Sakhawat Ali Vs Full Board BOR Punjab etc

Stereo HCJDA 38.

JUDGMENT SHEET

LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Writ Petition No. 34165 of 2026.

(Sakahwat Ali vs. Full Board No.1, Board of Revenue Punjab Lahore & others)

JUDGMENT

Date of hearing: 18.09.2026.

Petitioner by: Mr. Muhammad Younas Joiya, Advocate.

Respondents Barrister Raja Hashim Javed, Assistant Advocate General, No.1 to 4 by Punjab alongwith Saeed Ramzan, Member (Judicial-VI) BOR, Punjab, Lahore and Tariq Mehmood Patwari Halqa. Respondents M/s. Saim Raza and Rai Aamir Rehman Kharal, No.5 and 6 by Advocates.

MALIK JAVID IQBAL WAINS, J.:- Through this constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner calls in question order dated 28.01.2026, passed by the Full Board No.1, Board of Revenue, Punjab in R.O.R.No.2684 of 2023 (Ashraf Ali vs. Sakhawat Ali), whereby orders dated 18.05.2022 of the Tehsildar/AC-I, Sangla Hill, 01.12.2022 of the Additional Deputy Commissioner (Revenue), Nankana Sahib, and 26.10.2023 of the Member (Judicial-II), Board of Revenue, were set aside and the matter was remanded for fresh partition. The petitioner seeks restoration of the orders dated 26.10.2023, 01.12.2022 and 18.05.2022.

2.Necessary facts for the disposal of instant petition are that the dispute concerns partition of the joint holding, including Killa No.10, measuring 10- Kanal, 03-Marla. The petitioner purchased 8-Marla in Killa No.10/1 through registered Sale Deed No.840 dated 01.06.2021, followed by Mutation No.3567 dated 01.06.2021, and claimed possession over the property, where he constructed a permanent residential house. A partition application was thereafter processed by the Tehsildar/AC-I, Sangla Hill. The mode of

partition and Naqsha Jaat/wanda-jaat were prepared, objections were invited from the concerned co-sharers and according to the record, proceedings were finalized after hearing the stakeholders. The partition order was passed on 18.05.2022. The said order was challenged by respondents No.5 and 6 before the Additional Deputy Commissioner (Revenue), Nankana Sahib, who dismissed the appeal vide order dated 01.12.2022. The Additional Commissioner (Consolidation), Lahore Division, subsequently remanded the matter through order dated 15.06.2023. The petitioner challenged that order through ROA No.48/2023, which was accepted by the Member (Judicial-II), Board of Revenue, on 26.10.2023, restoring the orders dated 18.05.2022 and 01.12.2022. The contesting respondents thereafter pursued ROR No.2684 of 2023, which culminated in the impugned order dated 28.01.2026, whereby the matter was again remanded for fresh partition.

3.Learned counsel for the petitioner contends that the Full Board of Revenue, while passing the impugned order, exercised jurisdiction not vested in it under the Punjab Board of Revenue Act, 1957 (hereinafter referred to as “the Act, 1957”) and the West Pakistan Board of Revenue (Conduct of Appeals and Revisions) Rules, 1959 (hereinafter referred to as “the Rules, 1959”). It is submitted that the revision petition preferred by the respondents was dismissed by the Member (Judicial-IV) vide order dated 25.03.2024; however, instead of signing the said order, the other Member of the Board referred the matter to the Senior Member, Board of Revenue, who without adhering to the procedure prescribed under the Act, 1957 and the Rules, 1959, placed the matter before the Full Board. Consequently, the Full Board, vide impugned order dated 28.01.2026, accepted the revision petition filed by the respondents. Learned counsel maintains that the entire exercise was undertaken in disregard of the prescribed statutory procedure and that the Full Board assumed jurisdiction in a manner not contemplated by law, thereby rendering the impugned order without lawful authority and liable to be set aside.

4.Conversely, learned counsel representing respondents No.5 and 6 have supported the impugned order and contends that certain persons, who had acquired proprietary interests in the subject property prior to the completion of partition proceedings were neither properly impleaded nor afforded an adequate opportunity of hearing. It is argued that the partition proceedings were concluded without effectively associating such interested persons, thereby adversely affecting their proprietary rights. Submits that the Full Board has rightly examined the matter and passed the impugned order to rectify the irregularities committed during the partition proceedings.

5.The Member (Judicial), Board of Revenue, also appeared before this Court alongwith the learned Law Officer and defended the impugned order, maintaining that the matter had been dealt with by the Full Board in accordance with law.

6.I have heard learned counsel for the parties at considerable length and have carefully examined the available record with their able assistance.

