MUHAMMAD HUSAIN MUNIR AND Other vs SIKANDAR AND Other.

1. MUHAMMAD GUI,, J.-This appeal by special leave is from the order of a learned Single Judge of the Lahore High Court, setting aside in exercise of writ jurisdiction of that Court, an order of a Member, Board of Revenue, dated 4-9-1962, passed in his revisional jurisdiction, in proceedings for the consolidation of land in village Lal Khan, in tehsil and district Jhang.

2. The scheme for the consolidation of the land was initiated in the village under the Punjab Consolidation of Holdings Act, 1936 (Punjab Act IV of 1936). The scheme was approved by the Consolidation Officer on 30-9-1957, with the consent of all land-owners. Nevertheles some of the land-owners filed a time-barred appeal before the Collector, hang, who accepted the appeal and declared the entire scheme null and void on the short ground that the consolidation proceedings also affected evacuee land situate in the village which could not have been made subject of consolidation proceedings, without prior sanction of the Custodian. This order was challenged in second appeal before the Commissioner who on 16-5-1960, accepted it and remanded the case to the Collector for deciding the question of limitation, and also to move if necessary, for the sanction of Custodian. The matter was then taken in revision before a learned Member, Board of Revenue, who appointed a Deputy Secretary to look into the grievances and submit a report. The Deputy Secretary made a detailed report suggesting some amendments in the scheme as already approved. The Member, Board of Revenue, after causing notice to be served by beat of drum in the village and hearing the parties who chose to appear before him by order dated 4-9-1962 made amendments in a number of khatas. Under the modified scheme the respondents herein were given certain area of banjar land in lieu of cultivated land given to them under the scheme as approved originally. The respondents herein then filed a review application on 11-10-1962 which was dismissed on 27-3-1963.

3. Feeling aggrieved by the revisional order of the learned Member, Board of Revenue, the respondents herein, moved Writ Petitions Nos. 493 and 520 of 1963, which were heard together and accepted by the learned Single Judge who by order dated 11-4-1972 (hereinafter called the impugned order) quashed the revisional order of the Board of Revenue to restore the original consolidation scheme. In the impugned order, the learned Single Judge very rightly observed that in its writ jurisdiction (under Article 98 of the 1962 Constitution) the High Court was concerned only to seeing whether the order of the Member, Board of Revenue dated 4-9-1962 was within his jurisdiction to make it, and if it was, whether it was right or wrong, the High Court could not and should not interfere. Having said so, the learned Single Judge nevertheless, thought it fit to set aside the order of the Member, Board of Revenue because- This (order was) against law and principle of consolidation . . . . . . If this order is allowed to remain in field the people settled in 1957 will again be upset after a long period of 15 years, which is against equity."

4. However, the learned Single Judge, said nothing to explain as to how the impugned order was against law and principle of consolidation?

5. Leave to appeal was granted to consider whether the High Court by setting aside the order of the learned Member, Board of Revenue, purely on equitable considerations had exceeded its jurisdiction under Article 98 of the 1962 Constitution?

6. 142 SC: Mr. Wasim Sajjad, learned counsel for the appellants argued that it could scarcely be controverted that it was within the jurisdiction of the learned Member, Board of Revenue . To entertain the revision petition. Therefore, if he was competently seizing of the case, then on the very principle which the learned Single Judge enunciated as to the scope of the writ jurisdiction of the High Court, he plainly fell into an error in setting aside the order of the learned Member, Board of Revenue, merely because it did not appear to the learned Judge to be "equitable". Learned counsel also relied upon a recent decision of this Court in Ghulam Qadir v. Member, Board of Revenue (1970 SCMR 292) wherein in a similar case arising out of consolidation proceedings, it was held that the question as to which kitla number should have been given in proceedings for consolidation of holdings to a particular land-holder was "exclusively within the jurisdiction" of the Revenue Authorities. This judgment according to learned counsel concluded the controversy in the instant appeal.

7. The argument in our opinion is unexceptionable. It is not controverted that the matter before the learned Single Judge fell to be dealt with under paragraph (ii) of sub-clause (a) of clause (i), Article 98 of the 1962 Constitu--petition. That being so, the learned Judge could have set aside the order, if he had reached the conclusion that the revisional order of the learned Member, Board of Revenue was "without lawful authority and of no legal effect." These are expressions of art and refer to jurisdictional defects as distinguished from a mere erroneous decisions whether on a question of fact or even of law. It is well-settled that where a Court or a tribunal has jurisdiction and it determines that question, it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneous decision on a question of fact or even of law. One of the earliest' leading case on the point is the Privy Council decision in Amir Hussain Khan v. Sheo Bakhsh Singh (111 A 237). This case concerned the revisional jurisdiction of the High Court under section 622 of Civil Procedure Code, 1882, which was in the same terms as section 115, Civil Procedure Code, 1908.

