P L D 1958 (W (PLP)

KAYANI, C. J.‑This writ petition questions the powers of the Board of Revenue to review its own order in the circumstances of the present case.

2. The petitioner, Ghulam Muhammad, was appointed Lambardar of Chak No. 92‑R.B., Jaranwala, by an order of the Collector, dated the 20th June 1956. In appeal by the opposite parties, of whom Muhammad Yasin respondent alone may be mentioned, the Commissioner upheld the order of the Collector on the 26th November 1956. On the 18th March 1957, Mr. H. A. Majid, a Member of the Board of Revenue, dismissed the revision petition of Muhammad Yasin in limine, but on the 10th of June 1957, he admitted a review petition. This was heard by his successor, Mr. A. K. Malik, who accepted it on the 12th Sep tember 1957, appointing Muhammad Yasin as a Lambardar in place of Ghulam Muhammad petitioner. The question is whether a review petition was competent.

3. The Collector had four candidates before him, but it is unnecessary to mention the other two. In respect of Muhammad Yasin respondent, he observed that this candidate owned 68 kanals and 12 marlas in the patti, of the value of Rs. 9,035‑14‑10, that he was a Lambardar in East Punjab, that the Additional Naib Tahsildar, the Naib Tahsildar, the Additional Tahsildar and the Tahsildar had not recommended him, but that " the Revenue Assistant has recommended him along with Ghulam Muhammad candidate No. 4 on equal basis ".

4. In respect of Ghulam Muhammad, the Collector ob served that he had 36 kanals and 10 marlas of land in the patti, of the value of Rs. 4,834‑5‑7, that he was a Lambardar in East Punjab, that only the Additional Naib Tahsildar had not recommended him, that the Naib Tahsildar and the Additional Tahsildar had recommended him as a second choice, that the Tahsildar also had recommended him and that "the Revenue Assistant had recommended him along with Muhammad, Yasin, candidate No. 3; on equal basis ".

5. The Collector then said, "All the four candidates have appeared before me today with their respective counsel. I have heard them at length and have also gone through their merits. Weighing the claims of all the candidates, I consider Ghulam Muhammad best of the lot ". As the value of the property owned by Ghulam Muhammad was not sufficient security for the Government demand, which is Rs. 11,152, he directed Ghulam Muhammad to furnish a bond in the sum of Rs. 10,000 with one surety for the payment of land revenue.

6. In the revisional order passed by Mr. H. A. Majid, he states the property and educational qualification of Muhammad Yasin were urged before him. He, however, noticed that the only subordinate of his Revenue Officers who had recommended Muhammad Yasin was the Revenue Assistant and "even that recommendation was in favour of both the parties on an equal basis ". On the other hand, the recommendation in favour of Ghulam Muhammad petitioner was that of three subordinate Revenue Officers to the Revenue Assistant. He observed that since there was no mistake or legal error in the decision of the Collector, he was not willing to consider what his own decision would have been if he himself had been the Collector.

7. While admitting the review petition, Mr. H. A. Majid observed that the points urged before him were: (1) That the petitioner had been recommended by the Revenue Assistant and it could not be said that the res pondent had also been recommended by the Revenue Assistant on an equal basis, or, in other words, the Collector made a wrong statement on this point ; and (2) that the Collector has not given the ground on which he preferred the respondent so that his order must be held to be of an arbitrary character.

8. Mr. A. K. Malik based his acceptance of the review petition on the following grounds :‑ (1) The Collector's order did not give any reason why he pre ferred the respondent, but it would appear that he was influenced by the recommendations of his subordinates and particularly of the Revenue Assistant, and the Revenue Assistant's recommenda tion was largely based on the consideration that the respondent belonged to Jullundur District from which many of the settlers had come. Mr. Malik observes that in several rulings it had been held that the district of origin should not be given undue weight and he thought that the consideration which had weighed with the Revenue Assistant was, therefore, " somewhat irrelevant ", while other factors were in favour of Muhammad Yasin. (2) Ghulam Muhammad's holding was so insufficient that security for the payment of Government demand had to be required of him.

