This Constitutional petition calls in question the order dated 4-1-1984 passed by the Member, Board of Revenue (Consolidation) Lahore, the order dated 26th of October, 1980 of the Additional Commissioner (Cons.), Sargodha and Order dated 28-5-1978 passed by the Collector.
2. The consolidation of holdings in estate of Okhali Mohla, Tehsil and District Khushab was taken in hand in 1961 under the orders passed by the Board of Revenue under section 3(1) of the West Pakistan Consolidation of Holdings Ordinance, 1961. A preliminary Scheme was prepared on 7th of October, 1961. It is, however, alleged that this Scheme was subsequently abandoned in 1964 on the protests of the land-owners but in 1977 on the statement of few land-owners, the Scheme was re- surrected and an Advisory Committee was reconstituted by the Assistant Consolidation Officer on 7th October, 1981. The petitioners protested against recommencement of these consolidation proceedings and a representation was submitted to the Board of Revenue that a Scheme abandoned in 1964 could not be brought to life after 13 years as the circumstances had undergone radical changes. The Member, Board of Revenue called for the report from the concerned quarters and directed that the grievance of the petitioners be redressed. However, before this matter could be finalised, the Additional Deputy Commissioner (Cons.)/Collector proceeded to confirm the Scheme on 28-5-1978. A joint appeal was filed by 10 land-owners against this order which was dismissed by the Additional Commissioner on 19-6-1979 who observed that the Scheme could not be set aside at the instance of 10 persons who had no locus standi in the matter and also that the appeal was in any case barred by time. The Additional Commissioner, therefore, refused to go into merits and to examine the irregularities alleged to have been committed during the consolidation.
Dissatisfied with this order, the appellants in that appeal went to the Board of Revenue in revision which was dismissed on 11-8-1979. It appears that subsequently 62 appeals were filed before the Additional Commissioner alongwith applications under section 5 of the Limitation Act for condonation of delay out of which Appeals Nos.531, 534, 537, 564, 574, 577, 586, 593, 594, 601, 626 and 627 were those of the present petitioners. On 27th September, 1980, the Additional Commissioner proceeded to condone the delay and after setting aside the order of the Additional Deputy Commissioner (Cons.) dated 16-6-1979 remanded all the cases to him for decision afresh after hearing the parties. This order of the Additional Commissioner was challenged by Khuda Yar and others respondents-by filing a revision petition under section 13 of the Consolidation of Holdings Ordinance, 1960 before the Board of Revenue which was accepted by a learned Member on 4-1-1984. The petitioners have assailed this order by filing the present Constitutional petition.
3. The learned counsel for the petitioners has contended that the revision petition by Khuda Yar was barred by time and could not have been accepted without first determining the question of limitation; that most of the petitioners were not parties to the revision petition and, therefore, the order of the Additional Commissioner passed in their favour could not have been set aside without hearing them; that the Consolidation Scheme has been abandoned in the year 1964 and as such no further proceedings could be taken on the basis of it after 13 years during which period the circumstances especially the classification of land had undergone complete and radical change.
Mr. Abdul Sattar Chughtai and Mr. M. Farooq Chishti, learned counsel for the respondent, on the other hand, have submitted that the controversy regarding the legality or otherwise of the Scheme sanctioned by the Collector stood finally determined by the order of the Board of Revenue whereby the earlier revision petition of the petitioners had been dismissed and, therefore, it could not have been reagitated by filing appeals before the Additional Commissioner. It was also submitted that the Scheme had been sanctioned with the consent of the parties and, therefore, it could not be objected to by any of them.
