Syed Muzammal Shah & others Vs Gohar Aman & others

JUDGMENT SHEET

PESHAWAR HIGH COURT ABBOTTABAD BENCH

(Judicial Department)

CR No. 71/2013

Syed Muzammal Shah & others.

......(Petitioner/s)

V e r s u s.

Gohar Aman & others.

......(Respondent/s)

Present: M/s. Tahir Hussain Lughmani & Muhammad Ayaz Khan, Advocates for petitioners.

Qazi Ubaid ur Rehman, Advocates, Mr. Junaid Anwar Khan, Sardar Asad Ali Chohan and Mr. Aqeel Sarwar, Advocates for private respondents.

Sardar Basharat Khan, AAG for official respondents.

Dates of hearing: 23.04.2026, 07.05.2026 & 11.05.2026

JUDGMENT

SYED MUDASSER AMEER, J. Through this single judgment, the Court shall decide this revision petition as well as connected revision petition, i.e. CR No. 72-A/2013 titled: Syed Muzammal Shah v. Government of Khyber Pakhtunkhwa through Secretary Revenue & others, as in both these petitions common questions of law and fact are involved and both are also outcome of consolidated judgment dated: 22.12.2012 passed by the learned

Additional District Judge-II, Mansehra in Civil Appeals No. 39/13 of 2010 and 40/13 of 2011.

2.The controversy, though ostensibly arising from a challenge to certain revenue entries, in substance concerns the legality and validity of Notification No.17263/REV-II/VI/31/98 dated 28.08.1998 purportedly issued by the Board of Revenue, North-West Frontier Province (now Khyber Pakhtunkhwa) under Section 40 of the West Pakistan Land Revenue Act, 1967, directing special revision of the record of rights of Village/Estate Kaghan.

3.The facts have a long and chequered history extending over several decades. The dispute relates to extensive areas of land situated in Revenue Estate Kaghan, District Mansehra. The petitioners trace their rights through the lineage of Syed Qasim Shah and rely upon longstanding entries in the record of rights since the settlement 1872, including Mutations No.935 and 936 sanctioned in the year 1956, whereby the property was transferred within the family and thereafter consistently reflected in successive Jamabandis. According to the petitioners, these entries continued uninterruptedly for decades and acquired the presumption of truth and correctness attached to entries in the record of rights.

4.The controversy between the proprietors and certain occupants of the area is, however, much older.

Following disturbances and disputes regarding the status and cultivation of land in Kaghan Valley, the Provincial Government constituted a Commission headed by Aziz-ul- Hassan. The Commission conducted an extensive inquiry and submitted its report to the Government. Acting upon the recommendations emerging from that exercise, Ordinance No.III of 1980 was promulgated whereby Section 8-B was inserted into the NWFP Tenancy Act, 1950, providing, inter alia, for payment of ‘Battai’ by tenants notwithstanding contrary entries or decrees.

5.The matter thereafter became the subject of repeated litigation. Civil Suit No.233/1 of 1980 was instituted challenging, inter alia, Mutations No.935 and

936.The suit was dismissed on 24.04.1990. The appeal was dismissed on 24.05.1993. Civil Revision No.123 of 1993 was also dismissed. Proceedings before the Honourable Supreme Court ultimately culminated in permission to certain occupants or their legal representatives to seek impleadment in the present proceedings. Thus, although the earlier litigation failed, the underlying controversy continued.

6.Subsequently, representations were submitted before the Government seeking correction of the revenue record. The matter was referred through the revenue hierarchy. Reports were obtained from the local revenue authorities as well as the Deputy Commissioner, Mansehra. Thereafter, the Board of Revenue issued

Notification No.17263/REV-II/VI/31/98 dated 28.08.1998 purportedly under Section 40 of the West Pakistan Land Revenue Act, 1967 directing special revision of the record of rights. A corrigendum was subsequently issued on 19.11.1998. Pursuant thereto, changes were effected in the revenue record affecting rights of the petitioners.

7.The petitioners, asserting that the impugned notification was issued without lawful authority, was beyond the scope of Section 40, lacked statutory foundation, was never published in the Official Gazette, and resulted in unlawful disturbance of longstanding entries, instituted the present suit seeking declaration and permanent injunction. The learned trial Court decreed the suit. The learned appellate Court, however, reversed the decree and dismissed the suit. Hence, these revision petitions.

8.Heard. Record examined.

9.The first and perhaps most fundamental objection raised on behalf of the respondents is that the suit itself was barred by Section 172 of the West Pakistan Land Revenue Act, 1967 and, therefore, the Civil Court lacked jurisdiction to examine the validity of the notification.

10.The argument, though attractive at first glance, does not withstand close examination. Sections 53 and 172 of the Act of 1967 being relevant are given below:

Section 53. If any person considers himself aggrieved by an entry in a record-of rights or in a periodical record as to any right of which he is in possession, he may institute a suit for a declaration of his right under Chapter VI of the Specific Relief Act, 1877 (Act No. 1 of 1877).

