provision conferring the power of review on the Board and as such the Board of Revenue has no power of review. He has relied upon Inayat Masih v. Member (Revenue), Board of Revenue, Punjab Lahore and 2 others 1985 CLC 1109.
Originally all suits for pre-emption including those based on tenancies were triable by the Civil Courts like ordinary suits. However, by Land Reforms (Amendment) Act, 1976, paragraph 25 was amended and all suits seeking to enforce the right of pre-emption based on tenancy were made exclusively triable by the Collector. A right of appeal against his decision was provided to the Commissioner. The Board of Revenue was given revisional powers under sub-para (7). Under sub- para (8) of the amended paragraph 25, which reads as under: -
(8) For the purposes of this paragraph a Collector, a Commissioner and the Board of Revenue shall be deemed to be a Civil Court and shall have all the powers of a Civil Court under any law for the time being in force and the final order passed in such suits shall be deemed to be a decree of a Civil Court and shall be executed as such." The Collector, Commissioner and the Board of Revenue for the purposes of paragraph 25 were to be treated as "Civil Court" and it was further provided that they shall have all the powers available to such a Court under any law for the time being in force. This sub-para by fiction of law in the deeming clause not only makes the Collector, Commissioner and Board of Revenue a Civil Court but, also provides that they shall have all the powers of a Civil Court under any law for the time being in force. The effect-of deeming clauses was considered in Mehreen Zaibun Nisa v. Land Commissioner, Multan etc. PLD 1975 Sri 397 wherein.
It was observed that:- ". . . When a statute contemplates that a state of affairs should be deemed to have existed, .It clearly proceeds on the, assumption that in fact it did not exist at the relevant time but by a legal fiction we are to assume as if it did exist.. The classic statement as to the effect of a deeming clause is to be found in the observations of Lord Asquith in East End Dwelling Company Ltd. v.
Finsbury Borough Council (1) namely:- "Were the statute says that you must imagine the state .Of affairs, it does not say that having done so you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs." This observation has been referred to with approval in a large number of cases decided by the Courts in this sub-continent, as mentioned by the learned Judges in the High Court. (See Commissioner of Income Tax, Bombay Presidency v. Bombay Trust Corporation Ltd. AIR 1930 PC 64; Agha Shaukat Ali v. Settlement and Rehabilitation Commissioner, Lahore PLD 1965 Lah.
445; Begum B.H. Sayed v. Mst. Afzal Jahan Begum PLD 1965 Lah. 967; Begum B.H. Sayed v. Mst. Afzal Jehan Begum PLD 1970 SC 29 and Abdul Hakim Khan v. Mrs. Doreem Barkat Ram PLD 1973 Lah. 566."
Read in the light of these observations, sub-para (8) not only makes the Board of Revenue a Civil Court but also vests it with all the powers of a Civil Court under the Code of Civil Procedure, 1908.
Section 114 and Order 47 C.P.C. Thus become applicable to proceedings before the Board of Revenue. It is important to note that paragraph 25(8) does not, unlike many other laws confines itself B to making only procedural provisions of the Code applicable but, on tte other hand, it confers the status of a Civil Court on the authorities and vests them with all the powers of such a Court. There is, therefore, no reason for excluding the applicability of either section 114 or Order 47 C.P.C.
7.In Hussain Bakhsh v. Settlement Commissioner Rawalpindi and others PLD 1970 SC 1, the question which came up for consideration was, whether the High Court while exercising the constitutional jurisdiction under Article 98, had the power of review available to it. Earlier a Full Bench of this Court in Jalal Din v. Muhammad Akram Khan, PLD 1963 Lah. 596 took the view that as Article 98 did not contain any provisions empowering the High Court to review its decision, there was no jurisdiction vested in the Court to review its own orders. His decision was overruled by the Supreme Court and it was held that as the Code of Civil Procedure was applicable to all original civil proceedings before the High Court, the power of review envisaged by section 114 of the Code, was available to the Court in all proceedings coming before it in a civil matter. It was further observed that since section 114 of the Code con (erring power of review has not been made inapplicable to the High Court in the exercise of its original jurisdiction the power of review will be available to the High Court under section 114 C.P.C. As the Board of Revenue, hears the revisions as a Civil Court, the provisions of section 114 and Order 47 C.P.C. Apply to it and, therefore, it has the power of review.
8. The learned counsel has relied upon Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94 to conterd that by applicability of Civil Procedure Code, the Board of Revenue is not vested with the power of review which is a substantive right and not a matter of procedure. In the precedent case, their Lordships were dealing with the question as to whether the order passed in second appeal by the High Court under the Punjab Rent Restriction Ordinance 1959, was open to review. The answer was rendered in the negative by the Supreme Court. A careful reading of this authority would show that it does not favour the proposition being canvassed by the learned counsel for the respondents.
