The validity of order dated 7-11-1994, passed by the learned Member, Board of Revenue, Punjab/Lahore, is called in question in this Constitution petition.
2. Facts, briefly stated, giving rise to this petition are: that Mst. Shahzadi Mumtaz Jehan/petitioner was the owner of various pieces of agricultural land in more than one revenue estates within the territorial limits of District Muzaffargarh of D.G. Khan Division. Mst. Ageela Parveen/respondent No,2 was her daughter, Brig. Ijaz Hussain was her son-in-law/husband of Mst. Ageela Parveen. Col.-Ijaz Hussain, as her attorney, negotiated various sales of various pieces of such land in-between the years 1978 up to 1990 and got them entered into mutation registers of concerned Revenue Estates.
During that period, he was posted at Multan. Feeling aggrieved, Mst. Shahzadi Mumtaz Jehan filed a revision petition under section 164(1) of the West Pakistan Land Revenue Act on 31-3-1991/alleging therein that the transactions of sale made by Col. Ijaz Hussain were fictitious and sham; that at the relevant time, he was serving as Brigadier in Multan and employed the spectre of Martial Law to coerce the Revenue Officers to attest challenged mutations. Resultantly, it was so prayed that all these transactions be set aside in exercise of suo motu revisionial power under section 164(1) of Land Revenue Act. This revision was admitted to regular hearing on 3-6-1991. Col. Ijaz Hussain and others respondents raised preliminary objection to the maintainability of the suo motu revision, which was overruled by the learned Member, Board of Revenue, on 25-1-1992. See Abdul Latif v.
Syed Najaf Hussain Shah and others 1993 MLD 881. Still unsatisfied, the respondents filed a review petition on 21-4-1993. At this stage, it is very relevant to point out that the details of questioned sales/mutations were not mentioned in the memo. Of suo motu revision. The details of the transaction were furnished by the Revenue Patwari during the hearing of the Civil Revision.
Moreover, the vendees of questioned mutations were not impleaded as respondents in the memo.
Of suo motu revision.
3. The review petition and suo motu revision were dealt with together and decided by the Member, Board of Revenue on 7-11-1994 in the following terms:-- "I, therefore, direct that the application of Shahzadi Mumtaz Jehan, admitted under section 164(1) of the Land Revenue Act for hearing by the Board of Revenue, shall be heard by Assistant Commissioner/Collector, Alipur, as appeal against the mutations challenged by Shahzadi Mumtaz Jehan. The Assistant Commissioner/Collector shall be free to decide all the matters connected with this application/appeal, as if they were raised for the first time before him by either party in the course of an ordinary appeal to him against a mutation. In other words, the Assistant Commissioner/Collector shall be free to decide on any legal or other objection that may be raised by either party before him, without regard to any decision that might have been arrived at by the Board of Revenue in connection with the Revision Petition No, 1100 of 1991 or the Review Petition No,63 of 1992, including the decision of the Board of Revenue dated 25-1-1992."
4. Learned counsel for the petitioner contended that the Member, Board of Revenue erred in law in remanding the case to Assistant Commissioner, who was party to the proceedings; that Revenue Authorities had mechanically acted under the influence of Col. Ijaz Hussain who was Martial Law Administrator at the relevant time and so was part and parcel of massive fraud committed by aforesaid attorney. On the above line of approach, it was submitted that the decision rendered by the Member, Board of Revenue was clearly without jurisdiction and was of no lawful consequence; that the learned Member, Board of Revenue must have decided the suo motu revision themself. In reply the learned counsel for respondents raised following points: Firstly, that the transaction of mutations were attested between year 1978 and 1990; that neither the petitioner had filed any appeal against the challenged mutations nor any revision. On the strength of the above circumstances, it was submitted that suo motu revision filed by Mst.
Shahzadi Mumtaz Jehan/petitioner was clearly beyond time and the petition must have been dismissed. Reliance was placed on Muhammad Aslam v. Federal Land Commission PLD 1976 Pesh.
66; Caltex Oil (Pakistan) Ltd. v. Province of Sindh PLD 1978 Kar. 958; Muhammad Aslam Khan v.
Settlement Commissioner (Lands) 1983 CLC 2991; Abdul Karim v. Province of Punjab PLD 1994 Lah.
334; and Secondly, that the petitioner had already filed a suit under section 42 of the Specific Relief Act against the afore-noted transactions and so the Revenue Authorities had no jurisdiction to set aside the above mutations.
5. Learned counsel for the petitioner, in rejoinder, stressed that all the questioned transactions of sale made by Col. Ijaz Hussain in-between year 1978 and up to 1990 were the result of co-ercion, undue influence and were nullity in the eyes of law. He relied upon Government of N.-W.F.P. v. Abdul Malik 1994 SCMR 833; The State v. Abdul Hamid Jatoi PLD 1973 Revenue 29 and Khair Din v. I.U. Khan PLD 1968 Lah. 11 to contend that the Member, Board of Revenue had ample authority to set aside the aforesaid mutations of sale in exercise of its suo motu revisional jurisdiction.
6. From the foregoing narration, the following questions/points emerge for consideration:-
(i) Whether on the facts and circumstances of the case in hand, Member, Board of Revenue had power to treat memo. Of revision filed by the petitioner as suo motu revision and decide it notwithstanding the fact that the same has been filed after the expiry of limitation?
(ii) Whether the Member, Board of Revenue can proceed in suo motu revision in absence of vendees of challenged mutations of sale."