Section 172. (1) Except as otherwise provided by this Act, no Civil Court shall have jurisdiction in any matter which Government, the Board of Revenue, or any Revenue Officer, empowered by this Act to dispose of, or take cognizance of the manner in which Government, the Board of Revenue, or any Revenue Officer exercise any powers vested in it for him by or under this Act.

(2)Without prejudice to the generality of the provisions of sub-section (1), a Civil Court shall not exercise jurisdiction over any of the following matters, namely:

(i)........................................

(ii).......................................

(iii).......................................

(iv)Any notification directing the making or revision of record-of-rights.

(Underlining supplied)

11.Section 172 of the Act bars the jurisdiction of Civil Courts only in respect of matters which the revenue authorities are empowered by the Act to determine. The provision was never intended to place beyond judicial scrutiny every action purportedly taken under the Act. To interpret it otherwise would render even patently illegal, mala fide or jurisdictionally defective actions immune from challenge, a consequence which the law has never countenanced.

12.It is now well settled that exclusion of the jurisdiction of Civil Courts is not to be readily inferred.

The jurisdiction of ordinary Courts remains intact unless expressly or by necessary implication taken away. Even where a statutory bar exists, Civil Courts continue to exercise jurisdiction where the impugned action is alleged to be without jurisdiction, mala fide, coram non judice, or in excess of powers conferred by statute.

13.In Muhammad Jamil Asghar v. Improvement Trust, Rawalpindi (PLD 1965 SC 698), the Honourable Supreme Court held that exclusion of the jurisdiction of Civil Courts is not to be lightly presumed and that Civil Courts remain competent to examine whether a statutory authority has acted within the limits of the law creating it.

14.Likewise, in Hamid Hussain v. Government of West Pakistan (1974 SCMR 356), it was held that where an authority acts beyond the powers conferred upon it by law, the protection otherwise available under a statutory bar ceases to operate.

15.The principle was reaffirmed in Muhammad Nazir Khan v. Ahmad and others (2008 SCMR 521), wherein the Honourable Supreme Court held that where allegations of mala fide, lack of jurisdiction or violation of vested rights are raised, the Civil Court is competent to examine the legality of the impugned action notwithstanding a statutory bar. It was observed:

“...Thirdly, the learned Single Judge after properly adverting to the principles of law laid down by this Court in the case of Alam Sher through Legal heirs v. Muhammad Sharif and 2 others 1998 SCMR 468

and taking into consideration the facts of the instant case held that the action of respondents Nos.2 and 3 is without jurisdiction and void, therefore, respondent No.1 was within his 'rights to maintain the suit before the Civil Courts, the bar of section 36 of the Colonization of Government Lands (Punjab) Act, 1912 does not apply and the Civil Court could competently proceed to adjudicate and entertain the suit; Lastly, this Court in a case reported as Hamid, Hussain v. Government of West Pakistan and others 1974 SCMR 356 while relying upon an earlier judgment of this Court in the case of Muhammad Jamil Asghar v. Improvement Trust PLD 1965 SC 698 has held as under:

"(b) Jurisdiction--- ----Jurisdiction of Civil Courts even if barred and conferred upon special Tribunals, Civil Courts being Courts of ultimate jurisdiction have jurisdiction to examine acts of such forums to see if such are in accordance with law, or illegal, or even mala fide."”

Thus, it is now firmly settled that where mala fide, excess of powers, transgression of jurisdiction, colourable exercise of authority or ultra vires action is alleged, the Civil Court remains the Court of ultimate jurisdiction competent to examine the validity of the impugned action.

16.More recently, the same principle was reiterated in Sher Ali Kakar v. Director General Sports and Youth Affairs, Government of Balochistan (PLD 2026 Balochistan 50), wherein it was observed that statutory protection extends only to lawful exercise of power and cannot be invoked to shield actions that are ultra vires the statute itself.

17.The present case falls squarely within the recognized exceptions. The petitioners do not merely challenge individual entries in the revenue record. Their

attack is directed against the very foundation of the exercise, namely the notification issued under Section 40.

They contend that the notification was issued without lawful basis, without jurisdiction, without publication in the Official Gazette, without notice to affected persons, and in disregard of longstanding rights already recognised by judicial determinations. Such allegations, if established, unquestionably attract the jurisdiction of the Civil Court.

18.There is yet another reason why the objection to jurisdiction cannot succeed. Section 53 of the West Pakistan Land Revenue Act, 1967 expressly provides that any person considering himself aggrieved by an entry in a record of rights or annual record may institute a suit for declaration under Chapter VI of the Specific Relief Act, 1877. This statutory remedy is further preserved by the opening words of Section 172, namely, “Except as otherwise provided by this Act”. Thus, where a person is aggrieved by entries incorporated in the record pursuant to an impugned exercise under the Act, the remedy expressly recognised by Section 53 remains available and stands excluded from the bar contemplated by Section 172.

