2017 PLP 187 (CLCN)

SAJJAD ALI SHAH, J.

Through instant petition, the petitioners have impugned Order dated 18th May 2012 passed by the Deputy Commissioner Malir Karachi in Appeal No.01 of 2012 whereby the Deputy Commissioner while exercising powers under Section 21 of General Clauses Act had recalled its earlier order which was passed on 05.03.2012 under section 161 of the Sindh Land Revenue Act, 1967 and while recalling such order directed the Assistant Commissioner and Mukhtiarkar Malir to restore Entry No.1735 dated 28.04.1977 of VF-VII Deh Malh and cancelled all further proceedings in respect of Foti Khata of Mst. Sukh Bai. Counsel for the Petitioners contends that Mst. Sukh Bai wife of Muhammad Ismail who was having shareholding in Survey numbers 524 to 526 to the extent of 0-1-2 in Deh Malh, Gadap Town, Karachi, after her death was survived by her son Moosa son of Muhammad Ismail as her only legal heir/son and Moosa was survived by his two sons i.e. Petitioner No.1 and Gul Muhammad i.e. predecessor-in-interest by Petitioners Nos.2 to

6. Per counsel after demise of Mst. Sukh Bai her Foti Khata was not mutated in Jalsa-e-Aam but it was secretly changed without observing legal formalities by placing Entry No.1735 dated 28.04.1977 reflecting that Sukh Bai had gifted her share in favour of her brother Umer son of Muhammad Yousuf. Per counsel, when the petitioner came to know about such illegality they filed Appeal No.01 of 2011 before the Deputy Commissioner, Karachi placing their grievance and the learned Deputy Commissioner issued notices to the Respondents and called report from Mukhtiarkar. Mukhtiarkar submitted the report which is reproduced herein below:- "That Supervising Tapedar of Tapo Dursano Channo, was directed to verify the record of rights and furnished the detailed report into the matter, who after verifying the record of rights has reported that Survey Nos. 524, 525 and 526 of Deh Malh is entered in the name of Mst. Sukh Bai D/o Haji Yousuf to the extent of 0-1-2 share in the year 1932-33 and entry to this effect is available in torn condition. He has further reported that as per orders of the Deputy Commissioner Karachi vide Order No.Rev/1021/77 dated 15.04.1977 new entry has been mutated vide entry No.1735 dated 28.04.1977 in record of rights. Supervising Tapedar Darsano Channo has also reported that according to entry No.2420 dated 24.11.2003 Foti Khata of Mst. Bachan wife of Yousuf had been changed in favour of Umer son of Yousuf to the extent of 0-0-4 share. According to entry No.67 dated 05.08.2011 Foti Khata Badal of Umer son of Yousuf has been effected to the extent of 0-1-6 share in favour of his legal heirs namely (1) Faqir Gul Mohammad, (2) Mohammad Yaqoob, (3) Abdul Rasheed all sons of Umer, (4) Mst. Rehmat daughter of Umer, (5) Phapul alias Kaz, Bano daughter of Umer (6) Asmat, (7) Azizan all daughters of Umer and (8) Hakeeman wife of Umer. He has also reported that VF-VII attached with letter referred above has been checked and found that the same is not available in record of rights." Thereafter the Deputy Commissioner after providing opportunity of hearing and on the basis of such competitive report cancelled the entry by holding that gift was managed fraudulently in order to deprive the legal heirs from their legitimate rights of inheritance, consequently while allowing the appeal directed Assistant Commissioner to cancel the impugned entries recording gift and to decide the foti khata of Mst. Sukh Bai afresh according to Muhammadan Law after completion of all codal formalities strictly in accordance with law. It appears that the respondents thereafter moved an application for review of Order dated 05.03.2012 and the Deputy Commissioner without issuing notice to the petitioners after hearing counsel for the respondents while exercising powers under section 21 of the General Clauses Act recalled his earlier order leading to filing of the instant petition. Counsel for the petitioner contended that earlier order of the Deputy Commissioner dated 05.03.2012 was given effect and necessary Mutation in the records of rights was made in favour of the petitioner, therefore, Deputy Commissioner has become functus officio and recalling of order impugned is without lawful authority. It was next contended that the impugned order itself reflected that no notice whatsoever was given by the Deputy Commissioner to the petitioner on the application filed by the respondents for recalling the earlier order therefore, the order impugned also violates the principles of natural justice and audi alteram partem. Per counsel, the predecessor-in-interest of respondent tried to usurp the land of the petitioner on the basis of so-called gift allegedly made by the predecessor-in-interest of the petitioners i.e. Mst. Sukh Bai in the year 1932-33 which was given effect after 17 years of her death vide Entry No.1735 dated 28.04.1977 which entry was validly and