8. The High Court has the power to interfere in its supervisory jurisdiction under that section, if a subordinate Court has acted without jurisdiction, or has failed to exercise its jurisdiction or in exercise of its jurisdiction has acted illegally or with material irregularity. The High Court's supervisory jurisdiction under Article 98(2)(a)(ii) of the 1962 Constitution (or for that matter under Article 199(1)(a)(ii) of the present Constitution) having regard to its nature or content is assimilable to its jurisdiction under section 115, Civil Procedure Code except in two important respects : first ; the former jurisdiction being B a creation of the Constitution stands in a higher pedestal than that under section 115, C. P. C., second ; the former jurisdiction has a wider reach than the jurisdiction under section 115, Civil Procedure Code, which is confined to subordinate Courts. However, that may be, 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 lion, merely 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 the relevant purpose, reference to another decision of this Court in Badrul Haque Khan v.

10. Election Tribunal, Dacca and others (PLD 1963 SC 704), will also be instructive. That was a case in which the decision of an Election Tribunal had been set aside by the High Court in exercise of its writ jurisdiction, on the ground that the Tribunal had acted "without lawful authority" in that, it had admitted evidence which was not admissible under the Evidence Act, and that its decision proceeded on a misinterpretation of the certain provi--sions of the National and Provincial Assemblies (Election) Act, 1964 (since repealed) which according to the learned Judges of the High Court was a "clear error of law". From the judgment of the majority, the following passage may be quoted with advantage "At this point, it is in our view desirable that we should state that in order to constitute an act of a judicial or of quasi-judicial authority an, act performed `without lawful authority' it must first be borne in mind what is the nature of the authority vested in such body. As to-- the admission of evidence the rules are well-known, but it will be going too far to say that every little breach of a rule by allowing, evidence to come in, which in strict law might be thought inadmissible, would constitute an act, `without lawful authority'."

11. Kaikaus, J. In a separate judgment was inclined to concede "that the admission of inadmissible evidence would be an act which is without lawful authority". There are, however, certain observations which follow immedi--ately which are of direct application to the instant case. These are:- "The proposition is indisputable that when there is jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect does not render the decision without jurisdiction. I do not see any difference in a case where the question of law decided is a matter on which.- two opinions can easily be held and a case where the decision on a question of law appears to be clearly erroneous. It would not make difference that on, logical reasoning the interpretation of law by the Tribunal could not. Be supported. Unless a case of mala fides or a mere colourable exercise of jurisdiction could be made' out the decision would not be without lawful authority. If an order can be without legal authority because of a clearly wrong determination of a question of law, it should be without legal authority even in case of a clearly wrong.. Determination of a question of fact. There is no reason for any distinction in this connection between a decision on a question of law and a decision on a question of fact. There is no. Reason for. Any distinction in this connection between a decision on a question of law and a proposition that clearly erroneous decisions are without lawful authority the Court acting under Article 98 would constitute itself a, Court of appeal for matters of fact as well as matters of law."

12. These observations find strong support in the Privy Council judgment --delivered by Lord Summer, in the case of Nat Bell Liquors Ltd. (1922 AC 128). That was a case of summary conviction by a Magistrate in, which no appeal lay. The conviction was set aside in certiorari by the superior Courts in the Canadian jurisdiction because in the opinion of the Majority, the Magistrate "had not kept in mind as he should have kept in mind, the duty to receive a spy's evidence with caution . . . . ." It was held by the Judicial Committee that in a case where a justice convicts without evidence that would not justify interference in certiorari on the ground that to convict without evidence is to do something which the justice ought not to do. Their Lordships of the Privy Council observed that the justice was "yet doing it as a judge" and "if jurisdiction to entertain the charge has not been impeached, his subsequent error however grave is a wrong exercise of jurisdiction which he has and not usurpation of jurisdiction which he has not". In the recent ,case of Baldwin and Francis Ltd. v. Patent Appeal Tribunal ((1959) 2 A E R 433 (H LLord Tucker ,expressed his agreement with the above view.

