This judgment will dispose of Writ Petitions Nos.22301, 22302 and 22303 of 1996 as these are directed against one and the same order of the Member Board of Revenue dated 21-10-1996 (Annexure-N) whereby he repelled the jurisdictional objection and decided to proceed with the hearing of revision petitions viz R.O.R. No.937 of 1996, R.O.R. No.938 of 1996 and R.O.R. No.939 of 1996, directed against the same order of the Additional Commissioner.
2. Brief facts for the purpose of disposal of these petitions are that the land measuring about 630 Kanals and 13 Marlas was allotted to Karam Bibi, widow of Sher Muhammad, on account of the land left in India. Karam Bibi died on 30-7-1963 and treating her to be the limited owner, 3/4th share of the land was allotted in the name of the collaterals of Sher Muhammad, the last male owner while the heirs of Karam Bibi were given the remaining 1/4th share which share would vest in her as Sher Muhammad died issueless. This mutation was chellenged by Munshi Khan and Babu Khan (respondents Nos.4 to 8) as brothers of Mst. Karam Bibi whose claim was that the land allotted to Mst. Karam Bibi was granted to her as full owner and not as limited owner. On 20-3-1968, the Consolidation Officer attested a fresh mutation treating Mst. Karam Bibi to be the full owner. He mutated 1/3rd of the land in favour of respondent No.3 (Nazir Ahmed) who claimed to be a legatee and the remaining 2/3rd to respondents Nos.4 to 8, the brothers/the heirs. This mutation was challenged but remained intact.
Meanwhile, respondents Nos.4 to 8 alienated their shares in the land in favour of respondents Nos.9 to 17. The question whether in such cases widows take the property in their own right as full owner or as limited owner came under examination in this Court and vide judgment reported as Sher Muhammad.v. The Additional Rehabilitation Commissioner Multan and 7 others (PLD 1968 Lahore 234) it was held that widows take as full owner. This judgment was reversed by the Supreme Court of Pakistan which vide judgment reported as Additional Settlement Commissioner (Land), Sargodha v. Muhammad Shaft and others (PLD 1971 SC 791) declared that widows got the land as limited owner. With a view to give effect to this pronouncement of law, Punjab Muslim Personal Law (Removal of Difficulties and Doubts) Act, 1975 (XXV of 1975) was enacted on 31-3-1975. Under this legislation within one year of the date of enactment, concerned parties could seek revision of mutations and claim rights on the strength of the statement of law that widows were limited owners. On 27-11-1975, the petitioners applied to Assistant Collector, Daska as legal heirs of the three sisters of Sher Muhammad, the last male owner, and prayed that Mutation No.6071 dated 20- 3-1968 he modified and they be given the shares as Mst. Karam Bibi, the widow, was only entitled to 1/4th share of the land. No action was taken on this application as respondent No.3 and respondents Nos.9 to 17 challenged the vires of Act XXV of 1975 through Writ Petitions Nos. 1083 and 1084 of 1975 in this Court. These petitions were dismissed on 13-10-1976. The dismissal of petitions was subjected to challenge in the Supreme Court of Pakistan. These Appeals Nos.8 and 9 of 1977 were ultimately dismissed by the Supreme Court of Pakistan on 21-11-1990.
3. After it was declared that Act XXV of 1975 was valid piece of legislation, the petitioners on 22-12- 1990 filed a miscellaneous application calling for decision of the earlier application dated 27-11- 1975 which could not be decided on account of the challenge to the vires of the Act in this Court and in the Supreme Court of Pakistan. On 2-3-1992, the Assistant Commissioner/Collector directed the Revenue Officer to verify the heirs of Sher Muhammad and accordingly decide the mutation as directed by the Supreme Court of Pakistan. Respondent's appeal against this order was dismissed on 16-8-1992. It was on 31-10-1992 that the Reven!Ie Officer sanctioned Mutation No. 1821 in favour of the heirs of Mst. Karam Bibi, treating her as full owner as according to this officer, the plea that Karam Bibi inherited the property from Abdullah, her son who died after Sher Muhammad, was correct and it was Abdullah who was the last male owner and not Sher Muhammad. According to the learned counsel this plea that Abdullah was last male owner was taken for the first time in appeal before the Additional Commissioner. Against the order dated 31-10-1992 the petitioners' appeal was dismissed by the Collector on 6-12-1994 with the direction that, if so advised, the petitioners may go to the Civil Court for declaration of their rights. The petitioners preferred a further appeal/revision which was initially allowed ex parte by an Additional Commissioner on 29- 3-1995, setting aside Mutation No.1821 and directing sanctioning of afresh mutation on the basis that Mst. Karam Bibi was a limited owner. The opposite party (the respondents) were advised to approach the Civil Court, if they so desired. This ex parte order, however, was recalled and appeal was reheard by a transferee Commissioner. This time again the appeal was allowed on 11-6-1996.