19.The objection based upon Section 172, therefore, cannot be accepted.

20.This brings us to the nature and scope of Section 40 itself. The same is given below for convenience:

40.(1) When it appears to the Board of Revenue that a record-of-rights for an estate does not exist, or that the existing record-of-rights for an estate requires special revision, the Board of Revenue may, by notification, direct that a record-of-rights be made, or that the record-of-rights be specially revised, as the case may be.

(2)A notification under sub-section (1) may direct that record-of-rights shall be made or specially revised for all or any of the estates in any local area.

(3)A record-of-rights made or specially revised for an estate under this section shall be deemed to be the record-of-rights for that estate, but shall not affect any presumption in favour of Government which has already arisen from any previous record- of-rights.

(Underlining supplied)

21.Section 40 empowers the Board of Revenue to direct special revision of a record of rights where circumstances justify such a course. The provision undoubtedly confers an important supervisory power. Yet the power is neither unbridled nor unfettered. It is an extraordinary jurisdiction intended to ensure accuracy and reliability of revenue records. It was never designed as a mechanism for reopening settled rights, nullifying judicial findings, or altering proprietary interests through executive fiat.

22.The distinction is important. A record of rights records existing rights; it does not create them. Likewise, revision of a record of rights is intended to ensure correctness of entries; it is not a substitute for adjudication of disputed title.

23.In Muhammad Yaqoob and others v. Abdul Ghani and others (1983 SCMR 1222), the Honourable Supreme Court held:

“In so far as the exercise of power under section 40 is concerned, the revision of the record of rights is relatable to the justification found in each case and that depends upon the merits thereof.”

The authority of the Board to act under Section 40 is, therefore, not immune from judicial scrutiny. The Court remains entitled to examine whether the circumstances of the particular case furnished lawful justification for invocation of that power. The existence of statutory power does not by itself conclude the inquiry. The Court remains entitled to examine whether the circumstances justified invocation of that power.

24.Viewed in that light, the central question is not whether the Board of Revenue possessed power under Section 40. It undoubtedly did. The real question is whether the circumstances of the present case justified invocation of that extraordinary jurisdiction.

25.The answer to that question emerges from the contemporaneous record itself.

26.The material placed on record reveals that before issuance of the notification, the matter had been examined by the local revenue authorities as well as by the Deputy Commissioner, Mansehra. The reports submitted by those authorities did not recommend any special revision under

Section 40. On the contrary, the Deputy Commissioner, through communications dated 27.06.1997 and 12.08.1997, expressed the view that disputes relating to rights should be resolved through the competent Civil Court and suggested legislative intervention concerning the status of occupants and tenants rather than revision of the record under Section 40.

27.Equally significant is the fact that the Board of Revenue itself initially entertained serious reservations regarding the proposed exercise. The contemporaneous correspondence [Letter U.O.No.93-94/Rev:IV/Shamilat/97, Peshawar dated 6/3/1998 and Letter

No.8390/Rev:IV/31/98, Peshawar dated the 11/5/1998 (Ex.Pw-3/D-1)] available on record reveals that the Board repeatedly sought legal opinion and specifically expressed the view that Section 40 did not appear relevant to the controversy. The Board itself noted that the entries sought to be disturbed had continued for approximately half a century. These documents assume considerable importance because they originate from the very authority which ultimately issued the notification.

28.The significance of this material cannot be overstated. The local revenue authorities did not recommend special revision. The Deputy Commissioner did not recommend special revision. The Board of Revenue itself initially doubted applicability of Section 40.

Yet, notwithstanding these reservations, the impugned notification came to be issued.

29.Whether that exercise was legally sustainable is the question examined below.

30.The legality of the impugned notification becomes even more doubtful when one examines the circumstances preceding its issuance and the contents of the notification itself.

31.A perusal of the record reveals that the genesis of the entire exercise lay in an application allegedly submitted before the Board of Revenue on behalf of certain residents of Kaghan seeking correction of the revenue record. The subsequent inquiry report obtained during pendency of the suit and forming part of Ex.PW-3/1 records that the said application did not even disclose the identity of the applicant. The report further records that the local revenue inquiry did not support the relief sought therein; that the Deputy Commissioner had not recommended any special revision under Section 40; that he had instead suggested legislative intervention regarding tenancy rights and had opined that disputes concerning rights should be resolved through a competent Civil Court;

and that neither the original application nor the impugned notification specified any particular khasra numbers, although the consequential changes were ultimately confined to specific khasras pertaining to the petitioners'

family. The report also notes that earlier challenges to the relevant entries had already failed before the superior Courts. These observations, emanating from an official inquiry conducted during pendency of the suit, lend considerable support to the challenge raised by the petitioners.

