P L D 1988 Quetta 81 (PLP)

MUNAWAR AHMAD MIRZA, J.‑‑ This petition challenges, order dated 30‑3‑1987 and 18‑11‑1987 passed by learned Additional Commissioner, Sibi Division and learned Member‑II Board of Revenue, respectively.

2. Admitted facts are that respondents Nos.3 and 4 are dose 'relatives being nephew and uncle respectively. They inherited following landed property in equal shares from. late Ghulam Rasool; grandfather of respondent No.3 (Abdul Wahab) and father of respondent No.4, (Muhammad Siddique). 2‑6/7 Rakhee bearing Khata No.l, comprising of 76 pieces measuring 284 Rodes‑16 Poles (cultivable by canal water); situated in Mauza Abdul Wahab Tehsil Sibi. (ii) 12 Rakhees bearing Khata No.2 consisting of 291 pieces measuring 11‑4 Rodes (cultivable by canal water). situated in Mohal Mauza Abdul Wahab Tehsil Sibi.

3. Respondent No. 4 (Muhammad Siddique) towards 3rd of January, 1979, sold 2‑6/7 Rakhee of land alongwith water from above property to petitioner for a consideration of Rs.22,667 in pursuance whereof Mutation No. 30 was recorded on 4th January, 1979. It is alleged that possession of land so purchased by petitioner was also delivered to him at the time of mutation. Respondent No. 4 ‑vas shown to be minor as per revenue record. However on 16‑4‑1983 after lapse of 4 years 3 months and 12 days respondent No. 3 (Abdul Wahab) filed an appeal before Deputy Commissioner‑cum‑Collector Sibi challenging mutation entry. No.30 dated 4‑1‑1979 alleging that, property was sold to petitioner during his minority and respondent No.4 had no legal authority or right to sell any portion of land pertaining to his share. It was pleaded that respondent No.3 cane to know about mutation entry towards 12th March, 1983 and thereafter has approached Collector for correction of record. Respondent No.4 filed reply on 18‑5‑1983 wherein he did not dispute entitlement of respondent No.3, expressing that he was not aware about manner in which revenue entries were recorded. Petitioner filed, written objection on 20‑7‑1983, vehemently opposing maintainability of appeal mainly on the ground of limitation and awareness of respondent No.3 concerning factum of mutation. As regards minority assertions made in memo of appeal were vaguely challenged. Although contents of para. N o.2 were denied, yet it was mentioned that respondent No.3 at the relevant time appeared to be quite young and sensible. Whereas contents of para. 3 of memo of appeal asserting knowledge of mutation entries after becoming major have not been disputed.

4. Learned Collector Sibi, rejected appeal vide order dated 8‑4‑1985 observing that sale by respondent No.4 was only in respect of his share in the property. Operative portion is reproduced below: Respondent No. 3 (Abdul Wahab) feeling aggrieved from aforesaid order preferred an appeal before Additional Commissioner, Sibi on 23‑4‑1985 which was accepted vide order dated 30‑3‑1987 and concerned Revenue authorities were directed to make necessary corrections in the record. Operative portion is reproduced: ‑ The petitioner challenged aforesaid decision, by preferring an appeal before Member Board of Revenue (Respondent No. l) under section 161(i)(c) of 'The Baluchistan. Land Revenue Act, 1367' (hereinafter referred as "Revenue Act")‑ It may be seen, that learned Member, Board of Revenue by means of order dated 18‑11‑1987 though observed that appeal before Commissioner was not competent, yet by exercising suo motu revisional jurisdiction directed remand of the matter to Tehsildar Sibi for carrying out fresh entries after hearing respondent No.3 (relevant observations are reproduced below)‑ "I find force in the argument but the facts of this case are unique and call for intervention ‑ even without any revision or application. As mentioned above it in clear that it is an undivided revenue estate owned by Abdul Wahab, a minor and Muhammad Siddique the vendor. The property could not have been sold unless the land is demarcated and partitioned. There could have been some argument for sale but the land could not have been mutated unless a 'Tatimma' has issues in this behalf. I therefore, find that this is a case in which suo motu revisional powers be invoked and the illegalities committed by the revenue officers be not perpetuated, without going to the other merits of the case. As such the appeal before the Additional Commissioner, dated 30th March, 1987 cannot be allowed to hold the field. Similarly the order of the Deputy Commissioner is not proper as the mutation was carried out without the partition of the land and that was not in accordance with the accepted norms of revenue law so that too need be set aside. Accordingly the orders of the Deputy Commissioner dated 8th April, 1985 and that of the Additional Commissioner dated 30th of March, 1987 are set aside and the matter of mutation may be inquired into afresh by the Tehsildar Sibi. Abdul Wahab may have now become an adult and he would be himself competent to safeguard his interest. He may also be heard before carrying out this mutation."

