2021 PLP 2110 (MLD)

AHMAD NADEEM ARSHAD, J.

Through this review petition under section 114, C.P.C., the petitioners seek review of order dated 17.01.2017 passed by the learned Single Judge in Chamber, whereby, writ petition filed by the petitioners and respondents Nos.8 to 11 was dismissed.

2. The facts in brevity as deciphered from the record are that father of respondents Nos.5 to 7 namely Muhammad Bakhsh was allotted land measuring 264 kanals under 10 years Temporarily Cultivation Lease Scheme on 15.05.1969 and after his death in the year 1979, his inheritance mutation No.68 was sanctioned on 06.01.1980 in the names of respondents No.5 to

7. Later on, respondents No.5 to 7 applied for grant of proprietary rights of the land and vide order dated 02.02.1981 proprietary rights of 100 kanals of land out of 264 kanals were granted to them while rest of the land was surrendered/confiscated in favour of the State. Thereafter, they filed an application for the allotment of remaining land on the ground that they were three separate families, which was allowed vide order dated 30.08.1992 by the Assistant Commissioner/Collector, Muzafargarh and consequently they were declared entitled for grant of remaining land in equal shares. Against that allotment order, the petitioners along with respondents Nos.8 to 11 filed an appeal before the Executive District Officer (Revenue) Muzafargarh (respondent No.2) which was allowed vide order dated 26.06.2007. Feeling dis-satisfied by the said order of respondent No.2, respondents Nos.5 to 7 filed R.O.R. No.1265/2007 before the Member Board of Revenue, Punjab Lahore, who allowed the same vide order dated 06.01.2010 and set-aside the order of respondent No.2 and restored the order of the Assistant Commissioner/Collector, Muzaffargarh. Feeling aggrieved, Writ Petition No.1674 of 2010 was filed before this Court, which was dismissed by the learned Single Judge in Chamber vide order under review.

3. Learned counsel appearing on behalf of the petitioners states that while passing the order dated 17.01.2017 several factual points of evidence and of legal importance could not be brought to the notice of this Court and as such escaped from the valuable consideration of this Court although the said factual evidence was duly available on the record.

4. Conversely, learned counsel appearing on behalf of respondents Nos.5 to 7 states that the learned Single Judge in Chamber passed the order dated 17.01.2017 after considering all the legal as well as factual aspects of the case and perusing the record; that the scope of review is very limited and narrow and the judgment can only be reviewed where the error is apparent on the face of the record. He relied upon the case laws reported as:- "Jan Muhammad v. the member (colony) and others" (2017 SCMR 93) "Jhabba Lal v. Shib Charan and others" (AIR 1917 Allahabad 160), "Ghulam Sarwar and another v. The State" (1979 S C M R 43), "Mohtarama Benazir Bhutto v. President of Pakistan and 2 others" (PLD 2000 Supreme Court 77), "Pakistan Lawyers Forum and others v. Federation of Pakistan and others" (PLD 2004 Lahore 145), "Zulfikar Ali Bhutto v. The State" (PLD 1979 Supreme Court 741), Mst. Lal Khatoon and 8 others v. Mst. Sahati and 2 others" (PLD 2005 Karachi 327), "Muzaffar Ali v. Muhammad Shafi" (PLD 1981 Supreme Court 94), "Mst. Amtul Kabir and others v. Safia Khatoon and others" (1990 CLC 1522), "Kundal Khan v. Agha Jan" (PLD 1990 Peshawar 21), "Lord Russell of Killowen, Sir Lancelor Sanderson and Sir Shadi Lal Bisheshwar Pratap Sahi and another v. Parath Nath and another" (AIR 1934 Privy Council 213) and "Amir Ahmad Khan v. Rehmat Ullah and another" (1989 MLD 449).

5. We have heard the arguments advanced by the learned counsel for the parties and perused the record with their able assistance.

