2019 PLP 2432 (YLR)

HAIDER ALI KHAN, J.

Through this single judgment we intend to dispose of the instant writ petition as well as the connected writ petition bearing W.P. No. 423-M/2012 as in both these petitions judgments and orders dated 15.3.2012 and 07.4.2011 passed by the Member-II, Board of Revenue, Khyber Pakhtunkhwa at Peshawar and Additional Commissioner, Malakand Division at Saidu Sharif, Swat, respectively have been challenged.

2. Through the instant writ petition, the petitioners Miangul Akbar Zeb and others are seeking the following relief: "On acceptance of this writ petition, the impugned judgment and order of the Additional Commissioner, Malakand Division at Saidu Sharif Swat dated 07.4.2011 and judgment and order of the Member-II, Board of Revenue, Khyber Pakhtunkhwa dated 15.3.2012, may please be set aside and may please be declared illegal, without jurisdiction and without lawful authority and ineffective on the rights of the petitioners". The relief sought by the petitioners Mst. Naz Parwara and others through the connected writ petition is identical to the above ,mentioned relief, however, in addition they have sought restoration of order dated 20.10.1986 of Settlement Tehsildar in case No.2249/ST.

3. As this case has a checkered history, therefore, a brief account of the same is needed to be given. The controversy started with an application filed by Muhammad Khalid Khan (Respondent No.1) and two others namely Sharif Khan and Arzumand on 24.1.1971 before the Deputy Commissioner, Swat to the effect that Muhammad Khalid Khan is owner of his half share in the Estates Amankot namely Gharai, Alenai, Panwar, Saidu Tang, Dara Guligram, Kass Bagrai, Khadra, Shokat Tafay, Qatooekhpa, Sher Kelay and Shna Krapa with forests to the extent of 2-1/4 Paisa and one Nimakai whereas the remaining half share therein is jointly owned by Sharif Khan and Arzumand in equal shares, however, the same property had been possessed by Badshah Sahib (Ex Wali of Swat), therefore, the property be restored to the applicants. The application was registered as Case No.202/Swat and inquiry was conducted by Land Disputes Inquiry Commission, Swat which submitted certain recommendations which are reproduced as under: "The sale deeds Ex.D/A, Ex.D/B and Ex.D/C clearly show that the land in dispute was duly sold by the plaintiffs and their ancestors to the defendant. Ex.D/B has been found to have been duly entered in the contemporary Tehsil registers. The relevant register in the case of Ex.D/A is not available and Ex.D/C is not capable of being checked. There is no evidence to rebut this. Recommended that the property may be treated as property of the defendants". In view of the above recommendations of the Inquiry Commission, the Deputy Commissioner Swat decreed the case vide sale deeds mentioned therein through order dated 03.9.1973 in favour of the petitioners/ defendants by holding that "Badshah Sahib is the owner of land in dispute." The respondent No.1 Muhammad Khalid Khan challenged the above order before Federal Land Commission in revision petition which was entertained as No.R.P.II (17)/FLC/75. The revision petition was allowed vide order dated 29.1.1975 wherein the sale deeds relied upon by the petitioners/defendants declared as invalid. The concluding para of the order is reproduced herein below. "It is accordingly ordered that the land in dispute shall be the property of the petitioner (the respondent herein) and further action shall follow to give effect to this order". It is noteworthy that the other two claimants namely Sharif Khan and Arzumand did not refer any appeal against the recommendations of the Inquiry Commission, hence, the order of Deputy Commissioner, Swat dated 19.3.1973 attained finality to their extent. Being aggrieved of the order of the Federal Land Commission dated 29.1.1975, the legal heirs of Badshah Sahib (petitioners in both the writ petitions) filed a review petition which was partially accepted by Chairman Tribunal Land Disputes (Dir, Swat and Chitral) vide order dated 16.12.1981, resultantly, order dated 29.1.1975 of Federal Land Commission was set aside and it was once again held that the lands mentioned in sale deeds Ex.DA, Ex.D/B Ex.DC situated in Wand known as Ilanay, Panrawar and Khadra had rightly been purchased by Badshah Sahib, hence, his heirs are owners thereof whereas rest of the lands claimed by the respondent Muhammad Khalid Khan in the initial application were declared his ownership. This order dated 16.12.1981 was upheld by this Court as well as by the august Supreme Court as per contention of learned counsel for the petitioners in the connected writ petition.

