1979 PLP 609 (CLC)

3. On 31-5-1975, viz. after nearly ten years respondent Jan Muhammad claiming to be a resident , of the village filed an application entitled as follows :- "Revision/Review Petition under section 7/8 of West Pakistan Board of Revenue Act, 1957 read with section 20 of the West Pakistan Genera Clauses Act, 1956." . . He requested for setting aside the order of Mr. M. H. Soofi. He challenged the earlier proceedings under the provisions of section 38 of the Bombay Land Revenue Code and he requested for fresh site inspection. He made a grievance that the petitioner were laying claim to an area where a Dargah was located. This application was treated as a review application by Mr. O. M. Qarni, Additional Member of the Board of Revenue. The learned Additional Member expressed that a review application did not lie under section 8 of the West Pakistan Board of Revenue Act of 1957. In regard to the status of respondent Jan Muhammad he observed that be could not re-agitate the matter as the original revision application was not at his instance. The review application was also in the opinion of the learned Additional Member barred by reason of time. This review application was dismissed on 21-6-1975. Within a few days the petitioners received a notice from the Board of Revenue, Sind, in regard to a dispute regarding demarca tion of the area of the village. This notice stated that the Chief Minister of Sind had referred the case for decision after site inspection. Hearing of this application was fixed on 13-8-1975 and inspection of site was fixed on the following day. It seems that the petitioners appeared before the Member, Board of Revenue and urged that he had no jurisdiction. It is, however, stated in the petition that the learned Member had expressed that he had the jurisdiction and would proceed with the case. The petitioners thereafter filed the present petition in which they have sought the relief for a declaration that the notice to re-opera the case was without lawful authority and of no legal effect. They have also sought an order of restraining the respondents from taking any action in pursuance of the said notice. Costs have also been claimed.

4. We have heard Mr. Nasir Aslam Zahid for the petitioners and Mr. Naqi Mirza for the respondents.

5. The first point that had engaged our attention was in regard to maintainability of this petition by reason of the fact that no final order had been passed and only a notice had been issued. In such context the learned Advocate for the petitioners has invited our attention to the Judgment of the Supreme Court in the case of Sind Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and another (P L D 1975 S .C 450). The ratio laid down by the Lordships of the Supreme Court is that in cases of proceedings initiated without jurisdiction the affected party has a cause for maintaining a writ of certiorari to quash the order for initiation of proceedings. Mr. Justice Muhammad Gul summarized the dictum in the following words :- "These defects of jurisdiction are apparent on the f Ace of the record which in my opinion would at once attract certiorari jurisdiction of the High Court. I have not the slightest doubt that if respondent 2 proceeds to hear the complaint of respondent 1, the proceedings will be wholly without jurisdiction and therefore a nullity." 1n the case of Murree Brewery Co. Ltd. v. The Pakistan (P- L D 1972 S C 279) same view had been expressed by the Supreme Court on w recognized exception to the general rule of alternate remedy in cases where an order was attacked out the ground that it was wholly without authority. The learned Advocate for the petitioners has contended that the notice issued by the Member, Board of Revenue on 26-7-1975 alleging incorrect demarcation was wholly without jurisdiction. Such contention merits discussion and our view presently follows. .

6. The respondent Jan Muhammad was patently a stranger to the proceedings which had initiated before the Director or Settlement, Survey and Land Records in 1965 and ended with the order of demarcation of the village. He was not a party even before Mr. M. H. Soofi in the revision application that was filed by the petitioners. For the first time he chose to file a review application before Mr. O. M. Qarni after ten years of the original order of Mr. M. H. Soofi. In this review application Mr. O. M. Qarni had considered the status of respondent Jan Muhammad and come to the conclusion that review application was not maintainable at his instance. The review application was dismissed on 21-6-:975 and within less than a month he filed another review application, the notice on which is sought to be impugned. 7: The jurisdiction of the Board of Revenue is reflected in the West Pakistan Land Revenue Act, XVII of 1967 and the West Pakistan Board of Revenue Act, XI of 1957. Under the West Pakistan Land Revenue Act the Board of Revenue has appellate jurisdiction though restricted to points of law alone in case an order is passed by a Commissioner. Section 163 of this Act envisaged proceedings by way of review and the absence of mention of the Board of Revenue in this section is conspicuous. A revision application, however, lies to the Board of Revenue under section 164 of this Act but such remedy as revision lies only in cases where a decision is given by a subordinate authority. It is thus clear to us that a power of review is not reserved for the Board of Revenue under West Pakistan Land Revenue Act and the reason obviously is that the earlier Act namely West Pakistan Board of Revenue Act, 1957 had provided for the jurisdiction of review by the Board of Revenue. Section 8 of the West Pakistan Board of Revenue Act reads as follows :- "Section

8. Review of orders by the Board.-(l) Any person considering himself aggrieved by a decree passed or order made by the Board 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 decree was passed or the order was made, or on account of some mistake or error apparent on the face of the record, desires to obtain a review of the decree passed or order made against him, may apply to the Board for a review of judgment and the Board may, after giving notice to the parties effected thereby and after hearing them, pass such decree or order as the circumstances of the case require. (2) Every application for a review of a decree or order under sub section (1) shall be made within 90 days from the date of that decree or order." 7-A. The question then falling for determination is whether the second review application preferred by respondent Jan Muhammad was maintainable. The language of section 8 bears a close resemblance to the language used in the Code of Civil Procedure in so far as occasions making the remedy of review available are concerned. The only difference is that in 1964 B section 8 of the West Pakistan Board of Revenue Act was amended so as to make the remedy by way of review available in cases where sufficient reason may be exhibited for review. The words "for any other sufficient reason" follow the words which lay down the grounds for interference in review. These words have to be read ejumem generis with the words preceding them. It is not every cause which would make the remedy by way of review available but such cause must be relatable to the circumstances as discovery of new and important matter or some apparent mistake or error on the face of record. What is more that the respondents have filed no counter-affidavit nor has the last review application submitted by respondent Jan Muhammad been placed before us. We are indeed at a loss to gauge the circumstances under which the second review application was filed. It would, therefore, be fair to assume that the second review applica tion, which has led to the notice impugned in this petition, did not justify maintainability, for had it been so a copy would have been placed before us to indicate if new material had been discovered or whether the original orders suffered from any mistake or error. Since there is nothing before us to indicate any change in circumstances we are of the view that the second review application had been filed on perhaps the same grounds on which the first review application before Mr. O. M. Qarni had been filed and which bad been dismissed. We are, therefore, of the view that not only the second review application but even the first review application before Mr. O. M. Qarni was not maintainable.

8. We feel no hesitation in coming to the conclusion that the proceedings initiated before the learned Member, Board of Revenue, on which the impugned notice was issued, were wholly void and of no legal consequence.

9. In conclusion we grant the following relief s in favour of the petitioners. We declare 'that the notice dated 26-7-1975 and the intended proceedings by the functionaries of the Board of Revenue are without lawful authority and of no legal effect. We, therefore, restrain the said respondents, the employees and subordinates of the Board of Revenue from taking any action in pursuance of the said notice. We also grant costs in favour of the petitioners. Petition accepted.