Judgment
Sheet
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
C. P. No. D – 415 of
2018
M/s Sohail Ahmed Khoso and Ali Akbar Shar, Advocates for the
petitioners.
Syed Jaffar Ali Shah, Advocate for respondents No.11 to 17 and 19
to 20.
Mr. Ahmed Ali Shahani, Assistant Advocate General Sindh.
Date
of hearing: 10.10.2018.
Date
of judgment: 27.11.2018.
J U D G M E N T
MUHAMMAD SHAFI SIDDIQUI, J. – Petitioners have impugned the order
dated 20.04.2017 passed by respondent No.7 (Member Board
of Revenue), which was, in fact communicated to the petitioners, as alleged on
09.02.2018.
2. Brief facts are
that the Colonization Officer vide order dated 16.03.1983 ordered for the
disposal of two blocks i.e. 437 and 438 measuring 238 acres. From UA No.437,
some of the deserving haris were given land of 2 acres 20 ghuntas
for five years lease from kharif 1983 to 1984, whereas, request of some
of the haris out of said block was not considered on the reason
mentioned therein. As regards, block 438 haris and other residents of deh
objected to its disposal and requested for the extension of the village and
graveyard, and were advised to approach the Deputy Commissioner accordingly.
The order was impugned by the aggrieved persons before Executive District
Officer (Revenue), Khairpur, who on consideration of the facts, set aside the
order of the Colonization Officer that relates to subsequent grant of the land
dated 28.06.1997. The Executive District Officer passed the order on
22.01.2003. Aggrieved of the order of the resumption of land, one set of
applicants filed Case No. SROA-27 of 2003 before Board of Revenue Sindh.
While this appeal was pending, the other set of applicants, who were aggrieved
of the order of the Executive District Officer, filed Appeals No. SROA-37 of 2003
to 42 of 2003. Though the earlier appeal before the Member Board of Revenue was
prior in time, the instant appeals (06 appeals) were disposed of whereby the
order of the Executive District Officer dated 22.01.2003 was maintained. The
Member Board of Revenue maintained the order of the Executive District Officer
by its order dated 25.05.2006. The respondents, being aggrieved, invoked the
jurisdiction of the Senior Civil Judge by filing Suit No.17 of 2006 challenging
the order of the Board of Revenue dated 25.05.2006. The matter proceeded and
after recording of evidence, the suit was dismissed by order dated 17.08.2010,
and the order of the Member Board of Revenue was maintained. The respondents
again aggrieved of the judgment and decree, whereby suit was dismissed,
challenged the same before the Appellate Court in Civil Appeal No.145 of 2010,
which, at present, is pending adjudication. During pendency of this appeal,
some of the appellants, who filed an earlier appeal before the Board of
Revenue, as referred above as Case No. SROA-27 of 2003, then by concealment of
facts to the extent of dismissal of the suit, were able to obtain the order
whereby, in fact the order of the Executive District Officer dated 22.01.2003
was done away.
3. The petitioners as
such impugned this order of 20.04.2017, which is shown in the prayer clause as
an order dated 09.02.2018, is challenged. Main contention of the learned
counsel for the petitioners was that the Member Board of Revenue had already
exercised his jurisdiction by maintaining the order of the Executive District
Officer dated 22.01.2003, hence, there was no justification or occasion to
reconsider the case in another appeal which was pending. It is contended that
by virtue of an order of the Member Board of Revenue dated 25.05.2006, the
appeal bearing Case No. SROA-27 of 2003 has virtually become infructuous as
substantial rights of the parties have already been determined, and any
subsequent decision by the same forum is res judicata.
4. Learned counsel
for the respondents, on the other hand, submits that the order dated 25.05.2006
was not passed by the Member Board of Revenue and, in fact it was Reform Wing
and Special Cell and, hence, it cannot be said the jurisdiction exercised
as of the Member Board of Revenue. Learned counsel further argued that the
respondents were not party to the proceedings in earlier appeal before Member
Board of Revenue (Reform Wing and Special Cell), hence, the appellants were
well within their rights to challenge the order of the Executive District
Officer dated 22.01.2003.
5. We have heard the
learned counsel and perused the material available on record. The subject
matter of this petition, in fact are two blocks of land which are defined as UA
No.437 and 438 measuring 238 acres. A number of haris exhausted the
remedies available to them under the Colonization Act before the Colonization
Officer to whom certain land was granted and some of the haris were
refused. By virtue of this order, it is only the subject land that was
taken into consideration. The aggrieved party, who were aggrieved of the order
of the Colonization Officer, invoked the jurisdiction of the Executive District
Officer and the orders of the Colonization Officer were set aside. Though it
talks about a specific order dated 28.06.1997, but it appears that there were a
number of cases filed by different haris for their entitlement.
6. In the ultimate
para of the order of the Executive District Officer, the land of the
aforesaid UA No.437 and 438 which are defined as Survey No.437 and 438 in the
order stood/resumed back to the government, and Mukhtiarkar was directed to
immediately take over possession from anyone, if found in possession, and the
District Officer Revenue and Government Land, Khairpur shall decide the land
grant strictly in accordance with the Statement of Conditions of the Land Grant
Policy in vogue, and the Survey Department to carry out demarcation. The said
order was maintained by the Member Board of Revenue vide order dated
25.05.2006. The order of the Executive District Officer, thus, stood merged
with the order of the Member Board of Revenue which is described as Reform Wing
and Special Cell.
