Akbar Ali Khan Vs Ghani-ur-Rehman

I

l (Judicial Deparfinent)

Akbar ali Khan

Yersus

Ghani ur Rehman and 03 others

Dateofhearing: WE For petitioner: IWs Bashir Ahmad Khan, Zahir Shah Marwat, Hafiz Muhammad Hanif, and Farid Ullah Shah Wazir, Advocates.

For respondents IWs Wilayat Ali Khan Gandapur and Ikram Ullah Khan Marwat Advocates, for respondent No.l.

Through this

consolidated judgrnent, I intend to decide the instant writ petition, bearing W.P. No.482-B/2024, along with connected Writ Petition No.56l-812024, as both arise out of a corlmon set of facts and the same impugned judgment dated 30.09.2024, passed by the learned Member (Judicial- D, Board ofRevenue, Khyber Pakhtunkhwa. Since the legal and factual controversies involved in both petitions are inexhicably linked, it is deemed appropriate, in the interest of consistency and judicial economy, to adjudicate them together through this single judgment.

2.Briefly stated, the facts giving rise to the lis, as set out in this petition, are that Akbar Ali Khan (petitioner in

W.P. No.482-Bl2024) purchased the suit property measuring }7-l<anal, comprising Khata No.57915742, Khasra No.2/4114, from Sultan Ali through sale mutation No.5260 dated 18.12.2013, however, to a family arangement, the mutation was sanctioned in the name of his brother Aman Ullah. The property comprised a residential quarter, guesthouse, enclosed within a boundary wall, and a Ufone mobile tower. Subsequently, an unbuilt area measuring 05-kanal was earmarked for the establishment of a petrol filling station; that Aman Ullah executed and registered a general power of attomey in favour of the petitioner, authorizing him to manage the property, including the execution of lease agreements with Ufone and Attock Petroleum Limited; that he in the year 2021, executed a lease agreement for a BTS (Base Transceiver Station) site with Pak Telecom Mobile Limited; that for the establishment of a Peffol Filling Station on the designated site, the petitioner, acting as attorney for his brother Aman Ullah executed a registered lease deed with Attock Petroleum Limited and a mutation to this effect was duly attested; that after fulfilling all requisite formalities, the project was completed and formally inaugurated on 07.5.2023. However, on 07.05.2023, on the same day and date at 06:00 p.m., the respondent Ghani ur Rehman alongwith his sons, brother and bodyguard, illegally and forcibly occupied the petitioner's property including the

v Pefrol Filling Station and thereby forcibly dispossessed the petitioner from his lawful possessiol thereof; that the petitioner initially approached the local police for redressal, but to no avail. He thereafter filed a complaint under the Illegal Dispossession Act, against the respondent and others before the Sessions Judge Bannu, who entrusted it to Additional Sessions judge-Vl, Bannu, who upon receiving it, referred the matter to the concerned S.H.O for inquiry and report. The S.H.O submiued his inquiry report to the Court, whereupon the Court summoned the accused/ respondents. Respondent Ghani ur Rehman appeared before the Court and filed an application seeking summary dismissal of the complaint, claiming ownership of the o disputed property on the basis of mutation No.9008 dated 22.10.2020. However, the application was dismissed and the complaint was held to be maintainable vide order dated tt.9.2023.

3.The record demonstates that the petitioner submitted various apptications/complaints to different fora, including the Chief Secretary Khyber Pakhtunkfiwa, alleging that mutation No.9008 dated 22.10.2020, in the name of respondents Ghani ur Rehman, is fake, fictitious and bogus;

that it was prepared after 21.6.2023, during pendency of the complaint under the Ittegal Dispossession Act, filed against the respondent by the petitioner/complainant. The Chief Secretary, forwarded the complaint, through the Board of

v Revenue and Estate Departnent @evenue Section), Khyber Pakhtunkhwa, to the Deputy Commissioner, Bannu for action in accordance with law and rules, under intimation to the Board of Revenue. The Deputy CommissionerlDistrict Collector, Bannu inquired into the maffer, initially through Additional Assistant Commissioner Domel and subsequently through Additional Assistant Commissioner (revenue), Bannu. Upon receiving the inquiry report, the Deputy Commissioner/District Collector, Bannu, while exercising his powers under Section 16(1) and 172(2Xvi) of the Land Revenue Act, cancelled the mutation No.9008 dated 22.10.2020 vide order dated 27.9.2023. Feeling aggrieved, the respondent Ghani ur Rehman challenged the order of Deputy Commissioner/District Collector, Bannu dated 27.9.2023 by filing an appeal before ttre Additional Commissioner, Bannu who dismissed the same vide order dated 25.01.2024. Dissatisfied with the concurrent findings of the forums below, respondent Ghani ur Rehman, challenged both orders through a revision petition before the Member Board of revenue. The revision was accepted vide order dated 30.9.2024 (impugned herein), whereby mutation No.9008 was restored, but in para-8 of the same judgment, specifically held that Akbar Ali, the present petitioner was in possession of the site which was the subject matter of judicial proceedings before the leamed Additional District Judge-MI, Bannu who had ruled in favour of the present

v petitioner, Akbar Ali, vide order dated 31.5.2024. The Member Board of Revenue further observed that the present respondent Ghani ur Rehman may seek possession from his vendor through proper partition proceedings in accordance with law.

4.The petitioner Akbar Ali, being discontent with the order restoring mutation No.9008 dated 22.10.2020, has filed the present Writ Petition No.482-812024 before this Court. Conversely, respondent Ghani ur Rehman, aggrieved by the observation make in the paragraph-8 of the impugned n order, has filed the connected Writ Petition No.56l-B 12024, seeking expunction of the said observation.