In terms of the order dated 29-3-1995 Mutation No.2029 was sanctioned on 5-4-1996. The order dated 11-6-1996 was challenged in three revisions viz R.O.R. No.937 of 1996, R.O.R. No.938 of 1996 and R.O.R. No.939 of 1996 by three sets of respondents claiming through Mst. Karam Bibi as full owner.
The petitioners felt aggrieved by the filing of these revisions and filed Writ Petition No. 16919 of 1996 in this Court on the ground that respondent No. l has no jurisdiction in the matter. This Court instead of deciding the jurisdictional question straightway, directed the petitioners to raise this question in the first instance before the learned Member Board of Revenue. This was done and vide order dated 21-10-1996 (Annexure-N), now impugned, learned Member Board of Revenue has held that he has the jurisdiction to examine the validity and correctness of the order of Commissioner dated 11-6-1996. The earlier Writ Petition No.16919 of 1996 has since been dismissed as withdrawn and the assumption of jurisdiction as well the legality of the impugned order (Annexure-N) is being subjected to challenge in this Court through these three Constitutional petitions, one each in each of the revision petitions.
4. In support of the petition, Mr. Riaz Kayani, Advocate learned counsel for the petitioners, has very eloquently stressed that the issues involved in the litigation stand finally settled by the judgment of the Supreme Court of Pakistan and these judgments being binding on.All the Executive and Judicial authorities in the country under Article 189 of the Constitution, respondent No. J cannot proceed to entertain the plea in conflict with or in disregard of the decision and observation of the Supreme Court of Pakistan made in the earlier round of litigation. It is on these premises that the learned counsel seeks a declaration from this Court that the learned Member, Board of Revenue has no jurisdiction in the matter. Large number of cases including cases titled Abdul Majid and another v.
Qazi Abbas Hussain Shah (1995 SCMR 429), Ashiq Hussain alias Muhammad Ashraf v. The State (PLD 1994 Supreme Court 879) and Abdul Majid and others v. Abdul~Ghafoor Khan and others (PLD 1982 Supreme Court 146) have been cited in support of the argument.
5. Mr. M. Saleem Chaudhry, Advocate, learned counsel appearing for contesting respondents has resisted these petitions on the ground that the petitioners are estopped from calling in question the jurisdiction of the Revenue Officer having themselves invoked the same. Reliance has been placed on the cases titled Ghulam Mohi-ud-Din v. (1) Chief Settlement Commissioner (Pakistan), Lahore (2) Khan Farzand A.I Khan, Settlement Commissioner, Lahore Division, Lahore and Dr. A.H. Khokhar (PLD 1964 Supreme Court 829) and Mst. Ghulam Fatima v. Muhammad Hussain and 5 others (PLD 1976 Supreme Court 729). It is further contended that the Constitutional jurisdiction being equitable will not be exercised in favour of persons who accept the jurisdiction of Revenue Officer so long as the decision is in their favour but turn around and challenge the same jurisdiction once it is invoked for the purposes of examining validity and correctness of the order.
6. Mr. Manzoor Hussain Basra, Advocate, has appeared for the applicants in Civil Miscellaneous No. 1117 of 1997, Civil Miscellaneous 1 I 16 of 1997 and Civil Miscellaneous 1118 of 1997 who wanted to be impleaded in the petitions on the ground of having some interest in the inheritance. Mr. Manzoor Hussain Basra, Advocate, was heard on merits of the case and he has supported the arguments of Mr. Riaz Kayani, Advocate, and has stressed that after the decision of the Supreme Court of Pakistan, the Board of Revenue has no jurisdiction in the matter.