13. Therefore, learned counsel for the appellants is on a firm ground to .Contend that the learned Judge has misdirected himself in setting aside the r.-visional order of the learned Member, Board of Revenue, who was validly seizing of the case, merely because in the opinion of the learned Judge, it was "against equity". In effect, the learned Single Judge constituted himself an appellate Court with power to examine the propriety of the order of the Member, Board of Revenue, for which there is no warrant either in principle or on precedent. It seems that the learned Judge thought it fit to interfere for the sole reason that under the revised scheme of consolidation, the number of plots given to Hidayat deceased had increased which appeared to the learned Judge to be inequitable.

14. It must however be remembered that what is administered in Courts is justice in accordance with law and considerations of what may appear as fairplay and equity however important they may be, must yield to the provisions of law, or its well recognized principles.

15. Sh. Ghias Muhammad learned counsel for the respondents on the other .Hand, sought to support the impugned judgment on the following grounds, namely-

(i) that the revisional order of the Member, Board of Revenue, in effect had resulted in the fragmentation of the holding of Hidayat deceased which was nugatory to the principle underlying "Consolidation of Holdings," as defined in the statute ;

(ii) that the revision brought before the learned Member, Board of Revenue was directed against the appellate order of the Commissioner dated 16-5-1960 which remanded the case to the Collector only to decide the question of limitation and, therefore, the learned Member, Board of Revenue, acted without jurisdiction in having re-opened the entire case for decision on merits thereby short-circuiting the jurisdic--petition of the Collector and the Commissioner ; and {iii) that the Member, Board of Revenue did not apply his mind to the case and merely adopted the report of the Deputy Secretary, amount--ing to a colourable exercise of his jurisdiction.

16. 2(b) of the 1936 Act, which reads :- "Consolidation of Holdings means--re-distribution of all or any of the lands in the estate or sub- divisions of an estate so as to reduce the number of plots in the holding."

17. The argument was that by modifying the agreed scheme, the Member, --Board of Revenue had fragmented the holding of Hidayat deceased as sanctioned under the initial scheme of consolidation. It had also the effect of taking away cultivable land situated close to the tubewell belonging to Hidayat and giving it over to Muhammad Husain Munir etc. The appellants herein, in exchange for 35 kanals 12 marlas of banjar and unculturable land. This according to learned counsel was an error apparent on the face of the record. It is important to point out that the above definition contemplate the reduction of number of plots with reference to the entire estate or a sub division of an estate. It is wrong to read into the definition that the consolidation under the Act or the Ordinance should bring about a reduction of the plots of each land-holder in an estate or a sub-division in an estate, or else it will not be consolidation under the Act.

18. The learned Member, Board of Revenue in paragraph 9 of his order lucidly sets out the reasons with regard to the change made in the holding of Hidayat deceased respondent. According to the original consolidation scheme, he was to get 31 kanals of banjar land. However, for certain reasons which remained unexplained, he did not get any banjar land at all and the position taken by him before the learned Member, Board of Revenue was that no cultivable land should be taken from him. This was naturally regarded by the Member, Board of Revenue to be untenable. Accordingly, he modified the original scheme requiring Hidayat deceased respondent to surrender certain areas of cultivable land from squares Nos. 40 and 41 which was given over to the appellants, and in lieu thereof were given banjar land elsewhere. It is true that there was change in the location of his holding, but that was inevitable, because under the original consolidation scheme the entire land falling to his share was cultivated land with no share in the banjar land. If in that process, the number of his fields also increased and the land ceased to remain in one compact block, that could not by any stretch be regarded as inconsistent with the principle of consolidation.

19. There is also no substance in the second contention. It is true that the Commissioner vide order dated 16-5-1960 remanded the case to the Collector on the point of reconsideration of the question relating to limitation only. But that did not take away the suo motu revisional jurisdiction of the learned Member, Board of Revenue under section 24 of the 1936 Act, which after its repeal was preserved by section 13 of the 1963 Ordinance. It is not disputed that this provision gave full power to the learned Member, Board of Revenue to call for the record of proceedings before any .Subordinate revenue officer to determine its propriety or legality. This is vast jurisdiction which transcends any other jurisdiction under the statute.

20. The last contention of learned counsel for the respondents is also -without any substance. A perusal of the order of the learned Member, Board of Revenue leaves no manner of doubt that he took pains to satisfy the griev--ances of the land-owners who appeared before him and so far as it was possible. In doing so, he modified the report of the Deputy Secretary in material respects, which clearly demonstrates that he brought to` bear his independent judgment on the dispute.

21. For the foregoing reasons, we accept the appeal with costs, set aside the impugned order and restore that of the learned Member, Board of Revenue.

22. K_ B. A.Appeal accepted