2015 C L C 1084
[Balochistan]
Before Muhammad Kamran Khan Mulakhail, J
MUHAMMAD NAEEM ----Petitioner
versus
SIRAJ -U-DIN and 6 others ----Respondents
Constitutional Petition No.74 of 2015, decided on 27th February, 2015.
West Pakistan Land Revenue Act (XVII of 1967) ---
----Ss. 43, 45 & 53---Constitution of Pakistan, Art.199---Constitutional petition ---Correction of
entries in the Revenue Record by the revenue authorities ---Scope ---Disputed question of fact
with regard to title and inherita nce could not be decided by the revenue officer/revenue court by
way of mutation proceedings which were summary in nature ---Parties ought to have approached
the civil court in such like cases --- Order passed by the Settlement Officer, in the present case,
was not in accordance with the mandatory provisions of S.53 of West Pakistan Land Revenue
Act, 1967---Dispute with regard to entry in the record of rights or in periodical record had to be
taken to the court of civil jurisdiction ---Revenue authorities had no power to correct the
longstanding entries in the revenue record in summary manner ---Variation in a periodical record
could be made with regard to undisputed acquisition of interest on the basis of facts proved or
admitted ---Such corrections were permiss ible with the consent of all the parties or which were
supported by a decree or order binding on parties and not otherwise ---No disputed entry in a
record of rights or periodical record could be altered, either on ground of mistake or a fraud
except on the basis of obvious clerical error or patent facts requiring no elaborate inquiry for
their establishment---Disputed entries having been incorporated in the revenue record could only
be corrected through a decree of the court and not by the order of any of t he officials in the
hierarchy of Revenue Authorities particularly after lapse of more than five decades ---Impugned
orders had been passed in violation of mandatory provision of West Pakistan Land Revenue Act,
1967 which could not sustain in the eye of law ---Present matter was with regard to title of the
parties and validity of mutation entries ---Impugned orders passed by the revenue authorities had
no effect in view of S.53 of West Pakistan Land Revenue Act, 1967 which were set aside ---
Proceedings pending before the Settlement Officer were quashed ---Petitioner might approach the
civil court for redressal of his grievance by filing of a declaratory suit--- Constitutional petition
was dismissed in limine.
Waris Khan v. Col. Humayun Shah PLD 1994 SC 336; Ras ta Mal Khan v. Nabi Sarwar
Khan 1996 SCMR 78 and Nemat Ali v. Malik Habib Ullah 2004 SCMR 604 rel.
Khushnood Ahmed for Petitioner.
Nemo for Respondents.
Date of hearing: 12th February, 2015.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. --- Through this petition, the
following relief has been sought:
"It is, therefore, respectfully prayed the impugned order dated 26 -9-2014 passed by
Additional Commissioner, Quetta Division, Quetta may kindly be declared null, void and of no
legal effect, in the interest of justice, equity and fairplay".
2. The learned counsel for the petitioner contended that the Additional Commissioner,
Quetta wrongly entertained the appeal against the order refusing review of the order passed by
Settlement Officer, Que tta as no appeal is competent against the such order according to law. He
added that this aspect of the matter was also ignored by the Member Board of Revenue which
has caused serious prejudice to the petitioner. He stated that according to section 163(4) of the
Land Revenue Act, 1967 no appeal is provided against an order refusing or confirming of the
previous order. He was of the view that the learned Additional Commissioner, Quetta was not
empowered to remand the case. He stated that in fact according to Rule 163- A of the Land
Revenue Act, 1967 it was the Board of the Revenue who had the power to remand the case. He
asserted that the subordinate revenue officials have committed fraud and forgery. He further
added despite the fact that the Naib Tehsildar's report confirmed the contents of the application
filed by the petitioner for Sehat- e-Inderaj but respondents Nos.4 and 7 have passed the impugned
order which is not supported by law. He further maintained that the inheritance mutation Entry
No.82 dated 5- 6-1996 made in favour of the legal heirs of the said Noor Muhammad is also
ambiguous and unbelievable. Further, in Mutation No.33 through which the legal heirs of late
Noor Muhammad sold their shares of the land the remaining shares should have been 345, but
surprisingly the remaining shares in the said mutation have been shown to be 340, which is not
acceptable under the law. He maintained that the mutation could only have been made after
transfer of the possession, but no such proceedings had taken place because the petitioner,
through his predecessor, in interest, is in peaceful possession of the same. He further contended
that Mutation No.33 does not bear any signature of the seller and identifier, whereas
astonishingly, it has been alleged that the sale deed was executed, therefore, without any
attestation such sale does not confer any title or right to anyone under the law. On one hand he
maintained that the review petition filed by the private respondent was time barred and was not
accompanied with any application for condonation of delay, but on the other he contended that
where fraud has been committed no limitation shall run and this aspect of the matter was not
appreciated in its true perspective by the Additional Commissioner, Quetta Division, Quet ta. He
finally argued that the impugned order is liable to be set aside declaring that the same has no
effect upon the rights of the petitioner.
