1999 PLP 1247 (CLC)

Muhammad Tufail Alvi for Respondents Nos.5 and

6. This writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is directed against the order, dated 24‑1‑1996 passed by Additional Deputy Commissioner (Consolidation) and order, dated 19‑2‑1997 passed by Member, Board of Revenue.

2. Briefly stated the facts are that vide order, dated 30‑6‑1991 Consolidation Officer confirmed Scheme No.33. Against this order respondents Nos.5 and 6 filed an appeal with the Additional Deputy Commissioner (Consolidation) who vide order, dated 7‑12‑1992 accepted the same. The said order was challenged by the present petitioners before the same Officer vide application, dated 25‑1‑1993. The Additional Deputy Commissioner (Consolidation) vide order, dated 18‑4‑1994 set aside the order, dated 7‑12‑1992. Against the said order respondents Nos.5 and 6 filed a ‑revision petition with the Additional Commissioner (Consolidation), who vide order, dated 24‑1‑1996 accepted the same and set aside the order, dated 18‑4‑1994. The petitioners felt aggrieved of the said order and filed revision petition before the Member Consolidation, Board of Revenue who dismissed the revision petition vide order, dated 19‑2‑1997. Now both the orders, dated 24‑1‑1996 and 19‑2‑1997 have been challenged through the instant writ petition.

3. Contention of the learned counsel for the petitioners is that both the Additional Commissioner Consolidation as well as Member, Board of Revenue have dismissed the revision petition simply on the ground that Additional Deputy Commissioner (Consolidation) had no power to review his own order, dated 7‑12‑1992. His contention is that order, dated 18‑4‑1994 has been passed on the ground that parties had arrived at a compromise, that as the order, dated 18‑4‑1994 has not been passed on merits, so even if it is assumed that parties had not compromised the matter is to be remanded to the Court for deciding the same on merits. His next contention is that he had moved an application with the Member, Board of Revenue for sending the signature and thumb‑impression of respondent No.5 Mst. Abida Parveen but no order has been passed on the said application and even on this score the orders, dated 18‑4‑1994 as well as 19‑2‑1997 are not sustainable in the eyes of law and the matter be referred to the Member, Board of Revenue for deciding the same in accordance with law.

4. Conversely the contention of the learned counsel for respondents Nos.5 and 6 is that the very application, dated 25‑1‑1993 before the Additional Deputy Commissioner Consolidation for setting aside order, dated 7‑12‑1992 was not maintainable as the said Court had no power either to set aside the same order or to review his own order, that the only remedy available to the petitioners was to file an appeal or revision before a competent forum. He further contends that even the orders, dated 13‑12‑1994, 27‑2‑1994 and 27‑3‑1994 show that none had appeared on behalf of Mst. Abida Parveen and the impugned compromise is a forged document. He further urges that writ petition is not maintainable in view of the law enunciated by the apex Court of this Country and in this respect relied upon Falak Sher and others v. Sharif and others 1989 SCMR 1096 and Asad Riaz v. Member, Board of Revenue, Punjab, Lahore and 4 others 1997 SCMR 1611. He further contended that under section 8 of Board of Revenue Act, 1957, the power to review exclusively vests in the Board of Revenue, as such the very application moved for setting aside order, dated 7‑12‑1992 was not maintainable before the Additional Deputy Commissioner Consolidation.

5. It is evident from the facts stated above an ex parte order, dated 7‑12‑1992 was passed by the Additional Deputy Commissioner (Consolidation) in favour of respondents Nos.5 and

6. Subsequently, an application. for setting aside the said ex parte order was moved on 25‑1‑1993 by the petitioners Imdad Hussain and others and the same was accepted vide order, dated 18‑4‑1994. A perusal of record reveals that the said order, dated 18‑4‑1994 has been passed without affording an opportunity to respondents Nos. 5 and 6 as their presence alongwith their counsel is not proved from the order‑sheet pertaining to 13‑2‑1994, 27‑2‑1994, 27‑3‑1994 and 18‑4‑1994. It is, thus, proved that order, dated 18‑4‑1994 has been passed without hearing respondents Nos.5 and

6. Leaving this aspect of the matters aside, the question is if the application for setting aside ex parte proceedings/order, dated 7‑12‑1992 could be filed in the Court of Additional Deputy Commissioner (Consolidation) or not.' The stand of learned counsel for the petitioners is that subsequent application, dated 25‑1‑1993 was not a review petition and it was simply moved for setting aside order, dated 7‑12‑1992. Even if it is assumed that it was not a review petition, the fact remains that by accepting this petition order, dated 7‑12‑1992 was set aside. The question is if the power to set aside the order was available with the Additional Deputy Commissioner (Consolidation) or not. According to section 8 A of Board of Revenue Act, 1957, the power to review only vests with the Board of Revenue and not with any other Officer. Even if application, dated 25‑1‑1993 is treated an appeal or revision, it could not be filed with the same Court and had to be filed in the next higher forum i.e. Additional Commissioner (Consolidation). The application having been filed with Additional Deputy Commissioner (Consolidation) was not maintainable as such the order, dated 18‑4‑1994 setting aside order, dated 7‑12‑1992 has not been passed in accordance with law. Thus. respondent No.2 has rightly set aside the said order vide order, dated 24‑1‑1996 which order has been confirmed by respondent No. l vide order, dated 19‑2‑1997. Resultantly writ petition fails and is hereby dismissed. Q.M.H./M.A.K./I‑88/L Petition dismissed.