4. On the completion of the above mentioned round of litigation, respondent Muhammad Khalid Khan filed an application before the Settlement Tehsildar/Assistant Collector Grade-I seeking entries of the lands decreed in his favour in the revenue record. In this regard the settlement staff prepared two separate files No. 12/ST in respect of village Amankot and 2249/ST in respect of Villages Saidu Sharif, Guligram and the Settlement Tehsildar after thorough probe made entries in the Revenue Record vide order dated 30.12.1986. On 29.3.1990, the respondent No.1 Muhammad Khalid Khan feeling dissatisfied with the order dated 30.12.1986 of the Settlement Tehsildar, preferred appeal along with application for condonation of delay before the Additional Deputy Commissioner/ Collector, Swat, who vide order dated 03.12.1990 accepted the appeal as well as the application. The concluding para of the order is as under:- "After perusal of the record and hearing arguments of the parties, it revealed that the Revenue Court is bound to make entry in the Revenue Record as per decree in accordance with Section 45(B) of the Land Revenue Act and Paragraph 6(i) of MLR, 123 all the Courts (Revenue) are bound to make entries in accordance with the decree. Therefore, in exercise of the powers of Collector, I hereby accept the appeal and set aside the impugned order. The Revenue authorities are, therefore, directed to inspect the above Khasras and calculate/ measure the area and compare/ tally the above Khasras with that of the decree and 'Qabza Dakhal Malikana' and make necessary entries in the Revenue Record in favour of the above appellant. It is further ordered that the Khasra numbers pending decision in the Supreme Court, shall be recorded in the Revenue Record in accordance with the judgment passed by the Supreme Court". Despite the fact that the above order was passed in favour of the Respondent No. 1 Muhammad Khalid Khan, he filed a review petition before the Additional Deputy Commissioner wherein he claimed some other Khasra numbers relinquishing his previous claim originally prayed for and decreed by the Chairman Lands Disputes Commission. The review petition was dismissed by the Additional Deputy Commissioner vide order dated 16.6.1991 and revision petition preferred thereagainst by Muhammad Khalid Khan was also dismissed by the Additional Commissioner on 28.9.1994. Even still feeling discontent, the Respondent No.1 filed yet another review petition instead of approaching the higher forum. The Additional Commissioner this time accepted the review petition vide order dated 21.12.1994 and resultantly set aside his previous order dated 28.9.1994 and also set aside the order of Additional Commissioner dated 16.6.1991.

5. Being aggrieved, the petitioners herein as well as the predecessor of the petitioners in the connected writ petition challenged the order dated 21.12.1994 of the Additional Commissioner before Senior Member Board of Revenue through Case No. 2/1995 which was allowed vide order dated 02.5.1998 and order of the Additional Commissioner was set aside.

6. Respondent No. 1 filed two separate writ petitions against the order dated 02.5.1998 of the Senior Member Board of Revenue which were accepted by this Court through consolidated judgment dated 13.11.2010 with the following observations. "

5. When was asked the learned counsel for the petitioners as to how 26-1/2 share allotted to the petitioners in the entire property could culminate in allotment of specific Khasra numbers to them, he referred to the order of settlement officer. He then read out the order of the Settlement Officer to clarify the point but could not refer to any part of the order of the Settlement Officer as could show how and why could it culminate in the allotment of the said Khasra numbers is yet another knot which could not be untangled despite the fact that we heard this case for three days. How the shares which were shown as 4, 14, 11 and 3 could multiplied and raised to 160 is yet another enigma which cannot be resolved by reading any of the orders passed by the fora from the lowest to the highest rung of the hierarchy. When this is the state of things, we would not like to maintain either the order of the Member Board of Revenue or restore that of the Additional Commissioner, especially when the same have been passed without doing any homework and without adverting to the record.

6. For the reasons discussed above, we allow these writ petitions, set aside the impugned order and send the case back to the learned Additional Commissioner for decision afresh with due application of mind as hinted to above".