32.The notification itself furnishes little assistance in explaining why the extraordinary jurisdiction under Section 40 was invoked. It merely records that the Board of Revenue considered it necessary to direct special revision of the record of rights and proceeds to issue the direction accordingly. No reason whatsoever is disclosed.

The notification neither identifies any defect in the existing record nor refers to any fraud, mistake, irregularity, inquiry report, complaint, misrepresentation or other circumstance necessitating invocation of such extraordinary power.

33.The omission is not insignificant. Where statutory power is exercised in a manner affecting longstanding proprietary, possessory and tenancy rights, the authority must at least disclose the basis upon which it formed the opinion that such intervention was necessary.

Reasons are the lifeblood of administrative action. They reveal that power has been exercised upon relevant considerations rather than whim or caprice. The requirement becomes even more important where vested rights standing reflected in the record for decades are sought to be disturbed.

34.The notification records the conclusion but not the reasoning. It tells the reader what was done but remains conspicuously silent as to why it was done. Such an exercise of power is inherently difficult to defend because it deprives both the affected persons and the Court of the ability to examine whether the jurisdiction was exercised upon lawful and relevant grounds.

35.The matter does not end there.

36.The original notification dated 28.08.1998 referred to “Village Kaghan”. Subsequently, through corrigendum dated 19.11.1998, the expression “Village Kaghan” was substituted with “Estate Kaghan”.

37.Prima facie, this was not a mere clerical correction. A notification under Section 40 contemplates special revision of the record of rights of a revenue estate and not of particular persons, selected khasra numbers or isolated parcels of land. The effect of the corrigendum, therefore, was not merely textual but substantive, as it sought to bring the notification within the statutory framework of Section 40. Significantly, however, even after issuance of the corrigendum, the exercise did not culminate in a general revision of the record of rights of the entire estate. Instead, the consequential changes remained confined to specific entries affecting the rights of the petitioners. This circumstance lends support to the contention that the impugned exercise, though couched in

the language of a special revision of the estate, was in substance directed towards particular entries and particular rights.

38.The corrigendum thus raises a further question regarding the legality of the exercise. Rather than curing the jurisdictional concerns surrounding the original notification, it accentuates them. It reinforces the impression that the process ultimately adopted was neither transparent nor consistent with the object, scope and requirements of Section 40 of the Act.

39.Another feature of the case deserves particular attention.

40.The entries sought to be disturbed were not recent or tentative entries. They had continued in the record for decades and were reflected in successive Jamabandis. The petitioners rely upon Mutations No.935 and 936 sanctioned in the year 1956 and the entries flowing therefrom. Whatever view one may ultimately take regarding the merits of those entries, there can be little dispute that they had remained part of the revenue record for approximately half a century before issuance of the impugned notification.

41.Longstanding entries incorporated in successive Jamabandis carry a statutory presumption of correctness.

Such entries are not lightly disturbed. The law attaches significance to continuity in the record because rights,

transactions and expectations are often arranged on the basis of what the record discloses.

42.Since much of the respondents' case appears to have rested on inferences drawn from Lagan/Kaifiyat entries rather than ownership and possession columns, it is important to note that it is equally well settled that the statutory presumption attaches to entries in the columns of ownership and possession and not to entries in the columns of Lagan or Kaifiyat. In Mira Khan v. Abdul Ghawas (PLD 1994 Peshawar 209), this Court held that where entries in the column of rent conflict with entries in the column of possession, the latter prevail. It was observed:

“The suit of Mira Khan based on title was proved from the revenue record on file wherein Abdul Ghawas, etc. the respondents/defendants were entered as tenants‐at­ will but in the column of Lagan the entry appeared to be that of "Bila Lagan Bawaja‐e‐Baih". There is not an iota of evidence regarding such sale and even otherwise when the entries in the column of rent differ from the entries in the column of possession, those in the column of possession would prevail.”

43.More recently, in Hasham Khan through LRs v.

Waheed Ahmed (2024 SCMR 353), the Honourable Supreme Court reaffirmed that presumption of correctness attaches only to the columns of ownership and possession in the record of rights and not to entries in the column of Lagan or Kaifiyat, which must be independently proved. It was held:

“...Lahore High Court in the judgment reported as "Pervez Alam Khan v. Muhammad Mukhtar Khan" (2001 CLC 1489) while relying on the judgment of this court reported as "Shad Muhammad v. Khan

Poor" (PLD 1986 SC 91) correctly held that presumption of correctness is attached only to the column of ownership and of possession of record of right and no such presumption is attached to the column of Lagan. In the same line, it is incrementally held that the same is the correct law for the entries made in Khana Kafiyat of Register of Record of Rights/Jamabadi. Whenever, a party relies on this Column, they will have to prove the incorporated statement/entry through independent evidence.”