7.From perusal of the record, it reveals that the review petition filed by the private respondents was entrusted to Full Board-III by the Senior Member, Board of Revenue, Punjab (“SMBR”), for adjudication. The said Full Board, comprising two Members, heard the arguments advanced by the parties and reserved its decision on 05.03.2024. Thereafter, the Member (Judicial-IV), vide order dated 25.03.2024, recorded his opinion dismissing the review petition. The record contains both the short order and the detailed reasons authored by the said Member. The case file was subsequently transmitted to the Member (Judicial-III) for his signatures. However, instead of subscribing to the opinion expressed by the Member (Judicial-IV), the Member (Judicial-III) referred the matter to the SMBR for its re-fixation before the Full Board, without recording any specific point of difference with the opinion already expressed by the other Member. In the meantime, the Member (Judicial-IV) had retired from service. Acting upon the aforesaid reference, the SMBR placed the matter before a Full Board comprising three Members, who vide impugned order dated 28.01.2026, proceeded to

adjudicate the controversy afresh, accepted the review petition filed by the private respondents and remanded the matter to the concerned Tehsildar.

8.The pivotal question requiring determination by this Court is whether, in the circumstances of the present case, the SMBR was legally competent to constitute a three-Member Full Board for fresh adjudication of the matter without first ensuring compliance with the procedure expressly prescribed under Section 6(3)(b) of the Act, 1957. The controversy, therefore, essentially concerns lawful exercise of jurisdiction by the Board of Revenue and adherence to the mandatory procedure governing the resolution of differences of opinion between its Members. To appreciate the controversy in its proper perspective, it would be advantageous to reproduce the relevant provisions of Section 6 of the Act, 1957, which read as under:

“6. Conduct of Business.—

(1)Subject to the approval of the Government, the Board may distribute its business amongst its members and may, by rules, regulate the procedure of all proceedings before it.

(3)Where in a case which the Members of the Board are required to dispose of collectively, in accordance with the rules framed under this Act, there is a difference of opinion amongst the Members as to the decision to be given on any point:--

(a).......

(b)if the Members are equally divided the Members shall state the point on which they differ and the case shall then be heard, on that point, collectively by those Members who heard it and by another Member, and if there is no such Member, by an additional Member to be appointed by the Government for the purpose of that case, and then the point on which there is the difference of opinion shall be decided according to the opinion of the majority of all such Members.”

9.From plain and meaningful reading of the aforesaid provision leaves little room for ambiguity that the legislature has consciously prescribed a specific mechanism for resolving a difference of opinion, where the

Members of the Board, required to decide a matter collectively, are equally divided. The statutory scheme envisages, firstly, the existence of a difference of opinion between the Members, secondly, formulation of the precise point or points on which such difference has arisen and thirdly, consideration of the matter on the identified point of difference by the Members, who originally heard the case together with another Member, in the manner provided by the statute. The ultimate determination must then be governed by the opinion of the majority of all such Members. The use of the expression “shall state the point on which they differ” is significant and demonstrates that formulation of the point of difference is not merely procedural in nature, but constitutes an essential statutory requirement for invoking the mechanism contemplated under Section 6(3)(b) of the Act,

10.The rationale underlying the aforesaid statutory arrangement is equally important. Where a matter has already been heard collectively by the designated Members, any subsequent reference arising from a difference of opinion is intended to resolve that particular difference rather than to reopen the entire controversy for unrestricted adjudication before a differently constituted forum. The formulation of a specific point of difference identifies the precise controversy requiring resolution, defines the scope of further hearing and ensures that the collective decision-making process remains confined within the parameters prescribed by law. If the requirement of framing a point of difference were dispensed with, the statutory distinction between the original hearing of a matter and resolution of a difference of opinion would become meaningless. Such an interpretation would defeat the legislative intent and render the safeguards incorporated in Section 6(3)(b) of the Act, 1957 redundant.

11.Reverting to the facts of the present case, it is evident from the record that the Member (Judicial-IV), after hearing the parties, authored both a short order and a detailed order dated 25.03.2024, expressing his opinion in favour of dismissal of the review petition. The file was thereafter transmitted

to the Member (Judicial-III) for signatures. The latter, however, neither subscribed to the opinion expressed by the learned Member (Judicial-IV) nor formulated any specific point on which he differed from the conclusion reached by the said Member. Instead, the matter was referred to the SMBR for re-fixation before the Full Board. The record does not disclose any formally recorded point of difference identifying the legal or factual issue on which the Members were unable to agree. Thus, the very foundation necessary for invoking the procedure contemplated under Section 6(3)(b) of the Act, 1957, was absent.

12.It is important to distinguish between an opinion authored by one Member of a collective forum and a final decision of that forum. Merely because the Member (Judicial-IV) had authored a short order and detailed reasons dismissing the review petition, the same could not automatically be treated as the collective decision of the two-Member Full Board, particularly when the other Member had not subscribed to it. Nevertheless, once the learned Member (Judicial-III) declined to agree with the opinion so expressed, the further course of proceedings was required to conform to the statutory procedure governing differences of opinion. The absence of a final collective decision did not confer an unrestricted discretion upon the SMBR to bypass the procedure prescribed under Section 6(3)(b) of the Act, 1957 and direct a fresh determination of the entire matter by a larger forum.

