' Facts giving rise to the present writ petition are that the petitioner was exclusive owner of agricultural land measuring 260 Kanals, 19 Marlas in Khata No, 42, Khatooni Nos.212 to 226, village Kharianwala as per record of rights pertaining to the years 1965-66 and 1966-67. The petitioner had appointed her father Sakhi Muhammad Khan son of Inayat Ullah Khan as her general attorney, through registered power of attorney dated 6-7-1964. It is alleged that the petitioner through a deed of Abtal Nama, dated 24-12-1966 revoked her attorney and the said attorney Sakhi Muhammad Khan father of the petitioner died his natural death on 2-9-1967.
2. After the death of Sakhi Muhammad Khan, a Mutation of Sale No, 868 was attested on 9-9-1981 alienating her land measuring 95 Kanals and 11 Marlas in favour of Mst. Sakina Bibi, Muhammad Yousuf, Bashir Ahmad sons of Atta-ur-Rehman, Mst. Razia Begum, Mst. Zubeda Begum, in exchange of their 22 Kanals and 19 Marlas land stating therein that the Mutation has been attested through Sakhi Muhammad Khan, general attorney of the petitioner.
3. Another Mutation of Exchange No, 870 was attested allegedly on the statement of Sakhi Muhammad Khan transferring 17 Kanals, 10 Marlas of land to Muhammad Yousuf Khan, Bashir Ahmad Khan in exchange of their land 2 Kanals, 4 Marlas, in favour of the petitioner. The petitioner was out of country and in the year, 1989 she came back and was informed that her property has been mutated through the above said two mutations. Thereafter, she filed two applications one for the correction of the Revenue Record and other for review of the mutations before the District Collector on 26-6-1989. The Collector vide his order, dated 1-10-1991 accepted both the applications and permitted to review the Mutations Nos. 868 and 870. The orders of the Collector were challenged through different three appeals before Additional Commissioner (Revenue)
Lahore Division, Lahore, who vide a consolidated order, dated 29-1-1992, accepted the same and set aside the orders of the Collector observing that the complicated question of law and fact is involved in the matter and the party should approach the civil Court. Feeling aggrieved, the present petitioner preferred three different Civil Revisions Nos. R.O.R. No, 317 of 1992, R.O.R. No, 318 of 1992 and R.O.R. No, 319 of 1992, which came up for hearing before Ch. Talib Hussain Member (Revenue) Board of Revenue, Punjab, Lahore, who through the impugned order, dated 6-7-1992 dismissed the revision petitions and maintained the order of the Additional Commissioner. The order of the Additional Commissioner as well as the Member (Revenue) Board of Revenue, Punjab, Lahore respondents Nos. 1 and 2 have been assailed through the instant writ petition.
4. Learned counsel for the petitioner contended that the general attorney of the petitioner Sakhi Muhammad Khan had died before the entry and attestation of the mutations in dispute on 2-9- 1967, copy of the death certificate has been placed on record as Annexure ' E'. The mutations were got entered before the Patwari on 5-9-1967 after the death of the attorney and some other person appeared before the Patwari as well as before the Revenue Officer, thus, it was case of impersonation. The petitioner has been deprived of her precious property and that the Revenue Officer/Collector was competent to review the Mutations when grave illegality and injustice was brought to his notice. He further contended that the Revenue Authorities could make an inquiry with regard to the proceedings of the Mutations and the death of the attorney. He argued that on the face of the record it is established that the attorney was dead at the time of attestation of Mutations as per death certificate and the orders of the Additional Commissioner as well as the Member Board of Revenue referring the petitioner to the Civil Court is contrary to law. He relied on case of Karam Din etc. v. Abbas Khan (PLD 1967 (W.P.) Rev. 32). The learned counsel lastly argued that the Constitutional jurisdiction of this Court can be invoked in aid of justice and not to help retention of illgotton gains. He prayed that a direction be issued to the Revenue Officer---the Collector to hold an inquiry with regard to the attestation of mutations of the land to the petitioner.
He relied on case of Bakhtiar and three others v. Member III, Board of Revenue, Baluchistan, Quetta and 20 others (PLD 1984 Quetta 158).
5. Conversely learned counsel for respondents Nos. 3 to 22 vehemently opposed the arguments of the learned counsel for the petitioner contending that the petitioner herself has not filed the writ petition rather, it has been filed through some other person and the signature on the writ petition as well as on the power of attorney (Wakalat Nama) are not appearing. He further contended that the petitioner had sold that land which she got through exchange in plots and disposed of her whole property and after the disposal of her property she malafidely approached the Collector for review of the mutations. He argued that Sakhi Muhammad Khan, the father and attorney of the petitioner, was also attorney of her husband Ijaz Ahmad Khan, who himself got entered the mutations in dispute. He further argued that father of the petitioner Sakhi Muhammad Khan had died on 5-10-1967 and her Mutation of Inheritance No, 899 was attested on 14-12-1967, on the report of his real brother Muhammad Shafi Ullah Khan, which is proof the fact that the father of the petitioner Sakhi Muhammad Khan died after the attestation of the mutations in dispute. Learned counsel lastly submitted that question of fact is involved in the matter and the writ petition is not competent in this Court.
6. I have heard the arguments of the learned counsel for the parties and perused the record.
7. The mutations in disputes Nos. 868 and 870 had been attested on 9-9-1967 while the application for review of the mutations was filed by the petitioner on 24-6-1989, after more than 22 years of the attestation of mutations. The entries of the mutations were made in the record of rights and the long standing entries in the record of rights cannot be corrected through review of mutations.
