P L D 1960 W (PLP)

These are two review petitions under section 8 of the Board of Revenue Act, which I propose to dispose of by a single order. They arise out of my order dated 29‑11‑1959 passed in revision proceedings, which is reproduced below verbatim. "These ‑are two revision petitions in respect of a Sikni plot, 1760 sq. feet, in Sanghar town. Petitioner took unauthorized possession of this whole plot and parceled it out to various persons. A number of petty structures, especially shops, were also put up. The sub‑plots together with some of the structures have since changed several hands. It is,. however, not necessary to narrate this early history in detail. The real starting point for the disposal of these petitions is the Deputy Commissioner's order dated 10‑8‑1957, by which he regularized the encroachments by granting (i) 1160 sq. ft. to the petitioner and (ii) 600 sq. ft. to respondent Abdul Majid. Petitioner Ali Muhammad went up in appeal to the Commis sioner regarding the sub‑plot 600 sq. ft. granted to Abdul Majid, and the Commissioner by his order dated 25‑1‑1958 decided that this sub‑plot of 600 sq. ft. should be disposed of by auction. This was a correct order under rule 42 of the Sind Land Revenue Code Rules. Respondent Abdul Majid, being aggrieved, filed what pur ported to be a revision petition before the Commissioner and the Commissioner by his order dated 12‑4‑1958 now decided that this sub‑plot should be granted to respondent Abdul Majid. In other words the Commissioner reversed in revision an order which he had passed in appeal. Quite obviously he could not do so because revisional jurisdiction under section 211 can only mean examina tion of the legality or propriety of an order or decision made by a subordinate authority. Nor could he review his order as there is *,o statutory provision in the Sind Land Revenue Code to enable a Commissioner to review his decisions. If he subsequently became dissatisfied with his appellate order dated 25‑1‑1958, his proper course was to bring it to the notice of the Board of Revenue who could correct it, if necessary, in exercise of their revisional powers. The Commissioner's order of 12‑4‑1958, is, therefore, incompetent and void. In the third stage of these proceedings, came up another appeal before the learned Commissioner, filed by respondents Gut Muhammad and Haji Muhammad Siddiq. This appeal was filed by them against the original order of the Deputy Commis sioner, dated 10‑8‑1957 granting 1160 sq. ft. to petitioner All Muhammad. The case of these appellants was that they were in possession of two sub‑plots of 216 and 288 sq. ft. and they should be granted to them. The Commissioner by his order dated 6‑5‑1958 granted the sub‑plot of 288 sq. ft. to Haji Muhammad Siddiq and that of 216 sq. ft. to Gut Muhammad from out of the plot of 1160 sq. ft which the Deputy Commissioner had granted to petitioner Ali Muhammad. But this order was passed without giving notice to or hearing the petitioner, which was again a fatal defect. In exercising revisional jurisdiction under section 211 of the Sind Land Revenue Code the law gives the revising authority discretion to hear or not to hear the party likely to be aggrieved, which is of course somewhat peculiar to the Sind Land Revenue Code. But so far as appeals are concerned, the matter has been put beyond all doubt by the Supreme Court by its decision P L D 1959 S C (Pak.) 45. `When a statute gives a right of appeal it should be under stood as silently implying when it does not expressly provide that the appellant shall have the right to be heard.' It is a principle of natural justice that no one should be dealt with to his material disadvantage or deprived of his liberty or property without having an opportunity of being heard and making his defence'. Therefore, the order of the Commissioner dated 6‑5‑58 is also vitiated and must be set aside. In conclusion, revision petition (i) succeeds to the extent that the plot of 1160 sq. ft. is restored to petitioner Ali Muhammad and Revision Petition No. 2 is decided to the effect that the whole plot of 600 sq. ft. shall be disposed of by auction accor ding to the provisions of rule 42 of the Sind Land Revenue Code Rules. It would appear that I accepted the revision petition of Ali Muhammad in respect of 1160 square feet. This whole plot was originally granted to Ali Muhammad by the Deputy Commissioner but the Commissioner by his order dated 6‑5‑58 granted two sub‑plots out of it, 288 and 216 square feet, to Haji Muhammad Siddiq and one Gut Muhammad respectively. The Commissioner passed this order in appeal without hearing petitioner Ali Muhammad; and going by P L D 1959 S C (Pak.) 45, 1 set aside the order of the Commissioner and restored that of the Deputy Commissioner. It has now been pointed out on behalf of petitioner Muhammad Siddiq that my order has had the effect of depriving him of his right to get his appeal heard by the Commissioner in accordance with the law and that the case should be sent back to the Commissioner for fresh disposal. I generally agree with this proposition; but this raises another question whether it is open to me to amend my order dated 29‑ 11‑1959 under section 8 of the Board of Revenue Act, or otherwise. The learned counsel for the two parties have argued the question of the scope of section 8 at considerable length. On a plain reading of this section, its applicability would seem to be limited to two circumstances (i) where new evidence has been discovered which could not be discovered at the time the order was passed; and (fi) where there has been some mistake or error apparent on the face of the record. It is contended on behalf of the petitioner that there is an error apparent on the face of my order in so far as the legal result that should have been drawn was not drawn. On the apposite side it is urged that a mistake or error apparent on the face of the record, as contemplated under section 8, simply means a clerical or superficial error which alone can be corrected in review proceedings. It has also been argued on behalf of the petitioner that a Court has, in any case, inherent powers to correct such errors. The practice of the Board of Revenue, at least in the recent past, has definitely been marked by a tendency to enlarge the scope of review under section

