1989 PLP 1561 (CLC)

NAZIR AHMAD BHATTI, J.‑‑Gul Hamad and another, petitioners herein, have by this writ petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, challenged the order dated 23‑9‑1986 of the Additional Secretary, Government of N.‑W.F.P. Home Department, respondent No.l, as illegal, without lawful authority and without jurisdiction.

2. The petitioners herein, had filed a suit against Amanullah Khan and another defendants for possession by pre‑emption of the house in dispute in the Court of EA.C. Daggar, respondent No.3, under the provisions of the Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation, 1975 (hereinafter referred to as the Regulation). The suit was contested by the defendants who inter alia pleaded in their written statement that they were residents of the village where the suit house was situate and they had purchased it for their own residence as they did not possess any house therein. The learned E.A.C. respondent No.3 herein, exercising powers of Deputy Commissioner under the Regulation, constituted a Jirga and referred the matter to it for adjudication. The Jirga so appointed gave a unanimous report in favour of the petitioners herein which was accepted by the learned E.A.C. and he granted a decree in favour of the petitioners by order dated 13‑12‑1983. Mirwas Khan, defendant No.2 in the suit and respondent No.4 herein filed an appeal under the provisions of the Regulation. The learned Additional Commissioner, Malakand Division, respondent No.2 herein, who heard the appeal agreed with the findings of the learned E.A.C. and dismissed the appeal on 19‑11‑1985. The respondent No.4 still feeling aggrieved filed a revision petition before the learned Additional Secretary Home, respondent No.l herein, who accepted it on 23‑9 1986 and set aside the judgments of both the lower forums and dismissed the suit of the petitioners herein.

3. We have heard learned counsel for the parties at length who took us through the record of the case.

4. The unanimous award of the Jirga was that respondent No.4 was possessed of vacant site measuring more than two Kanals adjacent to the village Abadi and also some other land measuring more than two Kanals near the village Abadi. The Jirga, therefore, gave the opinion that the said respondent could not claim the plea of exemption from pre‑emption of the transaction in dispute. This unanimous award of the Jirga was not only accepted by the learned E.A.C. but was also accepted in appeal by the learned Additional Commissioner. The learned Additional Secretary Home exercised revisional powers under section 12 of the Regulation according to which he has no authority to vary or set aside a finding of the Tribunal on a question of fact where such finding has been accepted by the Commissioner unless he was of the opinion that there had been a j material irregularity or defect in the proceedings or that the proceedings had been so conducted as to occasion a miscarriage of justice. The impugned order of A the learned Additional Secretary Home would show that he did not find any material irregularity or defect in the proceedings. On the contrary he discussed the facts and came to the conclusion that the house had been purchased by respondent No.4 for his own residence and that his claim under section 5(c) of the Pre‑emption Act was rightful and believable. The learned Additional Secretary Home has discussed the facts of the case about which there was a concurrent finding of both the lower forums exercising jurisdiction under the Regulation. There was neither any irregularity or defect in the proceedings before both the learned lower forums nor there was a miscarriage of justice in those proceedings. The revisional jurisdiction under section 12 of the Regulation is very limited and if a finding of fact is accepted by the Commissioner then it cannot be set aside in revision. On the contrary the learned Additional Secretary Home set aside the concurrent finding of both the learned lower forums while accepting the revision which was beyond his jurisdiction because he did not find any irregularity in proceedings of both the learned lower forums. For the aforesaid reasons the impugned order of the learned Additional Secretary Home was made without jurisdiction and lawful authority and is not maintainable.

5. There is another aspect of the case. The right to claim exemption under section 5(c) of the N.W.F.P. Pre‑emption Act, 1950 was no more available to a vendee after 31‑7‑1986 as held in two cases of the Supreme Court reported as Government of N.‑W.F.P. v. Said Kamal Shah PLD 1986 SC 360 and Sardar Ali v. Muhammad Ali PLD 1988 SC

287. The decree for possession by pre‑emption was passed in favour of the pre‑emptors and maintained in a appeal before the aforesaid target date as laid down by the Supreme Court in the aforementioned first case and the pre‑emptors could successfully defend that decree at the revisional stage in view of the aforementioned second decision of the Supreme Court because the revision was decided on 23‑9‑1986, obviously after the aforesaid target date.

6. For both the aforesaid reasons we will accept this writ petition and set aside the impugned order dated 23‑9‑1986 of the learned Additional Secretary Home as being void, without jurisdiction and without lawful authority and of no legal effect. We would restore both the judgment of the learned Additional Commissioner dated 19‑11‑1985 and that of the learned E.f.C. dated 13‑12‑1983, We shall, however, make no order as to costs. AA./756/P. Petition accepted,