8. As per para. No,7.30 of Chapter 7 of the Land Records Manual when an entry has been incorporated in the (Jamabandi) a mutation should not be entered up or sanctioned for the purpose of correcting it, except to correct a clerical error (where this Cannot be done by a Fard Badar) or in consequence of a patent fact. The party aggrieved by such an entry must seek his remedy by suit. It is now settled law that no disputed entry in a (Jamabandi) should be altered whether on the ground of mistake or of fraud except on the basis of an obvious clerical error of a patent fact. A fact that needs an elaborate enquiry to establish, is not a 'patent fact'. When a mutation entry has been incorporated in a (Jamabandi) it should not be altered except on the basis of an obvious clerical error effected several years ago and was incorporated in subsequent (Jamabandi) it should not be reversed or reviewed on the ground that it was effected as a result of fraud in collusion with the subordinate revenue staff.
9. When there is an intricate question of law and fact is involved in the matter that requires an elaborate enquiry and recording of evidence, the sanctioning of mutation by the Revenue Officer is a procedure of summary in nature and no detailed enquiry can be made by the Revenue Officer.
10. In the instant case, the question that boils down for determination is that whether at the time of attestation of mutations, the father attorney of the petitioner was alive and he appeared before the Revenue Patwari and the Revenue Officer for attestation of the mutations and if he was alive had he the authority to alienate the property of the petitioner.
11. Learned counsel for the petitioner has contended that the power of attorney of the petitioner had been cancelled by executing deed of revocation. This question also requires recording of evidence and if the power of attorney of the petitioner was revoked, the point also requires adjudication that whether the attorney was informed by the petitioner to the effect that his power of attorney has been cancelled. All the above facts require recording of the evidence which cannot be done by this Court in exercise of its Constitutional jurisdiction. It is settled proposition of law by the august Supreme Court, that the writ would not be competent if question of fact is involved in the matter.
The controversy with regard to legality or correctness of mutations is a factual controversy where the case had been considered by various authorities, their decision on fact could not be disturbed in exercise of Constitutional jurisdiction. High Court in such cases would refrain from substituting its own finding of fact and where factual controversies are involved Constitutional petition in the High Court is not the proper remedy as observed by the Hon'ble Supreme Court in case of Muhammad Younis Khan and 12 others v. Government of N.-W.F.P. Through Secretary, Forest and Agriculture, Peshawar and others (1993 SCMR 618).
12. The District Collector has passed the order in favour of the petitioner permitting to review the mutations in dispute. The power of review had been conferred on the Revenue Officers under section 163 of West Pakistan Land Revenue Act which envisages as under:-
163. Review:
(1) A Commissioner, Collector or an Assistant Collector may, at any time, on his own motion, review any order passed by himself or any of his predecessor-in-office, and on so reviewing modify reverse or confirm the same.
(2) Any person considering himself aggrieved by an order passed by a Commissioner, Collector or an Assistant Colllector, and who from the discovery of new and important matter or evidence which after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the order was passed or on account of some mistake or error apparent on the fact of the record or for any other sufficient reason, desires to obtain a review of the order passed against him, may apply fair a review of the order to the Commissioner, Collector or Assistant Collector, as the case may be and such Officer may modify, reverse or confirm any order passed by himself or by any of his predecessor-in-office.
13. From the plain reading of the above provision of law it is concluded that the Officer who has passed the order is competent to review his earlier order on his own motion or on the application of an aggrieved person, but if the order is not passed by himself and passed by his predecessor-in- office, shall not be reviewed by him without first obtaining the sanction of his superior. For instance, if the order is passed by the Assistant Collector, he will seek permission for review from the Collector, the Collector from the Commissioner and the Commissioner from the Board of Revenue.
14. A Collector has no power to grant sanction for, review of an order of an Assistant. Collector unless the 'Assistant Collector concerned asks for that sanction. It would mean that the aggrieved party would apply to the Revenue Officer who had passed the order for review of the order, if passed by his predecessor-in-office, will apply to the Collector, Commissioner as the case may be for permission to review the order. The direct application for review of the order of Assistant Collector or the order of the Collector, would not be competent before the Collector, or the Commissioner whatever is the case. The concerned Revenue Officer will himself first obtain the sanction from the next Senior Collector or Commissioner for review of the order and the Revenue Officer while reviewing the previous order, shall not modify or reverse the order unless reasonable notice has been given to the parties affected thereby to appear and he heard in support of the order.
15. From the perusal of the order of D/C Collector Sheikhupura, it reveals that the application for review was directly filed before District Collector who ordered the review of the mutations. The Additional Commissioner and the Board of Revenue have legally passed the order and intricate question of law and fact is involved in the matter. Learned counsel for the petitioner has not been able to point out any illegality or jurisdictional defect in the impugned orders. The High Court would interfere in the order passed by the Special Tribunal or the competent authority provided the same had been passed illegally and without lawful authority. The Revenue Officers are competent to pass any order within their jurisdiction in favour of any of the parties. There is no illegality in the observation made by the Additional Commissioner as well as the Board of Revenue that in case of intricate question of law and fact, the petitioner should knock the general jurisdiction of the Civil Court. The question of fraud is certainly is a question of fact which could not be determined by the Revenue Officer in summary proceedings.
For the foregoing reasons, this writ 1 petition having no force is dismisse.