JUDGMENT SHEET

HIGH COURT OF SINDH, BENCH AT SUKKUR

 

Before                            Mr. Justice Syed HasanAzhar Rizvi

                                                Mr. Justice Muhammad Humayon Khan

 

C.P. No. D- 2392 of 2013

 

PETITIONERS

:

Muhammad Bachaland others through Mr. T. David Lawrence, Advocate

 

RESPONDENTSNOS.1TO 6:

:

Province of Sindh and others through Mr. Ahmed Ali Shahani, AAG

 

RESPONDENT NO.7

 

:

 

Muhammad Ali (not represented)

 

RESPONDENTNO.8

 

:

 

Parvez Ahmed through M/s. Mukesh Kumar G. Karara and Sajjad Muhammad Zangejo Advocates.

 

DATE OF HEARING

:

22.02.2017

DATE OF JUDGMENT

:

29.03.2017

 

JUDGMENT

 

Muhammad Humayon Khan, J: This is a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

 

2)      The relevant facts of the petition are that 11.00 acres of agricultural land from Survey No. 278 of DehMandoDero was granted to respondent No.7 on harap condition in the year 1992-93 by the Granting Authority in violation of Land GrantPolicy as the respondent No.7 was not hari at the time of grant but serving in Police Department as ASI as per Letter dated 26.07.2011 issued by SSP Sukkur. The revenue authorities illegally and unlawfully accepted the revenue installments in lump sum and issued TO Form in favour of the respondent No.7, who later on sold out the said land to the respondent No.8 in collusion with the revenue authorities though the said land has been under peaceful possession of the petitioners since their forefathers. Upon receipt of various complaints, the then EDO Sukkur issued show-cause Notice dated 28.11.2000 to the respondent No.7 upon the instructions of Member Board of Revenue but later on vacated the said show-cause notice by Order dated 04.12.2004. Against this Order, the petitioner filed appeal before Member (R & S) Board of Revenue Sindh, which was allowed by Order dated 14.12.2009. Subsequently, respondent No.8 filed Const. Petition No.D-343 of 2010 in this Court, which was allowed by Order dated 07.10.2010 with the following observations:-

“In the circumstances we set aside the order of Member Board of Revenue dated 14-12-2009. The private respondents shall first implead the petitioner as a party in the proceedings and thereafter, after hearing the petitioner, the Member Board of Revenue shall pass the appropriate order afresh in accordance with law.”

 

In compliance of this order, respondent No.8 was impleaded in the said appeal before the Member Board of Revenue, who after hearing all the parties allowed the said appeal by Order dated 02.01.2012 with the following observations:-

“Accordingly, the grant of respondents is cancelled with the directions that the land be disposed of afresh in accordance with land grant policy. The petitioners are at the liberty to apply for grant of land as and when the land is disposed off. Consequently the revision is upheld to the above extent.”

Against this Order, the respondent No.8 filed review application before the Member (PS&EP) Board of Revenue, for review of Order dated 02.01.2012, which was allowed by Order dated 20.03.2013. Against this order, the petitioners have filed this petition and prayed for the following reliefs:-

(a)         To declare the order passed by Member Board of Revenue (Judicial-II), Sindh in Case No.S-Review/ 16/2012, dated 20.05.2013 as illegal, void and without authority, and may kindly be pleased to set-aside the same.

 

(b)         To declare the act of Respondent No.2 i.e. Member Board of Revenue (Judicial-II), as against the law, equity and natural justice.

 

(c)         To direct the Revenue Officers to make the above said land in the schedule for fresh grant in accordance with law as per Land Grant Policy in the light of order passed by the Member of Board of Revenue (RS & EP), dated 02.01.2012.

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(d)         To direct the Respondents not to dispossess the petitioners from peaceful possession of the above said disputed land themselves, through their representatives, agents, servants etc. till final disposal of this petition.

 

3)      It is pertinent to mention here that none of the respondents except respondent No.6 filed parawise comments or counter affidavits in the instant petition to deny the facts pleaded in the memo of petition. However, the respondent No.6 filed parawise comments, wherein, it is stated that as per Entry No. 469 dated 20.03.2006 the said land stands transferred in favour of the respondent No.7 on issuance of T.O. Form by the competent authority, which was later on purchased by the respondent No.8 by registered Sale Deed No.1559 dated 20.07.2006 vide Entry No.489 dated 02.08.2006.

 

4)      The respondents Nos. 7 and 8, who are the main contesting parties, have not filed counter affidavit denying the allegations made against them in the memo of petition which are of serious nature. It is well settled law that where a party who is required to deny a fact fails to deny the same, such fact is deemed to have been admitted. Reliance can be placed upon the cases of (i) Muhammad RafiqGazdar Vs. Additional Commissioner, Karachi and three others (PLD 1972 Karachi 119) and (ii) Muhammad Uris  Vs. Government of Sindh through Secretary Revenue Department Board of Revenue, Hyderabad and 2 others (1998 CLC (Karachi) 1359).

 

5)      We have heard the learned counsel for the petitioners and respondent No.8as well as learned AAG and perused the material available on record.

 

6)      The learned counsel for the petitioners contended that the impugned Order dated 20.05.2013 on review application is without jurisdiction on the ground that it is in violation of Section 8 of the Sindh Board of Revenue Act, 1957. He further contended that the Order dated 02.01.2012 was not passed by the Presiding Officer, who decided the review application and therefore the impugned Order is without lawful authority.

7)      On the other hand, the learned counsel for the respondent No.8 supported the impugned Order and argued that the said order is within the scope of review and therefore cannot be set-aside in constitutional jurisdiction by this Court.

 

8)      The learned AAG supported the arguments advanced by the learned counsel for the petitioners.