competently cancelled vide first order dated 05.03.2012. In support of his contentions counsel has placed reliance on the judgments of this Court in the case of (1) Ziauddin v. Pakistan Defence Housing Authority (1999 CLC 723), (2) Kamil Khan and another v. Government of Sindh and others (PLD 1998 Karachi 28), (3) Illahi Bakhsh and another v. Mst. Maliha and others (2007 CLC 1902) (4) Muhammad Ilyas Khan Darakhshan v. Muhammad and others (1985 CLC 964) and of the apex Court in the case of (5) M/s. Army Welfare Sugar Mills Limited and others v. Federation of Pakistan and others (1992 SCMR 1652). On the other hand, counsel for the respondents Nos.3 to 20 contended that order dated 05.03.2012 was passed ex parte without reflecting respondents' point of view, leaving no option for the respondents but to seek its review and to point out illegality committed by the Deputy Commissioner while recalling Entry No.1735 dated 28.4.1977. It was contended that Mst. Sukh Bai before her marriage in the year 1932-33 had gifted her share in the subject property in favour of his brother Umer son of Haji Yousuf and Entry No.688 was kept in the record of rights, however, since it was in torn condition, the Deputy Commissioner vide Order No. Rev/1021/77 dated 05.04.1977 restored the entry by re-writing and mutated the said property, per Entry No.1735 dated 28.04.1977. According to the counsel the Petitioner did not object to the said entry for three decades and all of a sudden filed appeal and obtained ex parte Order dated 05.03.2012 which is bad in law and was rightly recalled. Per counsel, the powers exercised by the Deputy Commissioner under section 21 of the General Clauses Act were very apt and in accordance with law. He, therefore, prays for the dismissal of the instant petition. Mr. Ahmed Pirzada, counsel appearing for the Board of Revenue, did not support the impugned order by contending that section 163 of the Sindh Land Revenue Act, 1967 which provided powers of review was omitted by the Sindh Land Revenue (Amendment) Ordinance, 1980, therefore, the Deputy Commissioner had no authority to recall his earlier order. Mr. Pirzada fairly conceded that even if this Court holds that notwithstanding the fact that the powers to review its order was omitted by the Sindh Land Revenue (Amendment) Ordinance, 1980, still the Deputy Commissioner could exercise powers under General Clauses Act, still the order is bad, as it has been passed without affording an opportunity of hearing to the petitioner. We have heard the learned counsel for the respective parties and perused the record of the case as well as case-laws cited at bar. Without commenting on the legality of the Order dated 05.03.2012, we have found from the record that this order was not only communicated to the parties but was also implemented as the petitioners have filed copies of Form-VII reflecting that after cancelling Entry No.1735 dated 28.04.1977, on the strength of Order dated 01.03.2012 the property was duly mutated in the name of Petitioners as legal heirs of Mst. Sukh Bai. On the other hand, perusal of Order impugned reflects that the Respondents, after the Order dated 05.03.2012 was passed, filed an application on humanitarian grounds for recalling/review of earlier Order dated 05.03.2012 on the ground that no opportunity of hearing was given to them and the Deputy Commissioner not only entertained the said application but without issuing any notice to the Petitioners in whose favour Order dated 05.03.2012 was passed and was even implemented on 19.04.2012 recalled its earlier order. The order on the face of it appears to be illegal as neither any notices on the application of the Respondent seeking review of Order dated 05.03.2012 were issued nor any opportunity of hearing to the Petitioners was allowed. Reference can be made to the case of Illahi Bakhsh (supra) referred to by the counsel for the Petitioner. Beside, even if the Deputy Commissioner who passed the impugned Order dated 18.05.2012 had supposedly competently resorted to the provisions of Section 21 of the General Clauses Act, by applying the principle, that an authority competent to make an order has power to undo, even then the order could not have been withdrawn or rescinded as it had taken legal effect and certain rights were created in favour of the Petitioner and the principle of locus poenitentiae would be available as held in the case of Ziauddin (supra). However, we have observed that it is a normal practice in the Revenue Hierarchy that orders passed while exercising powers under Section 161 of the Sindh Land Revenue Act by the officers of Revenue Department are frequently reviewed, modified, rescinded while exercising powers under section 21 of the General Clauses Act, notwithstanding, the fact that the provincial legislature has omitted section 163 of the Sindh Land Revenue Act which empowered the Revenue Officers to review their orders. The question, which