1992 PLP 2338 (CLC)

(8) that the respondents Nos.2 and 3 are facing great difficulties in cultivating their lands as a result of amendments ‑made in the respective Khatas of the parties; (9) that the persons whose areas were given to respondents Nos.2 to 4 had not filed any appeal against them; and (10) that the Courts below ignored certain admissions made in the pleadings of the parties.

4. The learned Member, Board of Revenue reviewed the order passed by his predecessor on the grounds stated in paragraphs Nos.4 and 5 of the impugned order which read thus:‑‑

4. Fact remains that the appeal of the respondents was time‑barred by about two years. No proper explanation was given in his Court for the condonation of the said miserable delay. Each and every day's delay should have been explained as held in 1973 SCMR

304. As a result of consolidation operations the parties were adjusted rightly. Pre consolidation period the petitioners held their land in 23 plots and during the consolidation operations they were accommodated in two plots' but as a result of the amendments framed by the Collector (Cons.) they were given land in six plots. Similarly the respondent's pre‑consolidation plots were 8 which were reduced to three plots as a result of consolidation operations, as well as in amendments. As a result of these amendments the" plots were divided and increased from 2, to 6 which cannot be conveniently irrigated. Reduction of plots means the real follow up of the consolidation operations and any order directing increase of number of plots with either of two sides would rather be considered as harsh and unfair and against the spirit of consolidation operations. It is also strange that simply on the basis of concurrent findings of two Courts below my learned predecessor announced the order now before me. No doubt he was fortified by two orders of the lower Courts but question 'remained that basic fortification in the order of the Collector (Cons.) was not strong enough for the learned Additional Commissioner (Cons.) or for my learned predecessor to bank upon. Any order unnecessarily increasing number of plots would Always be considered as unfair. To this Court ho improvement appears to have, been done over and above the basic consolidation. scheme. What was wrong with the basic scheme has not been convincingly brought out by all the three Courts (i.e. Member (Cons.) Additional Commissioner (Cons.) and Collector (Cons.) and that confusion is required to be removed.

5. This Court has therefore, good reasons to sustain the basic consolidation scheme dated 13‑6‑1985 as confirmed by the Consolidation Officer between the petitioner. and the respondents. Accordingly the order of my learned predecessor dated .28‑8‑1990 is hereby recalled. The review petition is accepted with the result (that) the orders of two Courts below i.e. order dated 18‑7‑1989 of the learned Additional Commissioner (Cons.) and 31‑1‑1989 of Collector (Cons.) respectively would be considered as having been interfered with and set aside between the two parties i.e. petitioners and the respondents."

5. Ch. Nazar Hussain, learned counsel for the petitioners, argued that the review petition under section 8 of the Act was not competent, in that, there was no mistake or error apparent on the face of the record or any other sufficient reason warranting review.

6. Mr. M. Hanif Khatana, learned counsel for respondents Nos.2 to 4 argued that there was an error on the face of the record, inasmuch as, not a single Marla of land of the present petitioners was given to respondents Nos.2 to 4 during the confirmation of the Scheme. To this extent the Scheme in respect of respondents Nos.2 to, 4 herein could not have been disturbed. Besides, no Court right from the Additional Deputy Commissioner up to the Member, Board of Revenue, had given detailed reasons while dealing with the question of limitation in filing the appeal by the petitioners and affecting of service on respondents Nos.2 and 3 herein before the Additional Deputy Commissioner. The contention is devoid of any force. The learned Member, Board of Revenue, in his order dated 28‑8‑1990 took notice with particularity of the plea raised by the aforesaid respondents that they were neither served personally not any notice was published in the newspapers. This plea was rejected by the learned Member, Board of Revenue with the observation "the grounds for condonation of delay had been given by the Collector (Consolidation) and a notice was also published in the newspaper". It would, therefore, be seen that the grounds on which the aforesaid respondents sought review of the order of the learned Member, Board of Revenue, related to the merits of the case and did not fall within the scope of review as envisaged by section 8 of the Act which reads thus:‑‑ "

8. Review of orders by the Boar .‑‑(I) Any person considering himself aggrieved by a decree passed or order made by the Board 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 decree was passed or the order was made, on account of some mistake or error apparent on the face of the record or for other sufficient reason desires to obtain a review of the decree passed or order made against him, may apply to the Board for a review of judgment and the Board may, after giving notice to the parties affected thereby and after hearing them, pass such decree or order as the circumstances of the case require. (2) Every application for review of a decree or order under subsection (1) shall be made within ninety days from. the date of that decree or order."

7. The provisions of section 8 of the Act are somewhat analogous to the provisions of review contained‑in Order XLVII, Rule I(c), C.P.C. which reads thus:‑‑ (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or 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 decree was passed or order made, 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 decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order."

8. The scope of review as envisaged by Order XLVII, Rule 1, C.P.C. came up for consideration in Chhajju Ram v. Neki and others (AIR 19.22 PC 112), wherein inter alia the following observations were made:‑‑ "For it is obvious that the Code contemplates procedure by way of review by the Court which has already 'given judgment as being different from that by way of appeal to a Court of Appeal. The three cases in which alone mere review is permitted are those of new material overlooked by excusable misfortune, mistake or error apparent on the face of the record, or 'any other sufficient reasons'. The expression 'sufficient' if this were all, would naturally be read as meaning sufficiency of a kind analogous to the two already specified that is to excusable failure to bring to the notice of the Court new and important matters, or error on the face of the record. Rule 1 of Order XLVII must be read as in itself definite of the limits within which review is today permitted, and that reference to practise under former and different statutes is misleading. So construing it they interpret the words 'any other sufficient reason' as meaning a reason sufficient on grounds at least analogous to those specified immediately previously." Also refer Muhammad Amir Khan v. The Controller of Estate Duty, Government of Pakistan, Karachi and others (PLD 1962 SC 335). The following passage at page 354 on the question of review reads thus:‑‑ "No mistake in a considered conclusion, whatever the extent of that mistake, can be a ground for the. exercise of review jurisdiction .... It is not because a conclusion is wrong but because something obvious has been overlooked, some important aspect of the matter has not been considered, that a review petition will lie."