9. The recommendation of the Revenue Assistant has not been reproduced in the form of a certified copy, but a rough copy, on which both sides are agreed, is more or less to the follow ing effects :‑ " I disagree with the Tahsildar . . . . . Muhammad Yasin alone owns property worth Rs. 8,476‑10‑8, which is more than our demand ". (Apparently he is thinking of the six monthly payment, not the annual payment). " It is very essential that the candidate should be of a strong financial position and as such M. Yasin candidate is the best and I recommend him. He is an ex‑Lambardar too. The majority of the pattidars belong to Jullundur District and for the efficient discharge of duties he alone out of them will be more successful. Out of them Ghulam Muhammad owns the highest property though not equal to our demand. If he is prepared to furnish security worth Rs. 2,000, then he may be considered for the post ".

10. It is thus true that the basis of the Revenue Assistant's recommendation was not so " equal ", as the Collector has shown it in his order. But it is equally clear that while the Revenue Assistant gives first place to Muhammad Yasin on the ground of his financial position, he regards Ghulam Muhammad better qualified for the efficient discharge of duties on the ground of previous residence in Jullundur District to which the majority of the pattidars belong. It could not, therefore, be said very correctly that the Collector had made a " wrong statement " on this point, and, in any case, this was not the ground on which Mr. Malik accepted the review application. The ground of acceptance was that the Revenue Assistant had given undue weight to the district of origin and that it was not in the interest of the administration to appoint Lambardars whose proprietary qualification made it necessary to demand of them securities.

11. The power of review has been defined by the West Pakistan Board of Revenue Act (XI of 1957) in section

8. It can be exercised only if (1) there has been discovered new and important matter or evidence which after the exercise of due diligence was not within the petitioner's knowledge or could not be produced by him at the time when the order was passed or (2) if there has been committed a mistake or error apparent on the face of the record. We do not consider that the Collector's attaching more weight to the district of origin and less weight to the proprietary qualification falls Within this defini tion. If there had been a condition that a person holding less property than is sufficient to meet the Government demand will be' disqualified from being a Lambardar, then the Collector will have committed an error which was apparent on the face of the record. We are, therefore, of the opinion that in the present circumstances there was no power of review.

12. Mr. Mahmud Ali, however, contended for Muhammad Yasin respondent that the case was governed by section 7 of the Board of Revenue Ordinance, No. I of 1955, which conferred on a Revenue Officer unlimited power to review his orders. To appreciate his argument, it is necessary to trace the history of the West Pakistan Board of Revenue Act, 1957.

13. On the 14th of October 1955 the date of Integration the West Pakistan (Board of Revenue) Ordinance 1955 was promulgated. It brought into existence a Board of Revenue which became the controlling authority in all matters connected with the collection of land revenue, etc. Section 7 of this Ordinance gave to the Board the power of review " if there are sufficient reasons for so doing " and such order could be passed in review as the Board thought fit. The power would be thus unlimited. In the ordinary course this Ordinance was to lapse six weeks after the commencement of the next session of the Provincial Assembly, which thereafter met on the 6th of May 1956. On the 15th August 1956, the Board of Revenue Ordinance No. XII of 1956 was promulgated and section 1 (2) thereof provided that it shall be deemed to have come into force from the date of expiry of the previous Ordinance. This new Ordinance made no provision for review. Finally, on the 28th February 1957, there was published the West Pakistan Board of Revenue Act No. XI of 1957, but by section 1 (3) it is deemed to have come into force on the 14th of October 1955. By section R, it conferred a limited power of review as already noticed, if new and important matter was discovered or if there was some mistake or error apparent on the face of the record. Section 10 saved things done and past "notwithstanding the expiry of "the Ordinance of 1955, and section 11 repealed the Ordinance of 1956.

14. Mr. Mahmud Ali contended that the unlimited power of review given by section 7 of the Ordinance of 1955 continued to be enjoyed notwithstanding the erroneous belief of the Government that the Ordinance had expired, for it was kept alive by Article 224 of the Constitution, which came into force on the 23rd March 1956, when the Ordinance in question was still alive. It is true that by Article 224, all laws, including Ordinances in force in Pakistan or any part thereof, immediately before the Constitution day, were to continue in force until repealed or altered, and in Jibendra Kishore's case (P L D 1957 S C (Pak.) 9) the Supreme Court held that this Article conferred permanency on an otherwise temporary Ordinance. The effect of Article 224, therefore, would be that the Board of Revenue Ordinance of 1956, which was to have effect from the expiry of the Ordinance of 1955, never came into legal existence and the Ordinance of 195.5 continued in force until it was impliedly repealed by the Board of Revenue Act of 1957. For there can be no doubt that the Ordinance was intended to be replaced, whether it was the Ordinance of 1956 or that of 1955. In many respects the Act of 1957 is different from the two Ordinances and the intention to replace them existed even if it had been known that the Ordinance of 1955 had assumed permanency.