44.In Muhammad Usman v. Province of Punjab (2002 CLC 1980), it was observed that long-standing entries reflected in successive Jamabandis and acted upon for decades cannot ordinarily be displaced through summary revenue proceedings where complicated questions relating to rights require adjudication by a competent Civil Court.

45.The importance of stability in revenue records has likewise been recognized by the superior Courts on numerous occasions. Revenue entries may not be conclusive proof of title, yet longstanding entries repeatedly carried forward in successive settlements and Jamabandis cannot be brushed aside without compelling justification.

46.In Muhammad Khaliq (decd.) through legal heirs v. Gul Afzal Khan and others (PLD 2015 Supreme Court 247), it was held:

“Learned counsel for the appellants firstly argued that it was the duty of the trial Court to frame an issue on the question raised in para.5 of the plaint that the entries in the revenue record had been fraudulently made in the year 1966. The evidence of the witnesses has been examined by the Courts below and it has also been correctly observed that

presumption of correctness attaches to the revenue record. Furthermore, we note that the witnesses of the plaintiffs themselves acknowledged that they had participated in the proceedings of survey/bandobast. When faced with this, learned counsel for the appellants contended that they were illiterate. This has not been found to be a sufficient base for interference in the longstanding entries of the revenue record.”

Underlying supplied

Similarly, earlier in Inayat Khan and others v. Allah Ditta and others (2007 SCMR 655), it was also observed:

“It is a settled law that longstanding entries in Jamabandis does have presumption of truth”

47.The record further reveals that many of the issues sought indirectly to be reopened through the impugned exercise had already been the subject of judicial proceedings.

48.Civil Suit No.233/1 of 1980 was instituted challenging, inter alia, Mutations No.935 and 936 and asserting rights inconsistent with those claimed by the petitioners. The suit was dismissed on 24.04.1990. The appeal was dismissed on 24.05.1993. Civil Revision No.123 of 1993 was also dismissed. Proceedings before the Honourable Supreme Court ultimately culminated in permission to seek impleadment in the present proceedings.

49.The significance of this litigation lies not merely in the result but in the principle it embodies. Rights and entries that have survived judicial scrutiny over several

tiers of adjudication acquire a degree of finality which cannot lightly be disregarded by executive action.

50.The law has always drawn a distinction between judicial determination and administrative action. While the executive may exercise powers conferred by statute, it cannot, under the guise of administrative action, nullify or circumvent findings rendered by competent Courts.

51.In Commissioner of Income-tax, East Pakistan v.

Fazlur Rahman (PLD 1964 SC 410), the Honourable Supreme Court observed:

“That a judicial order should be set aside by means of an administrative order is a concept as yet unknown to our system of jurisprudence. Administrative orders may be set aside by judicial orders, but no provision of any law has been cited of a reverse case.”

The Court further observed that a conclusion not reached in a judicial manner cannot supersede one reached in a judicial manner.

52.Likewise, in Chuttan v. Sufaid Khan (1987 SCMR 503), the Supreme Court held:

“5. As for the second contention of the learned counsel for the appellants qua the powers of the Board of Revenue for ordering fresh consolidation, this too has received the consideration of the learned Single Judge who came to the conclusion that the Board of Revenue have no powers on the administrative side to nullify the effect of judicial orders and by so holding he observed:

"The question of powers of the Board of Revenue of ordering a fresh consolidation came up for considerable discussion. It is true that the Board of Revenue acts in a dual capacity. On the administrative side, it controls the consolidation proceedings and on the judicial side it deals with the

matter arising out of it. But once a matter has been decided on the judicial side, the exercise of executive authority to nullify the effect of judicial decisions will be an improper exercise of authority. Nullifying the effect of judicial decisions even by legislative process has never received a universal backing, although it is not unknown to our system of law and examples of this can be found in our legislative history but revoking of a judicial decision by an administrative process is certainly something new and cannot be approved of."

We are inclined to agree with the observations reproduced above. In this case, admittedly the Board of Revenue exercising their powers on the judicial side thrice rejected the plea of consolidation, afresh, it has, therefore, no powers on the administrative side to set at naught the judicial orders, more so when they had attained finality.”

53.The inquiry report obtained during pendency of the suit assumes considerable importance in this context.

Apart from recording that the original representation was anonymous and that the local inquiry did not support the proposed action, the report specifically notes that earlier challenges to the relevant entries had failed before the superior Courts. It further records that the Deputy Commissioner had opined that disputes relating to rights ought to be resolved through Civil Courts and that legislative intervention, rather than special revision under Section 40, would be the appropriate course for addressing issues relating to tenants.