5. Mr. Basharatullah, learned counsel for the petitioner has strenuously urged that: (i) Member, Board of Revenue having accepted contentions regarding incompetency of second appeal before Additional Commissioner Sibi; vas not justified in exercising suo motu, revisional jurisdiction, specially without notice to parties. (ii) Appeal filed by respondent No.3 before Collector Sibi was hopelessly barred by time. No such powers were vested in revisional authority, to ignore question of limitation specially when Section 5 of Limitation Act was not applicable in revenue matters. (iii) Respondent No.3 according to his own showing had obtained certified copy of mutation on 12‑3‑1983, thus no sufficient cause existed for subsequent delay of 3 days in filing appeal before Collector. (iv) Since petitioner had approached Member Board of Revenue by way of appeal under section 161 (1)(c) of "Revenue Act", therefore, suo motu revisional jurisdiction was not exercisable. Reference was made to case Sardar Ashiq Muhammad Khan Mazari and others v. Chairman Federal Land Commission, Islamabad etc. (P L D 1977 Lah.461).

6. On the other hand Mr. Iftikhar Muhammad learned counsel for respondent vehemently resisting the petition argued that; (i) Scope of Section 164 'Revenue Act' is unlimited, and finding blaring injustice or patent illegality, revisional jurisdiction could be exercised by Member Board of Revenue at any stage of proceedings irrespective of limitation. Reference was made to case, Bakhtiar and others v . Member Board of Revenue Baluchistan, Quetta .and others (P L D 1984 Quetta 158). (ii) Sale by respondent No.4 in respect of his share in the land could not lawfully affect rights of respondent No. 3 pertaining to his share 'it property, thus mutation tending to interfere in the portion of land belonging to the share of respondent No.3, is void ab initio, accordingly bar of limitation would not be operative. (iii) Mutation entries by itself disclose that respondent No.3 (Abdul Wahab) was minor, therefore even otherwise limitation would not run against him during the period of his disability. (iv) Additionally wrong caused to respondent No.3 stood rectified by orders passed by respondents Nos.l and

2. Besides during fresh mutation in pursuance of impugned order all concerned shall have opportunity of hearing and aggrieved party will also have alternate remedy available to him therefore invocation of constitutional jurisdiction, tending to perpetuate ill‑gotten gains cannot be entertained. To supplement his submissions reliance is placed on reported judgments i.e.(a) Nawab Raunaq Ali v. Chief Settlement Commissioner and others (P L D 1973 S C 236) and (b) Bakhtiar and others v.. Member Board of Revenue Baluchistan, Quetta and others (P L D 1984 Quetta 158).

