2012 C L C 185
Before Mazhar Alam Khan Miankhel and Azmat Ullah Malik, JJ
Mian MUHAMMAD ASLAM SHAH and others----Petitioners
ZAHIR SHAH and others----Respondents
Writ Petition No.2757 of 2009, decided on 13th September, 2011.
----Jurisdiction of review---Scope---Powers of review, if not available to a court or authority under relevant law, could not be exercised as an inherent power under law --- Principle stated.
Review is the jurisdiction to be exercised by a court/authority, if the powers of review are available to such court/authority under the relevant law, which cannot be exercised as an inherent power under the law. Once a court/ authority exercises its jurisdiction, then that becomes functus officio and cannot re-open and re-enter into the matter. The scope of review is very limited in nature; it is not like an appeal. By exercising the jurisdiction under review, matters already discussed cannot be re-considered and similarly entire case cannot be reopened in review. It is only possible when there is discovery of new and important matter or evidence which after the exercise of due diligence was not in the knowledge of the party asking for review or some mistake or error apparent on the record of the case. Any such order lacking the above requirements would be nothing, but an order unlawful and without jurisdiction.
Unless there is any new and important matter or evidence, which was not within knowledge of the party or the same could not be produced at the relevant time when the order was being made or any other mistake or error apparent on the face of the record, review of earlier order cannot be made.
(b) West Pakistan Land Revenue Act (XVII of 1967)---
----S. 163---West Pakistan Board of Revenue Act (XI of 1957), S.8---Powers of Board of Review to review its own order---Scope---No such powers available to Board of Revenue under S.163 of West Pakistan Land Revenue Act, 1967 except S.8 of West Pakistan Board of Revenue Act, 1957 whereunder Board could review its own order/decree after giving notice to other side---Jurisdiction of review provided under S.8 of West Pakistan Board of Revenue Act, 1957 was of limited scope and could not allow the Board to act arbitrarily by flouting provisions of law---Principles.
Mian Mohibullah Kakakhel for Petitioners.
Shakeel Ahmad for Respondents.
Date of hearing: 13th September, 2011.
MAZHAR ALAM KHAN MIANKHEL, J.--- The petitioner has questioned the order dated 6-8-2009 of respondent No.12 (Member Board of Revenue) being illegal, unlawful and without jurisdiction, having no lawful authority by seeking restoration of the original order dated 9-4-2009.
The learned counsel for the petitioner contended that the impugned order whereby respondent No.12 reviewed his earlier order dated 9-4-2008 is entirely against the law and thus the impugned order is illegal, unlawful and without jurisdiction. He next contended that the impugned order was passed by the Member Board of Revenue in proceedings of partition under the Land Revenue Act, 1967 and under section 163 of the Act he had no authority to review his own order. He then requested for setting aside of the impugned order being illegal and unlawful.
As against that, the learned counsel for the respondents submitted that the Revenue Board has got the powers of review under section 8 of the Board of Revenue Act (Act XI of 1957), so the order passed was within his competence and requires no interference, as, under the partial partition cannot be made.
Learned counsel for the parties were heard and record of the case was perused.
Perusal of the record would reveal that present petitioner had applied for partition of some of the joint khatas wherein he was not in possession of the property to the extent of his entitlement. The respondents had participated in the partition proceedings and contested the same. During the proceedings, present petitioner prayed for seeking partition of other remaining joint khatas, which was allowed on 22-1-2004 whereas the respondents on the same date filed a separate application for dismissal of partition application being partial in nature. The Revenue Officer vide his order dated 12-2-2004 allowed the said application by passing an order of dismissal of partition application. The appeal of present petitioner was allowed by District Officer (Revenue and Estate)/ Collector, Mardan vide his order dated 7-6-2004 by setting aside the order of dismissal of partition application dated 12-2-2004. This order between the parties attained finality.
Fresh partition proceedings were initiated by including the remaining left over khatas. The respondents accordingly participated in the same but they absented themselves on 17-8-2005 and were placed ex parte. Since the entire procedural formalities were complete, the Revenue Officer on the same date passed partition order and on the basis of this order, partition Mutation No.1691 was attested on 23-9-2005. This order of partition was maintained up to the Member Board of Revenue, who vide his order dated 27-9-2007 whereby the second revision of respondents was dismissed and thereby this order of partition attained finality between the parties being the highest forum in the revenue hierarchy.
