2001 PLP 1642 (MLD)

1985 CLC 1603 (F.K. Abbasi's case) and 1994 MLD 1866 (Tauqeer Ahmad Khan's case),

3. Learned counsel for the respondents submits that mutations are summary in nature and mutations do not create any rights and writ petition is not maintainable as the petitioners have alternative remedy to file a civil suit for redressal of their grievance. In support of his contention he relied upon the following judgments: ‑ PLD 1970 Lahore 614(Muhammad Iqbal's case); 1981 SCMR 259 (Mst. Barkatey's case) and 1986 SCMR 598 (Atta‑ur‑Rehman's case). He further submits that writ petition is liable to be dismissed as the earlier Writ Petition No. 1436 of 1965 filed by the petitioners was dismissed for non‑prosecution and civil suit filed by the petitioners was also dismissed. Therefore, the award awarded in favour of the petitioners by the Land Acquisition Collector on 9‑8‑1961 is final. The writ petition is not maintainable on the well‑known principles of waiver and res judicata as the principles of C.P.C. are applicable in writ proceedings. In support of his contention he relied upon the following judgments: 1995 CLC 57 (Razzaq's case); and 1999 SCMR 1555 (Muhammad Irshad's case). He further submits that petitioners are in possession of the land in question as tenant of respondent No.4 in view of award dated 9‑8‑1961. In support of his contention he relied upon 1969 SCMR 138 (Allah Ditta's case). He further submits that writ petition is liable to be dismissed as substantial justice has been done between the parties.

4. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. It is admitted fact that petitioners had taken a plea in the memorandum of revision that appeals filed by the respondent No.4 before the Additional Commissioner Revenue were time‑barred which were noted by the learned Member Board of Revenue in Para. 4 (1) in the following terms:‑‑ "That appeals filed by the respondent society before learned Additional Commissioner for time‑barred and as such could not have been entertained."' It is pertinent to mention here that learned Member Board of Revenue did not give any finding on the aforesaid contention of the learned counsel for the petitioners. This fact brings the case in the area that the learned Member Board of Revenue has not decided the revision of the petitioner after applying his independent mind. Provisions of the Land Revenue Act prescribed period for filing appeal or revision being aggrieved by any orders passed by the authorities under the provisions of the West Pakistan Land Revenue Act. It is settled law that highest authority under the provisions of the West Pakistan Land Revenue Act must wear all the provisions of the Act on the sleeves of his robe and failure of the counsel to properly advise him is not a complete excuse in the matter as per principle laid down by the Hon'ble Supreme Court in Muhammad Sarwar's case PLD 1969 SC

278. It is settled principle of law that Tribunals below must have to decide the case in accordance with law as is envisaged by Article 4 of the Constitution. The Hon'ble Supreme Court has considered this aspect, of the case in Utility Stores Corporation's case (PLD 1987 SC 447) and laid down the following principle:‑‑ "When the Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it because the Tribunal has the jurisdiction to decide rightly but not the jurisdiction to decide wrongly. Accordingly, when the Tribunal makes an error of law in deciding the matter before it, it goes outside its jurisdiction and, therefore, a determination of the Tribunal which is shown to be erroneous on a point of law can be quashed under the writ jurisdiction on the ground that it is in excess of its jurisdiction. " In this view of the matter, the judgments cited by both the learned counsel for the parties are distinguished on facts and law and have no relevancy to resolve the present controversy. It is settled principle of law that burden of making out sufficient cause for the delay in filing the appeals was heavily on the respondent No.4. Learned Member Board of Revenue did not advert to this aspect of the case. It is also settled principle of law that the question whether explanation of respondent No.4 was fit to be believed is a question of fact which falls in the exclusive jurisdiction of the Revenue Authorities but in the present case the learned Member Board of Revenue has not given any findings qua this fact. In view of what has been discussed above, the writ' petition is accepted and the impugned order of the learned Member Board of Revenue dated 2‑12‑1985 is set aside meaning thereby revision filed by the petitioners shall be deemed to be pending adjudication before the learned Member Board of Revenue who is directed to decide afresh after providing proper hearing to the parties in accordance with law without being influenced by the aforesaid observations. Parties are directed to appear before the learned Member Board of Revenue on 15‑2‑2001. Disposed of with these observations. H.B.T./I‑54/L Petition accepted/Order accordingly.