54.Far from supporting the impugned notification, the contemporaneous material available on the record appears to point in the opposite direction. The local revenue authorities did not recommend special revision.

The Deputy Commissioner did not recommend special

revision. The Board of Revenue itself initially questioned the applicability of Section 40. The notification disclosed no reasons. The scope of the exercise was subsequently enlarged through a corrigendum. Longstanding entries were sought to be disturbed despite previous litigation concerning the same subject matter.

55.Each of these circumstances raises a serious legal infirmity. Collectively, they cast substantial doubt upon the legality and jurisdictional foundation of the exercise undertaken pursuant to the impugned notification.

56.There is yet another aspect of the case which strikes at the very root of the impugned exercise. It is an admitted position on the record that the notification dated 28.08.1998 was never published in the Official Gazette.

57.The petitioners contend that publication in the Official Gazette was a mandatory prerequisite to the legal efficacy and enforceability of the notification and that, in the absence of such publication, the notification never acquired lawful force. The respondents, on the other hand, argue that publication was merely procedural and that non- publication does not necessarily invalidate the exercise.

58.The issue is of considerable importance and warrants careful examination in light of the statutory framework as well as the jurisprudence developed by the superior Courts.

59.Section 2(41) of the West Pakistan General Clauses Act, 1956 defines a “notification” in the following terms:

“Notification” shall mean a notification published under proper authority in the official Gazette.

60.The statutory definition itself is significant. It does not merely describe a notification as a decision, order or declaration issued by the Government. Rather, it expressly links the very concept of a notification with publication in the Official Gazette. Publication is thus embedded within the statutory definition itself.

61.The question nevertheless remains whether non- publication invariably renders a notification void or whether the consequence depends upon the nature of the statute and the rights affected.

62.The earlier and stricter view is reflected in Muhammad Suleman and others v. Abdul Ghani and others (PLD 1978 SC 190), wherein the Honourable Supreme Court held that a notification derives its legal character from publication in the Official Gazette and that mere issuance is not sufficient. This principle was subsequently reaffirmed in Government of Sindh v. Khan Ginners (Pvt.) Ltd. (PLD 2011 SC 347), wherein the Supreme Court observed:

“The case of Muhammad Suleman and others v. Abdul Ghani PLD 1978 SC 190 throws sufficient light on the legal position that issuance of a Notification is not of any significance or legal

importance till it is published in an official Gazette. According to section 2(41) of the General Clauses Act, 1956 a ‘Notification’ means a Notification published under proper authority in an official Gazette. In this view of the matter before its publication in the official Gazette the Notification could not even be lawfully termed as a Notification.”

63.The jurisprudence, however, did not remain static. In Saghir Ahmed v. Province of Punjab (PLD 2004 SC 261), the Supreme Court observed that no universal rule could be laid down regarding the consequences of non-publication and that the answer would depend upon the language, object and purpose of the particular statute.

The Court explained that provisions regarding publication may, in some situations, be directory rather than mandatory. This approach was subsequently followed in Bahadur Khan v. Federation of Pakistan (2017 SCMR 2066), where it was held that non-publication does not invariably deprive a statutory instrument of its legal status.

64.The apparent divergence was ultimately reconciled by the larger Bench of the Honourable Supreme Court in Justice Qazi Faez Isa and others v. President of Pakistan and others (PLD 2021 SC 1). After reviewing the earlier authorities, the Court held that no hard and fast rule of universal application could be formulated. However, two important exceptions were recognised. First, where the governing statute expressly requires publication in the Official Gazette; and second, where the rights and liabilities of persons are affected. In such situations,

publication assumes mandatory significance. The Court expressly reiterated the observations made in Saghir Ahmed that provisions relating to publication may be treated as mandatory “where rights or liabilities of other persons are involved.”

65.The modern jurisprudence has consistently moved in that direction. In Controller General of Accounts v. Fazil Ahmad (2021 SCMR 800), the Honourable Supreme Court declined to give legal effect to a notification which had neither been issued by the competent authority nor published in the Official Gazette.

66.Likewise, in Province of Punjab v. Syed Zia-ul- Hassan Zaidi and others (2022 SCMR 830), the Honourable Supreme Court held that publication of a notification was mandatory where acquisition proceedings were likely to affect the rights and interests of landowners.

The Court emphasised that publication serves the vital purpose of informing affected persons and enabling them to avail the safeguards provided by law.

67.More recently, in Commissioner Inland Revenue and others v. Shiraz Restaurant and others (2023 SCMR 2084), the Honourable Supreme Court once again underscored the importance of transparency in governmental action and observed that persons affected by the exercise of public power must know who is exercising

authority and under what lawful source such authority is claimed.

68.The legal position emerging from the above authorities may be summarised thus: publication in the Official Gazette is not invariably mandatory for every governmental act. However, where the governing statute contemplates publication, or where the notification is intended to affect, alter, diminish or determine the rights and liabilities of citizens, publication ceases to be a matter of form and becomes a substantive requirement. In such cases, publication serves the fundamental purposes of legality, transparency, notice and due process.