6. The petitioners through this review petition applied for the review of the judgment passed by learned Single Judge in chamber. Before proceeding further, it is better to see the scope of review. Section 114 of C.P.C., 1908 deals with jurisdiction of Courts of civil jurisdiction to review its judgments. As reference of Section 114 of C.P.C., 1908, it is clear that any person considering himself aggrieved from the decree or order from which an appeal allowed, but no appeal has been preferred or where no such appeal is allowed or by a decision on a reference from a Court of Small Causes may be applied for review of the judgment of the Court which passed the decree or order, the Court may make such order thereon as it think fit. Section 114 ibid is read as under:- "

114. Review

(1) Subject as aforesaid, any person considering himself aggrieved-- (a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed by this Code, or (c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit." The grounds on which a review be sought are enumerated under Order XLVII, Rule 1, C.P.C., 1908 which are as follows:- "

1. Application for review of judgment.-Any person considering himself aggrieved-- (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, 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 order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of judgment to the Court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review." The right to claim review of any decision of the court of law, is substantive right and not a mere matter of procedure. Although the right of review was always a creation of relevant statute on the relevant subject. The High Court apart from its powers to correct errors apparent on the face of the record in exercise of inherent jurisdiction as provided under CPC, 1908 to review the order or make order in exercise of writ jurisdiction. The august Supreme Court of Pakistan in its Full Bench Judgment titled "Hussain Bakhsh. v. Settlement Commissioner, Rawalpindi and others" (PLD 1970 Supreme Court 1) held as under:- "The right to claim review of any decision of a Court of law, like the right of appeal is a substantive right and not mere matter of procedure. An appeal, as observed by Brandwell, L.J. in the case of Sandback Charity Trustees v. North Staffordshire Railway Co. (1)

"does not exist in the nature of things; a right to appeal from any decision of any Tribunal must be given by express enactment. This is equally true in case of review, because both appeal and review, though they differ in scope, are substantive rights. As such, neither of them is available unless it has been confirmed by law." It was further held that:- "This writ jurisdiction under Article 98 of the Constitution, as already stated, is an original jurisdiction. Obviously, the jurisdiction under Article pertains to civil as well as other matters. At the moment, I shall consider the nature of the proceeding arising out of a writ petition relating to a civil matter, as in the instant case. A proceeding taken for the enforcement of a civil right is a civil proceeding, whatever may be the source of the Court's jurisdiction invoked for enforcement of such a right. According to Stroud's Judicial Dictionary, 'Civil Proceeding' is a process for recovery of individual right or redress of individual wrong, inclusive, in its proper legal sense, of suits by the Crown see Bradlough v. Clarks (2). Whether a proceeding is civil or not depends on the nature of the subject-matter of the proceeding and its object, and not on the mode adopted or the forum provided for the enforcement of the right. A proceeding which deals with a right of a civil nature does not cease to be so merely because the right is sought to be enforced by having resource to the writ jurisdiction. Judged from these aspects, a proceeding under Article 98 of the Constitution relating to a civil matter is a civil proceeding, although the High Court's jurisdiction in such a proceeding is constitutional jurisdiction of an original kind. A civil proceeding in a Court of civil jurisdiction is governed by the Code of Civil Procedure (see its preamble). By virtue of section 117 of the Code, a civil proceeding in a High Court is also governed by the provisions of the Code other than the provisions which are specially excepted. A proceeding under Article 98 of the Constitution concerning a civil matter being a civil jurisdiction and section 114 of the Code conferring power of review not having been made inapplicable to the High Court in the exercise of its original civil jurisdiction, the power to review an order made by the High Court in its writ jurisdiction will be available to it under the said section 114 if that section is otherwise applicable." In "Capital Development Authority through Chairman v. Raja Muhammad Zaman Khan and another" (PLD 2007 Supreme Court 121), the august Supreme Court of Pakistan again held that right of review application is a substantive right and is always a creation of the relevant statute on the subject. It is abundantly clear that power of review can be exercised to correct the errors and the main aim of power to review is to prevent injustice being done by a Court and the most requirement for invoking the review is that an error or mistake which is manifestly float on face of record, which is patent that if it allow to intact would perpetuate illegality and gross injustice. The Hon'ble Supreme Court of Pakistan in a case of "Mehmood Hassan Lark and others v. Muslim Commercial Bank Limited and others." (2010 SCMR 1036) and it has been observed as under:- "We are of the view that before an error can be a ground of review, it is necessary, that it must be one which is apparent on the face of the record and that it must be so manifest, so clear, that no Court could permit such an error to remain on record."

