MUHAMMAD MOOSA K. LAGHARI, J.---Through this petition the petitioner has called in question the order, dated 16.5-2002 passed by respondent No,1 whereby he set-aside the order, dated 6-11-2000 passed by the Commissioner Hyderabad Division, Hyderabad and remanded the case to respondent No,2 for fresh decision.
2. The facts narrated in the petition are submmarized as under:--- The claimant Shah Amanatullah was allotted an area of 667.3 acres of land in Taluka Sehwan and Johi on 24-11-1959. On promulgation of MLR No,89 of 1991 the said claimant was allowed to retain only 64.19 acres. Rest of the land was surrendered vide allotment order, dated 11-8-1962. However, as provided under the scheme after surrendering the land the said claimant opted to purchase the entire land which was available for disposal at the relevant time.
Eventually the said claimant through sale agreement, dated 5-5-1966 and 10-5-1967 alienated the land measuring 292.38 acres in favour of the petitioner which was situated in different Dehs of Talkuka Johi. On promulgation of MLR No,115 of 1972 on 11-3-1972 the said claimant declared the holdings and also disclosed the transfer of the above land. D.L.C. Dadu finally determined holding and held the aforesaid alienation in favour of the petitioner as bona fide vide order, dated 5-5- 1977. The said alienations .were also held to be valid by the learned Commissioner vide order, dated 20-10-1982. The claimant Shah Amanatullah paid the entire price and the Khata was mutated. The Deputy Commissioner, Dadu directed Mukhtiarkar Johi to mutate the Revenue Record in the name of petitioner in pursuance of the order of dated 22-4-1990.
Such mutation was effected in the name of petitioner Shah Amantullah. It is case of the petitioner that having bonafidely purchased the said land from claimant Shah Amanatullah he was the exclusive owner and in possession of the above land since May, 1966. He was cultivating the same and paying the land revenue to the Government. Respondents Nos.4 to 24 appear to have moved a Miscellaneous Application to the Member (Land Utilization), Board of Revenue, Sindh, respondent No,3(a),, for cancellation of Entries No,35, 7 and 15, relating to land in question. On the above application respondent No,3(a) directed the Commissioner Hyderabad to initiate suo motu proceedings per his letter, dated 7-10-1999. The parties appeared before the. Commissioner, who after hearing the petitioner and respondents.. Nos.4 to 24 as well as claimant Shah. Amanatullah passed order, dated 6-11-2000 and dismissed the application on merits. Respondents Nos.4 to 24 challenged the said order in Appeal No,411 of 2000 before the respondents No,1., Respondent No,1 allowed the appeal by order, dated 15-6-2002. The order, dated 6-11-2000 passed by the Commissioner, Hyderabad was set-aside and the case was remanded to respondent No,2 for fresh decision. The order so passed has been assailed in this petition.
3. In pursuance of the notice counter-affidavit was filed on behalf of private respondents whereby maintainability of the petition was challenged. It was asserted that no illegality was committed by the respondent No,1 by remanding the case to respondent No,2. it was however, pleaded that the land in question was already treated as evacuee surrendered land and allotable to the local Haris as- per policy and that respondents were in physical cultivating possession of the land.
4. We have heard Mr. Aijaz Ali Hakro, learned counsel for the petitioner, Mr. Jagdesh R. Mullani, learned counsel for respondents Nos.4 to 24 and Mr. Masood A. Noorani, leaned A.A.-G. on behalf of official respondents.
5. It was mainly contended by learned counsel for the petitioner that suo motu proceedings initiated by the Revenue Authorities on the application of a party moved before them beyond the prescribed limitation period were illegal. It was further contended that neither the Commissioner nor learned Member, Board of Revenue possessed the jurisdiction to entertain such application. It was next argued that the orders passed by the learned Senior Member, Board of Revenue whereby he set aside the order of the Commissioner were perverse and invalid, inasmuch as that the merits of the case were not considered. In support of his contention learned counsel has relied upon (1)
PLD 1976 Peshawar 66, (2) PLD 1977 Lahore 461, (3) PLD 1978 Karachi 958, (4) PLD 1994 Lahore 334 and (5) 1992 MLD 2436.
6. Conversely it was contended by learned counsel for the respondents Nos.4 to 24 that the Board of Revenue and the Commissioner were vested with the powers to revise orders, passed by the subordinate authorities, either on their own motion or on the application of a party. It was further argued that the orders passed by the Revenue Authorities did not attain finality and were amenable to revision. Learned counsel referred to the provisions contained under sections 164 and 179 of the Land Revenue Act. To support his contentions learned counsel placed reliance on (1) PLD 1991 SC 691 and (2) PLD 1992 SC (AJ&K) 45.