69.The present case falls squarely within that category.

70.The impugned notification was purportedly issued under Section 40 of the West Pakistan Land Revenue Act, 1967 for special revision of the record of rights relating to Revenue Estate Kaghan. The exercise was not administrative in the narrow sense. Its very purpose was to alter entries affecting proprietary, possessory and tenancy rights recorded in the revenue record. Indeed, the entire controversy before this Court arises precisely because valuable civil rights were affected by the consequential changes carried out pursuant to the notification.

71.The case, therefore, satisfies both conditions recognised in PLD 2021 SC 1. First, the statutory definition contained in Section 2(41) of the West Pakistan General Clauses Act expressly contemplates publication in the Official Gazette. Secondly, the rights and liabilities of citizens were directly and substantially affected.

72.In these circumstances, publication was not a procedural formality. It was an essential prerequisite to the legal efficacy and enforceability of the notification.

73.A document which has not been published in the Official Gazette, despite being intended to alter vested proprietary and possessory rights, cannot readily be accorded the status of a legally operative notification capable of sustaining the drastic consequences that followed.

74.The defect assumes even greater significance when viewed alongside the other infirmities already noticed. The local revenue authorities did not recommend special revision. The Deputy Commissioner did not recommend special revision. The Board of Revenue itself initially doubted applicability of Section 40. No reasons were recorded in the notification. The scope of the exercise was subsequently enlarged through a corrigendum.

Longstanding entries reflected in successive Jamabandis were sought to be disturbed notwithstanding previous litigation concerning the same subject matter. The affected

persons were not afforded any meaningful opportunity of hearing. Finally, the notification itself was never published in the Official Gazette.

75.Each of these circumstances independently raises a serious legal infirmity. Viewed collectively, they leave little room for doubt that the impugned notification and the consequential exercise undertaken pursuant thereto travelled beyond the lawful scope of Section 40 and cannot be sustained in the eye of law.

76.The cumulative circumstances noticed above raise a compelling inference of mala fide in law. The power conferred by Section 40 was employed for a purpose not contemplated by the statute itself.

Longstanding rights reflected in the record for decades and previously upheld through judicial proceedings were sought to be unsettled through an administrative process.

Such exercise cannot be reconciled with the object, scope and limits of Section 40 and constitutes a colourable exercise of statutory authority.

77.The learned trial Court appreciated the controversy in its proper perspective and rightly concluded that the impugned notification was liable to be struck down. The learned appellate Court, with utmost respect, failed to adequately address the jurisdictional defects attending the exercise and consequently fell into error in reversing the decree.

78.For the foregoing reasons, this civil revision petition No.71/2013 and the connected CR No.72/2013 are allowed. The judgment and decree passed by the learned appellate Court are set aside. The judgment and decree of the learned trial Court are restored.

79.As a necessary consequence, Notification No.17263/REV-II/VI/31/98 dated 28.08.1998, together with the corrigendum dated 19.11.1998 and all consequential actions taken pursuant thereto, shall stand declared ineffective against the rights of the petitioners in terms of the decree passed by the learned trial Court.

Announced.

(Tahir CS)

JUDGE

Headnotes for Reporting:

West Pakistan Land Revenue Act, 1967 (XVII of 1967), Ss. 40, 53 & 172, West Pakistan General Clauses Act, 1956, S.2(41), Civil Court jurisdiction, special revision of record of rights, validity of notification, mala fide in law, colourable exercise of statutory authority.

Civil Court jurisdiction despite statutory bar – Section 172 of the Act bars the jurisdiction of Civil Courts only in respect of matters which the revenue authorities are empowered by the Act to determine. The provision was never intended to place beyond judicial scrutiny every action purportedly taken under the Act. Even where a statutory bar exists, Civil Courts continue to exercise jurisdiction where the impugned action is alleged to be without jurisdiction, mala fide, coram non judice, or in excess of powers conferred by statute. Where mala fide, excess of powers, transgression of jurisdiction, colourable exercise of authority or ultra vires action is alleged, the Civil Court remains the Court of ultimate jurisdiction competent to examine the validity of the impugned action. Sections 53 and 172, read together, preserve the right of a person aggrieved by entries in the record of rights to institute a suit for declaration. (Paras 11, 12, 15 Section 40 – Scope and limits of special revision – Section 40 confers an extraordinary supervisory jurisdiction intended to ensure accuracy and reliability of revenue records. It was never designed as a mechanism for reopening settled rights, nullifying judicial findings, or altering proprietary interests through executive fiat. A record of rights records existing rights; it does not create them. Revision of a record of rights is intended to ensure correctness of entries; it is not a substitute for adjudication of disputed title. The validity of an exercise under Section 40 depends upon the justification found in each case and remains subject to judicial scrutiny. (Paras 21, 22 & 23)