7. On remand of the case by this Court, the learned Additional Commissioner decided the case vide order dated 07.4.2011 and maintained the previous order dated 21.12.1994 whereby the review petition of the Respondent No.1 had been accepted. He further held and ordered that:-- " I further hold and declare that the disputed Khasra numbers 576, 586, 627 in Mauza Amankot and Khasra numbers 1031, 1016, 1023, 1033, 1136, 1137, 1138, 1019, 1020, 1034 and 1730 in Mauza Saidu Sharif to be included in the order/decree of the lower Court dated 03.12.1990 and the Khasra numbers be entered in the name of Muhammad Khalid son of Khan resident of Amankot in the Revenue Record". The petitioners feeling aggrieved once again filed a revision petition before Member Board of Revenue, Khyber Pakhtunkhwa which was dismissed vide order dated 15.3.2012 of the learned Member-II, hence, both the sets of the petitioners have filed their respective writ petitions before this Court which are being disposed of through this single judgment.

8. We have heard learned counsel for the parties and gone through the record in light of their valuable assistance.

9. Perusal of the record would reveal the Respondent No.1 had claimed specific share in certain lands through his application before the Land Inquiry Commission. For convenience sake, initial application of the Respondent No.1 is reproduced herein below. According to this application, total joint claim of the three claimants was 2-1/2 Paisa plus half Nimakai in the mentioned lands. It is pertinent to mention here that the units in the area for the purpose of land measurement are Rupai/ Bakhra, Nimakai and Paisa. One Rupai/Bakhra contains 48 Paisas and Nimakai is half of a Rupai or Bakhra. Thus, according to the above mentioned units the joint claim of the three applicants was 2-1/4 Paisa plus one Nimakai i.e. 24 Paisa the total whereof becomes 26-1/4 Paisa in which the Respondent No.1 claimed half share i.e. 13-1/8 Paisa in the aforementioned lands whereas the remaining half was claimed by Sharif Khan and Arzumand jointly. The Deputy Commissioner dismissed the application of Muhammad Khalid etc. however later on Chairman, Tribunal Land Disputes vide order dated 16.12.1981 partially accepted the application of Muhammad Khalid, the lands purchased by Badshah Sahib were declared as ownership of his LRs and the claim of Respondent No.1 to the extent of his share in the remaining lands was decreed in his favour. In other words, the Chairman, Tribunal Land Disputes did not recognize the ownership of Respondent No.1 in lands Ilanai, Panrawar and Khadra and held that the same had been purchased by Badshah Sahib from predecessors of the applicants. Now coming to the entries made by Settlement Teshildar in favour of Respondent No.1 in Revenue Record, it transpired during the course of arguments that other persons had also been granted decrees in the mentioned lands by the Inquiry Commission besides there were also co-sharers in the same lands and when the overall calculation of the decreed shares/bakhras was made the shares of all the owners became known as 160 bakhras whereas the actual area of the lands Batora, Saidu Sharif, Guligram and Kokrai Chitore was 4, 14, 11 and 3 bakhras, respectively the total whereof becomes 32 bakhras. In other words, the land on the spot was 32 bakhras and the claim of all the owners was with regard to 160 bakhras in light of the decrees awarded in their favour by the Inquiry Commission and the remaining shares of land owners/Dautaryan. It appears that the actual area on the spot was not confirmed and decrees were passed in favour of claimants before settlement operation and as a result the situation of "one post and lots of candidates" was developed. Having no other option, the settlement Tehsildar formulated a scheme for resolving this problem, on the basis whereof he calculated the entire area of Saidu Sharif and Guligram proportionate to the established/decreed area of 160 bakhras which is as under. (i) Saidu Sharif: 160 x 14/32 = 70 Bakhras (ii) Guligram: 160 x 11/32 = 55 Bakhras As per statement of Respondent No.1, his claim in Saidu Sharif and Guligram was to the extent of 12 Paisa, therefore, his share in the enhanced bakhras of Saidu Sharif and Guligram in total 125 Bakhras was calculated as under: (i) Saidu Sharif: 12 x 70/125 = 6-18/25 Paisas (ii) Guligram: 12 x 55/125 = 5-7/25 Paisas Although, the total claim of the Respondent No. 1 was to the extent of 13-1/8 Paisas but Tehsildar Settlement in his order has referred to the fact that the Respondent No.1 had been benefitted as a result of proceedings carried out vide file No. 112/Swat. Thus, it is held that the entries made by settlement Tehsildar in the Revenue Record in respect of share decreed in favour of Respondent No.1 were correct and in accordance with section 45-B of Land Revenue Act, 1967.