7. In this background, keeping in view the aforesaid principles which governed the principle of review, now we consider the points urged in the review application and arguments advanced by the learned counsel for the parties.

8. Lot No.2-Bay consisted of 33-Acres, detailed as Khasra No.28 Killa Nos.21 to 25, Khasra No.29 Killa No.25, Khasra No.34 Killa Nos.7 to 25, Khasra No.35 Killa Nos.1 to 3, 5, 7, 8, 10, 11 total measuring 264-Kanals originally allotted to Muhammad Bakhsh, predecessor of respondents Nos.5 to

7. After his demise, inheritance mutation No.68 was sanctioned on 06.01.1980 under section 19-A of the Colonization of Govt. Lands Act, 1912 in favour of his legal heirs. The legal heirs of deceased Muhammad Bakhsh (respondents Nos.5 to 7) after promulgation of Notification No.3215-79/3973-C-II dated 03.09.1979 applied for grant of proprietary rights and accordingly 100-Kanals land vide order dated 02.02.1981 (Annexure-D) declared that legal heirs of Muhammad Bakhsh are entitled for the grant of 12 -Acres land out of 33-Acres. It was further directed in the order that their statements be recorded regarding which land they required to retain and what they want to surrendered. In the light of that order legal heirs of Muhammad Bakhsh recorded their statements on 22.03.1983 and gave a choice of land measuring 100-Kanals consisted of Khasra No.28 Killa Nos.21 to 25, Khasra No.29 Killa No.25, Khasra No.35 Killa No.1 to 3, 5, 8, 10, 11 and surrender rest of the land in favour of the State. The concerned Revenue Officer reported on 16.12.1981 that complete Khasra No.35 was proposed/earmarked for "Abadi Deh" which had been inadvertently included in the schedule and had been allotted to Muhammad Bakhsh. In the light of said report as mentioned above, respondents Nos.5 to 7 through application dated 03.03.1987 (Annexure-K) after admitting that the land situated in Khasra No.35 was proposed/earmarked for "Abadi Deh", offered themselves in Para-5 and 6 of the application that in the giving circumstances and keeping in view the rights of the inhabitants of Chak, they surrendered the land situated at Khasra No.35 in favour of the State and offered that it may be included in the prohibited zone. In view of the Notification dated 03.09.1979, they made an alternate choice of land situated in Khasra No.34 Killa Nos:21 to 25, 16,17/1 and prayed for its inclusion in the allotment. In this background, Khasra No.28 Killa Nos.21 to 25, Khasra No.29 Killa No.25 and Khasra No.34 Killa No.21 to 25, 16, 17/1 proprietary rights of land measuring 100-Kanals were granted to them. Thereafter, on the application of respondents Nos.5 to 7, proprietary rights of remaining land measuring 164-Kanal were granted to them. The A.C./Collector Muzaffargarh vide a non-speaking order dated 30.08.1992 merely on the report of Patwari without consulting the record and keeping in view the relevant law i.e. Notification ibid declared that respondents Nos.5 to 7 are entitled equally shares for grant of the land measuring 164-Kanals. Against that order, the petitioners' appeal was accepted and thereafter, ROR of respondents Nos.5 to 7 was allowed by Member Board of Revenue, Punjab, Lahore vide order dated 06.01.2010 which was the subject matter of the writ petition. In the light of order dated 30.08.1992 (Annexure-F), registered conveyance deed dated 25.03.2010 of land measuring 164-Kanals was conferred in favour of respondents No.5 to 7 (Annexure-R-1) and Mutation No.431 dated 03.10.2010 (Annexure-R-2) was sanctioned.