in our opinion needs to be decided is as to whether the Revenue Officers while exercising powers under section 161 of the Act 1967 are discharging judicial or quasi judicial functions and if yes as to whether they can recall, review or rescind their orders while resorting to the provision of section 21 of the General Clauses Act. It has not been controverted nor it could be that the officers in hierarchy of board of revenue while discharging their functions under section 161 of the Sindh Land Revenue Act, 1967, adjudicate upon and determine the rights and liabilities of the parties, whether such rights or liabilities be the creation of common law or statute, and in the light of the judgment the apex Court referred to herein below, it can safely be held that they perform judicial functions while adjudicating upon the rights and liabilities of the parties. The Hon'ble Supreme Court in the case of Muhammad Saeed and 4 others v. Election Petitions Tribunals, West Pakistan and others [PLD 1957 Supreme Court (Pak.) 91] after observing that the definition of "judicial proceeding" in section 4(m) of the Code of Criminal Procedure which only applies to the proceedings under that Code, no statutory definition of that expression or of judicial function is to be found in Pakistan Law, defined judicial proceedings as follows:- "Generally speaking a person performs judicial functions if he is enjoined by the law to adjudicate upon and determine, as between the parties, some controversy relating to the existence or non-existence of a right or liability whether such right or liability be the creation of common law or statute, provided the right or liability is actionable either under the general law or special law, and the duty to determine the controversy is derived from the State and rests on the ascertainment, with notice and opportunity to parties, of the facts and the law applicable to them and not on policy, expediency or some other extraneous consideration." The second question obviously would be as to whether the order passed by a judicial/qausi-judicial authority could be amended, varied, rescinded or recalled while exercising powers under section 21 of the General Clauses Act. This question had come up before various benches of different provinces who were of the view that judicial or qausi-judicial authority could not resort to the provisions of section 21 of the General Clauses Act for reviewing, modifying or rescinding its order. In the case of Ghulam Dastagir v. Muhammad Yar and others (PLD 1986 Quetta 19) a Division Bench of the Baluchistan High Court in para-8 held that the provisions of section 21 of the General Clauses Act cannot be stretched to an extent to apply to the judicial orders, the relevant portion of the judgment reads as under:- "There cannot be any cavil to the proposition that under section 21 of the General Clauses Act, 1897 and section 20 of the West Pakistan General Clauses Act, 1956 a power to issue notifications, orders, rules or bye-laws is conferred by any Act or regulations, then this power includes a power exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notification, orders, rules or bye-laws so issued. However, we are not inclined to agree with the submission of the learned counsel for the private respondents that the above order dated 1st January, 1983 passed by the Assistant Commissioner can be placed at par with an order referred to in the above two sections of the General Clauses Acts. In our view, the above order dated 1st January, 1983 was a judicial order within the compass of Ordinance I of 1968." Likewise in the case of Muhammad Ibrahim and 3 others v. Municipal Committee, Chiniot through its Chairman (1990 ALD 655) a learned Single Judge of the Lahore High Court also took the view that section 21 of the General Clauses Act could not be pressed into service in relation to orders passed in a judicial capacity. It was held that previous orders were passed by Commissioner in appeal on judicial side, therefore, could not be reviewed by him as there was no power of review conferred on Commissioner under Municipal Administration Ordinance, 1960. Provisions of section 21, General Clauses Act, 1897 could not be pressed into service because of previous order having been passed on judicial side. In the case of Sheikh Liaquat Hussain v. The State (1997 PCr.LJ 61) again this Court while considering the application of section 21 of the General Clauses Act to judicial proceedings held as follows:- "In the first instance the crucial question is whether the learned Magistrate was legally competent to review/modify his order dated 19-6-1996 which was subject-matter of Criminal Revision No.12 of 1996, pending on the file of learned IInd Additional Sessions Judge, Karachi Central by passing the order, dated 23-6-1996 under section 21 of the General Clauses Act. It will at this stage, be useful to reproduce section 21 of the said Act:-- "