7. The objection of
the learned counsel for the respondents that it is not the Member Board of
Revenue, but, in fact a Reform Wing and Special Cell is not tenable since the
order itself disclosed that these appeals were filed under Section 161 of the
Land Revenue Act, 1967, which could only be decided by the Member Board of
Revenue. Moreover, the Land Revenue Act, 1967, does not provide a remedy under
its Section 161, to any other authority than the Member Board of Revenue. Thus,
once the order was passed by the Member Board of Revenue, the same forum cannot
sit over the judgment of his predecessor and ignored the judgment of
25.05.2006, which was brought to his knowledge in terms of para 5 of the
judgment.
8. The subsequent
judgment of the Member Board of Revenue dated 20.04.2017 not only ignored the
order of his predecessor, but also ignored the fact that the suit, challenging
the order of his predecessor, was also dismissed. These orders i.e. order of
the Senior Civil Judge and more importantly the order of the Member Board of
Revenue is implied res judicata as the subject matter of the appeal is
nothing but the land which is defined as UA No.437 and 438. Here, it could
safely be added that legally the litigation (s) are meant to decide
controversies (issues). Where, the controversy / issue is that of general
application and not limited to a party only then any decision thereon by a
competent forum shall be binding upon all, including those who even were
not before the legal forum / authority. A mere change of name of parties would
never be sufficient to open a new round of litigation for the thing
which otherwise stood decided by a lawful forum / authority. If this is
ignored, there shall be no end to litigations and interested shall keep
things hanging merely by substituting parties. An aggrieved however may
get such decision reversed by appeal or reviewed, subject to law, but cannot
seek another order from same forum / authority on plea of his being not a party
to earlier lis. Any departure to such concept, shall result in
frustrating the object of res judicata which otherwise has
application in all matters, including Revenue jurisdiction.
The subsequent order, thus, is nothing but it
amounts to sitting over the order of its predecessor. It may well be added that
legally it is not the ‘person’ who has the authority to decide a lis
but the designata which creates jurisdiction, therefore,
mere change of ‘persons’ would also be no ground to open an already
decided lis. However, to get a glaring error the jurisdiction
of review could well be exercised by same authority / forum but such
jurisdiction (review) cannot be exercised for making a second
opinion. Reference may well be made to case of Iqbal Pervaiz v.
Harsan 2018 SCMR 359 wherein it is observed as:-
8.…. Once a case is finally decided, the Court becomes functus
officio. The only provision which allows to make change in the final order
is the provision of review, scope of which is very limited i.e to correct an
error that is floating on the face of the record. To have a second opinion of
the findings reached in the final order by the same court is not permissible
while exercising power of review. Such power lies solely with the higher forum.
Here, it may also be added that when the law does not permit for
doing a thing yet the same is done then status thereof would be of no legal
value and sanctity. Reference may well be made to the case Govt. of Sindh through Secretary&
DG, Excise & Taxation & another v. Muhammad Shafi & others, PLD
2015 SC 380 wherein it is held as:-
“If an act was done in violation of law,
the same shall have no legal value and sanctity, especially when the
conditions/ circumstances which rendered such an act invalid had been expressly
and positively specified in law.”
Since, prima facie, it is not a matter of dispute that
issue / controversy, involved, was of general application i.e land which
is defined as UA No.437 and 438 therefore, all questions in defence deemed to
have been raised at the time when the Appeals / Cases No. SROA-37 to 42 of 2003
were disposed of, hence, the question of limitation as to maintainability of
the appeal before the Executive District Officer was also not available.
9. Momin Ali, who was
respondent in one of the cases i.e. Case No. SROA-37 of 2003 before the
Member Board of Revenue, was brother of Raja son of Allah Dino Shar, appellant
in case No. 27 of 2003, thus, this is nothing but an attempt to invoke parallel
litigation by different names. Once the parties have invoked a jurisdiction
amongst a number of remedies available then he is precluded by his conduct to
raise any such objection at any other forum or jurisdiction, and all such
objections and challenges, if any, will be deemed to have been raised and
decided against him. After exhausting one of the remedies, such as in this case
before the Civil Court against the order of the Member Board of Revenue, the
respondents who are nothing but real brothers, cannot be allowed to go on
expedition to venture another remedy for the same which though available but
not invoked by them and they cannot be given premium to go on venturing one
remedy after the other. Reliance is placed on the case of Trading
Corporation of Pakistan v. Dewan Sugar Mills Ltd., which is an
unreported case in Civil Petition No. 60-K of 2018.
10. In view of the
above facts and circumstances, it appears that the Member Board of Revenue,
while ignoring the order passed by his predecessor, has travelled beyond its
jurisdiction as he could not have passed any order and to decide the
controversy which has already been decided by his predecessor.
11. The petition as
such is allowed and the impugned order dated 20.04.2017 which is
disclosed as the order dated 09.02.2018 since it was communicated to them on
that day, is set aside. Respondents, however, would be at liberty to
pursue their remedy in an appeal filed by them before District Judge Khairpur
as Civil Appeal No.145 of 2010 since they have opted to invoke the jurisdiction
of Civil Court.
J U D G E
J U D G E