P L D 1984 Quetta 158 (PLP)

MUFTAKH1RUDDIN, J.‑‑This petition calls in question the legality of a revisional order of the learned Member, Board of Revenue dated 19‑4‑1982 whereby revisions filed by the respondents (1) Haji Muhammad son of Wazir (Khanak Kahol) (2) Haji Khudai Rahm son of Agha Muhammad (Khanak Kahol) (3) Muhammad Rasool son of Lai Muhammad (Khanak Kahol), (4) Rehmatullah son of Karam (Khanak Kahol) were accepted and the record of rights as it stood before its correction made on 4‑8‑1972 and 15‑5‑1976 vide mutations as detailed in Annexures 'A', `B' and `C' to this peti tion were ordered to be restored.

2. The facts giving rise to the case briefly are that the respondents and the petitioners jointly held lands alongwith others‑co‑sharers in joint Khata on the basis of their being of springs of Israil Kahol, Khanak Kahol and Sharan Kahol. The property involved in this petition is situated in different Mauzas as shown in the mutations (AnnexureS 'A', 'B' and 'C' of this petition). The respondents Haji Muhammad, Haji Khudai Rahm, Muhammad Israil and one Najamuddin (now dead) had filed a suit for partition of their lands on the ground that since the relations between the plaintiffs and the de fendants had become strained for ‑sometime and they could not pull on jointly as such he plaintiffs wanted that their joint lands should be par titioned. This suit was dismissed on 22‑4‑196 7 as plaintiffs had failed to deposit the process fee for summoning the defendants and the applica tion for the restoration of the suit was also dismissed on 14‑10‑1968 by the Senior Civil Judge, Quetta. On the basis of this order dated 14‑10‑1968 refusing to set aside the dismissal of the suit dismissed in default the peti tioners approached the Revenue Authorities and were successful, in get ting the entries in the revenue record reversed on a‑8‑1972 and 28‑5‑1976 (Annexures 'A', 'B' and `C', of this petition). The respondents 2 to 7 of this petition therefore filed 3 different appeals on 22‑,)‑1977, 5‑3‑1978 and 6‑3‑1978 (Annexures 'D', 'E' and 'F') before the Collector District Pishin. The petitioners raised the objection about the maintainability of appeal and contended that the appeals were barred by time as they were filed beyond the period of limitation i, e. 30 days. The learned Collector accepted the appeal of the respondents 2 to 7 in respect of property indicated in An nexure 'A' vide order dated 8‑12‑1977 while the appeals in respect of the pro perty mentioned in Annexures 'B' and `C', were dismissed. The petitioners and the Proforma respondents (respondents 8 to 21) filed appeal before the Commissioner, Quetta Division which was registered as No. 1‑LRA/78 (An nexure 'L'). The respondents 2 to 7 also filed appeals against orders dated 22‑3‑1979 passsed by the Collector, Pishin. These appeals were registered as Nos. 4‑LRA/79 and 5‑LRA/79(Annexures'M' and'N'). The Commissioner, Quetta Division disposed of all the three appeals by a common order dated 31‑3‑1980 and the appeal of the petitioners was accepted and those of the respondent 2 to 7 were rejected (Annexure `O'). Since the result of this order was against the respondents 2 to 7 they filed three revisions before the Member, Board of Revenue. The Member, Board of Revenue vide his order dated 19‑4‑1982 (Annexure 'S') accepted the revisions and ordered the reversal of the mutations contained in Annexures 'A', 'B' and `C'). Against these orders (Annexure 'S') the present Constitutional petition is filed in this Court.

3. The considerations which appear to have weighed with the Member, Board of Revenue seem to be that the order of the Senior Civil Judge dated 14‑10‑1968 was not a decree which could create any right in favour of the petitioners or entitlement for the change in the records of right. The muta tion entries contained in Annexures 'A', 'B' and 'C' were also made behind the back of the respondents 2 to 7 and in violation of the mandatory pro visions of law and were void.

4. The learned counsel for the petitioners has urged following points before us :‑‑ (1) that the M. B. R. has no jurisdiction as second revision was not competent ; (2) that the revision filed before the M. B. R. was itself time‑barred; (3) that the order of the M. B. R. is not speaking order, no judicial reasons have been assigned ; (4) that the long d‑lay 1n filing the appeals by the respondents 2 to 7 before the Collector have created valulable rights in favour of the petitioners. There b4ing no application for the condonation of delay, the appeals were not entertainable.