Their Lordships took notice of the explanation to section 15(.4) of the Ordinance which provided that the provisions of part VII and the First Schedule to the C.P.C. Relating to appeal shall apply to proceedings under the Ordinance. It was pointed out by the Supreme Court that the review is a remedy independant of appeal and since section 15 of the Rent Restriction Ordinance specifically makes provisions regarding appeals orgy applicable, power of review cannot be taken to have been conferred upon the Court. Similarly, while interpreting section 107 of the Civil Procedure Code, it was observed at page 101, that since explanation to section 15(4) specifically excludes the provisions of Chapter VIII which includes sections 114 and 117 of the C . P. C . , there was no justification for bringing back those provisions of the C.P.C. Which have specifically been excluded.
In the present case, however, the provisions of sub-para. (8) are couched in absolutely different terms. This provision, not only by the deeming clause makes the Board of Revenue a Civil Court but vests it with all the powers under any law for the time D being in force. There is as such no exclusion, either expressly or by implication of any provision of the Code of Civil Procedure. It is also to be remembered that sub-para.(8) was introduced in paragraph 25 through the same amendment by which the power was given to the Collector to hear the suits, the Commissioner to hear appeals and the Board of Revenue to hear revisions.
In S.A. Rizvi v. Pakistan Atomic Energy Commission and another 1986 SCMR 965, after considering the provisions of Service Tribunals Act, the Supreme Court came to the conclusion that the Service Tribunal had no power to review its decision. In this respect, it will be useful to reproduce the observations appearing at page 967.
"The .Powers which are given under subsection (2) of section 5 are identified as those for the purpose of deciding an appeal and to that extent the word "deemed" makes it notionally a civil Court for the exercise of the same powers as are vested in a civil Court for deciding an appeal under the Code of Civil Procedure, 1908. Those powers are found in Order XLI and in sections 96 and 100 of the Civil Procedure Code. The powers under Order XLI do not include the power of review which is separately provided in the Code by section 114 and Order XLVII, C.P.C. In the given circumstances.
" 9.If the provisions of paragraph 25(8) are considered in juxtaposition with section 5(2) of the Service Tribunals Act, 1973, it becomes obvious that while the Service Tribunal is deemed to be a Civil Court for a limited purpose, no such limitation has been placed on the Board of Revenue which has not only been made a Civil Court but has been vested with all the powers of a Civil Court.
In Ahmad Khan and 2 others v. Mst. Feroza Begum and 6 others 1983 CLC 2916, it was observed by this Court that:- " ..It is, therefore, clear that a Collector trying an original matter, a Commissioner of Revenue hearing an appeal against the order of Collector, and a Board of Revenue hearing a revision from any order passed by a Collector or a Commissioner, are to be treated as if they are Civil Courts having ell powers of a Civil Court under any law for the time being in force. Since the powers of a Civil Court are contained in the Code of Civil Procedure, all these three Revenue Courts can exercise the powers available under the said Code..."
In' view of these observations, it was held in this case that all the three revenue Courts have inherent jurisdiction to recall their orders in view of section 151 of the Code cf Civil Procedure.
10. This brings me to the other aspect of the case. Explanation to paragraph 25 provides that the expression, Collector, Commissioner, Board of Revenue have the same meanings as are assigned to them in the West Pakistan Land Revenue Act, 1967. According to section 4(4) of the Land Revenue Act, 1967, the Board of Revenue means the F Board of Revenue established under the West Pakistan Board of Revenue Act, 1957. It thus becomes clear that the Board of Revenue contemplated by paragraph 25 is the Board which has been constituted under the West Pakistan Board of Revenue Act, 1957. Section 8 of this Act specifically confers power to review its own orders on the Board.
11. It has been argued by the learned counsel for the petitioner that paragraph 25(8) is a complete Code itself, which specifically provides for appeal and revision but does not give any power of review to the Board of Revenue and, as such, the power of review cannot be claimed by it. This argument of learned counsel has not impressed me. Even under the Punjab Land Revenue Act, 1967 and the Punjab Tenancy Act, 1887, though there are specific provisions made for appeal, revision and also for review by the authorities other than Board of Revenue, no power is vested on the Board to review its own orders under these two Acts. It has not been disputed by the learned counsel that while acting under the two enactments mentioned above, the Board does enjoy the power to review. The reason for not providing any specific power of review in either the Punjab Land Revenue Act or Land Reforms Regulation, 1972, is that the power is available to the Board under section 8 of the West Pakistan Board of Revenue Act, 1957. It appears that the Legislature was well aware of this position and it is for this reason that it felt no necessity for making any provision for conferring power of review. It is for the same reason that no provision conferring power of review on the Board exists either in the Punjab Tenancy Act or the Punjab Land Revenue Act itself.
