2017 PLP 32 (CLCN)

AMIN-UD-D1N KHAN, J.

Through this writ petition petitioners have challenged the order dated 2.6.2004 passed by the learned Member Board of Revenue, Lahore, whereby ROR No.1294 of 2001 was accepted and order passed by the Commissioner, Dera Ghazi Khan dated 16.6.2001 was set aside.

2. The history of this case is very lengthy and there are various rounds of litigation starting with the mutation of exchange No. 309 attested on 27.11.1967 whereby the predecessor of the petitioners transferred his property in favour of Muhammad Hussain Chatha predecessor of respondents Nos. 2 and 3 etc. and in lieu thereof got the property through mutation No. 583 and the rounds went up to the Board of Revenue and then remanded back.

3. Learned counsel for the petitioners has attacked the order impugned in this writ petition on the ground of some previous orders of the subordinate revenue officers of the Board of Revenue as well as reports made by some officers. All the arguments advanced by learned counsel for the petitioners relate to the factual controversy, therefore, I do not want to note all the lengthy arguments and it has been finally prayed that the writ petition be accepted and the impugned order be set aside.

4. On the other hand, learned counsel representing the respondents have vehemently opposed the arguments advanced by the learned counsel for the petitioners and prayed for dismissal of the writ petition on the ground that same is not maintainable arguing that the application moved for review of the mutation was barred by time and not proceedable and further that after the exchange mutations both the parties to the mutation transferred the land in favour of the various persons and therefore, the exchange mutations cannot be reversed under the law.

5. I have heard learned counsel for the parties at length and gone through the record.

6. Learned Member Board of Revenue has noted detailed history of case in his order, which is impugned before this Court. The mutations of exchange were sanctioned in the year 1967. Admittedly, the Assistant Commissioner was having no jurisdiction when for the review of the said mutation was moved by the predecessor of the petitioners namely Mian Nizam Din. When the same was dismissed again review petition was moved before the District Collector. The petitioners now mainly banked upon the order passed by the District Collector dated 21.8.1979 whereby the mutations were ordered to be cancelled. This order is also disputed to the effect that whether same was passed by the District Collector or it was a forged order as photocopy of the same was produced. Under the constitutional jurisdiction of this Court the genuineness or otherwise of that order cannot be adjudged. Even if the order dated 21.8.1979 is presumed to be genuine the other factors noted in the impugned order have value as after the sanctioning of the exchange mutations both the parties to the mutations have transferred the land received by them through the disputed mutations and admittedly the transferees of land were not made party or heard when the matter of review started. Further the proceedings of review were started long after passing of mutations and I am clear in my mind that section 5 of the Limitation Act, 1908 for condonation of delay is not applicable to the proceedings before the revenue hierarchy under the Land Revenue Act, 1967, as special limitation is provided under the special law. One further important point is that the ground for review pressed by Mian Nizam Din was that the exchange mutation is No.9, whereby he transferred the property, was bad in law due to the violation of the Martial Law Regulations stating that the Patwari has wrongly mentioned his total ownership in the exchange mutation in order to report that the exchange mutation is not in violation of the Martial Law Regulations. Here I am also of the view that no one can take the benefit of his own wrong, if the report was wrongly made by the Patwari, Mian Nizam Din was party to those proceedings and in his benefit the exchange mutation was being entered and sanctioned. The reports or the noting whereby his ownership was wrongly mentioned in order to get the exchange mutation sanctioned, it is presumed that Mian Nizam Din cannot absolve himself from that endorsement and cannot take benefit of his own wrong. The further point that Malik Muhammad Ibrahim, Advocate who got 160 Kanal of land through Mutation No.318 sanctioned on 13.6.1968 from Mst. Nazir Khatoon, who got this land through a pre-emption decree from Muhammad Afzal etc., who purchased the same from Mian Nizam Din, according to Malik Muhammad Ibrahim, Advocate this land was not the part of the exchange transactions. The argument of the respondents that Mian Nizam Din started review of mutation to undo the sale of land made by him in the garb of disputing the exchange mutations, seems to be valid point raised by Malik Muhammad Ibrahim, Advocate respondent No.9.

7. In the above circumstances, as I have noted supra no one can be allowed to take the benefit of his own wrong, therefore, the order passed by the learned Member Board of Revenue is comprehensive as well as in accordance with law and no exception can be taken to that.

8. For invoking the constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 of this Court the petitioners were required to show that the order passed by the Member Board of Revenue is without jurisdiction but no such material has been produced to show that the order was without jurisdiction. In this view of the matter, this writ petition fails and same stands dismissed. RR/R-23/L Petition dismissed.