2016 PLP 97 (CLCN)

FAISAL ZAMAN KHAN, J.

Petitioners who are the legal heirs of Muhammad Bakhsh deceased, who was a lamberdar and was allotted land measuring 100 Kanals in Chak No.130 GB Sargodha in Pedigree Livestock Breeding Scheme through letter dated 07.05.1965, whereafter, on 11.08.1966 possession was handed over. On complaint of one Muhammad Ali son of Shahab Din that allotment made was an outcome of fraud, on 24.05.1969, Collector cancelled the allotment.

2. Feeling aggrieved, Muhammad Bakhsh filed Writ Petition No.791/1969 which was accepted vide order date 19.5.1991 setting aside order dated 24.05.1969 remanding the case for decision afresh. In the meantime, Muhammad Bakhsh expired leaving behind petitioners as his legal heirs, whereafter, Abdul Karim petitioner No.1 was appointed as lamberdar.

3. Vide order dated 22.08.1991 Colony Assistant/Collector Sargodha upheld the allotment in favour of Muhammad Bakhsh and ordered that it should be transferred to his legal heirs.

4. Feeling aggrieved, petitioner No.1 filed an appeal against petitioners Nos.2 and 3 before Commissioner Sargodha on the pretext that he being the lamberdar was entitled to allotment in his name and not in same of legal heirs. This appeal however was accepted on 20.08.1992.

5. Feeling aggrieved of this order, petitioners Nos.2 and 3 preferred Revision before the Board of Revenue which was accepted and case was remanded to Commissioner Sargodha for decision afresh.

6. Vide order dated 23.05.1996; Commissioner dismissed the appeal and upheld the order of C.A./Collector.

7. Feeling dis-satisfied of both the orders passed by the Revenue functionaries; petitioner No.1 filed ROR No.849/1996. Vide order dated 04.05.1998, learned Member Board of Revenue instead of deciding upon the issue which was before both the Courts below, took upon himself to interpreting the order passed by the Lahore High Court, Lahore in W.P. No.791/1969 and cancelled the allotment made in favour of the petitioners. Against this order, petitioners preferred Review No.87/1998 which also met the same fate and was dismissed on 13.08.2008, hence this petition.

8. Learned counsel for the petitioners contends that the order passed in Review by the learned Board of Revenue is a non-speaking order. He goes on to argue that the order passed in Revision Petition No.849/1996 is also not sustainable under the law as the matter of allotment was not in issue in the revision but it was the right inter se petitioners was in dispute. Petitioners were never confronted with the situation that their allotment is being scrutinized by the learned Member Board of Revenue and in a slipshod manner, without inquiry and without hearing the petitioners on the point of cancellation of allotment the order has been passed which is liable to be set aside.

9. Conversely, learned Law Officer on behalf of the respondents supported the orders and argued that the Member Board of Revenue was fully competent to interpret the order passed by the Lahore High Court in W.P. No.791/1969 and he was the one who in fact brought the right of import of the judgment to light through his order and the writ petition is liable to be dismissed.

10. I have heard the learned counsel for the parties and perused the record.

11. At the very outset, learned Law Officer was confronted with the situation that as to whether the allotment of the petitioners was under challenge in the revision petition before the Board of Revenue or was it the rights inter se the parties. He has not been able to deny that allotment on the basis of letter dated 07.06.1965 was not under challenge in the revision before the Board of Revenue.

12. I have gone through the checkered history of the case and the orders passed by the Courts below. The second round of litigation started after the remand by the High Court, where after Collector passed the order under the dictates of the order passed by this Court in W.P. No.791/1969 decided regarding the allotment of Muhammad Bakhsh deceased and upheld the same and held petitioners to be entitled as successor. He in his own wisdom did not look into the vires of letter dated 07.05.1965 which in fact in the previous round of litigation was the bone of contention. The High Court had given a free hand to the Revenue functionary to look into the veracity of the letter and if required, conduct an inquiry.

13. The appeal filed by petitioner No.1 against petitioners Nos.2 and 3 before the Collector was only to the effect that being the lamberdar, petitioner No.1 was entitled to allotment of land and petitioners Nos.2 and 3 are ousted. The Commissioner also held that Petitioners are entitled to allotment.

14. Learned Member Board of Revenue while passing the order in ROR No.849/96, after narrating the facts and resume of judgments of both the Courts below, abruptly in para 10 of the order, started discussing the treatment of both the Courts below vis- -vis interpretation of judgment of the High Court. It is abundant clear from the perusal of the order that petitioners were neither confronted with the proposition which the learned Member Board of Revenue was dilating upon nor were asked to explain their stance qua the initial allotment and the import of judgment of the High Court. He went on to decide the revision, cancelling the allotment. The judgment passed in revision was upheld in review, order of which is also available on the file but in a perfunctory manner the review has been dismissed without assigning any reason but for that no interference is warranted and the order passed in revision is well reasoned.

15. Order passed in review by no stretch of imagination is a reasoned order as all government functionaries following the dictates of section 24-A of the General Clauses Act are supposed to give reasons for the findings they render.

16. This Court is aware of the suo motu powers exercised by Courts in Revisional jurisdiction yet the powers exercised will not take away the right of a party from being confronted with the proposition being dealt with, especially so, which is beyond the scope of the proceedings pending. It is mandatory/imperative for the Court exercising such jurisdiction to give adequate opportunity to the parties to explain their position and thereupon, an order can be passed. This is further fortified if the law on the subject is looked into. According to Section 164 of the West Pakistan Land Revenue Act, 1967 (1) The Board of Revenue, may, at any time, on its own motion, or on application made to it with ninety days of the passing of any order, call for the record of any case pending before, or disposed of by, any Revenue Officer subordinate to it. (2) ............................................................................. (3) ............................................................................. (4) The Board of Revenue may, in any case call for under subsection (1) and a Executive District Officer (Revenue) may in any case call for under subsection (2) or reported to him under the subsection (3) pass such orders as it or he thinks fit: "Provided that no order shall be passed under this section reversing or modifying any proceedings or order of a subordinate Revenue Officer affecting any person without giving such person an opportunity of being heard."

17. This Court is of the view that the order passed by the Member Board of Revenue in ROR No.849/1996 is bereft of the principle of audi alteram partem as the petitioners were never confronted with the proposition which was dealt with and decided by the Member Board of Revenue. Although the Member was well within his right to invoke his suo motu powers but what he was required to do was to put the petitioners on notice and after hearing them, should have passed an order.

18. For what has been discussed above, this writ petition is accepted and orders dated 04.05.1998 and 13.08.2008 passed by respondent No. 1 are set aside resultantly ROR No.849/1996 shall be deemed to be pending, which shall be decided in accordance with the observations made in the preceding paras. ZC/A-99/L Petition accepted.