12. As regards the case of Inayat Masih v. Member (Revenue), Board of Revenue, Punjab, Lahore and 2 others 1985 CLC 1109, it is to be noticed that the question before the Court was whether an application for restoration of a revision petition dismissed for non-prosecution by the Board of Revenue was competent. In that context, it was observed that though the power to review its earlier order was not available to the Board of Revenue, yet it possesses inherent jurisdiction to restore the revision dismissed for non-prosecution . A detailed examination of the question relating to power to review was neither undertaken nor called for in the precedent case as the constitutional petition was accepted on another ground. The attention of the Court was also not drawn to section 8 of the Board of Revenue Act, 1957, nor was the effect of this provision considered.
I am, therefore, of the view that the Board of Revenue can review its own orders in proceedings arising out of paragraph 25 of the Land Reforms Regulation, 1972.
13. The second contention of the learned counsel for the petitioner has force and is well founded. It is not denied that Mr. S. M. Nasim, was a Member of the Board of Revenue at the time when the review application was filed and decided. However, under an administrative arrangement, Mr. S.M.
Nasim at the relevant time was not dealing with the revenue matters. It was on account of this fact that the matter was placed before Mr. Anwar Zahid, Member (Revenue). Whatever be the administrative difficulties, as a matter of principle, review application has to be heard and decided by the same person who originally passed the order, if he continues to remain associated with the Court or the Tribunal concerned. It is a rule of propriety which cannot be departed from except as of necessity, both under the Code of Civil Procedure as well as general principles of law. This question specifically came up for consideration before. This Court in Ghurhm Abbas v. The Board of Revenue, Punjab and 2 others PLD 1995 Lah. 370 wherein it was observed that the Board of Revenue should evolve a procedure that review of an order of a sitting Member of the Board, whether holding that portfolio or not, should be heard by the same Member as the rule of propriety and maintenance of confidence of the litigant public in an institution which is at the apex of the hierarchy of revenue in the Province, so warrants. In spite of this authority, unfortunately, the matter was not placed before the same Member.
14. Even on merits, the order of review is not sustainable. It is well-settled that the review is not the re-hearing of the matter, but the power is confined only to removing errors apparent on the record.
In Muhammad Ashraf v. Dost Muhammad 1981 SCMR 383 while interpreting the provisions of section 8 of the Board of Revenue Act, 1957, it was observed that the jurisdictional requirements for review under this provision were same as in Order 47 rule 1 C.P.C. The observations of the Privy Council in Chhajju Ram v. Neki and others AIR 1922 P.C. 112 were cited with approval wherein it had been laid down that review is permitted only on the ground that some new material has been overlooked or there is error apparent on the face of the record or for some "other sufficient reason" which has been construed as meaning a reason sufficient on grounds at least analogous to those specified in rule 1 of Order XLVII. It was held by the Supreme Court that it was not permissible for one Member of the Board of Revenue to set aside the order and substitute it by another order on merits and merely because the succeeding Member had taken another view was not a ground for review.
Similar view was taken by this Court in Ghulam Abbas v. The Board of Revenue, Punjab and 2 others PLD 1985 Lah. 370. In S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another 1978 SCMR 367, it was observed that error apparent means an error which can be established without any elaborate arguments. In the present case the dispute between the parties was whether at the relevant time the respondents were tenants in respect of the land. The Additional Commissioner while accepting the appeal of the petitioner and dismissing the appeal filed by the respondents regarding correction of Khasra Girdawaris, had held that the respondents Nos.l and 2 were not tenants in respect of the land in dispute. Mr. S. M. Nasim while dismissing the revision petition found no justification for interfering with this order of the Commissioner. Mr. Anwar Zahid, after reappraisal of the facts and the evidence on the record came to a different conclusion in proceedings for review. He appears to have lost sight of the limitation on the power of review but acted as if he was sitting either in appeal against the order of his predecessor or was hearing the revision petition itself. Merely because another view was possible on facts was not a ground on which the review of the earlier order passed could be undertaken. No error patent on the record was pointed out by Mr. Anwar Zahid, while reviewing the order of Mr. S.M. Nasim nor was any new material brought on record so as to attract the applicability of either section 8 of the Board of Revenue Act, 1957 or Order 47 Rule 1 C.P.C. Even otherwise, the learned Member while relying upon Khasra Girdawari for Rabi 1977-78 appears to have acted contrary to the authorities of the Supreme Court in Riaz Ahmad v. Um-e-Salma 1985 SCMR 1740 Khadim Hussain etc. v. Muhammad Nawaz Khan 1981 SCMR 1183 and the judgment of this Court in Rab Nawaz and 2 others v. Shah Nawaz Khan PLD 1988 Lah. 402.
For the foregoing reasons, this writ petition is accepted and the impugned order is declared to have been passed without any lawful authority and of no legal effect. No order as to costs.