2021 C L C 1196
[Balochistan]
Before Muhammad Ejaz Swati and Zaheer ud Din Kakar, JJ
MUHAMMAD USMAN and another----Petitioners
Versus
BIBI AMINA and others ----Respondents
Constitutional Petition No.675 of 2014, decided on 7th September, 2020.
Balochistan Land Revenue Act (XVII of 1967) ---
----Ss.42 & 172---Making of that part of periodical records which relates to land owners ---
Exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of Revenue
Officers ---Scope ---Petitioners assailed orders passed by Revenue Authorities whereby
mutations entered in their favour were cancelled ---Validity ---Impugned mutations were
sanctioned on the basis of unregistered sale deed and power of attorney---Subsection (7) of S.42 of Balochistan Land Revenue Act, 1967, had made exception in case of inheritance, registered deed, order or decree of the court but in all other cases not only the presence of person whose right was being acquired was necessary, his identification by two respectable persons and the inquiry in the common assembly as envisaged under subsection (8) of S.42
of the Balochistan Land Revenue Act, 1967 was also necessary---Attestation of impugned mutations on the basis of unregistered documents was an error of law apparent on the fa ce of
record, which was not controversial in nature as per S.172(2)(vi) of Balochistan Land Revenue Act, 1967--- Only revenue authorities were entitled to correct such entry in a record-
of-right, periodical entry or register of mutation to the exclusion of the Civil Court---
Petitioners had no alternative except to seek remedy of title from Civil Court ---Constitutional
petition was dismissed.
2004 SCMR 604, 612 and 614 ref.
Dildar Ahmad and others v. Member (Judicial -III) BOR, Punjab, Lahore and another
2013 SCMR 906 rel.
Muhammad Zahid Muqeem Ansari for Petitioners.
Muhammad Ilyas Mughal for Respondent No.1.
Muhammad Yousaf Khan for Respondents Nos.2 and 3.
Zahoor Ahmed Baloch, Assistant Advocate General for Official Respondents.
Date of hearing: 2nd September, 2020.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ----A plot measuring No.0- 2-0 acres bearing
Khasra No.163/1, Mouza Madhi Tehsil Uthal, District Lasbella was recorded/owned by
Mistri Muhammad Umar (respondent No.2) and Rehmatullah (respondent No.3) vide mutation No.100 in the revenue record (property in dispute). The predecessor -in-interest of
the respondents Nos. 1(a) to 1(h) namely (Haji Abdul Rauf) sold the property in dispute to the petitioner No.1 (Muhammad Usman) through an agreement dated 28.12.2004 and on the
basis of mutation No.703 (impugned mutation) dated 01.06.2005 property in dispute was mutated in favour of the petitioner No.1.
2. It is necessary to mention here that (Abdul Rauf ) was not recorded owner and he
signed the unregistered sale agreement on the basis of Special Power of Attorney dated 05.06.1977 purportedly given by the respondents Nos.2 and 3 to him. The petitioner No.1 further sold/transferred the same plot to petitio ners Nos.2 and 3 vide Mutation No.704
(impugned mutation) dated 01.06.2005. On coming to know about impugned mutations the respondents Nos.2 and 3 preferred an appeal under Section 163 of Land Revenue Act, 1967 before Tehsildar/Assistant Collector, Uthal. The appeal was allowed vide order dated
06.02.2008 and mutation No.100 was restored in favour of the respondents Nos.2 and 3.
3. On appeal under Section 161 of Land Revenue Act, 1967 filed by the petitioners the
learned Collector, District Lasbella vide or der dated 23.08.2008 dismissed the appeal. The
Revision Petition under Section 164 of Land Revenue Act, 1967 filed by the petitioners was also dismissed by the Commissioner, Kalat vide order dated 27.04.2011, which was
challenged by the petitioners by way of filing Revision Petition under Section 164 of the Balochistan Land Revenue Act, 1967 before Senior Member, Board of Revenue, Balochistan, which was dismissed vide order dated 08.05.2014 (impugned order), which have been challenged through the instant pe tition.
4. Learned counsel for the petitioners contended that the Assistant Collector had no
jurisdiction to cancel the impugned mutations as for resolution of controversial question of fact and fraud, Civil Court is a proper forum; that the variation of s uch entries in the Record
of Right is restricted in summary proceeding as envisaged under Section 45 of the Land Revenue Act, 1967 (the Act), therefore, the jurisdiction exercised and upheld by the respondent No.7 are liable to be declared without jurisdic tion, having no legal effect; that the
matter related to correction of mutation entries can be corrected by the revenue authority in respect of admitted facts, which is summary proceeding and the Assistant Collector cannot assume jurisdiction and cancel th e mutation entries with regard to right of the parties; that
the question raised by the respondents Nos.2 and 3 before Assistant Commissioner was required to be determined after recording evidence, but the same has been decided without affording opportunit y of being heard to the petitioners for recording their evidence, therefore,
the impugned orders are based on presumptions. He placed reliance in case reported 2004 SCMR 604, 612 and 614.
