2022 PLP 620 (SCMR)

MUSHIR ALAM, J.

Present petition arises out of the judgment dated 13.01.2016 passed in W.P. No.6635 of 2009 by Lahore High Court, Lahore whereby the writ Petition was dismissed and the order dated 12.3.2009 on Review Petition, passed by the Member (Consolidation) Board of Revenue, Punjab granting Review petition filed by the Respondents Nos.5 to 7 was maintained.

2. Instant proceeding arises out of Consolidation proceedings in respect of Mauza Beriwala, Tehsil and District Hafizabad, was confirmed by the Consolidation Officer on 25.3.1981. It appears that the dispute as to consolidation of subject land, shuttled to and forth by and between the parties and ultimately learned bench of the Lahore High Court in Writ Petition No. 8019/89 at the motion of the present Petitioner remanded the Revision Petition (ROR No. 985/85) vide judgment dated 21.11.2000 (pages 65-69) to the learned Member (Consolidation) Board of Revenue (in short M (C) BOR) for decision.

3. On remand, the learned M (C) BOR) in consideration of the fact that the parties have conceded for adjustment of their respective lands in terms of Resolution No.24, which was duly signed and thumb marked by the parties in settlement proceedings (Resolution No.24 available at page 99 of the file and better copy of page 100). The, Revision Petition was decided accordingly, vide order dated 18.8.2005 (available at page 58 of the file). The M (C) BOR in paragraphs 7 to 10 of the order 18.8.2005 considered the resolution 24 in detail and in Para 10 it was concluded as follows: "From the above discussed ResolutionsiI, it is clearly established that the respondents had willingly accepted deficiency of 40 Kanals 8 Marla in their entitlement and corresponding beshiii in the entitlement of the petitioner. The plea of the learned counsel for the respondents that these Resolutions were prepared fictitiously has no footing. In these circumstances, while the respondents had no locus standi to agitate against the deficiency caused in their entitlement as above, it appears that they raised this issue because of some subsequent change of mind. Surprisingly, in the memorandum dated 22.1.1985 of the appeal filed by them before the Additional Commissioner (Consolidation) Gujranwala Division against the order dated 9.1.1985 of the Collector Consolidation they had not held the said Resolutions to be bogus. On the other hand, therein, they had demanded allocation of Khasra No.569 to them by withdrawing Khasra No.577 besides giving beshi to them. Their assertion in this regard reads as under:

4. The Respondents dissatisfied with above order, invoked the review jurisdiction under section 8 of the W.P Board of Revenue Act, 1957 against the Order in Revision. Learned M (C) BOR, vide order dated 12.3.2009 on assumption that "The impugned order is entirely based on resolution No. 24 the authenticity of which is highly doubtful and further, it is not appropriate to make allocation of land during the process of consolidation on the basis of doubtful Resolution". (page 42 (@ Page 45), recalled/reviewed the above order and restored the order dated 19.2.1985 of the Additional Commissioner the M (C) BOR). The order on Review Petition was maintained in W.P. 6635 of 2009 vide impugned judgment dated 13.1.2016.

5. Learned counsel for the Petitioners, vehemently contends that Resolution No.24, referred to above, was never the subject matter of the controversy and it was wrongly assumed by the Member (Consolidation) Board of Revenue, Punjab in exercise of review jurisdiction, while deciding Review Petition No.494 of 2005 vide order dated 12.3.2009. It was urged that the learned bench of the High Court mechanically stamped the order of the Additional Commissioner the (C) BOR) on the Review Petition.

6. Learned counsel for the Petitioners vehemently argued that impugned judgment in W.P. No.6635 of 2009 endorsed the conclusions of the Member (Consolidation) Board of Revenue, Punjab dated 12.3.2009 (available at page 42 of the file), which is founded on erroneous assumption, noted in para 4 above. According to the learned counsel, the resolution No.24 was duly thumb marked by the contesting parties and acted upon, the M(C) BOR, while deciding Revision Petition to be personally satisfied, had also summoned the original record of the consolidation proceedings, examined the veracity of the resolution No.24 and noted such facts in para 9 of the finding. It was urged with vehemence that no grounds of Review recognized under section 8 of the Act of 1957 were available to upset the finding dated 18.8.2005 passed by his predecessor M (C) BOR, there is neither fraud nor misrepresentation.

7. When the learned counsel for the respondents was specifically confronted to the facts noted in the preceding paragraph. He refuted the same. He was required to show us from the record that the respondents have challenged the Resolution No.24, on the basis of which adjustment in the land was recorded during consolidation proceedings, on the ground of fraud and misrepresentation. He has drawn our attention firstly to the to the Review Petition No.498/15 (available at page 48). We have examined the same, no challenge to the resolution 24 on ground as mandated under section 8 ibid, find mention in the Review Petition. He then took us to the Revision Petition filed before the Additional Commissioner (Consolidation), Gujranwala, (page 86). To a specific query of the Court whether any challenge to the Resolution No. 24, on the ground of fraud and/or misrepresentation was taken, against the order dated 9.1.1985 of the Additional Commissioner (Consolidation) Board of Revenue Board. He has drawn our attention to para 5 thereof (available at page 86 of the file), which reads as follows:

8. We have read the entire revision, learned counsel for the respondents was confronted that even in the paragraph noted above, no assertion or challenge as to authenticity of the Resolution No.24 any ground recognized under section 8 of the WP Board of Revenue Act, 1957 for Review has been raised or made out.

9. Jurisdiction to review a judicial order is also conferred by law, power to Review in Revenue jurisdiction is vested in the Board of Revenue under section 8 of the Act, 1957 on a very limited score, at the motion of "any aggrieved person" within a period of 30 days from the date of decree or order as the case may be on the ground inter alia 1). On the discovery of new and important matter or evidence, which despite due diligence, was not within the knowledge of review petitioner or could be produced by him at the time when the decree or order was passed or made, 2). On account of some mistake or error apparent on the face of the record and lastly 3). for any other sufficient reasons. The Board may after due notice to the parties effected and after hearing them may pass such decree or order as the circumstances of the case require. Suo motu power to review does not vest in the Board of Revenueiii.

10. Learned counsel for the Respondents was not able to demonstrate that review of the order was sought either on the discovery of new and important matter or evidence, which despite clue diligence, was not within the knowledge of review petitioner- or could be produced by him at the time when the order dated 18.8.2005 was passed neither, any mistake or error was shown to be apparent on the face of the record neither, any other sufficient reasons was shown to exist that could justify review of the order.

11. Accordingly, the impugned judgment and so also the order dated 12.3.2009 are set aside and order dated 18.8.2005 is restored. The instant petition is converted into an appeal is allowed in terms noted above. MWA/B-3/SC Appeal allowed. I Resolutions 16 and 24. ii Beshi is urdu word meaning excess or increase. iii Member (Colonies) Board of Revenue Punjab, Lahore and others v. Muhammad Shafi and others 2008 SCMR 589