3. The petitioners' case revolves around the controversy that the entries contained in the
Jamabandi for the year 1941- 45, the Jamabandi for the year 1950 -51 and the Mutation No.33
dated 5 -6-1960, when the petitioner approached the Settlement Officer, Quetta Region, Quetta
for correction (Sehat -e-Inderaj) of the revenue entries. The Settlement Officer, after receipt of
the application so filed by the petitioner directed the Naib Tehsildar concerned to submit his
report. The Naib Tehsildar also stated in his report that the possession of the land is the
applicant's right being the Moroosi Bazgar because he is in cultivating possession since long.
The facts however, remains that on the basis of the decision of the report submitted by the Naib
Tehsildar the Settlement Officer had to make necessary correction in the relevant record. The
Settlement Officer upon receipt of the said report of Naib Tehsildar issued a short order, to the
following effect:
The respondent No.1 thereafter filed a review application before the Settlement Officer,
seeking review of his earlier order, which was dismissed vide order dated 6- 2-2014. However,
subsequently the respondent No.1 filed an appeal bearing No.15- LRA/2014 before the
Additional Commissioner, Quetta Division; Quetta who vide impugned order remanded the case
back to the Settlement Officer with the following observations:
"Having heard the learned counsel for appellants, respondent, representative of the
official respondent and minutely going through the documents available in record, it is
established beyond and shadow of doubt that the primary question of limitation was ignored in
preliminary trail [sic] whereas the powers of revision exercised by the Settlement Officer Quetta
Region/Collector Quetta Region were not vested upon him. The legal status of Sale deed and the
process of its confirmation through Qanun- e-Shahadat ha s not been carried out. Furthermore, the
alleged overwriting and tampering in the mutations have also not been analyzed. Therefore, I am
inclined to set aside order dated 26- 2-2014 by Settlement Officer/Collector Quetta Region Quetta
and remanded back the case to Settlement Officer, Quetta Region, Quetta/Collector Quetta
Region with direction to decide the matter keeping in view the questions of limitation, powers of
revision, legal status of Sale deed and the alleged tampering in the mutations affording pr oper
opportunity of hearing to all the parties as no order to cost".
4. Thereafter the petitioner assailed the order passed by he Additional Commissioner,
Quetta Division, Quetta dated 26- 9-2014 through revision petition filed under section 164 of the
Land Revenue Act, 1967 whereby the order passed by the Additional Commissioner (respondent
No.4) was upheld. Both the aforesaid orders have been impugned in this petition.
In view of the contention raised by the learned counsel for the petitioner a query was
posed to him that whether the facts and circumstances of this case and submissions made by him
do not relate to the factual controversy and whether the longstanding revenue entries can be
changed in summary manner. He responded that under section 42 of the Land Revenue Act,
1967 the Revenue Officers are empowered to correct the mistake in the Record of Rights. When
his attention was invited to the provision of sections 45 and 53 of the Land Revenue Act, which
clearly envisage that variation of entry in record and correction thereof can only be made with
respect to undisputed acquisitions of interest, he again reiterated his earlier stance and stated that
in case of inheritance entry no such restriction can be imposed and when asked about the
limitation, he stated that no limitation runs against void entries, therefore, the order was correctly
passed, which was wrongly set aside by the respondent No.4.
