1999 PLP 168 (SCMR)

CH. MUHAMMAD ARIF, J.

Leave is, claimed against judgment dated 30-4-1998 passed by a learned Division Bench of the High Court of Balochistan whereby Constitution Petition No.509 of 1997 brought by the petitioner was dismissed with the result that her claim to various parcels of agricultural land, acquired by her through purchase from previous owners or by adhering to the process of 'Nautor' in respect of unmeasured lands situated in proximity to the lands purchased by her as above, was denied and order dated 13th September, 1997 passed by the Board of Revenue, Balochistan, in Review Application No. 17 of 1997, was upheld.

2. It is pleaded that the petitioner had purchased some parcels of land located in Mouza Saddat Khushkaba, Tappa Shadenzai, Tehsil Quetta which were entered in the names of the previous owners. After the purchase of lands, appropriate mutations were attested in her favour on 10-10-1990, 12-2-1991, 18-5-1991 and 26-9-1991 and she was put in possession thereof. The purchase of this 'ownership land' was spread over 20 survey numbers and, except for the area which had been acquired from her and had been brought under the link road, she is the owner of the same. 3- Khasra Nos.103, 104, 106, 107, 1160, 1161 and 1083 adjoin ownership land'; were 'Ghair Munikin Ragha' and were acquired through processor Nautor'. This process succeeded the acquisition of rights by the petitioner in 'ownership land' above. Nautor' lands were also mutated in her favour.

4. It appears that the first settlement of Quetta Tehsil was prepared in the year 1908 and redone in 1944-45. The respondent-Board issued couple of Notification on 28-10-1986, under section 116 of the West Pakistan Land Revenue Act, 1967, hereinafter referred to as the Act of 1967), on 8-11-1987 (under section 40 of the Act of 1967), and 16-12-1991 (under section 116 of the Act of 1967) to direct that survey and settlement of all unmeasured (Baroon-as line/ ) land in Quetta District be carried out and record of rights prepared. Later, by Notification dated 12-11-1992 (under section 40 of the Act), the Settlement Officer, Quetta was allowed to carry on settlement under section 40 of the Act, as already directed in Notifications dated 8-11-1987 and 16-12-1991.

5. Settlement record was prepared by the Settlement Officer in 1989 and both, 'ownership land' and 'Nautor', were duly reflected in the same, However, with a view to reviewing the work of settlement operation, a meeting was held on 18-12-1994 under the Chairmanship of Senior Member, Board of Revenue in which MBR II/Mr. Muhammad Af7al and Deputy Commissioner, Quetta participated. The issue of transfer of land to Zarnindars on the basis of 'Nautor' was considered. It was decided that the Settlement. Officer, Quetta shall supply all documents to the Deputy Commissioner for scruit1hy and action for seeking redress of irregularities of transfers by resorting to judicial proceedings at higher forums. The requisite material was supplied by the Settlement Officer to the Commissioner, Quetta Division, Senior MBR and Deputy Commissioner, Quetta on 12-1-1995. Contrary to the decision dated 18-12-1994, the respondent MBR 11 issued Notification dated 6-12-1995 directing cancellation of all titles, rights, interests acquired directly or indirectly through the process of settlement work undertaken under Notifications dated 28-10-1986 and 8-11-1987 and for resumption of State land, in accordance with the relevant record prior to issuance thereof.

6. The petitioner filed C.P. No.73 of 1996 before the High Court on 21-3-1996 against respondent-Government through Secretary, Revenue and MBR. Deputy Commissioner, Quetta joined as intervener and filed counter affidavit dated 18-11-1996. During the pendency of C.P. No.73 of 1996 it was stated by the then learned counsel for the respondents that on 26-2-1997 a judicial order had been passed by respondent MBR III in favour of the petitioner and therefore, the said C.P. had been rendered infructuous which was filed accordingly, when petitioner made a C.M. to that effect in the said C.P. No.73 of 1996, successfully reserving her right to file another, as and when necessary. This happened on 6-5-1997. Present dispute

7. The Senior Member, Board of Revenue, under signatures of the Deputy Commissioner, filed an application before the Senior MBR seeking review of orders dated 26-2-1997 of MBR

111. This was accompanied by another application under section 5 of the Limitation Act, 1908. Both, the review petition and the application under section 5 of the Limitation Act, were contested with the contention that the Deputy Commissioner was not 'Government' therefore, his resort to the remedy was incompetent. The objections/arguments in respect of maintainability of the review petition were heard by the same learned Members of the Board of Revenue, Balochistan, namely, Syed Muhammad Hussain, Senior Member and Muhammad AfzaI, MBR 11, and rejected by interim order dated 13-9-1997. After the dismissal of C.P. No.73 of 1996 as withdrawn by order dated 12-5-1997, the petitioner submitted application in the High Court of Balochistan on 6-6-1997, seeking restoration of the said C.P., but the same was dismissed on 3-9-1997. This necessitated the institution of C.P. No.509 of 1997, out of which the instant petition for leave has arisen.

8. Mr. M. Ashraf Khan Tanoli, learned Advocate-on-Record for the petitioner, has objected to the impugned judgment dated 30-4-1998 by contending that neither section 5 of the Limitation Act is applicable in relation to the submission of review petition in question under section 8 of the Board of Revenue Act (No.XI of) 1957 nor the order dated 13-9-1997 deals with the prescribed conditions for undertaking a review under section 8 of the Act of 1957 by the Board. He was also critical of the order dated 13-9-1997, having been made by resorting to the process of rehearing of the entire matter without even so much as referring to any mistake or error of law or fact being apparent on the face of the record. According to the learned AOR, the resolution of intricate questions of fact has been gone ahead in prima facie, incompetent proceedings and that too without issuance of any show-cause notice to the affected parties at a stage when 3rd party interests had matured into vested rights during the interregnum. The very issuance of Notification dated 6-12-1995 by MBR 11 was objected to by referring to Karachi Metropolitan Corporation, Karachi v. Messrs S.N.H. Industries (Pvt.) Limited, Karachi and 2 others (1997 SCMR 1228), in support of the plea that Notifications cannot take effect unless and until the same are published in the official Gazette in terms of section 2(41) of the West Pakistan General Clauses Act (No.VI of 1956). In this particular case the Collector, Printing and Stationery Department, Government of Balochistan, Quetta has issued Certificate No.886, dated Ist August, 1998 to the effect "that the Notification No. 180-14/93/Rev. dated Quetta the 6th-December, 1995 issued by Muhammad Afial, Member-11, Board of Revenue has not yet been published in the Official Gazette of Balochistan."

9. The questions raised in relation to the undoing of the entire process of survey and settlement with effect from 28-10-1986 by denuding the persons, similarly placed as the petitioner, of their rights duly recorded by the competent authorities according to law without any one of the public functionaries being accused of any malpractice whatsoever in the completed process of survey and settlement in Tehsil Quetta, excluding Quetta-Town, for acquisition of rights by purchase and by process of 'Nautor' , which is inextricably linked with ownership rights, need examination. Accordingly, we grant leave to consider the above questions with permission to the parties to place on record additional documents.

10. Status quo, as obtaining on the spot, shall be maintained during the pendency of the appeal. H.B.T./R-31/S Leave to appeal granted.