5.The record demonstrates that the petitioner Ali Akbar was and is in possession of the disputed property, a fact substantiated by lease agreements with Pak Telecom Mobile Limited and Attock Petroleum Limited, administrative sanctions, official coffespondence, revenue records and judicial rulings of Courts of competent jurisdiction including the impugned order.

6.The pivotal issue before this Court is the legality and validity of the orders passed by the official respondents No.2 to 4, concerning the cancellation and subsequent restoration of mutation No.9008 dated 22.10.2020.

v

7.Counsel for the petitioner argued that, in addition to available record, the connected writ petition filed by the respondent Ghani ur Rehman establishes the petitioner's possession of the suit property. His next limb of the argument is that the disputed mutation No.9008, dated 22.10.2020 was a bogus and fictitious document, which was rightly declared as such by the inquiry officer and subsequently cancelled by the Deputy Commissioner/ Distict Collector. While concluding his arguments, the learned counsel for the petitioner submitted that the Member e Board of Revenue has exercised jurisdiction not vested in it and has illegally restored the bogus mutation and therefore prayed for the setting aside of the impugned order.

8.On the confiary, the leamed counsel argued that the impugned order of Member Board of Revenue is legal and well reasoned. He contended that the Land Revenue Act, 1967 is a complete Code, prescribing the procedure for attestation, review and cancellation of mutations. He further submitted that the mutation in question was neither attested by the Deputy Commissioner/District Collector, Bannu, nor was any appeal preferred before him for its cancellation, therefore, the impugned orders of both the forums below, being illegat and without jurisdiction, were rightly set aside and he last prayed for the dismissal of the instant writ petition and the allowing of the connected writ petition filed by the respondent Ghani ur Rehman.

v 9, Record reflects that in the complaint, the petitioner specifically stated that the disputed mutation No.9008 dated 22.10.2020 was a backdated bogus and fictitious document, which had been prepared after 27.6.2023, during the pendency of the complaint under the Illegal Dispossession Act.

10.As the allegations in the complaint were serious and alarming, an inquiry was conducted, which revealed that the disputed mutation was fake and bogus document, inserted .t into the record with intent to usurp the petitioner's land. The record further discloses that upon receipt of the inquiry report, the Deputy Commissioner/District Collector observed that the disputed mutation was originally an inheritance mutation, which was subsequently tampered with and numbered as 9008/1 while another mutation, based on a fake sale transaction was prepared and assigned the number 9008. The scanned copy of mutation No.9008, obtained from the Service Delivery Center (SDC) Bannu was compared with the record of rights, confirming that in the current Jamabandi for the year 2013-14, mutation No.9008, was indeed recorded as an inheritance mutation. It was also observed that Gul Shazadin, who allegedly sold the disputed land to respondent Ghani ur Rehman through mutation No.9008, was recorded as owner of a total area measuring l4-kanal, l8-marla and 04-sarsai in ownership column. However, prior to the preparation of the disputed

v mutation, the vendor, had already sold or gifted land measuring 2l-kanal l7-marla and 08-l/4-sarsai, as reflected in the cultivation column, an urea exceeding his ownership/entitlement. This discrepancy led to the conclusion that mutation No.9008 was bogus and fictitious.

11.Coming back to the objection raised by the learned counsel for the respondent that under the relevant law, the Deputy Commissioner/District Collector, was not competent to cancel the mutation without following the procedure prescribed under Chapter XIII of the Land Revenue Act, a this objection though facially atfactive, is neither legally tenable nor convincing, because the inquiry report further reveals that the Daily Diary (Roznamcha Waqiati) for the year 2019-20, which is a primary document for initiating a sale transaction or alienation of land is missing, the original Ta:r receipts, bank challan were not presented before the inquiry offtcer, the disputed mutation was neither compared with record of rights nor signed by the Girdawar Circle and that a page preceding the page of mutation No.9008, was also found to have been removed from the original register of mutation.

12.From the above stated facts, it stands established that the disputed mutation is not a legally initiated, registered and attested document, therefore, the Deputy Commissioner/District Collector, while exercising his

executive and supervisory authority under Section 172(2)(vi) of the Land Revenue Act, 1967, accepted the discreetly conducted inquiry and consequently cancelled the disputed mutation No.9008 dated 22.10.2020.

13.Despite the fact that, for all intents and purposes, the Deputy Commissioner/District Collector's order was an executive and supervisory in nature, which could not be challenged under Chapter XIII of the Land Revenue Act, 1967. The respondent No.l, elected the remedy of filing an appeal, which was neither legal nor proper. Consequently n the revision under Section 164 of the Land revenue Act, 1967, was also incompetent. Apart from the above, the Member Board of Revenue in Paru-7 through a non- speaking order, illegally reversed the Deputy Commisioner/District Collector, Bannu's order, which was based on sound, strong and cogent reasons, and thus exercised the jurisdiction not vested in it.

14.In view of the above, W.P. No.482-B12024 is allowed. The impugned judgment dated 30.09.2024 passed by the Member (Judicial-I), Board of Revenue, Khyber Pakhtunkhwa is declared to have been passed without lawfut authority and is of no legal effect. Consequently, the orders passed by the District Collector, Bannu, dated 27.09.2023, and upheld by the Additional Commissioner, Bannu Division, dated 25.01.2024, are restored. W.P.

v No.56l-B/2024, being misconceived and without merit, is dismissed.

Announced.

Dt:31.7.2025.

Imran/* rADGE

(S.B)

Hon'ble Mr. Justice MuhammadTariq Afridi

SCND

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