 

9)      The only point for consideration in this petition is whether the impugned Order dated 20.05.2013 passed by the Member (Judicial-II) Board of Revenue Sindh, comes within the ambit of Section 8 of the Sindh Board of Revenue Act, 1957.

 

10)    To decide this legal point, it is necessary to reproduce the relevant part of the impugned Order which reads as under:-

“I have gone through the details of the case and perused the papers available in the file as well as I also consider the arguments of the advocate of the parties. I am of the opinion that the order of Member of (RS &EP) Board of Revenue Sindh is not in accordance to law. He has not considered the merits and factual legal aspects of the case and he has passed the order. Further it has been noted that he has wrongly cancelled the land of petitioner who is lawful purchaser of the land as well as in cultivating possession of the land. I have examined the case minutely and find that the petitioners even do not have locus standi and they are the resident of other locality. On the above stated grounds and facts, I hereby set-aside the order of Member (RS & EP) Board of Revenue Sindh dated 02.01.2012 such and allow the review petition accordingly.”

 

11)    The scope of review under Section 8 of the Sindh Board of Revenue Act, 1957 is confined to the following matters:-

i)             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 order was made;

ii)            Mistake or error apparent on the face of the record;

iii)          Any other sufficient reason.

 

 

12)    The following principles of law have been settled to decide the review application:-

i)             Every order or judgment pronounced by the Court is presumed to be a considered, solemn and final decision on all points arising out of the case;

ii)            If the Court has taken a conscious and deliberate decision on a point of fact or law, a review petition will not lie;

iii)          The fact the view canvassed in the review petition is more reasonable than the view found favour with the Court in the judgment/order of which review is sought, is not sufficient to sustain a review petition;

iv)          Simpliciter the factum that a material irregularity was committed would not be sufficient to review a judgment/order but if the material irregularity was of such a nature, as to convert the process from being one in aid of justice to a process of injustice, a review petition would lie;

v)           Simpliciter the fact that the conclusion recorded in a judgment/order is wrong does not warrant review of the same but if the conclusion is wrong because something obvious has been overlooked by the Court or it has  failed to consider some important aspect of the matter, a review petition would lie;

vi)          If the error in the judgment/order is so manifest and is floating on the surface, which is so material that had the same been noticed prior to the rendering of the judgment the conclusion would have been different, in such a case a review petition would lie;

vii)        The power of review cannot be invoked as a routine matter to re-hear a case which has already been decided;

viii)       Review is not a re-hearing of the main case and hence re-arguing a case fell outside the scope of review;

ix)          The scope of review is very limited and it cannot be used as a substitute for a regular appeal.

 

Reliance can be placed upon the following case-laws:-

 

i)             Abdul Ghaffar-Abdul Rehman and others Vs. Asghar Ali and others (PLD 1998 Supreme Court 363);

ii)           Muhammad Ramzan Vs. Lahore Development Authority, Lahore (2002 SCMR 1336);

iii)         Abdul Rauf and others Vs. Qutab Khan and others (2006 SCMR 1574);

iv)         Malik Muhammad MumtazQadri Vs. The State (PLD 2016 Supreme Court 146);

v)           Government of Punjab and others Vs. AamirZahoor-ul-Haq and others (PLD 2016 Supreme Court 421);

vi)         Dr. Masroor Ahmed Zai Vs. Province of Sindh through Chief Secretary and 2 others (2016 CLC (Sindh) 1861);

vii)        MaqboolHussain alias JamalaDogar Vs. Federation of Pakistan and others (2016 CLC (Lahore) 219);

viii)      NazakatHussain Shah and 5 others Vs. Muhammad Ali and 3 others (2016 MLD (Lahore) 1651);

ix)         Shabbir Ahmad Zaffar Vs. Member Board of Revenue (Consolidation) and others (2016 CLC (Lahore) 1655);

x)           Mst. Rani Fareeda Vs. Tahir Saleem (2016 MLD (Lahore) 1771);

xi)         Mst. GulSafiaBibi and another Vs. Al-Haj Muhammad Nazir and 2 others (2016 CLC (Peshawar) 10).

 

13)    In the case of Engr. Inam Ahmad Osmani Vs. Federation of Pakistan and others reported in 2013 MLD (Sindh) 1132,the Division Bench of this Court in which one of us my learned brother Syed HasanAzhar Rizvi, J was Member of the Bench and author of the Judgment, has held that:-

“It may be observed that the scope of a review is very limited. It cannot be used as a substitute for a regular appeal, which is competent on a question of facts and law. The mere fact that a Court has taken an erroneous view on the question of fact or on the question of law would not attract the review jurisdiction, which grounds are eminently amenable in an appeal. No doubt, the grant of review petition is a discretionary matter and the Court is not bound to grant the same in every case, but at the same time it is a well-settled principle of law that every judicial discretion is to be exercised reasonably on sound basis and not arbitrarily or capriciously and capable of correction by a Court of appeal. In the instant case no ground exists to review the order dated 26-7-2012. Resultantly, the review application (C.M.A. No.16234 of 2012) being misconceived and frivolous is hereby dismissed.”

 

14)    In view of the settled law, we came to the conclusion that the impugned Order dated 20.05.2013 being ex-facie beyond the scope of review, is without jurisdiction and nullity in law. Consequently, we allow the instant petition as prayed and maintain Order dated 02.01.2012 with the directions to the Revenue Authorities to cancel the illegal grant of land in favour of the respondent No.7 and subsequent sale transaction in favour of the respondent No.8 and then dispose off the subject land in view of the Land Grant Policy after compliance of all the requisite formalities strictly in accordance with law.

 

JUDGE

 

JUDGE