Muhammad Ameer Vs MBR J-VII Punjab Lahore etc

Stereo. H C J D A 38.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

W.P. No.234510 of 2018.

Muhammad Ameer.

...Vs...

Member (J-VII), Board of Revenue, etc.

JUDGMENT

Date of Hearing: 27.02.2025.

Petitioner for: Mr. Muhammad Mushtaq Ahmad Mohal & Ms. Shazia Pervaiz Butt, Advocates.

Respondents for: Mr. Sittar Sahil, Assistant Advocate General for Punjab.

Mr. Muhammad Yaqoob Kanju, Advocate for respondent No.5- Mashooq Ali.

Ch. Sultan Mahmood-J: This single judgment shall decide the captioned petition and connected W.P.No.18984 of 2019, as in both petitions’ order is passed the learned Member (Judicial-VII), Board of Revenue Punjab, Camp at Sahiwal dated 27.08.2018 with regard to allotment of a lot of the Horse Breading Scheme.

2.One Haji Muhammad Ali was an allottee of a Lot, of the Horse Breeding Scheme, measuring 192 Kanals 18 Marlas comprising Square No. 68 & 69 situated in Chak No. 84/5-L Tehsil and District Sahiwal died on 20.02.2007. The land was eventually allotted to the present petitioner grandson of Haji Muhammad Ali. Respondent No.5 in the instant petition and petitioner of the connected petition impugned the decision of allotment before the Commissioner Sahiwal Division and raised a rival claim of allotment being son of the of the deceased allotee inter alia other grounds but failed as appeal was dismissed through order dated 24.06.2016. Being aggrieved of the order of allotment and appellate

order, Respondent No. 5 preferred a revision before Board of Revenue which was decided through impugned order dated 27.08.2018. Respondent No. 1 through the impugned order non- suited both contesting candidates as parties admitted before him, purportedly, that they have privately partitioned the subject matter lot and as tenant cannot partition the land. This fact alone was considered an ample ground to cancel the lot and he remanded the matter to the forum below to allot subject matter lot to a new candidate.

3.Learned counsel of the petitioner averred while passing impugned order that the learned Member has not attended to: conditions for allotment as contained in letter No.868-C Lahore dated the 19th February, 1952; policy notes issued from time to time or any provision of the Colonization of Government Land Act, 1912, which is law on the subject. He contended neither admission was made nor that can be taken seriously; and petitioner’s allotment was made by Collector and appeal against allotment was rejected by the Additional Commissioner; petitioner is in exclusive possession of tenancy as per the Daily Dairy Report No. 236 dated 30.03.2016 and statement so recorded by the Learned Member runs contrary to official record and has no value as admission against record is no admission. Petitioner has ability and experience to manage tenancy and prayed that impugned order be set aside and order passed by the Collector and the Additional Commissioner be restored.

4.Learned Counsel for Respondent No. 5(Petitioner of the connected Writ Petition No. 18489/2019) argued that petitioner is ineligible and departmental authorities twice recommended his client as suitable candidate for allotment of the Lot but the Collector has wrongfully allotted the same to the petitioner Muhammad Ameer. He also prayed for setting aside the order passed by the Additional Commissioner and the Member Board of Revenue.

5.The learned law officer while justifying the impugned order passed by the Member Board of Revenue argued that the order has been passed in exercise of the Revisional jurisdiction and the

Learned Member was justified to draw inference from the statement made before him.

6.It is correct that the Section 164 of the Land Revenue Act, 1967 confers very wide power of revision as any order made by the subordinate officer can be interfered, the only condition being that the Board considers the case "fit" for its interference. The only other condition is of a prior notice1, unlike revisional jurisdiction contained in the section 115 of Civil Procedure Code. However, the power so vested has to be exercised under the law and not otherwise.