10. It was also noticed that the Respondent No.1 had submitted application before the Settlement Tehsildar for entries in Revenue Record of lands decreed in his favour which was decided on 30.12.1986. The Respondent No.1 remained silent for more than three years and did not challenge that order before the higher fora of Revenue Hierarchy within the prescribed period of limitation. Record shows that the Respondent No.1 filed appeal before the District Collector Swat on 29.3.1990 against the order dated 30.12.1986 of the Settlement Tehsildar after lapse of more than three years and also sought condonation of delay in filing the appeal through a separate application. The learned Additional Deputy Commissioner/ Collector allowed the appeal vide order dated 03.12.1990 without discussing the point of limitation. No doubt the Respondent No. 1 had filed application for condonation of delay but the above order of the Collector does not bear any mention in this regard except the contention of counsel for the Respondent No.1 that the appeal was filed within the prescribed period but astonishingly he has sought condonation of delay as well which is not understandable. Since, the learned District Collector had not mentioned any reason for condoning the delay caused in filing the appeal, hence, it is held that he allowed an appeal which was barred by time and as such the order is not legally sustainable. It is also noticeable that the higher fora of the Revenue hierarchy also did not take notice of this crucial point, thus, they have fallen into legal error by passing the impugned orders.

11. Another important point in the instant matter is that admittedly, the Respondent No.1 and two others had submitted application before the Land Inquiry Commission who decided the case under the powers conferred upon him under the Martial Law Regulation (MLR) 123, however, under para-graph 6(1) of the Regulation ibid the Revenue Courts have got no jurisdiction to modify or call in question the decree passed under that Regulation. Since, the settlement Tehsildar implemented the decree passed under MLR-123 through its order but the higher fora of Revenue Hierarchy carried out modifications in the decree passed under MLR-123 which had already attained finality, therefore, on this score too the impugned orders are not legally sustainable.

12. It is also observed that the Respondent No.1 had claimed his specific share in the lands he mentioned in the application but there is no specification of boundaries thereof in his first application before the Land Inquiry Commission. However, from perusal of the impugned orders it appears that the entire specific Khasra numbers have been ordered to be recorded in favour of Respondent No.1 and as a result thereof different Mutations have also been carried out in his favour. It is an admitted fact that the Khasra numbers entered in the name of the Respondent No.1 are still jointly owned by the respective owners and there is nothing on the record to show that partition in respect of the said Khasra numbers has been carried out between the Respondent No.1 and other co-sharers, then how the entire Khasra numbers could be entered in his name alone in the Revenue Record. To make the point more explicit, the Respondent No.1 is a co-sharer in the joint Khasras to the extent of land decreed in his favour and he will get his specific share with specified boundaries only when proper partition of the joint Khasra numbers is carried out, which is not the case here at present. Thus, it is held that recording in the Revenue Record the name of Respondent No.1 as joint owner to the extent of his share decreed in his favour in the specific Khasra numbers is correct as ordered by settlement Tehsildar but allotment of the entire Khasra numbers to him without partition is not understandable. It is also noteworthy that the decree had been challenged in the higher fora of the hierarchy of Inquiry Commission but the Respondent No.1 raised no such plea regarding entries of specific Khasra numbers in the Revenue Record upto the last stage and agitated the same at the time when the decree had attained finality and the entries were to be made in the Revenue Record in accordance thereof. 12(sic). It was also brought into the notice of this Court that the Respondent No.1 has time and again filed review petitions for modification of order dated 03.12.1990. No doubt, the collector is empowered to review his own order or the order of his predecessor-in-office under subsection (1) to Section 163 of the West Pakistan Land Revenue Act, 1967, however, the review is subject to certain conditions which have been provided for in Section 163 (2) of the Act ibid, reproduced herein below. "163. (1) .. (2) Any person considering himself aggrieved by an order passed by an Executive District Officer (Revenue), Collector or an Assistant Collector, and who, from the discovery of new and important matter of evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the order was passed or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the order passed against him, may apply for a review of the order to the Executive District Officer (Revenue), Collector or Assistant Collector, as the case may be and such officer may modify, reverse or confirm any order passed by himself or by any of his predecessors-in-office.". Record shows that the learned Additional Commissioner has accepted the review petition of the Respondent No.1 vide order dated 21.12.1994 by setting aside the previous order dated 28.9.1994 of his predecessor-in-office and the order passed by the Additional Deputy Commissioner/Collector, Swat, dated 16.6.1991, however, in revision petition before SMBR the order dated 21.12.1994 was set aside on 02.5.1998 and resultantly order dated 28.9.1994 of the Additional Commissioner was restored. Later on when this Court accepted the two writ petitions of the Respondent No.1 and the case was remanded to the Additional Commissioner, he maintained the order dated 21.12.1994 of his predecessor-in-office. Learned counsel for the petitioners contended that the Additional Commissioner Malakand Division without first obtaining the sanction of Board of Revenue reviewed the order dated 28.9.1994 vide his order dated 21.12.1994. In this regard the Proviso (a)(i) to section 163 of the Land Revenue Act, 1967 is relevant which is reproduced herein below for convenience sake. ` "