As regards, first question/point, I am not inclined to discuss it as this petition is bound to succeed on second point. The revisional power of Member, Board of Revenue, under section 164 of West Pakistan Land Revenue Act, is structured upon principle of adversary hearing and the power of superintendence of subordinate Revenue Officer by Board. The bare reading of section 164 (ibid) shows that it confers unfettered power upon Member, Board of Revenue/Commissioner and Collector to revise an order passed by the subordinate Revenue Officer. Its subsection (1) shows that the Member, Board of Revenue may, at any time, on its own motion, or on application made to it within ninety days of the passing of any order, call for record of any case or disposed of by any subordinate Revenue Officer. Under subsection (4), the Member, Board of Revenue is empowered to pass any appropriate order in a case in which the record has been called and after affording opportunity of hearing to the parties to be affected. Manifestly, the Member, Board of Revenue, has a power to interfere suo motu or on the petition filed by aggrieved party. The underlying objective of this power is to do complete justice between the parties and remove from the record such blemishes of subordinate officer/occasioning miscarriage of justice. This subsection provides a period of ninety days for filing revision petition by an aggrieved party and does not prescribe any time for initiating suo motu action. Section 164 of West Pakistan Land Revenue corresponds with section 16 of earlier statute known as Punjab Land Revenue Act. Scope and revisional power of Member, Board of Revenue vis-a-vis section 115 of the Civil Procedure Code was examined by a Division Bench of erstwhile High Court of West Pakistan in Khair Din v. I.U. Khan PLD 1968 Lahore 11. It was held as under:-- "Coming now to the third contention, we have no hesitation in straightaway observing that this is wholly misconceived, inasmuch as, the learned counsel seems to have confused the provisions contained in section 16 of the Land Revenue Act with those of section 115 of the Code of Civil Procedure, empowering the High Court to call for the record of any case decided by a subordinate Court. In the earlier part of this judgment, we have already reproduced the former provision which does not envisage any of the three situations justifying the High Court, interference in exercise of revisional jurisdiction, namely, excess of jurisdiction, failure to exercise jurisdiction and illegal exercise of jurisdiction or with material irregularity. Under subsection (4) of section 16 of the Land Revenue Act, the Financial Commissioner and now the Member, Board of Revenue after having called for the record of any case pending before or disposed of by any subordinate Court had vast and unfettered powers to pass such an order as he thinks fit and the only restriction imposed on the formality to the observed before passing such an order is that the person affected should be given opportunity of being heard. There is, thus, a clear distinction between the revisional power of the Member, under section 16 of the Land Revenue Act and of the High Court under section 115, C.P.C. The powers former or unrestricted and more extensive than those of the High Court under the later provision. The revisional power vested in a member under section 84 of the Tenancy Act or significantly enough more akin and analogous to those of the High Court under section 115, C.P.C.
And are subject to same limitations and restrictions. Unlike the latter provision, the power of the Member to summon the record of a case is not confined to decide cases in which an appeal lies, but on the contrary he can call for the record of any case pending before or disposed by a subordinate revenue officer and furthermore the exercise of his revisional powers is not subject to any of provisions contained in parts (a), (b) and (c) of section 115 of Code of Civil Procedure. In view of this finding the contention repelled as being misconceived." The same question came for consideration before Member, Board of Revenue in The State v. Abdul Hamid Jatoi and 3 others PLD 1973 (Revenue)
29. It was held as under:-- "It is true that the matter is 4 or 5 years old and the mutation has been effected on the basis of the registered sale-deed and statement recorded before the Mukhtiar-Kar, Mehar. Section 164 of the West Pakistan Land Revenue Act, 1967 has not prescribed any period of limitation for suo motu revision of any order passed by a subordinate Revenue Officer under the control of the Board of Revenue. In PLD 1964 W.P. (Rev.) 7, it has been held by the Board of Revenue that exercise of a revisional jurisdiction suo motu is permissible and that there need not any regular formal revision application before the Collector or the Board of Revenue by any interested party. It has also been held in PLD 1957 (W.P.) (Rev.) 37 that there is no limitation of time so far as suo motu exercise of revisional power is concerned. Therefore, where the Board of Revenue is interested in considering an important matter suo motu, no bar of time limitation can be pleaded. In PLD 1962 Lahore 343, the Divisional Bench of Lahore High Court has held that an order passed by the Board of Revenue in revision suo motu after 21 years is valid and proper. It has been held in PLD 1967 W.P. (Revenue) 9 by the Board of Revenue that where the parties have secured an order either by fraudulent, misrepresentation or by collusion with the Revenue Authorities, the Board of Revenue is perfectly justified to interfere in revision and give relief to the aggrieved party."
7. From the above, it is thus clear that Member, Board of Revenue had no authority whatsoever to pass an order against a party which is not before him. Applying this rule of natural justice embodied in section 164 of West Pakistan Land Revenue Act, it is clear that vendees of transactions of sales impugned in suo motu revision had not been made party and so the Member, Board of Revenue passed the impugned order in patent defiance of afore-quoted provisions of section 164 of West Pakistan Land Revenue Act. Furthermore, the case was remanded to the Collector who was party to revisional proceedings. For the afore-stated reasons, I have no hesitation in coming to the conclusion that the decision rendered by learned Member, Board of Revenue dated 7-11-1994 is clearly without jurisdiction and without lawful authority and is liable to be set aside.
8. As a result of the above discussion, this petition is hereby allowed, the order of learned Member, Board of Revenue dated 7-11-1994 is hereby set aside with a consequence that the suo motu revision petition filed by the petitioner shall be deemed to be still pending, before learned Member, Board of Revenue. The learned Member, Board of Revenue shall afford opportunity of hearing to the petitioner and shall direct petitioner to implead all the vendees of the transactions of assailed mutations. The petitioner shall also furnish the list of assailed mutations so that the suo motu revision can be proceeded in accordance with law. The learned Member, Board of Revenue shall decide the revision strictly in accordance with law. There shall be no order as to costs.