7.The learned Member Board of Revenue has exercised jurisdiction on the basis of the statements made before him by the parties so those were treated as admissions. The law on the subject is the Qanun e Shahadat Order 1984(QSO), it embodies two genres of admissions: one contained in the Article 113 of the QSO it is a rule of pure procedure; and the second one is the Article 45 of the QSO, which is to give effect to the rule of evidence. Plainly speaking the Article 113 of the QSO applies to the admissions made in the pleadings while the Article 45 of the QSO applies to evidentiary admissions2. It is relevant to refer to the judgment of the Supreme Court of India in the case of Nagindas Ramdas Vs. Dalpatram Ichharam alias Brijram & Ors. (1974) 1 SCC 242 where in paragraph 27 of the cited judgment has recognized a distinction between evidentiary admissions and judicial admissions (admission in pleadings) as evidence. The Supreme Court of India has held that evidentiary admissions can be explained away, and which is obviously because of Section 21 of the Indian Evidence Act, 1872 but the judicial admissions however can be the basis of disposal of the matter on merits itself because judicial admissions stand on a higher footing and pedestal than mere evidentiary admissions. I have scanned record with able assistance of parties there is no judicial admission contained in the pleadings so the Member Board of Revenue treated the statements made before him as evidentiary admissions, which is retractable and a weaker type of evidence even Khuda Buksh Vs MBR 1976 SCMR 26 1907 UBR Ev.1 Page # 492 Vol-2 Reliance in this regard is placed on 1907 UBR Ev. 1; (1995 MLD 690) Niaz Begum vs. Waris Khan

if made in accordance with law, but record shows no statement under oath was made before the Learned Member Board of Revenue. To qualify a statement to become credit worthy evidence it has to be made on oath3. No such oath was administered as per the record.

8.The omission to administer oath to the persons giving evidence before the forum below is an illegality which cannot be cured and such statements cannot be used to the detriment of makers. It is settled law that it is obligation of a Court to record testimony of a witness on oath and statement of witness recorded without oath is inadmissible in evidence4, the Learned Member/Respondent No. 1 has failed to do so, consequently, statements recorded merely in the impugned order are of no good use.

9.It is well settled law that parties may resile all admissions except made in the pleadings5. The petitioners denied making such admission and contend no partition ever took place, so while deciding instant petition such statements not made on oath cannot be regarded as evidence or admissions and lis cannot be decided on their basis when the same are not supported by the pleadings and statements not recorded after administering oath. The approach of the learned Respondent No.1 is not in consonance with the settled law, so cannot be sustained.

10.It was also contended by the learned law officer that statements were made in presence of the Counsels of the parties as per the record and were binding on them. This argument is a non- starter as position would have been different if these statements have been made by the respective Counsels than those could have been binding on the parties but as per the record statements are attributed to parties as they were present in person. Hence, this argument is also repelled.

See the Section 5 of the Oaths Act, 1873

Reliance in this regard is placed on Sajjad Ahmad and another v. The State (1992 SCMR 408) and Ehsan Ellahi Baig v. Muhammad Pervaiz (PLD 2018 Lahore 693) and National Command Authority Vs. Miskeen Shah (2020 CLC 2089).

Ahmad Khan Vs Rasul Shah and others (PLD 1975 SC 311)

11.Respondent No. 1 while passing the impugned order has given undue relevance to statements made before him that in reality lacked the relevance for being considered in the decision-making process and had not given relevance to policy notes, facts of the case which are abilities and capacities of the contesting candidates. Those were relevant and worthy of being considered in the decision- making process and Respondent No.1 has made a completely absurd decision. The impugned decision is so unreasonable because no reasonable authority would have treated statements without oath as evidentiary admissions; this case attracts Wednesbury principle6on all four, it has been duly recognized as principle of law by the Supreme Court of Pakistan in the case of Dr. Akhtar Hassan Khan v Federation of Pakistan (2012 SCMR 455) and has binding precedential value.

12.Respondent No.1 while passing the impugned order dated 27.08.2018 has failed to adjudicate the matter in accordance with the law and has travelled beyond jurisdiction, thus the impugned order cannot be allowed to hold field. So, the instant petition is allowed, impugned order dated 27.08.2018 is set-aside and the case is remanded to Respondent No.1/Member Board of Revenue to decide the same afresh. As the connected W.P. No.18984 of 2019 also stems from the same order, so that is also decided in above terms.

(Ch. Sultan Mahmood) Judge

Approved for reporting.

JUDGE

M. Usman*.

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