163. Review. (1) . (2) .. Provided that:-- (a) An order passed by his predecessor-in-office shall not be reviewed under subsection (1) or subsection (2) by the:- (i) Executive District Officer (Revenue), without first obtaining the sanction of the Board of Revenue". As there is nothing on the record to show that the learned Additional Commissioner had sought sanction of Board of Revenue for reviewing the order dated 28.9.1994 of his predecessor-in-office, hence in view of the referred proviso, the order dated 21.12.1994 of the Additional Commissioner was illegal. Besides, keeping in view the conditions for review mentioned in Section 163(2) of the ibid Act, the learned Additional Commissioner vide order dated 21.12.1994 discussed in detail those points which had already been dilated upon in the orders of different fora of the Revenue hierarchy which is not permissible keeping in view the limited and narrow scope of review petition.

13. In addition to the above, although the Settlement Tehsildar had probed into the matter and determined the share of Respondent No.1 in the disputed property in light of decree awarded in his favour. This Court has also observed that the Respondent No.1 had recorded his statement before the Settlement Tehsildar in the light whereof his share was determined, therefore, he is legally estopped by his own conduct to challenge the entries of his share in the Revenue Record which had been made in accordance with the decree passed in his favour coupled with his own statement and his original claim.

14. Learned counsel for the petitioners also raised the point that the learned Additional Commissioner, Malakand Division afforded the petitioners and their counsel with no opportunity of being heard because on the relevant date the lawyers' community was observing complete strike. This contention of the petitioners has not been rebutted by the other side, hence, it is held that while passing the impugned order without providing any opportunity of being heard to the counsel for the petitioners, the learned Additional Commissioner has not acted in accordance with the principles of natural justice.

15. The upshot of the above discussion is that the impugned orders are not legally sustainable, hence interference therein by this Court in exercise of its Constitutional jurisdiction is inevitable. Therefore, the instant writ petition as well as the connected writ petition bearing W.P. No. 423-M/2012 are allowed, the impugned orders dated 07.4.2011 and 15.3.2012 of the learned Additional Commissioner, Malakand at Saidu Sharif, Swat and learned Member-II, Board of Revenue, Khyber Pakhtunkhwa, respectively are set aside. Resultantly, the order dated 30.12.1986 of the Settlement Tehsildar is restored and any entries in Revenue Record or mutations in contraven-tion thereof are cancelled. Similarly, C.Ms. 62, 465, 476, 477 of 2013 are dismissed for having become infructuous whereas C.O.C. No.31-M/ 2013 filed by the Respondent No.1 is also dismissed. MWA/206/P Order accordingly.