15. We have seen that Mr. H. A. Majid dismissed the revision petition on the 18th March 1957. The review petition was admitted and decided subsequently. All these orders should be deemed to be under the Board of Revenue Act, 1957, which was then in force. Mr. Mahmud Ali argued, however, that the right of review having been acquired under the Ordinance of 1955, the power of review was exercisable under section 7 of that Ordinance and not under section 8 of the Act. For this argument, lie relied on the Colonial Sugar Refining Company v. Irving (1905 A C 369) where the Australian Judiciary Act, 1903 having changed the forum of appeal from the Privy Council to the High Court of Australia, the Privy Council held that appeals in pending cases still lay to that body, and the ground of decision was that the Judiciary Act was not retrospective either expressly or by necessary intendment and that an enactment was trot supposed to interfere with an existing right unless it made this intention clear. Apart from the fact that the right of review is not on the same footing as the right of appeal the Board of Revenue Act, 1957 clearly purported to operate on the 14th October 1955 and was, therefore, applicable to actions instituted after that date. Mr. Mahmud Ali's contention cannot, therefore, be accepted.

16. The counsel for the Board of Revenue, Mr. Fazl‑i‑Ghani, adopted a still different argument. According to him, the power of review under section 15 of the Land Revenue Act was intact and section 8 of the Board of Revenue Act gave additional powers to the Board. It will be noticed that under section 15 of the Land Revenue Act, it is a " Revenue Officer "who may review his order (and the power of review was as wide as that conferred by section 7 of the Ordinance of 1955) and under section 6 of the Land Revenue Act " there shall be the following classes of Revenue Officers, namely :‑ (a) the Financial Commissioner, (b) the Commissioner, (c) the Collector. (d) the Assistant Collector of the first grade, and (e) the Assistant Collector of the second grade ".

17. The Adaptation of Laws Order, 1955, which came into force on the 14th October 1955, substituted " the Financial Commissioner " by " the Board of Revenue ". This was replaced by the West Pakistan (Adaptation of Laws) Ordinance, 1956, which came into force on the 16th March 1956 and which effected the same change in section 6, Land Revenue Act, as the Adaptation Order of 1955 had done, the reason for the promulgation of the Ordinance being that the Adapta tion Order had been declared invalid by the High Court. This Ordinance was followed by the West Pakistan (Adaptation and Repeal of Laws) Ordinance, 1956, which was deemed to have come into force on the expiry of the earlier Ordinance. By this Ordinance, section 6 of the Land Revenue Act was to read: " There shall be the following classes of Revenue Officers, namely ", and clause (a) which named " the Financial Commissioner " was deleted. Finally, this Ordinance was replaced by the West Pakistan (Adaptation and Repeal of Laws) Act No. XVI of 1957 and it was deemed to have come into force on the 14th October 1955. By this Ordinance, clause (a) of section 6 was deleted, but no addition of the words " Board of Revenue " was made to it, with the result that the Board of Revenue does not now figure in section 6 and consequently, it is no longer included among the other classes of " Revenue Officers ". Now, since under section 15 the power of review lies in a Revenue Officer, there is no longer any such power in the Board under the Land Revenue Act. The only power of review left is that conferred by section 8 of the Board of Revenue Act.

18. Mr. Fazl‑i‑Ghani argued that the words " there shall be a Board of Revenue and the following classes of Revenue Officers " continued to make the language of section 6, even after the Adaptation Act had come into force in 1957. For this argument there is no warrant, because the Adaptation and Repeal of Laws Ordinance No. XXIV of 1956 had lapsed. What he could have argued was that the Adaptation of Laws Ordinance No. III of 1956, promulgated as it had been on the 16th March. 1956, had become permanent lay reason of Article 224 of the Constitution and that consequently the Board of Revenue was included in the various classes of Revenue Officers described in section 6, the words " Financial Com missioner "having been replaced by " Board of Revenue: But that argument would also be futile, as the Adaptation and Repeal of Laws Act, 1957, has been made operative from the 10th October, 1955. '

19. We accept the petition with costs against the Board of Revenue and set aside the order passed in review. We were asked by Mr. Mahmud Ali to send back the case for a fresh decision, but if there was no power of review, only the review order will require setting aside. A. H. Petition accepted.