5. I am afraid, if the contention of the learned counsel is accepted, it will not only amount to
diminish the whole scheme of law by offending the provisions of section 53 of the Land Revenue
Act, but the provision of section 42 of the Specific Relief Act, 1877 (Act I of 1877) will also
become inapplicable in all cases of disputed and controversial entries in the Record of Rights or
in the periodical record. At this juncture it would be instructive to reproduce the sections 45 and
53 of the Land Revenue Act, 1967:
"45. Restriction on variations of entries in records. --- Entries in a record -of-rights or in a
periodical record, except entries made in periodical records with respect to undisputed
acquisition of interest under section 43, shall not be varied in subsequent records otherwise than
by---
(a) making entries in accordance with facts proved or admit ted to have occurred;
(b) making such entries as are agreed to by all the parties interested therein or are supported
by a decree or order binding on those parties; and
(c) making new maps where it is necessary to make them.
"53. Suit for declaratory decrees by persons aggrieved by an entry in a record. --- If any person
considers himself aggrieved by an entry in a 'Record- of-Rights' or in a periodical record as to any
right of which he is in possession, he may institute a suit for a declaration of his right under
Chapter VI of the Specific Relief Act, 1877 (Act I of 1877).
6. In view of provision supra, I am, of the considered view that the disputed question of fact
regarding title and inheritance cannot be decided by the Revenue Officer/Revenue Cour t by way
of mutation proceedings which are summary in nature, in such- like cases the parties ought to
have approached the civil courts, in the instant case the perversity of approach is reflected by the
conduct, because the revenue proceeding was initiated regarding a dispute in respect of
inheritance coupled with the validity of mutation entries. The order passed by the Settlement
Officer is not in accordance with the mandatory provision of section 53 of the Land Revenue
Act, as well as, the law laid down by the superior courts. I am dismayed that the Settlement
Officer, the Additional Commissioner, Quetta Division, Quetta and the Member Board of
Revenue have not appreciated this aspect of the matter. Despite the fact that the provision supra
in clear terms states that the dispute regarding entry in the record of rights or in periodical record
as to any right have to be taken to the court of civil jurisdiction. The revenue authorities had no
authority to correct the longstanding entries in the Revenue Record in summary manner.
Besides the above, the section 45 of the Land Revenue Act, 1967 provides that the
variation in a periodical record could be made with respect to undisputed acquisition of interest
in terms of section 43(a) of the Act, on the basis of facts proved or admitted. Likewise, such
corrections were permissible with the consent of all the parties or which are supported by a
decree or order binding on parties and not otherwise. All this brings me to hold that no disputed
entry in a record -of-rights or periodical record could be altered, either on ground of mistake or a
fraud, except on basis of obvious clerical error or patent facts, requiring no elaborate inquiry for
their establishment, thus, the disputed entries having been incorporated in the Revenue Record
could only be corrected through a decree of the court and not by the order of any of the official in
the hierarchy of revenue authorities, particularly after lapse of more than five decades. For
rendering this view I have been supported by the judgments in case of Waris Khan v. Col.
Humayun Shah (PLD 1994 SC 336), Rasta Mal Khan v. Nabi Sarwar Khan (1996 SCMR 78)
and Nemat Ali v. Malik Habib Ullah (2004 SCMR 604).
7. The effect of section 53 was not considered by the Member Board of Revenue or for that
matter by the lower forums, though the forums below have noted the contentions of the parties
but did not give findings and decided the matter themselves, therefore, the order of both the
forums below as well as the order of the Member Board of Revenue are not sustainable in the
eyes of law, as the impugned orders have been passed in utter violation of the mandatory
provision of the Land Revenue Act. The matter in hand is not merely a question of mutation, but
it directly relates to the title of the parties and validity of mutation entries. Admittedly, the orders
passed by the lower forums have no affect whatsoever, in view of the section 53 of the Land
Revenue Act.
Thus, in view of above discussion and the dictum laid down by the Hon'ble a pex Court, I
have no other option but to direct that the orders dated 31- 7-2013 and 6- 2-2014 passed by the
Settlement Officer, Quetta Division, the order dated 26 -9-2014 passed by the Additional
Commissioner, Quetta Division, Quetta and the order dated 19- 1-2015 passed by the Member -II,
Board of Revenue, Quetta are hereby set aside. Consequently, the proceedings pending before
the Settlement Officer are also quashed. However, the petitioner may approach the Civil Court
for redressal of his grievance by mean s of filing a Declaratory Suit before the civil court as
envisaged under section 53 of the Land Revenue Act, 1967.
Resultantly, this petition is dismissed in limine being devoid of merits.
AG/46/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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