1982 PLP 1450 (CLC)

Sh. Abdul Aziz and Ch. Abdul Rashid Gujjar for Respondents Nos. 1 to

4. Nemo for Respondent No.

5. Date of hearing: 19th January, 1981. This writ petition has been directed against the order, dated 23rd October,. 1980 of the learned Member (Revenue), Board of Revenue, Punjab, Lahore.

2. The facts relevant for resolving the controversy involved in the writ petition may be briefly stated. The petitioners filed a suit for possession through pre‑emption, on the basis of tenancy in respect of agricultural land, measuring 113 kanals and 19 marlas, in village Ahmad Wala, Tehsil Bhalwal, District Sargodha, on 21st March, 1977 in the Court of Civil Judge, Bhalwal. The suit was returned to the petitioners for presentation to the proper Court on 19th May, 1977, in that in terms of Paragraph 6(5), of the Land Reforms (Amendment) Act, 1976, all pre‑emption suits in respect of lands comprised under a tenancy are to be exclusively entertained, heard and decided by the Collector within whose jurisdiction the land is situated. Accordingly, the petitioners filed the plaint in the Court of Collector, Bhalwal, on the same day. The learned Collector, vide his order dated 3rd November, 1979, entertained the suit of the petitioners and rejected the application of respondents Nos. 1 to 4 for dismissal of the suit as time barred. The contesting respondents challenged the order of the Collector by way of revision before the Board of Revenue on the ground that the Collector had no jurisdiction to condone the delay in entertaining the suit after the expiry of period of limitation. The learned Member (Revenue), Board of Revenue, accepted the contention of the res pondents and set aside the order of the Collector with the observations that section 14 of the Limitation Act, 1908 (hereinafter called the Act), is not applicable in pre‑emption cases.

3. The learned counsel for the petitioners has assailed the validity of the impugned order solely on the ground that the petitioners have been bona fide prosecuting the case before the civil Court with due diligence and, therefore, the provisions of section 14 of the Act ought .to have been considered by the learned Member, Board of Revenue in computing the period of limitation and that the learned Member has failed to exercise the jurisdiction vested in him under law by not allowing the benefit to the petitioners under section 14 of the Act.

4. The learned counsel for the respondents submits that section 14 of the Act is not applicable to pre‑emption suits in view of sub‑paragraph (9) of paragraph 25 of the Land Reforms Regulation, 1972, (hereinafter called the Regulation), under which only the provisions of section 5 and section 12 of the Act are applicable in computing the period of limitation for filing an appeal against the order of the Collector under sub‑paragraph (6) of the Regulation and invoking the revisional jurisdiction of the Board of Revenue under sub‑paragraph (7) thereof. It is next contended that the petitioners never made any application under section 14 of the Act, either before the Collector or before the learned Member, Board of Revenue, and, therefore, even if the provisions of section 14 of the Act are applicable to pre‑emption suit, the petitioners are not entitled to avail any benefit thereunder. The learned counsel for the respondents further submits that submission of an application under section 14 of the Act is a condition precedent for availing the benefit under the aforesaid provision and that the Court cannot suo motu give benefit to a suitor, of the aforesaid provision of law unless and until a written application is made in that behalf which, in the instant case, was never made.

5. In my humble view, the provision of sections 14 of the Act are clearly applicable to the pre‑emption suits in view of clause (a) of sub section (2) of section 29 of the Act which provides that provisional contained in sections 4, 9 to 18 and 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special o local law. Under clause (b) of the aforesaid section, the remaining pro visions of the Act are not applicable to any special or local law. Paragraph 25 (9) of the Regulation expressly makes applicable the provisions of sections 5 and 12 of the Act in computing the period of limitation provided for in sub‑paragraph (6) or sub‑paragraph (7) of paragraph 25 of the Regulation but there is no express exclusion of the provisions of section 14 of the Act. This being so in the absence of any express exclusion of the provisions of section 14 of the Act, either under the Pre‑emption Act of under paragraph 25 of Regulation, the provisions of section 14 of the Act are` clearly applicable to the pre‑emption cases.

6. The learned counsel for the contesting respondents further submits that paragraph 3 of the Regulation override other laws including the Act Paragraph 3 of Regulation reads thus :‑ ' "Regulation to override other laws etc.‑The provisions of this Regula tion, and any rule or order made thereunder, shall have effect not withstanding anything to the contrary in any other law, or in .any order or decree of a Court or tribunal or other authority, or in any rule or custom or usage, or in any contract, instrument, deed or other document." A bare perusal of paragraph 3 of the Regulation would show that there is no inconsistency between the provisions of section 14 of the Act and paragraph 3 of the Regulation, the rule or order made thereunder. The provisions of section 14 of the Act are attracted where a suit has been instituted bona fide in another Court which lacks jurisdiction. The Regula tion does not contain any provision either corresponding to section 14 of the Act or in conflict thereof. There is, therefore, no inconsistency between the provisions of section 14 of the Act and in the provisions of the Regulation.

7. As to the contention of the learned counsel for the contesting respondents that the petitioners never made any application either before the Collector or before the Member, Board of Revenue, under section 14 of the Act and, therefore, they are not entitled to any benefit thereunder, the objection is pre‑mature, inasmuch as, it is for the learned Member, Board of Revenue, to consider in the exercise of his revisional jurisdiction as to whether in the facts and circumstances of the case, the petitioners are entitled to the benefit of the provisions of section 14 of the Act. The learned Member, Board of Revenue failed to exercise the jurisdiction vested in him and disposed of the revision petition on the erroneous assumption of law that section 14 of the Act is inapplicable to pre‑emption suits.

8. In view of the above, the order dated 23rd October, 1980 of the learned Member, (Revenue), Board of Revenue, Punjab, Lahore, is hereby declared as without lawful authority and of no legal effect. The result is that the revision petition is deemed to be pending before the learned Member and he is directed to dispose of the same after bearing the parties and in accordance with law. The parties are directed to appear before the learned Member, Board of Revenue, on 7th February, 1982. The writ petition is accepted to this extent with no order as to costs. M.Y.M. Petition accepted.