8. In P L D 1.955 Pb. (Rev.) 45,1 the learned Financial Commissioner interfered with an appellate order of his predecessor under the Motor Vehicles Act which, in fact, does not even provide for a revision or review of such appel late orders and held that he could, by virtue of inherent powers, review his predecessor's order because it amounted to " an abuse of the process of Court ". In this case the abuse of the process of the Court was that the appellate order had been passed in the absence of an interested party. Another Member of the Board of Revenue held, as reported in P L D 1,956 W P (Rev.) 39, that an order passed by a Member in "mistaken appreciation of facts" is a good case for his successor to review, thus bringing the restricted provisions of section 8 of the Board of Revenue Act more or less on a par with Rule 1 of Order XLVII of the Code of Civil Procedure. In some cases however, the Members of the Board have preferred to restrict the use of section 8 to the two circumstances contained therein. In a recent case the High Court of West Pakistan, while disposing of Writ Petition No. 734 of 1957 also had occasion to consider the scope of section 8 of the Board of Revenue Act. Here again the learned Member had reviewed his predecessor's order in a Lambardari case on the ground that there had been a miss appreciation of facts; his order was challenged before the High Court who in their order dated 20‑3‑1958 upheld the interfering order passed in the review proceedings. Taking all this case law into consideration and after carefully weighing the terms of section 8, I hold that while a review should not undertake a re‑examination of matters of fact or re‑exposition of law, it can be used to rectify‑and accidental omission or error, not necessarily of a verbal or superficial nature. Apart from section 8 of the Board of Revenue Act, a Court must be presumed, in the interests of justice, to have some inherent power to correct errors of this kind. I would, therefore, revise my order dated 2,9‑11‑1959 so as to direct that the appeal before the Commissioner be reheard and disposed of on merits after giving notice to both the parties. As regards the review petition filed by Abdul Majid, it is obvious that the Commissioner's order dated 11‑4‑1958, reviewing hi$ own earlier order dated 25‑1‑1958, was a nullity. But it transpires that his earlier order dated 25‑1‑1958 was passed by him without giving notice to the parties and that that order was also bad in law on the basis of P L D 1959 S C (Pak.)

45. It can not, therefore, be restored as a final order. The correct order in this case also would be to restore the original appeal of Ali Muhammad before the Commissioner for proper hearing. I would, therefore, amend my order so as to direct that Ali Muhammad's appeal before the Commissioner be reheard and disposed of on merits after giving notice to the parties. K. M. A. Order accordingly.