Notification under Section 40 – No recommendation by revenue authorities – No reasons recorded – Jurisdictional defect – The local revenue authorities did not recommend special revision. The Deputy Commissioner did not recommend special revision. The Board of Revenue itself initially doubted applicability of Section 40. Yet, notwithstanding these reservations, the impugned notification came to be issued. The notification itself furnished little assistance in explaining why the extraordinary jurisdiction under Section 40 was invoked. No reason whatsoever was disclosed. The notification neither identified any defect in the existing record nor referred to any fraud, mistake, irregularity, inquiry report, complaint, misrepresentation or other circumstance necessitating invocation of such extraordinary power. The notification recorded the conclusion but not the reasoning. (Paras 27, 28, 32 & 34)

Corrigendum – Expansion from village to estate – Effect – A notification under Section 40 contemplates special revision of the record of rights of a revenue estate and not of particular persons, selected khasra numbers or isolated parcels of land. The effect of the corrigendum was not merely textual but substantive, as it sought to bring the notification within the statutory framework of Section 40. Even after issuance of the corrigendum, the exercise did not culminate in a general revision of the record of rights of the entire estate. Instead, the consequential changes remained confined to specific entries affecting the rights of the petitioners. The corrigendum reinforced the impression that the process ultimately adopted was neither transparent nor consistent with the object, scope and requirements of Section 40 of the Act. (Paras 37 & 38) Revenue record – Longstanding entries – Presumption of correctness – Longstanding entries incorporated in successive Jamabandis carry a statutory presumption of correctness. Such entries are not lightly disturbed. Revenue entries may not be conclusive proof of title, yet longstanding entries repeatedly carried forward in successive settlements and Jamabandis cannot be brushed aside without compelling justification. It is equally well settled that the statutory

presumption attaches to entries in the columns of ownership and possession and not to entries in the columns of Lagan or Kaifiyat. (Paras 41, 42, 43, 45 & 46) Administrative action vis-à-vis prior judicial determinations – Rights and entries that have survived judicial scrutiny over several tiers of adjudication acquire a degree of finality which cannot lightly be disregarded by executive action. While the executive may exercise powers conferred by statute, it cannot, under the guise of administrative action, nullify or circumvent findings rendered by competent Courts. What could not be achieved through litigation cannot subsequently be achieved through administrative action. (Paras 49, 50, 51 & 52) Notification – Publication in Official Gazette – Effect of non-publication – Evolution of jurisprudence – Section 2(41) of the West Pakistan General Clauses Act, 1956 expressly links the very concept of a notification with publication in the Official Gazette. The legal position emerging from the authorities is that publication in the Official Gazette is not invariably mandatory for every governmental act. However, where the governing statute contemplates publication, or where the notification is intended to affect, alter, diminish or determine the rights and liabilities of citizens, publication ceases to be a matter of form and becomes a substantive requirement. In such cases, publication serves the fundamental purposes of legality, transparency, notice and due process. (Paras 59, 60, 64 & 68)

Notification affecting proprietary and possessory rights – Publication mandatory – The impugned notification was intended to alter entries affecting proprietary, possessory and tenancy rights recorded in the revenue record. The case satisfied both conditions recognised by the Supreme Court: first, the statutory definition expressly contemplated publication in the Official Gazette; secondly, the rights and liabilities of citizens were directly and substantially affected. In these circumstances, publication was not a procedural formality. It was an essential prerequisite to the legal efficacy and enforceability of the notification. A document which has not been published in the Official Gazette, despite being intended to alter vested proprietary and possessory rights, cannot readily be accorded the status of a legally operative notification capable of sustaining the drastic consequences that followed. (Paras 70, 71, 72 & 73) Section 40 – Cumulative defects – Mala fide in law – Colourable exercise of statutory authority – The local revenue authorities did not recommend special revision; the Deputy Commissioner did not recommend special revision; the Board of Revenue itself initially doubted applicability of Section 40; no reasons were recorded in the notification; the scope of the exercise was subsequently enlarged through a corrigendum; longstanding entries reflected in successive Jamabandis were sought to be disturbed notwithstanding previous litigation concerning the same subject matter; the affected persons were not afforded any meaningful opportunity of hearing; and the notification was never published in the Official Gazette. Viewed collectively, these circumstances left little room for doubt that the impugned notification and the consequential exercise undertaken pursuant thereto travelled beyond the lawful scope of Section 40 and could not be sustained in the eye of law. The cumulative circumstances raised a compelling inference of mala fide in law. The power conferred by Section 40 was employed for a purpose not contemplated by the statute itself and constituted a colourable exercise of statutory authority. (Paras 74, 75 & 76)