5. Learned counsel for respondent No.1 contended that the predecessor -in-interest of the
referred respondents namely Abdul Rauf during his life time had also given affidavit before
the Assistant Collector and had refuted the contention regarding alleged sale agreement on the basis of purported power of the attorney.
6. Learned counsel for respondents Nos. 2 and 3 contended that the Mutations Nos.703
and 704 were carried out on the basis of unregistered document without ascertaining the authenticity of the same; that mutation on the basis of unregistered document by the Reve nue
authority is not permissible under the law, therefore, the impugned mutations were rightly cancelled and restored in favour of respondents Nos. 2 and 3.
7. We have heard the learned counsel for the parties and perused the record. The record
of the case reveals that impugned mutations were sanctioned On the basis of unregistered
sale deed and Power of Attorney respectively. Procedure for maintaining of record and scope of inquiry is lay down in Sections 42 to 45 of the West Pakistan Land Revenue Act, 196 7
(the Act) .
Subsection (7) of Section 42 of the Act provides that "Except in cases of inheritance
or where the acquisition of the right is by a registered deed or by or under an order or decree of a Court, the Revenue Officer shall make the order under Subsection (6) of Section 42 of the Act in presence of the person whose right has been acquired after such person has been identified by two respectable persons, preferable from Lambardar and member of this Union Committee, Town Committee or Union Council concerned, whose signatures or thumb-impression shall be obtained by the Revenue Officer on the register of mutations.".
8. The above provision of law had made exception in case of inheritance, registered
deed, order or decree of the Court. In all other ca ses presence of the person whose right has
been acquired is necessary, his identification by two respectable persons and the inquiry in the common assembly as envisaged under Subsection (8) of Section 42 of the Act is also necessary.
9. The above, provision of law make it clear that mutation on the basis of unregistered
document is not permissible, but in the instant case the impugned mutations were carried out on the basis of unregistered sale deed and Power of Attorney in absence of the respondents Nos.2 and 3 and in this regard the authenticity and genuineness as well as competence of the
alleged attorney was not authenticated.
Since the impugned mutations entries were carried out contrary to law and the
illegality in this regard was quite obvious on the face of record, therefore, the respondent
No.4, while exercising power under Section 163 of the Act cancelled mutation entries Nos. 703 and 704 and restored mutations in favour of the respondents Nos. 2 and 3.
10. The contention of the learned counsel for the petitioners that matter related to
mutations Entries Nos.703 and 704 raised disputed question of facts and contained allegation of fraudulent act, which requires determination through evidence by the Civil Court is not tenable. The provision of Subsec tion (2) of Section 163 of the Act envisaged that "any
person considering himself aggrieved by an order passed by commissioner, Collector or an
Assistant Collector, and who, from the discovery of new and important matter of evidence, which after the exerci se of due diligence was not within his knowledge or could not be
produced by him at the time when the order is passed or on account of some mistake or error apparent on the face of the record or for any other sufficient reasons, may apply for a review
of the order to the Commissioner, Collector as the case may be, and such officer may modify,
reverse or confirm any order passed by himself or by any of his predecessor -in-office. The
mistake or error on the basis of record would mean such mistake or error may be one of law
or fact and should be apparent on the face of the record, and should not raise disputed
question of fact nor require any extraneous evidence to establish it and it should be established without elaborate arguments and the error must also hav e a material bearing on
the fate of the case."
Admittedly, the impugned Mutations Nos.703 and 704 were attested in favour of the
petitioners on the basis of unregistered sale deed and Power of Attorney, which had also been refuted by the alleged attorney while recording his statement before the Assistant Collector. The attestation of the impugned mutations entries on the basis of unregistered document was an error of law apparent on the face of record, which are not controversial in nature and as
per Secti on 172(2)(vi) of the Act, 1967, only the revenue authorities are entitled to correct
such entry in a record of right, periodical entry or register of mutation to the exclusion of the
Civil Court. Reference in this respect is to be made in case titled Dildar Ahmad and others v. Member (Judicial -III) BOR, Punjab, Lahore and another (2013 SCMR 906), wherein the
Hon'ble Supreme Court of Pakistan observed as under.
"Regarding learned ASC's argument that a 17 year old case could not be reopened in
the revenue si de for the purpose of correction in the record for which only the Civil
Courts have jurisdiction, we may observed that per section 172(2)(vi) of the Act, 1967, only the revenue authorities are entitle to correct any entry in a record of rights, periodical entry or register of mutation to the exclusion of the Civil Courts, of course
which are not controversial in nature. In the present matter, it was found that as a result of consolidation proceedings, respondent No.2's land was reduced due to an error which was corrected and despite numerous opportunities the appellant could not
Justify, his claim to further land than that which fell to his share. In our opinion there was hardly any controversy involved in this exercise."
11. In the instant case, the respondent No.4 was justified under the law to rectify the
mutations entries accordingly and in this respect no material illegality or irregularity came on record to warrant interference in exercise of the constitutional jurisdiction, therefore, there is no alter native for petitioners except to seek remedy of title from Civil Court.
In view of the above, Constitutional Petition No.675 of 2014 is dismissed. Parties are
left to bear their own cost.
SA/244/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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