4. From the impugned order dated 4-1-1984, it is apparent that the learned Member had accepted the revision petition in view of the earlier decision of the Board in revision petition (R.O.R. 2090/1978- 79) on 11-8-1979 and the order dated 16th November, 1980 on the execution side holding that the allegations regarding illegalities or irregularities in the Scheme were unfounded. The Board of Revenue was of the opinion that the two orders were conclusive and binding on all the authorities and, therefore, the Additional Commissioner (Cons.) could not have interfered in the matter by entertaining 62 fresh appeals filed by the petitioners before him. Unfortunately, while so observing, the Board of Revenue failed to consider that the earlier revision petition filed by some of the petitioners had not been decided on merits but on certain other grounds like limitation, lack of locus standi etc. The Board of Revenue while deciding the revision petition (R.O.R. No.2090/78-79) upheld the order of the Additional Commissioner dated 19-6-1979 rejecting the joint appeal of the petitioners. This appeal was dismissed by the Additional commissioner on the grounds that it had been filed after a delay of 9-1/2 months and was, therefore, barred by time; that though there was more than 3,000 land-owners but appeal had been filed only by 10 persons and the Scheme could not be set aside at their instances. It is however, important to note that while dismissing the appeal the Additional Commissioner made the following observations in his order dated 19-6-1979 (Annex.I/1):- "...In the circumstances it is not necessary to discuss the alleged irregularities committed by the consolidation staff during the consolidation operation. The appellants could have filed individual appeals against the impugned order in so far as it related to their Khatas if they were dissatisfied with the allotments made to them."
The revision petition against the aforesaid order (R.O.R. No.2090/78-79) was dismissed by S. Safdar Hussain Kazmi Member (Cons.), Board of Revenue, in limine and he upheld this order of the Additional Commissioner. It is clear that in the earlier revision, neither the Additional Commissioner nor the Board of Revenue have examined the merits of the case but refused to entertain the appeal on two grounds; firstly, limitation and secondly that the joint appeal could not have been filed by 10 persons on whose behest the entire Scheme could not be set aside. The Additional Commissioner himself had in his order dated 19-6-1979 observed that the petitioners could have filed separate appeals in respect of their individual grievances relating to their Khatas. The petitioners had after the decision of the Board of Revenue in these proceedings filed separate appeals with regard to each of the Khatas which were accepted by the Additional Commissioner who had condoned the delay and remanded the cases to the Additional Deputy Commissioner. It is well-settled that an order operates as a res judicata only if it decides the dispute between the parties on merits and a decision not on merits but based on other grounds, cannot operate as a bar. Abdul Ghaffar Qureshi v. Federation of Pakistan 1985 SCMR 1963 refers. In these circumstances, the Board of Revenue was clearly in error in holding that the appeals filed by the petitioners before the Additional Commissioner were not competent in view of the order of the Board in R.O.R. No.2090/78-79. The other ground which found favour with the Board of Revenue is equally untenable. The order passed on the executive side by the Board without hearing the parties could R hardly furnish the basis for non-suiting the petitioners who could not be deprived of the remedy available to them under the law. No doubt Board of Revenue possesses suo motu revisional jurisdiction under section 13 of the Ordinance but the proviso to this provision ordains in no uncertain terms that no order can be passed detrimental to a person without giving him any notice. In these circumstances the order dated 16th of November, 1980 was not binding on the petitioners and they could have, therefore, agitated their grievance by filing the appeals before the Additional Commissioner.
6. The other contention of the learned counsel for the petitioners that since the revision petition filed by the respondent against the order of the Additional Commissioner dated 27th September, 1980 was apparently barred by time and it could not have been accepted without adverting to the question of limitation, is equally well-founded. It is well-settled that it is not open to a Court or a Tribunal to decide the case ignoring the question of limitation if it floats on the face of E3 record.
The order which was impugned before the Board of Revenue was passed by the Additional Commissioner on 27th September, 1980, while the revision petition before it was filed on 18th of August, 1981. In these circumstances, it was obligatory for the Board to have examined the question of limitation before proceeding on merit. The other grievance of the petitioners that no single revision petition could be filed against the order passed by the Additional Commissioner in 62 appeals also deserves to have been noticed by the Board of Revenue which but was unfortunately omitted to do. It is thus obvious that the revision petition riled by the respondent Khuda Yar etc. Has not been decided in accordance with law by the Board of Revenue.
For the foregoing reasons, this Constitutional petition is accepted, the f' impugned order of the Member, Board of Revenue dated 4-1-1984 is declared to be without lawful authority and of no legal effect with the result that the revision petition filed by Khuda Yar and other respondents shall be deemed to be still pending before the Board of Revenue which shall be disposed of afresh in accordance with law. There shall be no order as to costs.