9. The basic question in the whole controversy is that whether while allotting the said land of 164 Kanals in the name of respondents Nos.5 to 7, the statement of conditions as set-forth in the Notification 1979, ibid was followed? In this regard following points are worth mentioning for reaching a just conclusion and to answer the question. i) For the grant of proprietary rights, cultivating possession is necessary before Kharif-1977. In this regard, Para-3 of the Notification ibid describe the eligibility which is as under:- "Eligibility:-Any person holding state land on temporary cultivation lease who is either landless or owner of less than a subsistence holding and has been in continuous cultivating possession of the leased land since before Kharif-1977 may be eligible for the purchase or proprietary rights in such land. i) In the case of a lessee who is landless upto a subsistence holding; and ii) In the case of a lessee who is owner of less than a subsistence holding upto that area by which he falls short of subsistence holding." Admittedly, the father of respondents Nos.5 to 7 was alive at that time and the tenancy was in the name of their father. As discussed supra, the inheritance mutation of Muhammad Bakhsh was sanctioned on 06.01.1980 which was after the target date. The tenancy devolved upon respondents Nos.5 to 7 in the year 1980, therefore, admittedly they were not in cultivating possession before Kharif 1977. ii) Respondents Nos. 5 to 7 exercised the right of purchase of suit land as successor of their father. In view of Para-3 of eligibility as mentioned in the Notification ibid, landless lessee was entitled upto a subsistence holding. The size of grant under these conditions shall be one subsistence holding or thereabout per family. Subsistence holding was defined in Para 15-j of the Notification ibid which is as under:- "Subsistence holding" means an area of half a square or half a rectangle or 12 acres of land, whichever is more. The respondents Nos. 5 to 7 exercised their rights being successors of their father and subsistence holding had earlier been allotted to him. (iii) According to Para-5 of the Notification ibid, the size of grant under the conditions shall be one subsistence holding which could be granted to a family. The size of grant of family has been defined in Para-5 of the Scheme/Notification ibid which is as under:- "Size of Grant:-The size of the grant under these conditions shall be one subsistence holding or thereabout per family. The family for this purpose shall include the lessee' parents, minor children, husband, wife or wives and dependents." As respondents Nos.5 to 7 were members of the family at the time of promulgation of the Notification ibid and getting the first grant. Now they cannot deviate from their stance and principle of estoppel fully applied upon them. (iv) The option for the proprietary rights under these conditions shall be exercised by or before 31.12.1979. Under Para-6 of the Notification ibid which is described as under:- "Option:-Any lessee who may be eligible for the purchase of proprietary rights under these conditions shall exercise his option in writing for acquisition of such rights in the land under his possession by or before 31st December, 1979." Admittedly, respondents Nos.5 to 7 did not exercise their right of purchase the proprietary rights by or before 31.12.1979 as at that time their father was alive and they cannot exercise their rights. (v) Para-13 deals with the grant of surrendered/resumed land which is read as under:- "Grant of surrendered/resumed land:- All lands which may be surrendered or become available as a result of termination or resumption of any temporary cultivation lease, may be granted under these conditions, in order of priority; Firstly to those who have been declared eligible to get alternative land in lieu of their tenancies allotted to them under Ejected Tenants/Grow More Food Scheme; which are terminated/ resumed on account of the land comprised therein having fallen within the prohibited zones or having been utilized under other schemes: Secondly who have been ousted from proprietary land required by Government for any public purpose; and Thirdly to those who have been allotted land under any permanent scheme; and Fourthly to whose who have been cultivating the land as sub-tenants under such lessees as were held ineligible to purchase proprietary rights under these conditions. Respondents Nos.5 to 7 did not fall any of the category as described in para-13, therefore, they were not eligible/entitled for the grant of resumed/surrendered land. (vi) The land allotted to respondents No.5 to 7 was not available for allotment as it was proposed/reserved for Charagah/Abadi Deh. According to Para-2 (iii) that land was excluded for grant. Para-2 (iii) reads as under:- "Para.2 Exception

