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Writ Petition No. 345 of 1982, decided on 23rd December, 1985.

‑‑ S. 164‑North‑West Frontier Province Tenancy Act (XXV of 1950), S. 56‑Constitution of Pakistan (1973), Art. 199‑Revisional jurisdiction, exercise of‑Revisional powers exercised by Commissioner once, held, would debar second revision before Board of Revenue Exercise of revisional jurisdiction by Board of Revenue in second revision set aside by High Court in exercise of constitutional jurisdiction.

Khuda Bakhsh v. Member, Board of Revenue 1976 S C M R 26 ; Khair Din v. I. U. Khan, Member, Board of Revenue P L D 1968 Lah. 11 and P L D 1957 Lah. 950 ref.

Haji Samad Khan and another v. Khalid Khan and others 1985 S C M R 770 fol.

Safeerullah Khan for Petitioners.

Afridi Khan for Respondent No. 5.

Date of hearing : 15th December, 1985.

‑The facts giving rise to this writ petition, briefly stated, are that Shakirullah Khan (respondent 5) brought a suit against Ahmad Khan and others (petitioners) for partition of Shamilat land in the Court of Assistant Collector, 1st Grade, Malakand. On 2‑10‑1979 the parties agreed before the Assistant Collector that they want the dispute to be decided according to shariat and requested that the case may be referred for decision to Qazi Muhammad Amin of Malakand, Their statement was recorded and the case was entrusted to Qazi Muhammad Amin for sharai decision. The plaintiff made a statement before the Qazi that he does not want to producc any witnesses in support of his case. However, the defendants produced two witnesses before the Qazi with the result that the sharai decision was given against the plaintiff and his suit was recommended to be dismissed. The Assistant Collector agreeing with the recommendation of the Qazi dismissed the plaintiff's suit and declared Ahmad Khan and others (petitioners) to be the owners in possession of the land. The plaintiff having failed in appeal before the Collector filed a second appeal before the Additional Commissioner Malakand Division. But the second appeal being incompetent it was treated as a revision and disposed of as such on 28‑10‑1980. The Addi tional Commissioner concluded that as the parties had agreed to arbitra tion by Qazi Muhammad Amin and the mater stood decided according to shariat, there was no illegality committed by the trial Court. The revision was, therefore, dismissed. The plaintiff then filed a second revision before the Member, Board of Revenue, which was accepted on 29‑5‑1982. It was observed that the lower Court bad referred the matter to Qazi Muhammad Amin for sharai decision but the procedure laid down in the law for the appointment of an arbitrator bad not been followed. The case was, therefore. remanded to the lower Court for decision afresh on merits in accordance with law. The aforesaid order of the learned Member, Board of Revenue, dated 29‑5‑1982 is impugned in this writ petition.

2. In support of the petition it is urged that the learned Member, Board of Revenue acted without jurisdiction by entertaining the second revision in this case. Reliance is placed on a judgment of the Hon'ble Supreme Court, dated 22‑1‑1985 in Civil Appeals Nos. 51‑P etc. (Hail Samad Khan and another v Khalid Khan and others) wherein by reference to section 56 of the N.‑w' F. P. Tenancy Act, 1950, it was observed that "we are inclined to agree with the conclusion of the learned Judges of the High Court that once the Commissioner has exercised the revisional jurisdiction conferred upon him under section 56 of the N.‑W. F. P. Tenancy Act, the Board of Revenue would not be competent to exercise the same powers with respect to the same case under the said section" However, it was observed that sub‑para. (7) of para. 25 of Martial Law Regulation 115 (of 1972) clearly empowers the Board of Revenue to call for the record of any case in which the Collector of Commissioner has passed the order for purpose of satisfying itself as to the correctness. legality or propriety of such proceedings or order and to pass such orders in relation thereto as it thinks fit. Thus, it was concluded that even if the ejectment rules framed under Martial Law Regulation 115, which make section 56 of the N.‑W. F. P. Tenancy Act applicable to the revisions etc. prohibit a second revision to the Board of Revenue, the Board of Revenue could still, in accordance with the provisions of sub‑para. (7) of of para. 25 of Martial Law Regulation 115 which has overriding effect be empowered to call for the record of any case or proceedings under the said paragraph to scrutinize any order passed by a Collector or a Commissioner and proceed to pass any order in relation thereto. Thus, in the case in hand the contention on behalf of the petitioner is that the revisional powers of the Board of Revenue and the Commissioner under section 164 of the West Pakistan Land Revenue Act, 1967. are similar to the revisional powers conferred on the said authorities under section 56 of the N.‑W. F. P. Tenancy Act, 1950, the second revision was incompetently entertained by the learned Member, Board of Revenue in view of the principle laid down in the decision of the Supreme Court referred to above. On the other hand it is contended on behalf of the respondents that since the Board of Revenue has been given vast powers under section 164 of the West Pakistan Land Revenue Act as compared to the revisional powers conferred by section 56 of the Tenancy Act, the second revision was competently entertained by the Board of Revenue. Support is sought from a decision Khuda Bakhsh v. Member, Board of Revenue (1976 S C M R 26) wherein it was held that section 164 confers very wide powers of revision of any order made by the sub ordinate officer, the only condition being that the Board considers the case fit' for its interference and the only other condition is of a prior notice and in other respects the power is unqualified. Reference is also made to Khair Din v. I. U. Khan, Member, Board of Revenue (P L D 1968 Lah. 11) wherein it was held that it was competent for the Member Board of Revenue to entertain a second revision and as such the legality of the impugn d order was not open to challenge on that score. However it may be mentioned that from the perusal of the provisions of section 56 of the N.‑W. F. P. Tenancy Act, 1950, and section 164 of the West Pakistan Land Revenue Act, 1967, we find no material difference in the provisions of both the statutes and consider that once the revisional pouters have been exercised by the Commissioner no second revision would be competent before the Board of Revenue even in cases covered by the Punjab Land Revenue Act, 1967. Regarding the contention that vast powers of revision have been given to the Board of Revenue under section 164 of the Land Revenue Act, reference can be made to P L D 1957 Lah. 950, wherein it was observed that :‑

"The powers given to the Board of Revenue under subsection (5) of section 84 of the Punjab Tenancy Act are very wide because it is enacted that the Board may pass such order as it thinks fit in the case and an order of restoration of tenancy to an ejected tenant, even in the absence of any specific provision of law for such restora tion, would be perfectly legal."

3. Taking this view of the matter and respectfully following the rule laid down in the judgment of the Supreme Court in Civil Appeals Nos. 51‑P etc. Haji Samad Khan and another v. Khalid Khan and others (1985SCMR770), we have come to the conclusion that in the case in hand the second revision was incompetently entertained and disposed of by the learned Member, Board of Revenue. The writ petitions is, therefore, allowed and the impugned order dated 29‑5‑1982 of the Member, Board of Revenue. N.‑W. F. P., is declared as without lawful authority and of no legal effect. In the circumstances there shall be no order as to costs.

A. A. Petition allowed.

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