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