5. Before the contentions of the learned counsel for the petitioners are discussed it is necessary that the scheme of the Land Revenue Act, 1967 pertaining to mutation and change of the entries in record of rights is taken notice of The relevant provisions in that behalf are contained in sections 42 to 45 of the Act. It lays down in clear terms that the rights of the parties in land should not be determined without affording them the op portunity of being heard, and that is why the following procedure has been made mandatory particularly the following which are reproduced :‑‑‑‑ "42. (1) ........................... (2) .............................. (3) .............................. (4) The report made to the Patwari under subsection (1) or sub-section (2) or recorded by him under subsection (3) shall be dis played in such manner as may be prescribed. (5) .............................. (6) A Revenue Officer shall, from time to time, inquire into the correctness of all entries in the register of mutations and into all such acquisitions as aforesaid coming to his knowledge of which, under the foregoing subsections, report should have been made to the Patwari and entries made in that register, and shall in each case make such order as he thinks fit with respect to any entry in the periodical record of the right acquired. (7) Except in cases of inheritance or where the acquisition of the right is by a registered deed or by or under an order or decree of a Court, the Revenue Officer shall make the order under subsection (6) in the presence of the person whose right has been acquired, after such person has been identified by two respectable persons, preferably from Lambardars or members of the Union Committee, Town Com mittee or Union Council concerned, whose signatures or thumb impressions shall be obtained by the Revenue Officers on the register of mutations., (8) An inquiry or an order under subsection (6) shall be r4ade in the common assembly in the estate to which the mutation, which is the subject‑matter of the inquiry, relates".

6. The admitted feature of the instant case is that the lands were jointly owned by the off‑springs of three Kahols namely Khanak Kahol, Israil Kahol and Sharan Kahol and there was a joint Khata. Even if the suit for portition filed by the respondents 2 to 7 was dismissed, the position could continue and no change was warranted and the lands remained joint. 6‑A. The decision of this petition mainly hinges on the decision of the question whether the orders passed on 14‑10‑1968 by the Senior Civil Judge, Quetta on which the petitioners bank .so much and claim the al teration/change of the previous entries in any way confer any right in favour of the petitioners. This question admits of short answer in the nega tive and against the petitioners for the short ground that the orders of the Senior Civil Judge. Quetta conferred no right and the revenue authorities were duped. It must be remembered that the entries in the record of rights are varied under section 42 of the Land Revenue Act, 1967 which lays down that revenue officers can vary entries in accordance with facts proved or admitted to have occurred or agreed to by all the parties. The position in this respect would be much the same as in the case of Bank Accounts, which cannot be operated on, save by genuine cheques of the depositors, or entitled persons and forged cbeques even if cashed by the Bank Staff itself cannot affect the Balance which is due to the depositor. Thus when the land‑owners do not appear the mutation so recorded is bogus in that it records no facts and can confer no title. The mutation entries as con tained in Annexures `A', `B' and `C' are therefore made in flagrant disregard of the provisions contained in section 42 of the Act and are void and nul lity in law. A void order is one which is passed in violation of mandatory provisions of law and renders the proceedings coram non judice. (See' Muhammad Swaleh and another v. Messrs Unite; Grain and Fodder Agencies, (PLD 1964SC97). The proposition of law that "when law requires a particular thing to be done in a particular way, the provisions of such law must be com plied with, failure to do renders the proceedings invalid" is well‑settled.

7. Tehsildar Chaman in his report has pointed out The Assistant Commissioner also in his report dated 11‑10‑1977 had pointed out (Annexure R/6) :‑ 7‑A. The question that arises in the matter is whether M. B. R. when he became aware of these patent illegalities which was known from the report of the revenue authorities could plead helplessness. The revi sional jurisdiction has been kept vast by the legislature as would appear from the words "the Board of Revenue, may, at any time, on its own motion" used in section 164 of the Land Revenue Act, 1967. It would be clear that the power of the M. B. R. to summon the recor of the case is not confined to decided case but on the contrary he can call for the record of any case pending before or disposed of by a sub ordinate revenue officer. A Division Bench of the Lahore High Court in Khair Din v. I. U. Khan (P L D 1968 Lah.11) bad the occasion to consider the provision contained in section 16 of the Punjab Land Revenue Act which provisions are in pari materia with the provisions of section 164 of the Act of 1967 except that the word financial Commissioner is replaced by the Board of Revenue, and it was held that the Board of Revenue was competent to entertain second revision. We find ourselves in agreement with this view. In our opinion the superior revenue authorities are duty bound to interfere to rectify any wrong done to the interests of innocent parties. It is the duty of the State and its functionaries to ensure redress of grievances and minimisation of litigation.

8. Having thus conceded the competence of the Member, Board of Revenue to interfere even at a belated stage in the exercise of revisional jurisdiction, in case of miscarriage of justice, we are inclined to think that in view of the facts and circumstances of the instant case the learn ed Member was perfectly justified in undoing a wrong and to see that it was not perpetuated, and we are convinced that in the instant case the revisional powers have been properly exercised, and it is never too late to set aside an order which has been passed without jurisdiction or is void :‑ (1)PLD1948PC94 (2) Muhammad Tufail v. Abdul Ghafoor and others P L D 1958 S C 201. (3) Muhammad Swaleh and another v. Messrs Untted Grain and Fodder Agencies P L D 1964 S C 97. (4) Major Syed Walayat Shah v. Muzaffar Khan and 2 others P L D 1971 S C 184. are some of the authorities which may be quoted in this behalf.

9. The Constitutional jurisdiction of the High Court is always invoked in aid of of justice and not to help retention of ill‑gotton gains. The petitioners in the instant case want to maintain/retain the entry made in the absence of the respondents 2 to 7 by the revenue authorities who were duped and the entries thus carried out being nullity in law de serve to be ignored. For the above reasons we find no merit in the petition which is dismissed with costs. M.Z.M. petition dismissed.