9. The scope of review as interpreted in the case of Chhajju Ram (supra) and Muhammad Amir Khan (supra) was quoted with approval by the Supreme Court in the case of Muhammad Ashraf v. Dost Muhammad etc. 1981 SCMR 383.

10. The scope of review under section 8 of the Act also came up for consideration in the case of Naseem Ahmed Kharal v. Board of Revenue, Sindh PLD 1979 Note 82 atp.57, the relevant page 117 reads thus:‑‑ "The language of section 8 bears a close resemblance to the language used in the Code of Civil Procedure in so far as occasions making the remedy of review available are concerned. The only difference is that in 1964, section,8 of the West Pakistan Board of Revenue Act was amended so as to make the remedy by way of review available in cases where sufficient reason may be exhibited for review. The words "for any other sufficient reason" follow the words which lay down the grounds for interference in review. The words have to be read ajusdem generis with ' the words preceding them. It is not every cause which would ‑make the remedy by way of review available but such cause must be relatable to the circumstances as discovery of new and important matter or some apparent mistake or error on the face of record." In Zulfiqar Ali Bhutto v. The State (PLD 1979 SC 741) with reference to scope of "review", the following observations were made:‑‑ "However, an order based on an erroneous assumption of material fact, or without adverting; to a provision of law, or a departure from an undisputed construction of the law and the Constitution may amount to an error apparent on the face of the record. At the same time if the judgment under review or a finding contained therein, although suffering from any erroneous assumption of facts, is sustainable on other grounds available on the record then although the error may be apparent on the face of the record, it would not justify a review of the judgment or the finding in question. In other words, the error must not only be apparent, but must also have a material bearing on the fate of the case. Errors of inconsequential import do not call for review."

10. The case of Zulfiqar Ali Bhutto (supra) has no application the controversy raised herein, in that, the learned Member, Board of Revenue was fully alive to all the points raised before him. After conscious application of his mind he recorded a finding on the entitlement of the parties in the light of the pleas raised before him. It was within his knowledge that delay in filing the appeal was condoned by the appellate authority and, therefore, this question could not be reagitated on merits in the garb of review under section 8 of the Act. Same is the position regarding the plea raised as to validity of service on the contesting respondents. Refer Riaz Hussain and others v. Board of Revenue and others (1991 SCMR 2307). In the precedent case, the learned Judges of the Supreme Court, after exhaustive examination of their previous. judgments, reiterated that the provisions of section 8(1) of the Act were substantially the same as in Order XLVII, Rule 1, C.P.C. and section 8 of the Act does not permit Revenue Board to re‑hear the matter on merits. The relevant portion reads thus:‑‑ "Section 8(1) of the Act is substantially the same as Order XLVII, C.P.C. It is well‑settled principle that. no Court or authority possesses any inherent jurisdiction to review its decree or order. Such power can be exercised where it has been expressly conferred by statute Reference can be made to Muzaffar Ali v. Muhammad Shari PLD 1981 SC 94, Hussain Bukhsh v. Settlement Commissioner, Rawalpindi and others PLD. 1970 SC 65 and Brig. H.H. Nawab Muhammad Abbas' Khan Abbasi v. The Government of Pakistan and others PLD 1984 SC

67. The power to review can be exercised where there is mistake or error of law or fact apparent on the face of the record. To find out such error one has not to scrutinize the record or evidence but it should be self‑evident from a persual of the record itself and can be pinpointed without elaborate examination. Inconsequential or insignificant errors which do not go to the root of the matter are to be ignored but if error has material bearing on the final result of the case it can be made a ground for review. Scope of review is completely different from appeal. The review proceeds on the basis of error apparent on the record whereas in appeal all questions of fact and law are considered by the appellate Court."

11. Clearly the power to review under section 8 of the Act being limited, the learned Member, Board of Revenue, was not competent to set aside the order passed by his predecessor and substituting it by sustaining the basic consolidation scheme dated 13‑6‑1985 as confirmed by the Consolidation Officer between the contesting parties, inasmuch as, there has neither been discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the respondents' knowledge or could not be, produced at the time when the order was passed by Mr. Hafizullah Ishaq, the then learned Member, Board of Revenue, nor the order passed by the latter suffered from any mistake or error apparent on the face of the record nor there were any sufficient reason warranting review within the ambit of section 8 of the Act.

12. The grounds on which the private respondents sought review related to the merits of the case and the same could not be permitted to be re‑opened by the learned Member, Board of Revenue, in the purported exercise of his power under section 8 of the Act. In view of the above, the impugned order of the learned Member, Board of Revenue, dated 26‑2‑1991 is hereby declared as without lawful authority and of no legal effect. Any action or proceeding taken in pursuance thereof is without lawful authority and of no legal effect. The result is that the, order dated 28‑8‑1990 of the learned Member, Board of Revenue shall hold the field with all consequential benefits. The writ petition is accepted with costs. A.A./M‑555/L Petition accepted.