7.It is under section 164 of the Punjab Land Revenue Act, 1967 that the Board of Revenue has the power to call for the record of any case pending before or disposed of by any Revenue Officer subordinate to it, on its own motion at any time or on an application of a party, within 90 days of the passing of any order. Under subsection (4) thereof, the Board of Revenue after calling for the record, as aforesaid, can pass such orders as it thinks fit. By way of revisions before respondent No.1 the correctness, propriety and validity of the order dated 11-6-1996 passed by the Additional Commissioner was being called in question. Per se, the respondent No.1 has the jurisdiction and can proceed to examine the validity of order dated 11-6-1996. This legal proposition has not been disputed by Mr. Riaz Kayani, Advocate, learned counsel for the petitioners. He has, however, very vehemently canvassed that the jurisdiction of respondent No. l is barred because what is being pleaded before respondent No. l is against the judgment and decision of the Supreme Court of Pakistan and past history of the case. The argument of Mr. Riaz Kayani, Advocate, even if correct, pertains to the excise of jurisdiction of respondent No. 1. Having jurisdiction is one thing and exercise of jurisdiction is another thing. The A jurisdiction may be exercised correctly, properly and legally or otherwise. The fear of Mr. Riaz Kayani, Advocate, seems to be that because respondents are pleading and canvassing a proposition which according to him is against the decision of the Supreme Court of Pakistan and the Board of Revenue may accept this argument of respondents and, therefore, it should be declared the respondent Board of Revenue has no jurisdiction. The fallacy in the argument is obvious. The objection being taken is not really to the jurisdiction of Member, Board of Revenue but to the mode in which that jurisdiction is likely or may be exercised. It will be seen that the revisions are still pending and awaiting disposal on merits. It is quite likely that after hearing the respective parties, the Member Board of Revenue may agree with the argument being raised in this Court. It cannot be presumed that the learned Member will act against the judgment of the Supreme Court of Pakistan as is being claimed in this Court. It goes without saying that the law declared by the Supreme Court of Pakistan is binding on all authorities of Pakistan whether Executive or Judicial. It further goes without saying that every Executive and Judicial authority in Pakistan is obliged to act in aid of the Supreme Court. If the learned Member Board of Revenue does go against the judgment of the Supreme Court, it will be open to the petitioners to impeach the said order/judgment in appropriate proceedings either in this Court or directly in the Supreme Court by invoking contempt jurisdiction. The judgments cited by Mr. Riaz Kayani, Advocate, affirms this very principle. There is no dispute and there cannot be any dispute that nobody can go against the judgment of the Supreme Court.
8. Half heartedly, argument has been raised that this Court in these proceedings should decide the controversy on merits. In other words this Court should declare the import of the judgment of the Supreme Court and hold that the plea of the respondents that it was Abdullah who was the last male owner and not Sher Muhammad is invalid being counter to the earlier history of the litigation as well as the judgment of the Supreme Court. I am afraid this cannot be done by this Court. This plea along with other submissions of the parties will have to be examined by the Member, Board of Revenue in exercise of the jurisdiction conferred under section 164 of the Punjab Land Revenue Act, 1967. It is expected that all the pleas will be duly considered in the light of the past history of the litigation and the judgment of the Supreme Court,.
9. There is force in the submission of Mr. M. Saleem Chaudhry, Advocate, that it does not lie with the petitioners to challenge the jurisdiction of the Board of Revenue after having successfully availed of the same jurisdiction from the Court of Commissioner. Under section 7 of the Punjab Land Revenue Act which classifies the Revenue Officer, Board of Revenue is - a Revenue Officer followed by the Commissioner, Collector, Assistant Collector of the First Grade and Assistant Collector of the Second Grade. If the jurisdiction of the Commissioner or its subordinate Revenue Officer has been invoked by the petitioners, they cannot be permitted to take a U-turn and challenge the jurisdiction of a superior Revenue Officer to examine the validity of the decision of subordinate Revenue Officer.
The petitioners cannot be permitted to blow hot and cold. For this reason also these petitions deserve to be dismissed.
10. For what has been stated above, there is no force in these petitions which are hereby dismissed.
No costs.