7. Learned A.A.-G. supported the contentions raised by the learned counsel for private respondents to the extent that the Board of Revenue had the jurisdiction and possessed the powers of revision as contemplated under section 164 read with section 179 of the Land Revenue Act. He argued that the Revenue Authorities did not commit any illegality while exercising the revisional powers.
Learned A.A.-G. however, could not meet the objection that the respondent No,1 committed an error as did not consider the merits of the case while passing the impugned order.
8. We have appreciated the respective contentions raised- by learned counsel for the parties, considered the case-law relied upon by them and have also examined the impugned orders.
9. The bare perusal of the order passed by Member Judicial, Board of Revenue, Sindh i,e, respondent No,1 reveals that the merits of the case were not touched by him.
Instead of adverting to the legal issues, with regard to the jurisdiction of the Commissioner and the point of limitation raised by the petitioner, learned Member Judicial (respondent No,1) set aside the order passed by the Commissioner on the sole ground that judgment/order was announced after three months of the hearing of arguments. This, in the opinion of the learned Member Judicial rendered the said judgment illegal and bad in law.
10.While having in mind the fact that Revenue Authorities are quasi-judicial tribunals we cannot resist expressing that the proceedings before them are not judicial in the strict sense. Yet order passed by learned Commissioner was set aside only on technical grounds.
It hardly needs to be emphasized, that the causes of parties are to be decided on merits, and technical knock-outs should sparingly be resorted to. For reference case of Sajawal Khan 2002 SCMR 134 can conveniently be referred.
It may be observed that the Tribunals constituted under different statutes were required to address the real controversy and to arrive at a just and reasonable conclusion in order to resolve the disputes, rather than remanding the matters on hypertechnical grounds. The orders passed by the respondent No,1 are perfunctory and are liable to be declared invalid on this score. Consequently the case could be remanded to him for passing fresh orders on merits.
However, in order to set-at-naught the controversy, we proceeded to dispose of the matter on merits.
11. Reverting to the facts of the case in hand it may be stated that the entries which are the subject- matter of the controversy were made in the record of rights under the. Rehabilitation and.
Settlement Laws, as clearly evident from the perusal of the order passed by the learned Commissioner, and were sought to be revised under section 164 of Land Revenue Act, 1967.
In. Muhammad Sarwar and 5 others v. Muhammad Ali and 18 others, 2002 SCMR 829, it was held that an order passed by Settlement Authorities under Displaced Persons (Land Settlement) Act, 1958 would attain finality if it is not challenged in the same hierarchy and even the Civil Court would have no jurisdiction.
In Government of. Sindh v. Zafarul Islam, 2002 SCMR 447, their lordships of the Hon'ble Supreme Court exactly in the similar circumstances were pleased to observe as under:-- "We find no merit in the connection (contention) inasmuch as the entries in the record-of-rights have been made on the basis of allotment made under the Rehabilitation and Settlement Laws and which orders are past and closed transactions and by purportedly exercising jurisdiction under the Land Revenue Act that cannot be done which is prohibited by Act XIV of 1975."
Respectfully following the rule laid down by the Hon'ble Supreme Court, we are of the considered opinion that the learned Commissioner was absolutely correct in holding that the "orders passed under the repealed evacuee laws and MLR No,115 of 1972 cannot be challenged under section 164 of the Sindh Land Revenue Act, 1967."
12. In view of the above conclusion, the point of limitation does not appear to be of much consequence, in the .present cases. However, since it has been urged before us, we deem it appropriate to deal with the same for future guidance.
13. The perusal of the provisions contained under section 164 of the Act, will show that the Board of Revenue or the. Commissioner can call for the record of any case pending before or disposed of by any subordinate Revenue Officer. These powers can be exercised by the Board of Revenue/Commissioner either (i) on its own motion, or (ii) on application made to it. The section further stipulates that if the action is taken by the Board of Revenue/ Commissioner, it may be taken 'at any time however if it has to be taken on an application, it has to be made 'within thirty days.'
'In the present case there is no dispute that the action was taken by the Board of Revenue/Commissioner on the application made to it by the respondents. Admittedly mutation was effected in the year 1990 while the application was made in the year 1999 i,e, after the expiry of 9 years. Neither such inordinate delay was explained nor there was any application for condoning the same. Evidently the application was miserably barred by time.
On the basis of above discussion we have arrived at a definite conclusion that the proceedings initiated by the respondent No,1 in the matter under section 164 of the Land Revenue Act, 1967 are without lawful authority and of no legal effect. The same are set aside/quashed. The petition is allowed to that extent.