i)

ii)

iii) Charagahs." vii) The A.C./Collector upon wrong and incorrect report of lower staff declared that respondents Nos.5 to 7 are eligible for the grant of surrender land in the light of Notification ibid. Admittedly, the resume land is part of Khasra No.35 which was reserved/earmarked for "Abadi Deh" as discussed above, respondents Nos.5 to 7 themselves surrendered the said land in favour of the State vide submitting application dated 30.03.1987 (Annexure-K). In this background, they were not entitled to grant of propriety rights. (viii) The case of respondents No. 5 to 7 was to be considered in the light of the Notification ibid which was applicable upon them in all respects but without considering the statements of conditions as mentioned in the Notification ibid, the resumed/surrender land was allotted to them which they were not entitled for the grant of the proprietary rights in any stretch of imagination.

10. The copy of record of rights for the year 1961-62 regarding Khata No.1, Khatooni Nos.27 and 28 situated at Chak No.7/4-R available on the file at Pages 30 & 31 and copy of record of rights for the year 1953-54, Khata No.1 situated at Chak No.7/4-R available on the file at Pages 32 and 33 which were annexed with the file as Annexure 'H' depicts that the land had been shown as reserved for Charagah/Abadi Deh. These documents were not referred at the time of arguments. Similarly, copy of an application submitted by respondents Nos.5 to 7 on 30.3.1987 which was placed on record at Pages 42 to 44 and annexed as Annexure 'K' wherein they specifically stated that they have recorded their statements on 22.03.1983 whereby they selected specific khasra numbers of 12 acres land of their own choice for allotment and surrendered rest of the land voluntarily in favour of the State and in the said application they had also suggested that the surrendered land be included in the prohibited zone. The report of the Colony Branch dated 26.05.1985 which is available on the file at Pages 45 and 46 as Annexure 'M' wherein it was mentioned that the concerned Revenue Officer reported on 16.12.1981 that Khasra No. 35 had been reserved for Abadi-Deh which was inadvertently included in the schedule 1968 and had got allotted. Abdul Rehman one of the petitioners moved an application which is available at Pages 47 and 48 of the file and annexed as Annexure 'N' and on this application, the concerned Patwari made his report on 16.12.1981, wherein he reported that according to record of rights for the years 1953-54, 1957-58, 1961-62, square No.35 kilas Nos.1 to 25 measuring 200 kanals had been continuously remained in the name of Abadi-Deh and proposed Abadi-Deh. Another report is also available whereby it was suggested that 64 kanals allotted land is liable to be cancelled. All that documents were not brought into the notice at the time of final adjudication of the matter and had not been referred in a proper way.

11. Every Court of law is under obligation to apply the correct law and if it is established that same had not been applied by Court, then, a review application in this regard is maintainable. Similarly, where by some inadvertence an important statutory provision has escaped notice which, if had been noticed, might materially have affected the judgment of the Court. In this regard reference can be made to case law reported as Lt. Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty, Government of Pakistan, Karachi and Pakistan through The Secretary, Ministry of Finance, Government of Pakistan Rawalpindi (PLD 1962 Supreme Court 335) wherein it had been observed as under:- "The indulgence by way of review may no doubt be granted to prevent irremediable in injustice being done by a Court of last resort, as where by some inadvertence an important statutory provisions have escaped notice which, if had been noticed, might materially have affected the judgment of the Court, but in no case should be a rehearing be allowed upon merits." Reliance is also placed on case law titled Faqir Muhammad Khan v. Mir Akbar Shah (PLD 1973 Supreme Court 110).