7. We have considered arguments advanced by learned counsel for parties.

8. Evidently contentions raised by learned counsel for parties; mainly revolve around scope of suo motu revisional jurisdiction of! Member Board of Revenue, effect of tune‑barred appeal before Collector Sibi, and consequence . of minority of respondent No.3. All these aspects on account of peculiar circumstances of this case are inter connected. It may be seen that petitioner had approached respondent No.l by way of appeal within the purview of section 161(i)(c) of "Revenue Act". Admittedly all the factors culminating in filing of appeal were thoroughly discussed before Member, Board of Revenue, therefore, objection concerning show cause or opportunity of hearing while exercising suo mote jurisdiction, in the given circumstances doses significance. Now considering scope of section 164 of "Revenue Act" it may be seen that sane is very wide. It is certainly much larger and broader than jurisdiction vested under section 115 C.P.C. Therefore, whenever it comes to the notice of Member Board of ‑Revenue that any of his subordinate Revenue Officers, has acted arbitrarily or, capriciously or with material irregularity or in exercise of posers not vested in him by lacy, or assumed authority which is not prescribed or omitted to exercise authority provided by law, or had conducted in a manner which is not prescribed or omitted to exercise authority provided by law, or had conducted in a manner which is patently unjust, revisional jurisdiction can be legitimately exercised. This power is neither in derogation of appellate authority under section 161(1)(c), nor dependent upon it. Comparison of various provisions indicate that jurisdiction under section 164 is neither limited, restricted, controlled nor abridged by any other provisions of "Revenue Act". Scope of Revisional jurisdiction under Land Revenue Act has been exhaustively discussed by Division Bench of Lahore High Court in case Khair Din v. I.U. Khan CSP, Member (Revenue) Board of Revenue, West Pakistan and another (P L D 1968 Lah.ll). We respectfully associate ourselves with observation in aforequoted report. Thus question of limitation is not relevant for the exercise of suo mote revisional jurisdiction. As regards manner of exercising suo motu authority we are fortified by the observation in case Hakim 'Muhammad Buta and another v. Habib Ahmed (P L D 1985 Supreme Court 153), (b) Muhammad Swaleh v. Messrs United Grain and Fodder Agencies (P L h 1964 S C 97). (c) Messrs Norwich Union Fire Insurance Society Ltd. v. Muhammad Saved lqbal and others (P L D 1984 Kar.519). Principle of law discussed in the judgment relied upon by learned counsel for petitioner is thus clearly distinguishable. Learned counsel for petitioner however attempted to canvass that respondent No.4 could appropriately sell his share from any portion of joint property. This argument is ex facie fallacious, as it obviously tends to unjustifiably deprive petitioner of his half share in Khata No. l therefore mutation entry No.30, which is basis of dispute in this matter is apparently void and without lawful authority; B specially when petitioner was also shown in revenue record to be minor. Factually co‑owners enjoy complete rights, proportionate to their respective share in every portion of the property till it is partitioned. Having thus come to the conclusion, that original order of mutation was void and nullity in the eyes of law, there is plethora of case law to support stand of respondent that limitation would not operate as bar in interfering with such order. Some of reported judgments are however mentioned below: (i) Yousuf Ali v. Muhammad Aslam Zia and others‑ (P L D 1958 S.C.104). (ii) Khuda Bakhsh v. Khushi Muhammad and others P L D 1976 SC 208. (iii) Major Syed Walayat Shah v. Muzaffar Khan and others (P L D 1971 S.C.184). (iv) Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies (PLD 1964 SC 97). (v) Hussain Bakhsh ‑ and others v. Settlement Commissioner and others (P L D 1969 Lah.1039). (vi) Syed Muhammad Alam v. Syed Mehdi Hussain and others (PLD 1970 Lah. 6). (viii) Syed Nazir Hassan v. Settlement Commissioner Lyallpur and another (P L D 1974 Lah.434) (ix) Mst. Rahmat Bibi and others v. Punnu Khan and others (1986 S C M R

962. Now coming to the next aspect, it nay be seen that relief by way of constitutional petition is evidently discretionary. Same therefore cannot be granted as matter of right. No doubt certain procedural, and technical defects exist in the impugned orders which have been highlighted on behalf of petitioner. But at the same time glaring injustice which appears to have been caused, stands rectified. From the facts discussed above we are satisfied that grant of relief would perpetuate ill‑gotten gains. In this view we are inclined to follow observations in cases (i) Nawab Syed Raunaq Ali v. Chief Settlement Commissioner and others (P L D 1973 S C 236) and (ii) Bakhtiar and others v. Member Board of Revenue Baluchistan, Quetta and others (P L D 1984 Quetta‑158). Obviously fresh entries regarding entitlement of parties shall be carried out after hearing objections. Therefore petitioner, if aggrieved shall have alternate remedy to challenge the same. Thus for the foregoing reasons, we do not find any merit, in the petition, which is accordingly dismissed. Parties are however left to bear their own costs. This petition was decided by our short order dated 10‑5‑1988, here are reasons for the same. A.A./309/Q Petition dismissed.