Brief facts out of which the present writ petition arises are that petitioners were occupancy tenants of the evacuee land in question measuring 171 Kanals, 7 Marlas situated in village Moman Kalan Tehsil and District Sialkot. The possession of the land in question has been with the petitioners since 1867. The Provincial Government initiated acquisition proceedings for acquiring the land in question on the request of respondent No.4 under the provisions of the Land Acquisition Act in the year 1956.
Petitioners being aggrieved preferred a Writ Petition No.413 of 1956 before this Court for the quashment of the acquisition proceedings which was accepted by the Division Bench of this Court vide order dated 8-1-1457. Subsequently notification under section 4 of the Land Acquisition Act was issued qua the land in question on the request of respondent No.4. Petitioners being aggrieved filed Writ Petition No.1436 of 1965 before this Court which was dismissed for non-prosecution thereafter. The Land Acquisition Collector announced the award under section 11 of the Land Acquisition Act on 9-8-1961. Petitioners being aggrieved fled the civil suit in the Court of Senior Civil Judge Sialkot which was dismissed vide order, dated 8-2-1975. Petitioners being aggrieved filed appeal before the Additional District Judge Sialkot who accepted the same vide order dated 21-12- 1985 and remanded -the case to the trial Court for a fresh decision. Thereafter, the trial Court dismissed the suit of the petitioner. The Provincial Government through amendment in section 114 of the Punjab Tenancy Act, 1887 decided to 4 conform the proprietary rights on the tenants in respect of the evacuee land. The possession of the land in question was not taken from the petitioners under section 16 of the Land Acquisition Act and not the land in question was transferred to the acquiring society/Respondent No.4. Petitioner filed an application for conferment of proprietary rights qua the land in question before the Assistant Commissioner/Collector who granted proprietary rights in favour of the petitioners. Mutations were also sanctioned on 19-2-1978 in favour of the petitioner. Mutations were duly incorporated in the Revenue Record as is evident from Annexures-A-1 to A-4. Register Haqdarane Zameen for the year 1971-72 and 1980-81 reveals the continuous possession of the petitioners in respect of the land in question before and after the conferment of the proprietary rights as is evident from Annexures B-1 to B-2. Respondent No.4 being aggrieved filed 4 time-barred appeals before the Additional Commissioner Revenue Gujranwala on 9-7-1982 who accepted the same vide order, dated 31-7-1984. Petitioners being aggrieved filed 4 revision petitions before the learned Member Board of Revenue who dismissed the same vide order, dated 2-12-1985. Hence the present writ petition.
2. Learned counsel for the petitioners submits that respondent No.4 filed time-barred appeals before the Additional Commissioner Revenue who without condoning the delay accepted the appeals of the respondent No.4. He further submits that petitioners have taken a specific ground in the memorandum of revision that Additional Commissioner Revenue accepted lime-barred appeals of respondent No.4 and this fact was noted by the learned Member Board of Revenue in Para. 4(1) but he did not give any finding on this. Therefore, impugned order of the learned Member Board of Revenue is without lawful authority and is not sustainable in the eyes of law. He further submits that proprietary rights were granted by the competent authority and the respondent No.4 failed to challenge the order of the conferment of the proprietary rights in favour of the petitioners before any higher forums. The possession of the land in question is still with the petitioners and was not taken from the petitioners under the provisions of the Land Acquisition Act in terms of section 16 of the Land Acquisition Act. In support of his contention he relied upon the following judgments:-- PLD 1972 Lahore 458 (Mst. Sardar Begum's case); 1985 CLC 1603 (F.K. Abbasi's case) and 1994 MLD 1866 (Tauqeer Ahmad Khan's case),
3. Learned counsel for the respondents submits that mutations are summary in nature and mutations do not create any rights and writ petition is not maintainable as the petitioners have alternative remedy to file a civil suit for redressal of their grievance. In support of his contention he relied upon the following judgments: - PLD 1970 Lahore 614(Muhammad Iqbal's case); 1981 SCMR 259 (Mst. Barkatey's case) and 1986 SCMR 598 (Atta-ur-Rehman's case).
He further submits that writ petition is liable to be dismissed as the earlier Writ Petition No. 1436 of 1965 filed by the petitioners was dismissed for non-prosecution and civil suit filed by the petitioners was also dismissed. Therefore, the award awarded in favour of the petitioners by the Land Acquisition Collector on 9-8-1961 is final. The writ petition is not maintainable on the well-known principles of waiver and res judicata as the principles of C.P.C. Are applicable in writ proceedings. In support of his contention he relied upon the following judgments: 1995 CLC 57 (Razzaq's case); and 1999 SCMR 1555 (Muhammad Irshad's case).
He further submits that petitioners are in possession of the land in question as tenant of respondent No.4 in view of award dated 9-8-1961. In support of his contention he relied upon 1969 SCMR 138 (Allah Ditta's case). He further submits that writ petition is liable to be dismissed as substantial justice has been done between the parties.
4. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. It is admitted fact that petitioners had taken a plea in the memorandum of revision that appeals filed by the respondent No.4 before the Additional Commissioner Revenue were time-barred which were noted by the learned Member Board of Revenue in Para. 4 (1) in the following terms:-- "That appeals filed by the respondent society before learned Additional Commissioner for time- barred and as such could not have been entertained."'
It is pertinent to mention here that learned Member Board of Revenue did not give any finding on the aforesaid contention of the learned counsel for the petitioners. This fact brings the case in the area that the learned Member Board of Revenue has not decided the revision of the petitioner after applying his independent mind. Provisions of the Land Revenue Act prescribed period for filing appeal or revision being aggrieved by any orders passed by the authorities under the provisions of the West Pakistan Land Revenue Act. It is settled law that highest authority under the provisions of the West Pakistan Land Revenue Act must wear all the provisions of the Act on the sleeves of his robe and failure of the counsel to properly advise him is not a complete excuse in the matter as per principle laid down by the Hon'ble Supreme Court in Muhammad Sarwar's case PLD 1969 SC 278. It is settled principle of law that Tribunals below must have to decide the case in accordance with law as is envisaged by Article 4 of the Constitution. The Hon'ble Supreme Court has considered this aspect, of the case in Utility Stores Corporation's case (PLD 1987 SC 447) and laid down the following principle:-- "When the Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it because the Tribunal has the jurisdiction to decide rightly but not the jurisdiction to decide wrongly. Accordingly, when the Tribunal makes an error of law in deciding the matter before it, it goes outside its jurisdiction and, therefore, a determination of the Tribunal which is shown to be erroneous on a point of law can be quashed under the writ jurisdiction on the ground that it is in excess of its jurisdiction. "
Disposed of with these observations.
H.B.T./I-54/L