12. The judgment under review had considered only those documents which have appended with the original writ petition but those documents which were brought on record through C.M. No.2346/2010 annexed as Annexure-K, M & N were not brought into the notice of the Court at the time of final decision of the main writ petition. That omission was by itself an error patent on face of the record calling for review of the impugned judgment.

13. The misconstruction of law, misreading of evidence and also non-consideration of pleas raised before a Court, would amount to an error floating on the surface of the record. In this regard reliance can be placed on the decision of the Hon'ble Supreme Court of Pakistan reported in case titled "Land Acquisition Officer and Assistant Commissioner, Hyderabad v. Gul Muhammad through Legal Heirs" (PLD 2005 SC 311).

14. Although the scope of review is very limited and a judgment or order can only be reviewed on discovery of new and important matter or evidence, which was not within his knowledge or could not be produced at the time of passing the judgment or order and on a mistake or error apparent on the face of the record. The power of review can also be exercised for any other sufficient reasons. This Court in a Full Bench judgment while discussing the scope of review passed comments that "If in all eventualities, review application is to be dismissed, then what is the fun in keeping the remedy of review in the Statute books." The Full Bench of this Court in a case titled Waqas Amjad and others v. Additional Sessions Judge and others (PLD 2019 Lahore 111) observed as under:- "It can be inferred that though review has a very limited scope but it does not mean to abdicate the power of review in an omnibus fashion. If in all eventualities, review application is to be dismissed, then what is the fun in keeping the remedy of review in the Statute books. The intent of Legislature is thus, clear that while incorporating the power of review in the Statute; it is meant that no error in the judgment/order which is so manifest or floating on the surface should be allowed to perpetuate."

15. The case laws referred by the learned counsel for the respondents are not beneficial to them rather helpful for the petitioners.

16. We have examined the points raised on the above prospective and we are of the unanimous view that there is considerable weight in the contentions of the learned counsel for the petitioners to pursue to exercise the powers of review, therefore, valid ground providing legal basis for review is prima-facie made out and accordingly, this review application is very much competent and maintainable. We recall the order dated 17.01.2017 passed in the writ petition.

17. We also reached unimpeachable conclusion that the Assistant Commissioner/Collector vide order dated 30.8.1992 allotted the resumed/surrendered land to respondents Nos.5 to 7 without considering the relevant law which is available in the form of Notification dated 3.9.1979 ibid and consulting the revenue record rather it was passed merely on the non-verified report of the concerned Patwari being non-speaking order same is liable to be set aside. It is a principle of law that when the basic order is set aside being declared null and void, all the superstructure shall also automatically fall down. In this regard the Hon'ble Supreme Court of Pakistan in a case titled PESCO, WAPDA House through Chief Executive v. Ishfaq Khan and others (2021 SCMR 637) held as under:- "There can be no doubt that if an order is void, without jurisdiction, ultra vires and passed in disregard of the law, any superstructure raised over it would automatically fall to the ground and it cannot sustain in the eyes of law."

18. In view of above detailed discussion, we allow this review application. Resultantly, Writ Petition No.1674 of 2010 titled Muhammad Ayub and 5 others v Member (Judicial III), Board of Revenue, Punjab, Lahore and others is accepted and order dated 6.1.2010 passed by Member (Judicial-III), Board of Revenue, Punjab, Lahore (respondent No.1) and order dated 30.8.1992 passed by the then Assistant Commissioner/Collector, Muzaffargarh, are hereby, set aside and order dated 26.6.2007 passed by the Executive District Officer (Revenue), Muzaffargarh (respondent No.2) is restored, with no order as to cost. MH/M-133/L Petition allowed.