21. Power to make, to include power to add to, amend, vary or rescind, orders, rules or bye-laws.

Where, by any Central Act or Regulation, a power to issue notifications, orders, rules, or bye-laws is conferred, then that power includes a power exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued." The word "orders" has been used along with the words "notifications, rules, and bye-laws", and will thus be interpreted ejusdem generis, meaning thereby that it will be taken to be in the sense of an order issued by the Legislature or the Executive. Moreover, as a rule of construction the words used in a statute must be construed according to their context and as such other provisions in that statute would be very much relevant. Section 21 should, therefore, be read in the light of sections 14 to 20 and sections 22 to 24 and then it will be clear that the word "order" in that section refers to Legislative or Executive orders and not a judicial order. I am fortified in my opinion by a Full Bench decision of Nagpur High Court reported as Venkatesh Yashwant Deshpande v. Emperor AIR 1938 Nag.

513. I will reproduce with advantage the following observations in this judgment:

"The meaning of the word 'orders' become clear when section 21 is read in conjunction with section

24. These considerations make it clear that the word 'order' used in section 21, General Clauses Act, is a legislative or statutory order, that is an order having the force of law. The order passed under section 401 granting remission of punishment falls in a category different from the order contemplated in section 21, General Clauses Act. The applicability of that section is, therefore, highly doubtful." Again in the case of Public Works Department, Azad Government of State of Jammu and Kashmir v. Azad Government of the State of Jammu and Kashmir [PLD 2007 High Court (AJ&K) 7], it was held that order passed by a special tribunal or a qausi-judicial authority not vested with the powers to review its own decision cannot be modified by exercising power under section 21 of the General Clauses Act and the proper remedy would be to move the higher forum for setting aside the order or to institute some other appropriate legal proceedings. In this context it is also important to observe that judicial or quasi-judicial tribunals are not empowered to review their orders in absence of a provision in the relevant statute. Reference can be made to the case of Muhammad Sharif v. Sultan Humayun (2003 SCMR 1221) where the apex Court has in similar circumstances held "Needless to say that the right of a party to claim a review of final judgment or order of a Court judicial, quasi-judicial tribunal in a substantive matter is not available in the absence of a provision in the relevant statute". In the case of Hussain Bakhsh v. Settlement Commissioner (PLD 1970 SC 1) the Supreme Court while examining the question of competency of a review petition held that "The right to review to any decision of a Court of law, like the right of appeal is a substantive right and not a mere matter of procedure". Likewise in the case of Muzaffar Ali v. Muhammad Shafi (PLD 1981 SC 94) it was held that "Ordinance neither expressly nor by reference bestows any power of review and the High Court has no jurisdiction to review its order passed in a second appeal under the West Pakistan Urban Rent Restriction Ordinance, 1959". However, we would like to clarify here that review is a step towards correction of a decision and does not include correction of arithmetical or typographical error which every Court or tribunal is entitled as of right to do even without having been, conferred the power of review. It is also important to mention that the Revenue Courts prior to 1980 possessed the power to review their own orders but the provincial legislature deliberately through Sindh Land Revenue (Amendment) Ordinance, 1980 omitted Section 163 of the Sindh Land Revenue Act, 1967 which empowered the Revenue Courts to review their orders, however, despite such deliberate omission, resorting to the provisions of section 21 of the General Clauses Act to review, recall and rescind its orders not only amounts to abusing the authority but also defeating the purposeful amendment introduced by the provincial legislature. In view of what has been discussed above, we while setting aside the Order dated 18.05.2012 declare that the Revenue Court or the Officer exercising powers under the Sindh Land Revenue Act, 1967 while discharging their judicial, quasi-judicial function specially while exercising powers under section 161 of the Act 1967 neither have the power to recall, review or rescind their orders nor they can resort to the provisions of section 21 of the General Clauses Act. A copy of this order be send to the Chairman, Provincial Board of Revenue for circulating amongst the Revenue Officers and to ensure its strict compliance in future. These are the reasons for the short order passed by us on 19.11.2014 whereby we had allowed this petition as prayed. ZC/M-9/Sindh Petition allowed.