After conclusion of the partition proceedings, the Revenue Officer, during the execution, vide his order dated 18-12-2007 on the application of one Nazir Ahmad reopened the matter. Appeal of the present petition was dismissed by the District Officer Revenue and Estate/Collector but the Revenue Appellate Court-V, Mardan vide its order dated 27-10-2008 allowed the revision and set aside the order of Revenue Officer and similarly the Member Board of Revenue also dismissed the revision of respondents vide his order dated 9-4-2009 by maintaining the order of Revenue Appellate Court by observing:---
"From perusal of the file it would be evident that the petitioners are using delaying tactics to prolong the execution proceedings on one pretext or other and thus the case is lingering on since 1998. I, therefore see no illegality/irregularity in the impugned order dated 27-10-2008 passed by the Presiding Officer, Revenue Appellate Court, No.V, Mardan, to reverse or modify the same, hence maintained. The revision petitions having no force are hereby dismissed. Parties to bear their own cost."
A look at the above order would reveal that the case of the parties was considered by the Member, Board of Revenue vide order dated 9-4-2009 as well as by the Revenue Appellate Court vide its order dated 27-10-2008 on merits. Now the question would be whether exercise of jurisdiction by the Member, Board of Revenue to review its earlier order could be said to have been exercised in accordance with law.
No doubt, review is the jurisdiction to be exercised by a Court/authority if the powers of review are available to such Court/authority under the relevant law, which cannot be exercised as an inherent power under the law. Once a Court/authority exercises its jurisdiction then that becomes functus officio, and cannot reopen and re-enter into the matter, The scope of review is very limited in nature; it is not like an appeal. By exercising the jurisdiction under review, matters already discussed cannot be reconsidered and similarly entire case cannot be reopened in review. It is only possible when there is discovery of new and important matter or evidence which after the exercise of due diligence was not in the knowledge of the party asking for review or some mistake or error apparent on the record of the case. Any such order lacking the above requirements would be nothing but an order unlawful and without jurisdiction. The perusal of the impugned order in review, if seen in the above context, would reveal that the question of partial partition was decided between the parties in earlier round of litigation and the same attained finality between them. After inclusion of remaining left over property, fresh partition proceedings between the parties were initiated, which also came to a logical end by way of attestation of partition mutations. Reopening of the entire matter of partition by the Revenue Officer through his order dated 18-12-2007 in execution when the same had attained finality between the parties was an order having no lawful authority and sans jurisdiction but the said illegality and unlawful exercise of jurisdiction by the Revenue Officer was set at naught by the Revenue Appellate Court vide its order dated 27-10-2008 by fully elaborating the merits of the case and the same then was upheld by the Member Board of Revenue vide his earlier order dated 9-4-2009. So, unless there was any new and important matter or evidence, which was not within the knowledge of the party or the same could not be produced at the relevant time when the order was being made or any other mistake or error apparent on the face of the record, review of earlier order cannot be made.
Similarly, the order in question is an order reopening the controversy once settled between the parties and attained finality. No doubt that partition proceedings were conducted under the Land Revenue Act, 1967 and section 163 of the same would only allow a Commissioner, Collector or an Assistant Collector to review any order on its own motion or on the application of any party and no such power in the said section has been given to Revenue Board for review of its own order. But the Board of Revenue acts under the Act XI of 1957, which provides the functions, powers and jurisdiction of the Revenue Board. Section 8 of the Act of 1957 empowers the Board of Revenue to review its own order or decree passed by it but after giving notice to the other side. The jurisdiction of review provided in the above said section is also of very limited scope as discussed above and this never empowers and allows the Revenue Board to act arbitrarily by flouting the provisions of law. We are sorry to observe that the argument of the learned counsel for the petitioner in this regard was not tenable under the law.
As a sequel to what has been discussed above, we are of the considered view that the impugned order passed by the respondent No.2 is illegal, unlawful and without jurisdiction, having no lawful authority and thus the same is set aside and original order dated 9-4-2009 of the Member Board of Revenue is restored.
S.A.K./311/P Petition accepted.