1994 PLP 1478 (MLD)

The validity of the order, dated 19-8-1970, passed by the learned Member, Board of Revenue, Punjab, in exercise of the powers vesting in him under section 15 of the Redemption and Restitution of Mortgaged Lands Act, 1964, in Revision No.2110 of 1968-69, is under challenge in this writ petition. Under his order aforesaid, the learned Member, Board of Revenue, upheld the Additional Commissioner's order, dated 4-6-1969, whereby, he had declined to interfere with the Collector's order, dated 10-2-1969, rejecting the petitioners' application for restitution of the possession of part of the mortgaged land, situate in Village Alisher, Tehsil Wazirabad, District Gujranwala. The operative part of the impugned order is reproduced below:-- "The Collector rejected the application as being time-barred. In appeal the Commissioner rejected the petitioners' case on the ground that the petitioners had not joined the other co-sharers as parties, and that partial restitution of the mortgage was not possible. The petition before the Collector was more than 60 years after the original mortgage and it was time-barred. Partial redemption of the mortgage is not permissible. The whole mortgage has to be treated as one:'

2. I have heard the learned counsel for the parties and examined the available record. The petitioners grievance is that on the question of limitation, the findings of the learned Additional Commissioner are at variance with that of the Collector; the learned Member, Board of Revenue, did not summon the record and returned a verdict that the petitioners application was filed after more than 60 years and thus, was barred by time. The submission is that had the record been before the learned revisional Authority, the petitioners might have succeeded in persuading the learned Member, Board of Revenue, that their application was not barred by time. It is added that if the petitioners succeeded on the question of limitation, they could have moved a fresh application alongwith the co-mortgagors; prayed for redemption of the entire land but now the decision on the point of limitation stands in their way.

3. The learned counsel for the respondents have vainly endeavoured to seek sustenance of the impugned order on the ground that under section 15 of the Act, it was not obligatory for the Member, Board of Revenue, to call for the record of the case for the purposes of disposal of a revision petition and that, therefore, the dismissal of the petitioners revision in limine without summoning the record, does not suffer from any illegality.

4. I am unable to agree with the learned counsel for the respondents. Since on the question of limitation, the two Tribunals below recorded different findings and were at variance, the revisional Authority should have requisitioned the record to decide the point of limitation and find out as to whether the Collector was justified in holding the application as barred by time or the record of the case justified an inference arrived at by the learned Additional Commissioner (Revenue). But in this regard the learned Member, Board of Revenue decided the controversial issue without examining the requisite record and thus, dealt with the case in a perfunctory manner. There are cases in which the Board of Revenue in its discretion may not call for the record during limine hearing but in a case like the one in hand, if the learned Member, Board of Revenue, wanted to confirm the findings of the Collector with which the appellate Authority was not in agreement he was bound to examine the record before recording a finding one way or the other on this issue. I am of the view that in the circumstances of the case, the rejection of the petitioners revision by the learned Member, Board of Revenue, without looking into the record in question, is wholly illegal and his order is liable to be removed through judicial review. The learned counsel for the petitioners is not wrong that in case they succeeded on the question of limitation, they could have filed a fresh application by impleading other co-mortgagors as a party and sought relief in respect of the entire land. The case, therefore, shall have to be remanded to the learned revisional authority. I would have decided the question of limitation myself but the relevant record is not before the Bench. The remand, is therefore, inevitable.

5. For the foregoing reasons, this writ petition is accepted with costs and the impugned order declared to have been passed without lawful authority and of no legal effect. Consequently, the petitioners revision petition, shall be treated as pending and decided afresh in accordance with law. It is fairly an old case and needs to be disposed of expeditiously. Let it be decided within a period of six months. H.B.T./H-119/L Petition accepted.