13.The record further reveals that, notwithstanding the absence of any formulated point of difference, the SMBR referred the matter to a Full Board comprising three Members, which proceeded to reconsider the controversy in its entirety and ultimately accepted the review petition through the impugned order dated 28.01.2026. This course of action cannot be reconciled with the statutory mechanism prescribed under Section 6(3)(b) of the Act, 1957. The provision does not contemplate an unrestricted rehearing of the entire case by a newly constituted larger Bench merely because the Members of the earlier forum have failed to arrive at a unanimous conclusion. Rather, it specifically requires the point of difference to be

identified and determined through the procedure laid down therein. Consequently, the impugned adjudication, having proceeded without compliance with this foundational requirement, suffers from a material procedural and jurisdictional infirmity.

14.It is a fundamental principle of law that where a statute requires a particular act to be performed in a prescribed manner, such act must be performed in that manner and not otherwise. An authority deriving its powers from a statute cannot disregard the conditions and limitations subject to which those powers have been conferred. The SMBR, notwithstanding his authority to regulate or distribute the business of the Board within the statutory framework, could not exercise such administrative authority in a manner inconsistent with the express requirements of Section 6(3)(b) of the Act, 1957. The power to assign or fix a matter before a particular forum is distinct from the power to alter the statutory procedure governing its adjudication. The former cannot be employed to circumvent the latter. Any contrary approach would permit administrative arrangements to override legislative commands, which is impermissible in law.

15.There is yet another aspect of the matter which cannot be overlooked. The jurisdiction of a statutory forum is not determined merely by the numerical strength of its Members. The mere fact that the subsequent Full Board comprised three Members, as against the two Members who had originally heard the matter, did not, by itself, cure the failure to observe the mandatory statutory procedure. What assumes significance is not simply the constitution of a larger forum, but the lawful manner in which such forum is constituted and the precise jurisdiction which it is authorized to exercise. Under Section 6(3)(b) of the Act, 1957, the additional Member is required to participate in determination of the identified point of difference in the manner envisaged by the statute. In the present case, however, no such point was formulated, nor was the subsequent adjudication confined to resolution of any identified difference between the original Members. Instead, the

three-Member Full Board proceeded to decide the review petition afresh, thereby departing from the procedure prescribed by law.

16.The retirement of the learned Member (Judicial-IV) before completion of the collective decision-making process further complicated the matter. However, such subsequent development could not retrospectively validate the failure to formulate a point of difference or authorize the SMBR to adopt a procedure inconsistent with the governing statute. Where the original composition of a forum becomes unavailable owing to retirement or any other legal impediment, the competent authority is required to adopt a course permissible under the applicable statutory framework. The practical difficulty arising from the retirement of a Member cannot, by itself, become a source of jurisdiction or justify departure from an express legislative requirement. The lawful course, in the circumstances of the present case, was to ensure fresh adjudication before a properly constituted forum in accordance with the Act, 1957 and the rules framed thereunder.

17.It is equally well settled that the exercise of jurisdiction by a statutory authority is conditioned upon compliance with the requirements governing the assumption and exercise of that jurisdiction. Where the legislature has expressly provided a mechanism for resolving differences of opinion between Members of a collective forum, observance of that mechanism is indispensable. The omission to formulate the point of difference in the present case was not an inconsequential irregularity capable of being overlooked merely because the matter was ultimately heard by three Members. Rather, it affected the very scope and manner of adjudication and deprived the subsequent proceedings of the statutory foundation upon which they purported to rest. The impugned order, therefore, cannot be sustained merely on the ground that the Full Board comprised a greater number of Members or that the parties were afforded an opportunity of hearing before it.

18.In the light of the foregoing discussion, this Court is of the considered view that the procedure adopted by the SMBR in referring the matter for

fresh adjudication before the three-Member Full Board, without formulation of any specific point of difference in accordance with Section 6(3)(b) of the Act, 1957, was not in conformity with the mandatory statutory requirements. The subsequent Full Board, instead of resolving any identified difference of opinion, proceeded to adjudicate the entire review petition afresh. Such exercise of jurisdiction, being inconsistent with the statutory procedure, renders the impugned order dated 28.01.2026 legally unsustainable. The defect is not merely technical but goes to the root of the adjudicatory process, and the impugned order is consequently liable to be set aside.

19.For the reasons recorded above, the instant constitutional petition is allowed and as a result thereof, impugned order dated 28.01.2026, passed by the Full Board of Revenue, Punjab, is hereby set aside. Consequently, the review petition filed by the private respondents shall stand revived and shall be deemed pending before the competent forum for fresh adjudication in accordance with law. Since the learned Member (Judicial-IV), who had originally heard the matter and authored the opinion dated 25.03.2024, has since retired, the matter is remitted to the Senior Member, Board of Revenue, Punjab, who shall assign the review petition to a duly constituted two-Member Full Board, in accordance with the applicable statutory provisions and rules. The newly constituted Full Board shall, after issuance of notices to all concerned parties and affording them an adequate opportunity of hearing, decide the review petition afresh through a reasoned and speaking order, strictly in accordance with law, preferably within a period of ninety (90) days from the date of receipt of a certified copy of this order. No order as to costs.

(MALIK JAVID IQBAL WAINS)

JUDGE

APPROVED FOR REPORTING

JUDGE

*SHARIF*